To drive the International Woodworkers of America union out of Newfoundland, on March 6,1959, premier Joey Smallwood had his government pass emergency legislation decertifying the IWA, denying it bargaining rights, and prohibiting secondary picketing. His cabinet was given the power to dissolve trade unions.
The legislation proved to be a provocation; four days after it was passed there was a massive and violent confrontation. About 300 picketing loggers were gathered on a snow-covered dirt road near the town of Badger. Police were called to the scene to clear the road. Officers of the Newfoundland Constabulary were assisted by members of the RCMP. Seventy-five officers in uniform and carrying billy clubs marched three abreast down the road toward the throng of strikers, who separated to let them through. Then the police reversed course and marched back through the crowd, and the strikers milled around them. The officers clubbed loggers down with their billies, knocking two loggers unconscious. Some of the loggers swung back at the police with logs or sticks. The scene was chaotic.
During the melee, William Moss, a young constable with the Newfoundland Constabulary, was struck between the eyes with a piece of pulpwood and fell forward in the snow. His hat came off and blood covered parts of his head and face. Nine loggers were arrested and charged with unlawful assembly.
The constable was unconscious, he was rushed to hospital in Grand Falls with a critical injury, where it was determined he had suffered a fractured skull and a brain hemorrhage. He remained in a coma, while the media reported regularly on his condition. The news reports said he had been hit on the head with a log. The public was increasingly upset as his condition worsened. Moss never did regain consciousness and died within two days.
A police investigation into his death quickly focused on Ronald Laing, a striker who was one of those arrested in Badger and still in custody in the local jail. Laing was a family man, a deeply religious person who kept a bible in his cell. He remembered hitting a red-headed policeman with a piece of wood during the fray. When he heard about Moss’ death he thought he was responsible, and contacted the authorities. The police interviewed Laing, took a confession from him, and charged him with Moss’ murder. In those days, the punishment for murder was death by hanging.
Over the radio, Smallwood continued to vilify the IWA and its leader H. Landon Ladd. Smallwood’s rhetoric and Moss’ death turned the public decisively against the strike.
Laing’s murder charge would be tried by a judge and jury in St. John’s, but a preliminary hearing was scheduled to be held before a magistrate in the courthouse in Grand Falls.
Jim Greene, a fine lawyer from St. John’s, was retained to handle the preliminary hearing for the defendant. He was a charming, dapper person, a Rhodes Scholar, and a skilled civil litigator. But because he hadn’t handled many criminal cases, I was asked to assist him.
After Greene and I investigated the evidence relating to the killing of constable Moss, we determined it was possible Laing had confessed to a murder he didn’t commit. Although our client had admitted striking an officer on the head, perhaps that officer was not constable Moss; perhaps someone else had struck Moss and killed him. We decide to explore our theory by cross-examination of witnesses at the preliminary hearing.
When the preliminary hearing began, Greene and I sat beside each other in the courtroom and discussed the questions he would put to the witnesses. The procedure at preliminary hearings in Newfoundland at the time was for the magistrate to handwrite summaries of the evidence as witnesses gave their testimony; oral evidence was not recorded verbatim.
Green and I were concerned that when the case went to trial, cross-examinations by defence counsel could be ineffective without a precise transcript of the evidence from the preliminary hearing.
I knew that in Ontario testimony was recorded quite differently: oral evidence was taken in shorthand by a court reporter so an accurate transcript could be typed if required. At a trial, counsel could confront and contradict each witness with the typed record of their evidence at the preliminary hearing. Greene and I decided we would ask the magistrate to adopt the Ontario practice.
When Greene suggested it, the magistrate was reluctant because it had never been done before. Greene persisted (with prodding from me). The magistrate finally relented and installed a typist in front of the witness box to type testimony verbatim.
As a result, the hearing was excruciatingly slow. When a question was put to a witness, they had to wait while the question was typed. After they answered, they had to wait again while their answer was typed. If there was an objection, the whole courtroom had to wait while the objection and any response to it were typed.
This grinding process continued for three weeks during which the typist became increasingly tired and the magistrate more impatient. Apparently, there had never before been such a lengthy preliminary hearing in Newfoundland. Cranky court officials were blaming it on the obstructive Toronto lawyer from “the mainland.” However, Greene and I were determined to carry on.
A number of witnesses called by the prosecution testified about the crowd of strikers gathered on the road near Badger, and the police column marching into it, but none saw the blow to the constable’s head. However, some said they did see officer Moss fall forward onto the road.
Under Greene’s careful cross-examination those witnesses had to acknowledge that the accused Laing was nowhere near Moss when he fell. And Greene had them concede that another striker was holding a piece of log above the constable’s head just before he fell, and then tossed it away after Moss was on the ground. By short, precise questions, Greene pinned them down to each detail in their evidence, confident that it was being recorded accurately by the typist.
It was a painful laborious process. However, by the end of the lengthy preliminary inquiry, the evidence of the eyewitnesses pointed not to Laing, but to a different logger as the one who struck the constable on the head and killed him. On the basis of their oral evidence it appeared that the police had arrested the wrong person. Greene’s cross-examination had confirmed our theory!
However, because the prosecution was able to introduce in evidence the defendant’s confession, the magistrate committed him for trial for murder. The trial was set to go before a jury in St. John’s a few months later.
We understood that the prosecution had a witness problem, but were worried about the impact of the confession. If the jury accepted it despite the contradicting evidence of the eyewitnesses, there was the potential for a wrongful conviction.
Weeks before the trial, I was introduced to James Power, a senior counsel with the provincial attorney general’s department. Power was a large, solid, grey-haired man with a deep voice. He was a true professional, a seasoned prosecutor with long experience, and I liked him. He suggested we meet to work out some procedural matters and I agreed.
We met in his hotel room in Grand Falls. It was an old hotel that looked like it was from the Victorian era. The room was drab and sparsely furnished. Power perched on the edge of the bed while I sat in the only chair. At one point he asked if I wanted a drink, and when I accepted he produced a bottle of very dark brown, almost black, rum. “So, how’d you take it?” he asked. “Straight up,” I said. And when he poured it in my glass, it flowed like molasses. He diluted his own rum (he pronounced it “rom”) with Coca-Cola. As we continued to talk and I sipped the thick, pleasantly bitter liquid, Power watched me curiously. Then, he suggested, “You know, Cooper, you could win an election in Newfoundland drinking your ‘rom’ that way.” I joked that perhaps I had a better future in politics than in law.
The leading criminal lawyer in Newfoundland at that time was James D. Higgins from St. John’s. (He later became a judge of the Superior Court.) Because he had years of experience with local juries, it was decided he should be Laing’s counsel at the trial, and that he didn’t need our help. However, he did have the advantage of the crisp preliminary hearing transcript Greene had created, and which recorded the testimony of the eyewitnesses in such detail that it would be difficult for them to change their evidence at trial. If they tried, they could be cross-examined on the transcripts, and contradicted if necessary.
Before Laing’s trial started, I finished my work in Newfoundland and flew back to Toronto, where I waited for news of the verdict.
The trial commenced in St. John’s before a judge and jury in June 1959. On June 28,1959, the jury found Laing not guilty. The media reported that the Crown was not able to prove beyond a reasonable doubt that the defendant had struck the fatal blow. The verdict was deeply gratifying for me. I believed a wrongful conviction had been averted.
Smallwood fulfilled his promise to drive the IWA out of Newfoundland. He replaced it with a government-sponsored loggers’ union. Ladd, having no further function in the province, returned to British Columbia.
Epilogue: The old order changed
Thirty-eight years after my first experience in the province, I flew back to Newfoundland as a tourist. This time it was in a smooth jet plane, and after I had lost my fear of flying. The “Newfie Bullet” was no longer running; its tracks had been lifted and removed.
By coincidence, I ran into Ladd at an airport there. It was noticeable how much he had aged; his hair had turned completely white. And by that time I was no longer a neophyte; I had been practising law for almost 45 years. I must have looked older to him too.
It was good to see Ladd again! We talked about the old days, Smallwood, the strike, and about steak cooked “blue.” He told me that in 1983, after Smallwood’s era, he had been invited back to Newfoundland by Memorial University to deliver a speech to a large audience in St. John’s.
His speech was strident. He talked to them about the deplorable living and working conditions of the loggers in 1959, and the IWA’s attempt to bring them some social and economic dignity. He pulled no punches; he told them how Smallwood had branded him a “barracuda,” and he denounced the former premier’s unjustified decertification of the IWA and his aggressive opposition to the strike.
When he was finished, the audience rose and applauded him enthusiastically. He told me how gratified he was by his warm reception.
Ladd’s enthusiastic welcome and my experiences on my return trip reveal how much the old order had changed in Newfoundland since my involvement there as a young man.
Austin Cooper’s Vignettes Of A Life In Court will appear occasionally on canadianlawyermag.com. He is counsel to Cooper & Sandler LLP, a Toronto law firm that has practised criminal law since 1953, and a certified specialist in criminal law. He can be reached at email@example.com.