ACCIDENTAL OR INTENTIONAL?
Legal debate centres on whether Yoshi Uno was killed during a struggle, or whether Robert Hughes targeted him before fl eeing
Lawyer Angelo Branca opened the front door of his Dunbar house to discover a middle- aged woman standing in the dark. It was the mother of killer Bob Hughes. With her bad leg and distraught husband, now she was counting down the days until her firstborn’s execution. Branca, a famous criminal lawyer, had grown up on the east side and ran his practice from offices at Main and Hastings. An ItalianCanadian who favoured loud checked suits, he was an outsider in the city’s soberly tailored legal establishment.
Most of Branca’s work was in civil law but to the public, murder was his specialty. Over a colourful career he would win 60 of the 63 murder cases he would defend. He became known popularly as “the man who gets people off, guilty or not.”
What Jessie Hughes did that night on the doorstep of 3759 W. 24th Ave . led to a famous decision that changed Canadian law. Admitting she had no money, she begged Branca to save her son’s life by taking on the appeal.
He was used to dealing with desperate people. He invited her in, and after listening to her story, he said he would do it — strictly as a matter of principle.
As for the racial tension around the case, “He didn’t care about any of that,” Branca’s daughter Dolores Holmes recalled recently.
It was about finding the legal truth — testing the law and making it better. Branca was already known for his advocacy of interned ItalianCanadians.
Now a retired judge, Holmes was a 14- year- old convent girl at the time. She had a ringside seat in what followed.
“People were all the same to him. He thought because ( Uno) was Japanese, that shouldn’t have anything to do with it.”
Branca did have one thing in common with Robert Hughes: they were both soldiers. Branca was a reserve officer with the Irish Fusiliers, a role that filled his spare time. A one- time federal Liberal candidate in the city, he also understood the wartime pressures facing the Liberal government of Prime Minister Mackenzie King.
Branca set to work, poring over a 569- page trial transcript as he sought the basis for an appeal.
Soon he stumbled upon the crucial thing that led to what he later described as the most satisfying moment of his legendary legal career.
It was late April 1942. Branca was about to change history, even though a re- examination of the evidence today raises questions about how the case was reviewed.
At Oakalla prison, meanwhile, the Hughes gang was not faring well. All were highly nervous and agitated. Floyd Berrigan, by occupation a cook and porter, was worst off. Wardens reported he was “receiving the usual treatment.”
The Uno family was taking steps to wind down their businesses, but ultimately they would lose the rented confectionary store’s whole inventory. Like all Japanese- Canadians in B. C., they had become prisoners in their homes. Their houses could be searched without warrant. On the street, some ashamed whites begged forgiveness but others threatened violence. The enclave of Kawamuko in Fairview was emptying out, its Japanese character soon to be utterly erased.
With their men rounded up and sent away, girls and women left on their own were terrorized by stories of crimes by marauders in uniform.
Coastal internees were housed in the livestock barns at Hastings Park while internment camps were prepared for them inside B. C. and other provinces cajoled to take them.
A deep bitterness took hold, especially among the Canadian- born who had believed “so gullibly in the democratic blahblah that’s been dished out,” wrote Muriel Kitagawa to her brother in Ontario. “Now it isn’t just a matter of sabotage or military necessity. It’s just rank race persecution.”
Political attention
The Hughes case was also getting special attention at the highest levels. Royal Maitland, the attorney general of British Columbia weighed in, warning federal justice minister Louis St. Laurent that if the jury’s recommendation for mercy was ignored, future juries would be tempted not to return with guilty verdicts if they knew the sentencing would be too harsh.
St. Laurent’s response was to advise a top federal civil servant to find a way to deal with the situation: “This is the case of a soldier and three others convicted of the murder of a Jap,” he wrote. “The soldier is the one who did the shooting, and he might perhaps be dealt with more severely than the others without too great a shock to the community.”
But, formally speaking at least, it was a matter for the courts.
The appeal took four days to argue in front of the five- judge British Columbia Court of Appeal. Branca’s strategy was based on a statement concerning the deadly third shot that struck Yoshi Uno in the head.
Branca cited the transcript from the first trial, in which a friend of Hughes allegedly testified that Hughes told him: “The man came at me, and the gun went off by accident.” Together with the conflicting accounts of that moment given by Yoshi’s mother Oiyo and his brother Yuki, this planted significant doubt among the judges.
A re- examination of the same transcript today reveals two glaring facts.
The first was that the Hughes friend — a fellow soldier who helped plan, then backed out of the crime spree at the last minute — didn’t actually say it was an accident. The actual exchange was subtly but significantly different. The transcript reads: “He said the Jap came for him and struggled with him and then — ”
“Yes, and what?” demanded the Crown prosecutor. “And the gun went off.” The hesitation of Hughes’ friend is curious. And as the dialogue shows, he never actually used the word accident.
There is also a glaring discrepancy in how the first- trial testimony of Crown witness Rosella Gorovenko was characterized in the appeal hearing.
As the transcript shows, Gorovenko told police investigators that Hughes had said to her: “A guy made a pass at me and I let him have it.” She did not say Hughes said it was an accident, although one of the appeal court judges credited that statement to her. Her words appear to mean quite the opposite.
Fatal bullet fired from distance
The examiner who performed the autopsy of Yoshi Uno testified in the first trial that he strongly believed the .22 bullet had been fired from a distance.
In his expert opinion, a bullet fired from close range should have left powder burns on Uno’s skin, as well as on the inside of the wound, but there was no evidence of either.
Then there was the angle at which the bullet entered Uno’s skull. If Hughes had shot Uno by accident in a struggle for the unwieldy, 12- inchlong Colt, the bullet would have been likely to enter at a slanting angle.
In fact, the bullet struck Uno’s head at right angles as if it had been aimed at him from across the room.
The logical conclusion was that Hughes had fired intentionally — murder.
But the physical evidence seemed secondary.
When a cross- examining lawyer had wanted to know whether a very round shaped head — “especially a Japanese head” — might affect the path of a bullet, the coroner could not resist a laugh line: “I don’t know. They say a German head is pretty round.”
Branca took the emphasis off the physical evidence, focusing instead on a point of law: that the trial judge had erred by not giving the jury the option to find the men guilty of manslaughter — only murder.
Fifteen days before the Hughes gang was scheduled to die, the appeal justices came back with a decision.
Chief justice D. A. McDonald was heavily in favour of the guilty verdict. No defence lawyer had complained about the murder charge during the trial — so why now? When you commit an armed robbery, you can’t say it’s an accident if a gun goes off and someone dies — that’s murder.
McDonald also dismissed the idea that drunkenness could be a defence since the plan was made before any liquor was drunk. As far as he could see, the gang’s legal strategy was denial. There was no miscarriage of justice. Guilty as charged. A second judge agreed, delivering a detailed written judgment.
Among the three opposing judges, it came down not to the evidence but to whether the jury should have had the option to find the men guilty of either manslaughter or murder. These three prevailed and, three to two, the court quashed the death sentences and ordered a new trial.
Branca had saved four lives, at least for the moment.
“The decision aroused much interest among all concerned with criminal law,” his biographer would note.
The fate of the gang was far from settled. The Crown immediately appealed to the Supreme Court of Canada to reinstate the death sentences.
On Sept. 10, 1942, the Unos would be among the last west coast Japanese to board a dusk train for their new home to the east.
“When we heard we had to evacuate, we were told to bring in our car,” Haruko Uno recalled recently. “We were only allowed a couple of suitcases per person. We didn’t move till we were about the last group to go to Lemon Creek.”
By October, the coast was totally clear of the hardworking Japanese — 80 per cent of them Canadians — and their feared dominance in lumber, fishing and strawberry growing. The once diverse face of Vancouver had changed, from nearly 6 per cent to only 2.2 per cent Asian.
Lemon Creek shack new home
For nearly three years Kosaburo and Oiye Uno and their four surviving children would make their home at 10 Fir St., Lemon Creek, one of 300 shacks housing families of up to 10 on a little patch of cleared hillside in the Slocan Valley.
“When we hung up our clothes in the closet they were frozen and the nails were all frosted,” remembers Haruko. They hung the washtub on a peg outside and rows of icicles formed on the overhang in winter.
“When we got there, there was no bed, just a hay mat on the floor. It wasn’t ready at all, you see. My father almost went out of his mind.”
Some of the later bitterness of internment came from the thoroughness of the Japanese- Canadian economic humbling. Having first had fishing boats, businesses, cars and homes confiscated, now they were forced to spend their savings eking out a living in remote, crude camps. After Yoshi’s murder and the family’s uprooting, patriarch Kosaburo Uno remained stoic and kept his fears to himself, but the experience changed him. Following 40 years of toil in Canada that saw him and his wife fruitfully invest in a confectionery store, then a manufacturing business and a small apartment building, it was all snatched away. He and others like him were no longer a threat to the white establishment.
“Going to internment camp ruined my young life,” recalled Sam Sugie, one of nine children in the family that lived next to the Unos in the 300- block of West 4th Avenue in Vancouver.
“I never got the kind of education I wanted to get,” the Kelowna resident said in a recent interview.
Between September 1942 and April 1943, there was no school at all for the displaced children in Lemon Creek. When it did start up, the teachers were high school students.
There is a Japanese expression — shikata ga nai — that means “it cannot be helped” and that is often cited in connection with the Canadian internment experience.
The Unos were less than a month into their new life when Branca and three other lawyers boarded a train east to Ottawa for their date with the Supreme Court of Canada.
Branca may have finessed the B. C. appeal but he had yet to convince his colleagues — all personal friends — that he had a winning strategy for the next stage. Among the team was one of Canada’s greatest criminal law minds, Tom Hurley.
What was at stake now was a crucial point of criminal law: that if you go out and commit a crime while armed, and accidentally kill someone, that’s murder. This seemed an unassailable principle. Yet it was precisely what Branca needed to challenge.
He proposed to do so by asserting that if this is what society wanted, it was the job of Parliament’s lawmakers, through the Criminal Code, to spell it out rather than rely on established precedent.
As they walked up Wellington Street, past the House of Commons and approaching the stone fortress of the great court, Hurley stopped suddenly.
“Angelo, me boy,” said the lawyer, his Irish roots showing. “Bedad, ye have it. Ye have won.” Hurley was right. Five weeks later the Supreme Court dismissed the Crown appeal and ordered a new trial.
The next spring — April 1943 — travellers aboard a westbound train saw an unusual sight: three Japanese people boarding in Nelson heading to Vancouver. Oiyo Uno together with daughter Yaeko and son Yuki were to be witnesses for the Crown in the Hughes gang’s retrial.
The city’s press expected another week of life- and- death drama played out on a real- life stage.
They got that — and ultimately much more.