BLACK HISTORY AND CAPITAL PUNISHMENT IN CANADA

On July 22, 1903, the townsfolk of Picton, Ontario, were enchanted. The circus was in town! The Great Pan American two-ring circus, museum and menagerie had transformed the main thoroughfare into a grand street parade. But after the music stopped and the lights dimmed and the tents were being packed up, the provincial detective keeping an eye out for the odd pickpocket or other suspicious characters found himself facing a much more serious problem: murder.

One of the Black tent workers, Edward “Yellow” Johnson, lay bleeding to death from a stab wound to the heart. Fellow workers suspected another Black labourer – Edward Clarke, also known as “Side Show Shorty” – and the hunt was on. Clarke was soon found on Picton’s Main Street, clutching a pocket knife, and was fingered by an eyewitness as being the man who had killed Johnson. Others had heard him issuing threats.

The next day, the circus rolled out of town, but another show just as sensational was soon to begin: the murder trial of Side Show Shorty. Throngs of people crammed into the inquest and the police investigation, and the two local papers, the Gazette and the Times, categorically pronounced Shorty guilty.

The trial began in October. On the prosecution side stood Roger C. Clute, QC, an experienced trial lawyer from Toronto, who had won a guilty verdict in an 1883 capital case in Picton, leading to the hanging of the two local men charged with the crime. Edward Clarke was a Black man and, as a citizen of the United States, a foreigner. He had no funds to hire a lawyer, so the local county clerk, E. M. Young, volunteered to take on his case pro bono. Shorty was tried before a white judge and a 12-man all-white jury. Things looked grim.

But gradually Young, David against Clute’s Goliath, chipped away at the prosecutor’s case on the grounds of mistaken identity. His aim was to insinuate a measure of doubt into the jury’s mind.

The judge was totally convinced of Shorty’s guilt, and made his view clear in his charge to the jury. The jury deliberated for 2 hours. On their return to court, the foreman read out the verdict: not guilty. The crowds cramming the courtroom erupted into cheers.

The prosecuting authorities were incensed. The man was guilty! Why was he going to escape the gallows? For their part, the townsfolk were elated to see that this lowly Black American circus worker had been given a fair trial.

But, as in so many of these cases, things were not that simple. Some of the reasons for Clarke’s acquittal did not necessarily have anything to do with the law. In a thoughtful article entitled “Spectacular Justice: The Circus on Trial, and the Trial as Circus, Picton, 1903,” Carolyn Strange and Tina Loo give a detailed analysis of these reasons.

The townsfolk of Picton were in principle opposed to the death penalty. This was partly because they had been traumatized by the previous capital case that had led to the hanging in 1883 of Joseph Tompsett, 35, and George Lowder, 23. It was believed that the investigation had been flawed and the evidence contaminated; the jury’s plea for mercy was disregarded; and the actual hanging was horribly bungled. Also, locals strongly suspected that one of the men executed, George Lowder, may have been innocent. Roger C. Clute had been the prosecutor, and as a result his name was tainted. So the jury in the Clarke case strongly resisted Clute’s efforts to put another man to death.

Further, as the community saw it, the circus murder had been of one Black alien by another. These were not local people, and their fate did not engage or affect the community. The townsfolk saw it as pure coincidence that the murder had taken place in Picton. And they were simply not prepared to take responsibility for it.

Also, in the early 1900s Picton was just taking off as a tourist attraction, and the powers-that-be were very concerned about the town’s reputation. They had no desire for a hanging in the community to derail its economic development.

And so, Strange and Loo conclude, this poor Black man was acquitted, “not because he was innocent, but because a lowly county clerk had worked on the sympathies of a jury that was dead set against capital punishment.”

This was yet another unexpected twist in the tale of capital punishment in Canada, which Strange has referred to elsewhere as “the lottery of death.”