Sometime ago I wrote a short story about a notorious murder trial I was involved in. An old prospector Al Kulan, had been killed in a bar in Ross River Yukon with a single shot from a .357 revolver. He had been killed by his old friend John ‘Jack’ Rolls, my client.

These were my ‘John Grisham’ years. I was a character in one of his legal thrillers complete with villains, beautiful women and a compelling crime story. They didn’t last long which upon reflection is just as well. I’m not sure I could have taken much more of it but at the time it was fast paced living at its best. This is a fictionalized version of that story. The killing in a remote winter bound Yukon settlement was real. The characters are made up. This is Chapter 9 and 10. 

OH! CANADA

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.

Chapter Ten

MONDAYS ARE FOR MISTRIALS 

The weekend away had been everything Beau had needed. He felt recharged and ready for what he knew was going to be a critical week in the trial. He’d set aside Sunday evening to review his trial strategy.

Before he’d left for the weekend, Beau had asked Tippy Mah to save the weekend’s papers. The minute he stepped back into his room Sunday night there it was, jumping off the front page of the Saturday edition. Beau’s anger quickly turned to excitement as he realized the words headlining the front page would support another mistrial motion. And then just as quickly, he remembered the judge’s warning with its understated and unmistakable threat of judicial censure and penalty which had been directed at Beau. He needed to be careful.

But as Beau prepared he thought about this judge. He was not unreasonable, he was just traditional and understandably positioned himself as the bailiff of justice and fair trials. Beau knew that he would understand a good, aggressive defence lawyer was essential in a criminal trial, in his own way helping to ensure a fair and correct outcome.

Beau decided that it wasn’t personal between him and the judge.  The force of the exchanges might make observers think so, but both the judge and the lawyers in this case had separate responsibilities and it was in the natural tension between all three that the criminal justice system worked.

Beau made his decision and fell asleep.

“My Lord” Beau rose to his feet, waving a copy of the Whitehorse Star above his shoulder, his voice gathered with the coiled energy of the outraged, “I am made fully aware that your Lordship has little patience with motions for mistrial and I stand aware that you have warned me of consequence but M’ Lord I have no other choice.”

He could tell that the judge was trying to capture the offending headline of which he was by now certain would be at the root of his complaint, foiled though he was by the constant waving. Beau stopped moving and wordlessly brought the Saturday edition of the Whitehorse Star up in front of him, giving the judge a clear view of the headline: “STOKES TO CLAIM INSANITY” screamed the headline in big bold three inch font.

“You have my attention, Mr Jackson.”

“My Lord, I have complained previously that the editorial position of the Whitehorse Star is being injected into every story about this trial. I have complained that the young reporter assigned to this trial is injecting his opinion into the daily coverage of this trial, a place for facts alone. I should also tell this court and my learned friend that I had occasion to speak with Mr. Franklyn, the reporter in question.”

Gallagher pounced to his feet, “That is at the very least irregular m’ Lord, Mr. Jackson has no business meeting surreptitiously with a member of the press, trying to influence the media coverage I suppose.”

Gallagher gathered steam, “It is ironic to say the least, if not blatant cynicism for Mr. Jackson to acknowledge this meeting which must have been intended to influence media coverage of this trial while at the same time complaining about media coverage.”

“Neither irregular, nor planned, nor arranged M’ Lord. Mr. Franklyn approached me unsolicited, hell bent as I recall wanting tell me off in no uncertain terms, haranguing me in public in a local restaurant about defending Mr. Stokes, announcing for all to hear that he knew my client was guilty of first degree murder. I am telling the court because I think it should be on the record as part of this motion for mistrial.

And quite apart from this obvious intention to influence the jury, the headline can leave only one impression with the jury: my client has an obligation to present a defence. He is under no such obligation to do so, he is presumed to be innocent until proven guilty. He may not present any defence if the prosecution leaves him no such reason. But in any event m’ Lord, this guessing by the Whitehorse Star is injuring my clients chance of a fair trial.”

Now it was Beau’s chance to go for the jugular.

His voice laced with sarcasm he continued, “Mr. Franklyn has through his own words declared his opinion and bias, he has presumed to assume the role of this jury, potentially stripping them of their ability to render a fair verdict. Were it so simple, perhaps we should have the Whitehorse Star’s publisher and young Mr. Franklyn adjudicate this trial for us.

They might well call it the Star Chamber.”

Beau knew he was being too clever by half and waited for the sharp rebuke that was his due for the Star Chamber crack.

But none came. Well, none came Beau’s way. With a rising voice, restrained with effort, the judge turned to the prosecutor and said,

“Mr. Gallagher, I am putting you on notice. Mr. Jackson has my attention. I am ordering you to subpoena the publisher of the Whitehorse Star. I want him in court after lunch.”

“There’ll be no need to issue a subpoena m’ Lord, he will come of his own accord.”

“Mr. Gallagher, let me be clear. Both you and this publisher need to understand one thing. I will control this court and the conduct of this trial. That is my job as it is mine to ensure a fair trial. A fair trial for you Mr. Gallagher as you represent the people of Canada, and a fair trial for the defendant Mr. Stokes. I want a subpoena issued. It will give me the authority to hold parties in contempt in the event further action is needed in this trial.”

In the barrister’s changing room Beau reflected on the morning’s events. He had literally exhaled with relief when the judge got after Gallagher. Not only had he not been the target of the judge’s wrath but he knew now he had the judge’s attention on his mistrial motion.

After the lunch break the jury was dismissed and the publisher of the Whitehorse Star took the stand. “I’ll ask the questions, Mr. Gallagher” the judge announcing in tone and words that he was very unhappy with the witness before him.

“Do you understand Sir that your paper is the most influential in the Yukon?”

“Yes Your Honour” came the confident reply.

“And do you understand with that influence comes responsibility?” asked the judge, more statement than question.

“I do Your Honour.”

“Well Sir, and I will say this only once. It is not apparent to this court that you do understand that responsibility, or that you as the publisher are providing sufficient guidance to your reporters in their coverage of this trial in my courtroom.”

Young Peter Franklyn was in the gallery and while he had not been named, there was no doubt as to whom the judge was referring.

“If I may your Honour,” the publisher turned to the judge mounting his defence, “We at the Star take our responsibility to report on important events very seriously. We’ve done that for over a hundred years. And this trial is the trial of the century in the Yukon. The people of the Yukon have a right to know what happened, a right to know the facts. A much loved and prominent citizen of the Yukon was gunned down and our readers want to see justice done!”

The judge was visibly furious. “Don’t you presume to lecture me or this court on the importance of this trial to the people of the Yukon or the role of the media in reporting it. I have long understood that a free press is a key agency of an open society and that it plays a vital role in criminal justice, a vital link. But in everything you have just said I have come to understand that as Mr. Jackson has argued, you actually do harbour a bias as it relates to the trial.

This Sir, is not the trial of the century! This is a first degree murder trial in Whitehorse, Yukon. It is no more and no less than that. It is in and of itself important and needs no media declaration to make it so. It will be made neither more or less important by calling it The Trial of the Century. This is a system of justice that has evolved over a thousand years and I will not see you or any reporter trivialize its importance with a fancy name.

It is a trial of a man before a jury of his peers who will adjudicate his guilt or otherwise based on facts presented and proven beyond a reasonable doubt, free of influence and in a court of law.”

The judge paused to let his last words sink in, “… in a court of law Sir, not in a court of public opinion. Let me repeat myself, lest you be unclear. This jury will adjudicate guilt or otherwise based on facts presented and proved beyond a reasonable doubt, free of influence and in a court of law. In this court of law, not in your newspaper. Do I make myself clear Sir?!”

The publisher remained silent although Beau thought he sensed hostility. If pursed lips and a defiant gaze meant anything, defiance it was. He was not used to being dressed down in such a public place, the humiliation made all the more real as it was in front of people he knew and his own reporter, Peter Franklyn.

“Do I make myself clear?” he repeated, a hint of menace in the judge’s voice.

“Yes, your Honour.”

“And I’m sure you’ll pass on my concerns to your young reporter Mr. Franklyn who I see in the gallery.”

Beau turned and caught a startled ‘deer in the headlights’ look from Peter Franklyn. The judge wanted to ensure the reporter knew exactly who he was referring to. Mission accomplished.

In one respect Beau was a little disappointed the judge had taken the publisher to task so forcefully; no doubt Franklyn would have his wings clipped by the publisher and that would probably be the end of his reporting mistakes.

“Mr. Jackson, your mistrial motion is denied. Return the jury please. Mr. Gallagher, do you have any further witnesses?”

“No m’ Lord, the prosecution rests.”

“Mr. Jackson tomorrow is Break Out. You’ll begin your defence Thursday.”

Neither the prosecutor nor the judge knew at this stage whether Beau would call any witnesses and certainly not whether Stokes would take the stand.

The presumption of innocence means that a defendant in a criminal trial is under no obligation to testify or even produce any witnesses. The defence can simply rest after the prosecution has finished and argue that the facts have not been proven beyond a reasonable doubt.

Strolling back to the T & M Beau reflected on what lay ahead, “I get that Gallagher and the judge don’t know what I’m going to do. Interesting. I don’t either.” It made him laugh out loud.

But what he did know was the trial had a rare mid week adjournment for something called “Break Out”. He’d heard about it. He’d been told by a lawyer friend of his who had spent some time in the north that he had to take in Break Out when he was in Whitehorse. He’d said it’s like all the pent up energy from people being winter bound, for the most part in their homes, all that energy being released in a giant riot of fun and partying. He said it was like Mardi Gras except in cold weather. And he’d also said to Beau, with a twinkle in his eye, “Get ready to meet The Crazies man, they all come out to play.”

Beau was definitely into it. He would just have to find out what ‘it’ was.