As the LSBC hears eloquent submissions from its Benchers over whether to accept Trinity Wester University as a law school, I am reminded of this old debate from the 1950s when the LSBC refused the application of a known communist, one W.J. Gordon Martin. Justice Bird of the BC Court of Appeal found: "He then declared that he would not follow the Marxian doctrines to the extent of using force if necessary to overthrow constituted authority, that he always felt free to disagree with the application of such doctrines and in lieu to advocate social change by means of education and social organization." This was not good enough.

1. The Advocate
iBENCHAND BAR>
Messrs. Ealdane & Campbell have moved their offices to 305 Canadian Bank of
Commerce Building, 1020 Government Street, Victoria.
Mr. R. P. Baldwin is now with the Legal Dept., B.C.E.R.
Mr. C. J. Lewis is associated with Mr. J. M. Streight, 607 Columbia Street, New
Westminster, B.C.
Mr. E. Jorre do St. Jorre is now at 408 - 475 Yates Street, Victoria.
Mr. E. A. MacLeod is associated with Messrs. Cru, Spring & Crux, 999 West
Pender Street, Vancouver, B.C.
Mr. M. Provenzano is with Mr. Alan Graham of Cranbrook, B.C.
Mr. D. D. G. Milne has an office, Room 3, 26 Lorne Street, New Westminster, B.C.
Mr. D. G. McLelland is presently associated with Messrs. Sturdy, McDonald 80
Griffiths, at 416 Rogers Building, Vancouver.
Mr. 3. .. Gourlay is with Messrs. Robert Simpson Pacific Ltd.
Mr. Z. P. Meagheris c/o W. K. Paterson, 942 West Pender Street, Vancouver.
Mr. W. T. Hamilton has opened an office at 1008 Rogers Building, Vancouver.
Mr. A. G. McCulloch is associated with Mr. David Sigler, 921 Hall Bldg., Vancouver.
Mr. G. A. Lauder is with Mr. A. P. Dawe, 210 Pemberton Bldg., Victoria.
Mr. D. N. Ellis can be reached at Box 130, Abbotsford.
Mrs. M. P. Peers is associated with Mr. C. D. HcQuarrie, 540 Columbia Street,
New Westminster.
Mr. H. V. Aoss is associated with Messrs. Williams & Ross, 716 Hall Bldg.,
Vancouver.
Mr. J. C. Cowan is associated with Messrs. Buell, Ellis, Sergeant & Russell, at 202
Pacific Bldg., Vancouver.
Mr. P. D. Meyers is with Mr. J. A. Grimmett, at 808 - 626 West Pender Street,
Vancouver.
Mr. E. Rowntree is with Messrs Haldane & Campbell at 305 - 1020 Government
Street, Victoria.
Mr. A. D. Beirnes is at 235 - 163 West Hastings Street, Vancouver.
Mr. I. M. Horne is with Mr. H. A. Beckwith, 302 Royal Trust Bldg., Victoria.
Mr. M. Jorre de St. Jorre is with Messrs. Straith, Pringle, Ruttan & Gouge at 304
Bank of Toronto Bldg., Victoria.
Mr. John Wismer is with Mr. J. S. Burton 404 Randall Bldg., Vancouver, B.C.
marlin v 24. Law Sociey
Keadonj for )tU4ament
Court o/J/ppea
THE HON. THE CHIEF JUSTICE
The Benchers of the Law Society of British Columbia exercising the authority
vested in them by the Legal Professions Act, considered at length the application
of the appellant Martin for call to the Bar and admission as a Solicitor of the
Supreme Court of this Province, and refused his application. The reasons of the
Benchers actuating this decision were reduced to writing, and after a review of the
evidence adduced and references to relevant decisions it is stated that the application
be refused because the applicant
"(a) is not a fit person to be called to the Bar or admitted as a Solicitor of the
Supreme Court of British Columbia and
(b) has not satisfied them that he is a person of good repute within the
meaning and intent of the Legal Professions Act."
[105]

2. The Advocate
Consequent upon this ruling of the Benchers the Legal Professions Act was
amended to permit an appeal therefrom to this Court. Section 41A as enacted by
Sec. 2 of Chap. 35, S.B.C. 1949, reads in relevant part as follows:
"Any person whom the Benchers have refused to call to the Bar or to admit
as a solicitor may appeal from such refusal to the Court of Appeal . . . On the
appeal the Court of Appeal may, in whole or in part, either reverse or confirm
the decision of the Benchers or refer the matter to the 19enchers for further
inquiry."
As I read this section it seems to me to clothe the Court with an appellate
jurisdiction no different than that exercised in an ordinary type of appeal from
an administrative body. There is nothing in the section which calls upon this Court
to exercise any original as opposed to appellate jurisdiction. We are not required
to re-hear the application de novo but we are, as I view the matter, acting in our
usual and ordinary capacity as a Court of review.
That being so, then we must consider whether the discretion vested in the
Benchers was properly exercised according to law.
It must be borne in mind that the Benchers are essentially an administrative
and not a judicial body. In the exercise of their administrative functions they have,
within the Legal Professions Act, a wide discretion, and that discretion extends
to determination of the qualifications and disqualifications of those who seek the
privilege of becoming a member of the Legal Profession.
In this particular case the applicant is a Communist. The Benchers, considering
the ideological values and motives and loyalties of an adherent of that alien
philosophy, reached the conclusion that such a person was unacceptable for the
reasons given refusing his application to become a member of the Bar of this
Province.
I have given careful consideration to those reasons of the Benchers. In my
opinion they reflect the exercise of a proper discretion according to law. I may
also add that I am in agreement with the reasons of the Benchers and with their
conclusion. In the result I would dismiss the appeal.
"Gordon McG. Sloan"
"C.J.B.C."
Victoria, B.C.
26th April, 1950.
THE HON. MR. JUSTICE O'HALLORAN
The Benchers of the Law Society of British Columbia rejected appellant's
application for call to the Bar and admission as a solicitor, on the ground he was
not a person of "good repute" within the meaning of secs. 36 and 39 of the Legal
Professions Act, C. 180, R.S.B.C. 1948. The Appellant appeared personally before
the Benchers. He was represented by Counsel and he answered the questions he
was asked. The Benchers explained their decision in extended written reasons-see
In re Martin 1949-1 D.L.R. 105.
The Appellant having admitted he has been a Marxist Communist for some
time, the Benchers came to the conclusion that the Marxist philosophy of Law and
government, in its essence, is so inimical in theory and practice to our constitutional
system and free society, that a person professing them is eo ipso, not a fit and
proper person to practice law in this Province, and hence cannot be of "good
repute" within the meaning of the Legal Professions Act.
An appeal to the Court of Appeal from the decision of the Benchers-the first
of its kind-was made possible by an amendment to the Legal Professions Act
enacted in 1949. This Court was thereby empowered to reverse or confirm the
decision of the Benchers in whole or in part, or refer the matter back to them for
further inquiry. The notice of appeal is dated 20 May, 1949, and was given to
the May-June, 1949 Sittings of the Court. But as the result of postponements asked
for by the parties, the appeal did not come on for hearing until 7-8 March, 1950,
when judgment was reserved.
In this Court Counsel for the appellant centred his argument upon the sub-
mission that although the appellant is an avowed Marxist Communist, yet there
was no evidence before the Benchers he had advocated overthrow of our system of
government and free society by force or by non-constitutional methods, or that
he had been engaged in activities subversive to the State. The appellant himself
contended before the Benchers that he could be a Marxist Communist and still
[106]

3. The Advocate
advocate the introduction of a Communi9t system of government into this country
without the use of force or by resort to subversive methods. The argument on
behalf of the appellant came to this, that an avowed Marxist Communist can be a
good citizen of our country; that the contrary cannot be said unless he is caught
planning or perpetrating some overt act against the State, such as (to give an
extreme example) blowing up the Parliament Buildings.
Counsel for the respondent Law Society in answer confined his brief submission
to what he described as the commonsense realities of the present day. He said in
effect that particularly since the end of the European War in 1945 the United
States, Britain and Canada have had a diverse variety of experiences with Com-
munists at home and abroad. They have had revealing encounters with the machina-
tions of Communist agents and doctrinaire sympathizers open and underground
and with the activities of Communists in the role of "intellectuals" and advanced
libertarians, often specially trained for the purpose, posing as the defenders of
personal liberties and promoters of peace and goodwill among nations. Communists
and their sympathizers have been astute to find their way into so-called peace,
youth, cultural, student welfare and various other societies and organizations, and
there skilfully indoctrinate the young, the impressionable, and the irresponsible,
with theories designed to weaken and destroy the foundations of our free society.
Under the amoebic guise of promoting idealistic movements they have suc-
ceeded in obtaining support from many people happy without much thought or
enquiry to give their support to anything on its face sounding as if it would benefit
mankind in general. With Soviet Russia engaged in a "cold war" with the Western
nations and determined to obtain mastery of the World, these friends of Soviet
Russia would weaken the Western nations to the point that Soviet Russia, with
their fifth and sixth columnist assistance, could be able to capture Canada and the
United States by telephone. They would repeat here the methods of national
disintegration their fellow Communists so successfully carried out in France during
the early stages of the last War after Germany and Soviet Russia had come to a
mutual understanding.
Widely publicized trials in the United States, Britain and Canada, have
disclosed Communist activities to a degree inconceivable and incredible to the
average citizen, if the facts had not been conclusively established by the most careful
and impartial judicial investigations. Wherever there is an opportunity to create
discontent and disaffection there may be found Communist agents and neo-
communists actively engaged in doing whatever they hope will promote the World
revolution. A recent trial was that of Dr. Klaus Emil Julius Fuchs in England, a
scientist morally blinded by Communist inoculation. The Attorney-General in
opening the case said Dr. Fuchs was a Communist and that at once was the
explanation of his conduct. Lord Chief Justice Goddard in sentencing Dr. Fuchs
described Communism as a "pernicious creed".
It is true that Dr. Fuchs pleaded guilty in a Criminal Court to an overt act
of communicating to a person unknown information directly or indirectly useful
to an enemy. But it was his Communist beliefs that led him to what he did. And
what stirred Britain was the circumstance that he had all along been known as a
"Communist", and at the same time supposedly loyal to Britain. His defence, such
as it was, reminds one of the submission of the appellant here that he could be a
Communist and loyal to Canada at the same time. Dr. Fuchs' defence was described
as "controlled schizophrenia" by which he insisted one half of his mind was
Communist and the other half loyal to Britain. Lord Chief Justice Goddard is
reported to have said he did not understand "such metaphysical talk", and did not
know that he ought to understand it.
But recognition of that defence to the full extent it may warrant, points up
most vividly the danger of allowing a Communist to occupy any position of trust or
influence. It at once proves him untrustworthy and concedes he is subject to
Russian influence. It is of course not uncommon for "intellectuals" who seek to
discard the age old concepts of right and wrong, to build up some elaborate
substitution in an effort to escape illjudged or wrongful use of their free will. But
even if one gives full vent to the "split personality" and analogous theories, it but
serves to emphasize the continuing menace which "intellectuals" such as Dr. Fuchs,
and to a lesser degree the appellant (the latter is a thinking man thirty-two years
of age) are to any democratic country in which they live. The pull of the Kremlin
is never absent.
Marxism exercises a strange power over its adherents. The moral needs of
man which Marxism forbids to be expressed in terms of human ideals, are injected
instead into a mechanistic conception of politics to which they impart the force of
a blind passion somewhat like that which inflamed the minds of Nazi youth during
[107]

4. The Advocate
the Hitler regime. Communism is a complete philosophy of life. It wishes to be
not only a state but a church judging the consciences of men. No person in our
day who is not blind to realities can fail to recognize the strange but menacing
potentialities present and future that the Marxist philosophy engenders in even
the mildest appearing of its adherents. This was illustrated in our own Canadian
"spy trials", which disclosed that some Canadians became so indoctrinated with
Communist ideology, that they convinced themselves they should secretly befriend
Russia even to the extent of doing irretrievable harm to their own country.
It is true that Fuchs trial had not occurred at the time the Benchers gave their
decision. But they had ample before them concerning the nature of Communist
activities in the United States, Britain and Canada to compel them to the conclusion
they reached. Governments in United States, Britain and Canada have been forced
by convincing experiences to be more than distrustful of Communists. Labour
Unions, Universities, and other public bodies have publicly sought and are still
seeking to rid themselves of men and women professing Communist beliefs. It
has come to be universally accepted in the Western nations that it is dangerous to
our way of life to allow a known Communist or Communist sympathizer to remain
in a position of trust or influence. The Benchers as men of the world and trustees
of an ancient and honourable profession, in my opinion, would have been recreant
to their trust, if in the light of convincing public knowledge and accepted justified
belief in the Western world at the present time, they had failed to act on the
evidence before them, in any way other than they did.
Counsel for the appellant permitted himself some forensic latitude in declaiming
upon freedom of expression, freedom of thought, freedom of the individual, and
the safeguard of minorities. According to him we would be a "servile, people" if the
appellant, an avowed Communist were denied the opportunity to engage in the
practice of law. How these "freedoms" can be invoked on -behalf of an avowed
Communist to place him in a position where he could more effectively destroy them,
is a paradox. But this type of paradox is consistent with the Communist plan of
infiltration which disclosures in the United States in particular have made a
matter of common knowledge in our day.
For a Communist to talk about personal freedom of action, expression and
thought is like the Devil talking about the delights of Heaven. There is no such
thing as personal freedom in Soviet Russia, where organized practices of inhumanity,
lawlessness and depersonalization continue to shock the conscience of the civilized
world. Moreover, the existence of personal rights in the sense we know them is
denied by the Communist philosophy, as their existence was denied by the Nazi
doctrinaires who took their political philosophy from Hegel, who was also, in so
many respects, the inspiration of Karl Marx. Hegel it was who taught the doctrine
of progress by antagonism which Karl Marx took for his own as a metaphysical
support to the deterministic outlook of material revolution, and made it the main
spring of his political philosophy.
Karl Marx in his German Ideology [4 Marx, Sochineniya 65 (Moscow 1933)]
had written:
"Only in the collective can the individual find the means of giving him the
opportunity to develop his inclinations in all directions; in consequence,
personal freedom is possible only in the collective."
Soviet writers have developed this thesis in many volumes. Soviet jurists deny
any merit whatever in the Western idea that freedom to talk against the government
in Hyde Park or elsewhere is a test whether personal freedom exists in a society.
A. Y. Vyshinsky in his text book on Soviet Public Law [Sovetskoe Gosudarstvennoe
Pravo 485 (Moscow 1938'] lays it down authoritatively:
"In bourgeois study oi public law the department concerning so-called personal
rights is the most false and hypocritical department of law, the farthest from
the tasks of investigation of an authentic scientific sort."
And see Professor Hazard's article, on the Soviet Union and a World Bill of Rights
appearing in the Columbia Law Review of November, 1947. Marxist economists
regard Western guarante s of personal freedom as hollow phrases, put forward
they say as propaganda on behalf of a private enterprise system in a dying effort
to prolong its existence.
Not only do Communists reject our understanding of personal freedom, but
as a logical corollary they reject our conception of ethics and morality. To them
anything is right that advances the World revolution, and everything else is
wrong and must be ruthlessly destroyed. According to the Marxist scheme of things
the whole structure of society is determined by the economic life of the Communist
State. In the Communist ideology, it is inconceivable for any right to be more
[108]

5. The Advocate
important than the right to work to establish and maintain a Communist State.
But James T. Shotwell points out (The Idea of Human Rights 1946) in the
American Declaration of Rights, Jefferson put the accent at once not upon the
economic basis of well being, but upon the moral aspect of life.
In his address to the third Congress of the Russian Communist League on
2 October 1920, Lenin said (see R. N. Carew Hunt on "The Ethics of Marxism"
February 1949. "Nineteenth Century and after"):
"In what sense do we repudiate ethics and morality? In the sense that it is
preached by the bourgeosie, who derived ethics from God's commandments:
or instead of deriving ethics from the commandments of God, they derived
them from idealist or semi-idealist phrases, which always amounted to some-
thing very similar to God's commandments."
"We repudiate all morality derived from non-human and non-class concepts
We say that it is a deception, a fraud in the interest of the landlords and the
capitalists. We say that our morality is entirely subordinated to the interest of
the class struggle of the proletariat.
"The class struggle is still continuing . . . we subordinate our communist
morality to this task.
"We say morality is what serves to destroy the old exploiting society and
to unite all the toilers around the proletariat which is creating a new Communist
society." (My bold face.)
(And cf. editorial in "Saturday Evening Post" of 5 November 1949, "Our quarrel
with the Communists is moral rather than Political".)
To Communists, neo-Communists, Communist sympathizers and what have come
to be described as "fellow travellers", Soviet Russia is the apostle of peace, the
inevitable instrument of a new World and model order of Society, while the Western
Nations are war-mongers, re-actionaries, and capitalistic obstructionists in the
path of the World Revolution to create a "classless Society". The Communism of
Marx and the Communism of Stalin are by no means identical. But the original
vision of Marx is the dynamo which supplies millions of adherents with faith in
the Communist creed, and hence with the crusading instinct to serve fanatically
Soviet Russia's ambition to rule the World.
Counsel for the appellant sought comfort in certain expressions of opinion
found in decisions of the United States Supreme Court particularly in Schneiderman
v. United States-1943-320 U.S. 118 (a 5-3 decision). I have read also Stromberg
v. California-1931-283 U.S. 358; Herndon v. Lowry-1937-301 U.S. 242 (a 5-4
decision); De Jonge v. Oregon-1937-299 U.S. 353; United States v. Lovett-1946-
328 U.S. 303 (a 5-2 decision); and Bridge v. Wixon-1945-326 U.S. 135 (a 5-3
decision). In so far as any of these decisions were founded on what is described
as the "clear and present danger" doctrine, it is in point to note the Court does not
appear to have acted on that doctrine in Hirabayshi v. United States-1943-320
U.S. 81 and Korematsu v. United States-1944-323 U.S. 214 (a 5-3 decision).
But the facts before this Court and the known conditions existing today do
not permit us to take the neutral and detached view of Communism which the
majority of the United States Supreme Court, as it was constituted between
1937-1947, persuaded themselves to adopt in the Schneiderman, Bridges and other
decisions. We are compelled today to take a more informed view of Communist
ideology and practice than was generally prevalent in Canada and the United States
prior to 1946. Up to that time, it was very difficult for people educated in Canada
or the United States to realize the true extent of the influence of Marxist philosophy
upon what was happening not alone in Europe, but right here at home on the
North American continent.
If however we are to speak of United States decisions, I must refer to
In re Summers-1945-325 U.S. 561. Summers, a conscientious objector to war,
was refused admission to the bar of Illinois because the examiners concluded his
religious scruples "seem inconsistent with the obligations of an attorney-at-law".
Summers was willing to take the required oath to support the State constitution,
but the examiners ruled (as the Benchers did here) that he could not do so in good
faith. The United States Supreme Court upheld the ruling in a 5-4 decision. That
decision is particularly significant since the constitutional issue raised was the
"free exercise of religion". In the case at Bar, there is no such powerful supporting
argument for the appellant. For that reason I do not think that Girouard v. United
States-1946- 3 2
8 U.S. (a 5-3 decision) can be said to weaken the result in the
Summers decision.
It has been pointed out that in countries which Communists control personal
freedom does not exist. I have already shown that the Communist philosophy
denies the very existence of personal freedom, and acknowledges, only a freedom
in a collective form, viz., a freedom in the Communist State to regiment and control
[109]

6. The Advocate
every aspect of the individual's life and thought until, as Engels would have us
believe, the State will have "withered away", and the happy Communists, a great
hand of brothers without police and without Courts, will have reached that mythical
millenium upon earth which they have conjured up in substitution for the Christian
Heaven that Karl Marx sought to abolish with a stroke of his pen.
There may still be those, however, who would invoke for an avowed Marxist
Communist the cliche "I disagree entirely with what you say, but I will defend to
death your right to say it"; or what Mr. Justice Oliver Wendell Holmes in hiZ
dissent in United States v. Schwimmer-1929-279 U.S. 644 (a 6-3 decision)
described as "the principle of free thought-not free thought for those who agree
with us but freedom for the thought that we hate." In his dissent (in which Mr.
Justice Brandeis joined) in Abrams v. United States-1919-250 U.S. 616 Mr.
Justice Holmes adopted as a formula, "the best test of truth is the power of thought
to get itself accepted in the competition of the market"; this latter statement was
quoted approvingly by the 5-3 majority in Girouard v. The United States-1946-
328 U.S. 61. Not a word about the means used to get itself accepted.
I quote these sayings from a judicial pragmatist whom Mr. Justice Frankfurter
once described as "so remote from the common currents of life that he did not
read the newspapers". These statements do not recognize moral limitations; they
do not recognize a distinction between propaganda as such, and reasoned statements
founded upon historical experience. They push the right of free speech to a limit
that makes it only metaphysically distinguishable from an absolute right which
ignores any attendant duties. They would make it legally impossible to decide
judicially when an abuse of free speech has occurred. They would reduce loyalty
to one's country to an impersonal metaphysical abstraction, totally beyond the ken
of ordinary mortals.
These statements make no exception for emotional and inflammatory declama-
tions which incite disaffection to the State, and create the incentive for preparations
leading to conspiracies to undermine and destroy our free institutions. Should we
not hate what is wrong? Should Canada permit people to preach disaffection which
may lead to consort with the enemy and the weakening and ultimate destruction
of our own Country? Such language and thinking can easily give reason to
Communists to believe there is no limit to the naivete of the people of Canada and
the United States.
But the principles of constitutional democracy upon which free society is
established, cannot be based upon pragmatic values, determinable by circumstance
and consequently variable. They must be based on certain absolute values, justice,
truth and reason. That is why inalienable rights were written into the United States
Constitution. That is why we have Magna Carta. Hence freedom of expression must
have some limitations-it cannot be used to destroy our free society, to destroy
democracy itself. Freedom of expression cannot be given to Communists to permit
them to use it to destroy our constitutional liberties, by first poisoning the minds
of the young, the impressionable, and irresponsible. Freedom of expression is not
a freedom to destroy freedom. Among many noted writers that may be referred
to I mention only the French philosopher Julien Benda (See "Benda on Democracy"
by E. 0. Siepman-in February 1948. "Nineteenth Century and After"),who has
had ample opportunities to study not only the philosophy of Communism, but also
its actual application in practice.
Likewise it must be recognized "freedom of thought" may become dangerous
if it is translated into speech or writing aimed to destroy our free society. Lord
Justice Bowen once said "the state of a man's mind is as much a fact as the state
of his digestion". When the Benchers enquired into the appellant's state of mind
regarding his attitude toward Communism, they were enquiring into a fact. What
is "fact" lies in the conception that a thing is existing or true. It is not limited
to what is tangible or visible, or to what is only perceptible directly by the senses
(J. B. Thayer-Evidence at the Common Law-1898-p. 191); things invisible,
mere thoughts, intentions, fancies of the minds, when conceived as existing or true
are conceived as facts. All enquiries into the truth, the reality, the actuality of
things, are inquiries into the facts about them.
Mr. Justice Holmes recognized in the abstract at least, that unbridled speech
and expressed thought may be dangerous to free society, for he invoked what is
called the "clear and present danger", formula for that purpose in Schenck v.
United States-1919- 2
49 U.S. 47, and in Debs v. United States-1919-249 U.S.
211; how difficult he found it to reduce abstractions of this verbal formula to reality
is exemplified by his forceful dissent in Abrams v. United States-1919-250 U.S.
616, when he refused to find clear and present danger in the printing and circulation
during war time of seditious leaflets by five Russian born anarchists. One of the
leaflets was entitled "Revolutionaries unite for action", and the other "The
[110]

7. The Advocate
Hypocrisy of the United States and her allies". Both were couched in violent and
inflammatory language.
If a danger is "clear" the limitation of "present" seems superfluous. Many
examples could be given but it is sufficient to say it seems like an attempt to place
a limit upon foreseeability that is as repugnant to law as it is in the affairs of daily
life. If there is "clear danger" that a nation may be attacked, it does not postpone
preparing its defences, until that danger is crystallized into the "present" when the
enemy lands on its shores. It will then be too late. In the Abrams case Mr. Justice
Holmes professed to believe that the Russian anarchists had as much right to
print and circulate in the United States seditious pamphlets threatening the free
institutions of the United States, as the Government itself had to publish the
constitution of the United States.
The "Olympian" was something more than a constitutional Judge. With
John Dewey, Veblem, Beard, and Robinson (See Toronto Saturday Night Editorial
21 March, 1950) he was the proponent of a distinctive American philosophy, which
he introduced assiduously and vigorously into his famous dissents. He adopted an
earlier anti-authoritarian philosophy to support fictions and formulae difficult to
reconcile with the realities of modern life. Many of these dissents particularly those
applying that philosophy seem to have been adopted by a majority of the members
of the United States Supreme Court as constituted between 1937-1947 and may
perhaps explain the Court's detached (and one might say quixotic if attempted to
be applied to present day conditions in this Province) attitude towards Communism
in some of the decisions to which I have referred. One may have a deep veneration
for the Supreme Court of the United States as an institution (which I have), and
yet be prepared to examine carefully theories of philosophy of government and
moral conduct adopted by slim majorities of the Court during disturbed periods in
its existence.
It may be a compliment to his mental vigour and the force of his personality
if the Holmesian philosophy in a peculiarly distilled form maintains its hold upon
many in thc teaching field of law (in Canada as well) when that of his co-thinkers
John Dewey, Veblen, Beard, and Robinson under more searching analysis in their
respective fields, is gradually succumbing to its ie weaknesses. The Holmesian
idealistic concept of freedom of thought and expression as developed and ostensibly
applied by his announced followers, leads in our day not to the strengthening of the
foundations of freedom, but tends on the contrary to encourage the suppressors of
freedom. On analysis it emerges as a reconstructed anti-authoritarian formula of
liberty in vogue even before the nineteenth century synthesis (now itself broken
down) sought to elevate science almost into the position of a religion.
When the great constitutionalist and philosopher was at the zenith of his
powers (Mr. Justice Holmes retired in 1932 at the age of ninety-one after fifty
years on the Bench, the last thirty of which were on the Supreme Court of the
United States) the Nazi and Communist application in practical form of Hegelian
and Marxist philosophic concepts had not yet become exposed in their naked
consequences, and many thinkers, before that time, would have dismissed the
reality of such consequences as hopelessly inconsistent with the "inevitability of
orderly progress" and the "scientific advancement" of the human race. The plain
menace of the tyrant state and the conditions which beget it were not so obvious
twenty-five years ago as they are today.
The Holmesian reduction of the test of truth to the power of thought to get
itself accepted in the competition of "the market" (Abrams v. United States supra)
cannot fail to impress itself as the thinking of the huxter and not of the philosopher.
It may be more than a coincidence that Karl Marx declared that capitalism
dehumanized man by subordinating him to the impersonal mechanism of "the
market". The circumstance that Holes and Karl Marx should reach this basic
agreement upon "the market" as the1ftial test, gives reason to ponder the warnings
of Pandit Nehru, Einstein and Mauriac, that the thinking of Soviet Russia and
the United States have reached an identical low point in materialism. If that be
true, there is ultimate danger in the Holmesian thinking as there is present danger
in the Communist thinking.
By recognizing itself to be but one teaching among many (including Marxism)
freedom has already been lost in more than one country. It can preserve itself
only by asserting that it is the only true teaching among many that are false. If
the Courts and the Universities fail to recognize this simple fact one need not be
a prophet to predict that the life of our free society will he short-lived indeed. The
freedom I mean is not unrestrained or abstract licence contained in the anti-
authoritarian formula of liberty emotionalized by Rousseau and sought to be
rationalized on this Continent since the turn of the century by John Dewey,
Mr. Justice Holmes, and others of their school of thought.
[111)

8. The Advocate
When called before the Benchers to explain his beliefs in the tenets of
Communism, the appellant declared himself to be a Marxist Communist. The
evidence shows his belief is not a temporary youthful enthusiasm, but one reached
after many years of thought, study and practice, by a man of mature years. He is
not a constitutional or Christian Socialist. To my mind he is a logical product of
the philosophy of Holmes, Dewey and Beard when that philosophy receives the
full impact of the thinking of Hegel and Karl Marx. If the concept of free expression
is to be pushed to the point it becomes unbridled licence, it is but a short step to
the time when forces within the nation may be attracted to invoke some form of
authoritarian State as the only remaining way to curb the resulting excesses.
The views expressed here are in no wise inconsistent with a firm belief in
Inherent Rights of the individual which this writer has developed extra-judicially
elsewhere (See 1947-8 Fall, Winter and Spring Issues of "Obiter Dicta" Osgoode
Hall).
Freedom is not licence. It is something more than an abstraction. It gives rise
to inseparable duties. There can be no such thing as a freedom to advocate a
political philosophy, which of its very nature cannot fail to be directed to the
destruction of our free society, and to the setting up in its stead of a dictatorship
which denies the very foundations of freedom. There is an old saying "who plays
with fire will be burnt". Freedom like fire is a real thing with positive consequences
and it is dangerous to leave its definition and appraisal to the negative fictions and
formulae of idealistic libertarians.
It was also urged on behalf of the appellant that the Benchers had penalized
him for his "political opinions". As used in the study of "political science" in the
Universities, the term "political" may be wide enough to include all the politico-
economic philosophies of government that have engaged mankind's attention
among others, Machiavelli and Adam Smith as well as Burke, Hobbes, Hegel, Marx,
Marxist-Lenin, as well as Locke and Jefferson (and see, for example, Spender on
"The Government of Mankind"). But in Canada the accepted and nontechnical use
of the term "political opinions" is not related to the philosophies underlying
different systems of Government, but is directed to adherence to or acceptance of
the policies of a political party that upholds the constitution and is not subversive
in its programme and tendencies.
For example, if a well-known lawyer member of the Liberal party or of the
Progressive-Conservative party should publicly declare his belief in Marxist Com-
munism, the Benchers of the Law Society might well find it their duty (after a
proper hearing, of course) to disbar him from practice. Such action by the Benchers
would not be directed toward his "political opinions" but toward beliefs of his
inimical to his country and repugnant to the ancient and honourable profession of
law, even if his pernicious beliefs might be included in the expression "Political
Science" as it is understood in the Universities. It is clear from the reasons for
their decision the Benchers were not concerned with the appellant's "political
opinionF" as such, but on the contrary were deeply concerned with opinions and
beliefs he stated he held, which in our day, under the conditions we know, cannot
be regarded otherwise than inimical to the State and subversive of our free society.
It is now coming to be well known by those who have given something more
than passing thought to these subjects that the adherents of Communism and
Nazism have quite a different conception than that of the Anglo-American countries
in regard to "freedom", "democracy" antany other common terms we use so
frequently as if they had only one meaning. To a Communist the "dictatorship of
the proletariat" is the ultima Thule of democracy. This difference in viewpoint is
due in large part to the political philosophy of Hegel (who was influenced by
Hobbes) in fespect to rights of the individual. The subject is treated fully by
Spender in "Government of Mankind" and by other writers who have given it
more than casual study.
Those who accept common-law theory and practice confess to a belief in
inherent rights of the individual diametrically opposed to the Hegelian and Marxist
concepts of the State. The political philosophies underlying Communism have no
meeting point whatever with the true political philosophies of the Anglo-American
democracies. One dividing point appears clearly on the subject of inherent individual
rights as adopted by Locke (who wrote the political philosophy of the Constitutional
Revolution of 1688) and later with some variations, by Jefferson, when contrasted
with the denial of these inherent rights by Hegel, Marx, Lenin and others upon
whose political philosophy any type of totalitarian state is based. Hegel is the
source of modern Fascist and Communist perversions.
It was said also on behalf of the appellant that it was rather late in the day
to deny him the right to practice law after he had been allowed to complete his
three-year law course at the University and pass his examinations successfully.
Counsel for the Law Society replied that the objection had not come to the Benchers'
[112]

9. The Advocate
knowledge in time to act before they did, but even if it had, and whatever powers
the Benchers may have in disciplining students-at-law and articled clerl:s under
the Legal Professions Act, there is an inescapable statutory duty upon the Benchers
to act at the time when call to the Bar and admission as a solicitor is sought. Many
examples might be given to illustrate the wisdom of the course prescribed in the
Legal Professions Act in this respect. The study of law even if one does not
practice law is extremely useful in a wide variety of occupations.
Inherent in the last objection was more than a faint suggestion that a law
student who completes his course and passes University law examinations, should
be admitted to practise law as of right. This is denied by the requirement of sec. 36
and 39 that the applicant must be of "good repute". Moreover apart from those
sections, the law is a profession; it is not a business or trade. Nor can the Law
Society be copipared to a Trade Union; nor can lawyers as members of the Law
Society be likened to members of a trade union. A man can become reasonably
proficient in hundreds of unskilled or semi-skilled manual or clerical occupations
with comparatively little training. That was demonstrated during the last war.
A young man may begin as an unskilled labourer and in a year or two learn a great
deal, in the meantime in this Province earning a dollar and more per hour.
But in law the picture is quite different. In addition to a minimum of two years
College, he must take three years at law school and an additional one year's
experience in a legal office; a minimum of six years of study and training before he
is eligible to practice. Then he faces the big problem of establishing himself in
practice. Ordinarily he would be lucky if he is able to marry within ten
years of the time he started studying law. It is doubtful (unless he is particu-
larly successful) he will get back (in the sense of maintaining it as capital) the
money spent on his education. Quite different indeed if he were earning one
dollar or more an hour during that lengthy period.
Moreover, the law student's training is not manual training, but is training of
the mind, not only in law, but if he wishes to be something more than a mere legal
mechanic, he must study logic, history, in particular constitutional history, political
science and economics, a certain amount of philosophy and acquire a reasonable
familiarity with English literature, and know something at least of the literature of
other countries. The job of the lawyer is basically to advise people upon all manner
of things arising out of the complexities of life and the frailties of human nature.
As such he cannot fail in time to acquire an influence upon others, impossible to
reduce to purely material terms. It is not too much to say that the training and
experience a lawyer undergoes fits him for leadership to a greater or less degree.
Obviously such men should not be partial to political philosophies and movements
that conflict with the interests of their own country.
By reason of these things, all countries throughout the ages have given the
lawyer a correspondingly high place in society-particularly so in the case of the
lawyer who pleads in the higher Courts. The object of law training is to attract
young men of high character, and to train them in a manner that they will be
trustworthy, honourable and competent in the performance of their legal duties,
and will use such influence as they may have to maintain and improve but not to
destroy our Canadian constitutional democracy. They are to be the defenders and
not the destroyers of liberty. They are expected to be sufficiently well-informed and
experienced to distinguish between liberty and licence.
It is true these objectives are not always attained. It sometimes happens that
men of unmoral and amoral outlook or unstable character, or of little integrity, or
whose object is to use the law solely to make money, find their way into the
profession of law. But they are the type of men who bring the profession into
disrepute. To prevent these undesirables entering into the practice of law and to
keep up the standard of legal practitioners the Benchers are elected by the lawyers
under statutory authority to act for the protection of the public. If every person
had the right to practice law upon passing the University law exaninations, there
would be no protection for the public. It is the duty of the Benchers to protect the
public by refusing admission to the practice of law, not only the type of person
who will prey upon the public for his own selfish ends, but also the type of person
who professes a political philosophy alien to our free society, and who in a time of
"cold war" is little else than a fifth columnist (designedly or not) to assist an
unfriendly country to destroy the rights and privileges a free people have
established in Canada.
I respectfully agree with Lord Chief Justice Goddard of England in the Fuchs
case that Communism is a "pernicious creed". Furthermore by reason of what has
been said I am of opinion (see the decisions of the United States Supreme Court
previously discussed) that Communism is a "clear danger" to our Canadian free
society; what has happened during the past five years alone shows that "clear
danger" is not remote, and also that it is foreseeably greater in the future.
[1131

10. The Advocate
I dismiss the appeal on the broad ground (although narrower grounds may be
found) that a Marxist Communist cannot be a loyal Canadian citizen; at best his
loyalty must be divided between. Canada and the Communist leadership outside
Canada which is engaged idealogically through him (whether he knows it or not)
and others of like indoctrination in promoting disruptively in Canada and other
countries what Lenin called "the class struggle of the proletariat" for the world
revolution.
I would dismiss the appeal. C. H. O'HALLORAN, J.A.
Victoria, B.C., 26 April, 1950.
THE HON. MR. JUSTICE ROBERTSON
In my opinion the Benchers of the Law Society of British Columbia reached
the right conclusion, and I have little to add to what has been said by them.
Martin had been a Communist since 1943 and since that date a member of the
Labour Progressive Party which is a Communist organization formed in 1942
after the Communist Party of Canada had been declared illegal and outlawed by,
amongst others, two well-known Communists, Buck and McEwen, the same crowd
that immediately prior to 1942 ran the Communist Party of Canada. Buck and
McEwen were convicted in 1931 of being members of an unlawful association, of
acting as officers of an unlawful association, and being parties to a seditious
conspiracy. See Rex v. Buck et al (1932) 57 C.C.C. 290. Martin admitted that the
Labour Progressive Party was a successor of the "old Communist Party", but he
said he would not say there was "an unbroken thread of development". The old
Communist Party was clearly a party of violence. See reasons for judgment of
Mulock, C.J.O. in R. v. Buck supra. He was a candidate for the Labour Progressive
Party at the Provincial 'election held "two or three years ago". He was asked "so
the L.P.P in Canada occupies the same position as the Communist party does in
the U.S.?" to which he replied "I would say generally, yes".
It is fair then to see what the position of the Communist party in the United
States has been in recent years. The Committee on Un-American Activities, U.S.
House of Representatives, Washington, D.C., "prepared and released" in 1948
some pamphlets, two of which are called (1) "Communism and Government",
and (2) "Communism and Education". These are to be found in the Provincial
Library at Victoria,. B.C.
At No. 43 of the first mentioned pamphlet it is stated:
"The Communists have always made it basic in their thoughts that VIOLENCE
is inevitable in their struggle for the world. And in all their captures, from
Russia in 1917 down to China in 1948, they have USED violence as their
weapon."
and at No. 70 the question put by the Committee with its answer is as follows:
"Well, what's the REAL Communist program for capturing our Government?
It starts with spying and infiltration of the sort now going on. Then
confusion and chaos caused by sudden paralysis of our communications,
transportation, money system and law enforcement.
Finally, direct seizure of power.
Communists have spent the last fifteen years hiding their key men in our
Army, Navy, diplomatic corps, treasury, and other control points of Govern-
ment."
In the second pamphlet above mentioned, No. 1, Communism is defined as
"A conspiracy to conquer and rule the world by any means, legal or illegal, in
peace or in war".
It is stated in "American Communism" by Oneal and Werner, published in
1947 (a book in the Provincial Library at Victoria, B.C.) at p. 315:
"The Communist Party in each nation is a political party. It is an agency of
the Russian dictatorship pledged to carry out the aims and policies of Moscow
in the expectation that eventually a Communist dictatorship will be established
in each nation and the "world revolution" become a reality. The Communist in
France, in China, in the United States and in all other countries does not
regard the nation in which he lives as his. Russia is his "fatherland" and
Communist literature in all countries refers to Russia as the "fatherland" or
the "worker's fatherland", or the "socialist fatherland", it is not a matter of
Russia first and his own nation second; it is Russia only. There is no second
choice unless the servitude he plans is extended to the nation where he lives
and even then Russia is the mother country with the responsibility of guiding
or punishing its new offspring. Need it surprise one, therefore, that the children
dutifully respond to the commands of the parent no matter how ridiculous such
a response may be?"
[114]

11. The Advocate
At p. 340-
"J. Edgar Hoover stirred the delegates to the national convention in San
Francisco in October by stating that Communism had made its deepest inroad
into our national life in the previous five years. It is probable that the Canadian
investigation of Soviet spies had revealed the network extending into private
organizations and institutions as well as the government itself. Hoover
expressed confidence in the Legion's ability to expose Communism which is
"built and supported by dishonor, deceit and tyranny and a deliberate policy
of falsehood."
These quotations are in accord with the findings of the Report of the Royal
Commission (Canada) issued on the 27th June, 1946, in which the following para-
graph, referred to by the Benchers in their report, appears:
p. 127-
"The indoctrination courses in the study groups are apparently calculated not
only to inculcate a high degree of 'loyalty to the Party' and 'obedience to the
Party' but to instil in the mind of the adherent the view that loyalty and
obedience to the leadership of this organization takes precedence over his
loyalty to Canada, entitles him to disregard his oaths of allegiance and
secrecy, and thus destroys his integrity as a citizen."
Everyone knows that many trade unions are expelling Communists from their
organizations. I think that neither the Government of Canada, nor that of the
United States, nor that of England knowingly would employ a Communist.
Experience gained from the prosecution and conviction of such men as Fuchs
and May in England and Boyer in Canada, all of whom had taken the oaths of
allegiance to His Majesty, leads to the belief that Communists' protestations of
loyalty are not to be accepted, and that they consider their first obligation to the
Communist Party. Under these circumstances it is not to be expected that an
avowed Commtnmist is to be believed who denies that he personally adheres to all
the principles of that Party, one of which is stated in the Communist manifesto,
viz., that their ends can be attained only by the forcible overthrow of all existing
social conditions; coupled with a warning to the ruling classes to tremble at a
Communist revolution.
The appeal must be dismissed. HAROLD B. ROBERTSON, J.A.
Victoria, B.C., 26th April, 1950.
THE HON. MR. JUSTICE SIDNEY SMITH
It seems to me there are two fundamental misconceptions in Appellant's
submission that should be briefly mentioned at once.
The first is that the hearing before this Court was on the merits, a "trial de
novo". I think that i, clearly a mistaken view of the amendment to the Legal
Professions Act givig us i'risdiction. The amendment simply states that there
shall be an appeal to this Court, and nothing more. Had it been the intention of the
Legislature that we should embark on new proceedings, nothing would have been
easier than to say so. The appeal is from a decision of the Benchers, and in my
opinion the Benchers are an administrative body. That being so, the usual and well
known principles governing appeals from such bodies apply here; and so we can
only interfere with their finding if their procedure was wrong, or if they acted
in bad faith or against all reason, or the public interest, or if they formed their
opinion upon grounds never brought to Appellant's notice.
The second misconception is the assumption by Appellant, and apparently
also by some of the Benchers, that they could only refuse to admit him on the
ground of ill "repute". That, too, I think is a mistaken view. Ill repute completely
disqualifies; but good repute is only the beginning of the matter. The truth is that
there is nothing in the whole of the Legal Professions Act that entitles any person
to be admitted to the Society (and in this I include call to the Bar). There are various
sections stating that the Benchers may admit an applicant who complies with such
and such conditions; but no section says that they must admit anyone. The whole is
left to their discretion. And we must take the Act and the Amendment as we find
them. We cannot add to or detract from them. I may perhaps venture to repeat
what I said the other day in a case before this Court, Wilkinson v. Wilkinson, viz.,
"But it is a trite observation that cannot be too often repeated, that Judges do
not make the law; they merely interpret it and apply it to the facts on hand."
Referring again to the Legal Professions Act, it is quite true that various
qualifications cut down the Benchers' discretion by requiring them to exclude
persons who do not comply with them. But compliance imposes no obligations on
the Benchers. As indicated by Hunter C.J. in Re Nagel and the Law Society of
British Columbia (1922) 31 B.C.R. 75, admission to the Society is a privilege that
[1151

12. The Advocate
no one can claim as of right. That in itself is an indication that the Benchers are
an administrative and not a judicial b dy. The fact that they are left free to decide
what considerations shall govern them, points in the same direction. I apply the
language of my brother Robertson in describing the Public Utility Commission's
functions in Veterans' Sightseeing and Transportation Company Limited v. Public
Utilities Commission and British Columbia Electric Railway Company, Limited
(1945) 62 B.C.R. 131 at p. 153:
"The Board as an administrative body exercises its discretion as a matter
of policy and expediency. It does not decide the legal rights of the parties;
neither of the parties here had any except the right to apply under -the various
acts."
Similarly in Re Brown and Brock and the Rentals Administrator (1945) O.R.
554 (affirmed ibid.-.568) Roach J.A. said of a Rental board (p. 564):
"The power of the Board is not in any way circumscribed. No limitations are
imposed on the exercise of that power, and no standards by which it is to be
guided are set up. It has a free hand. It is a law unto itself. It may determine
its own policy, and expediency is its only guide. That is an administrative
power, not a judicial power . . . "
In General Medical Council v. Spackman (1943) A.C. 627 the House of Lords
seem to have been satisfied that the governing body of the medical profession is an
administrative body. Viscount Simon, at page 634, described the Council as "not a
judicial body in the ordinary sense". And at page 639 Lord Wright said of it:
"It has not merely to ascertain the facts, but also to decide what standard to
apply and whether to hold that the particular conduct is infamous, not in the
abstract, but 'in any professional respect'."
At page 640 he said "The Council is not a Court of law"; and at pp 641, 642 he
applied to the Council decisions that were in terms decisions op administrative
powers.
The reasons for saying that the Benchers are an administrative and not a
judicial tribunal are even stronger. The Act relating to expulsion of physicians
only allows this for "infamous conduct" in a professional sense, which applies a
standard of a sort, though with a subjective element. Here the Benchers are given
no standard whatever to apply; so they can only base their decisions on what they
consider prudent and expedient.
There was much evidence given below, some of it rather difficult to follow;
but I think it quite sufficient to enable an administrative tribunal (and perhaps a
judicial tribunal too) to conclude that the appellant belonged to a Communist
organization, and that it is one of the tenets of the Communist movement that they
be prepared to overthrow existing governments by force if necessary.
The appellant cited against this the case of Schneiderman v. U.S. (1942) 320
U.S. 118, where in proceedings to revoke the Naturalization Certificate of a
Communist the Court held that it was not proved that the Communists advocated
the overthrow of governments by force. That, however, was a judicial proceeding
in a judicial tribunal to deprive a person of a vested right; and in any case the
decision turned entirely on the question of onus. It has no bearing on the right
of an administrative tribunal to conclude that it is imprudent and inexpedient to
grant a privilege to a Communist.
The appellant made much of the repeal of section 98 of the Criminal Code in
1936, the implication being that this made it legal to advocate the overthrow of the
Government by force. In my view, the repeal did nothing of the sort; it merely
removed the specific penalties provided by the section, and what was unlawful at
Common Law remained unlawful. In my view an organization that aims at the
overthrow of the Government by force is unlawful at Common Law. Even if it
were not, still, membership in that is something that the Benchers are entitled to
treat as making an applicant an undesirable member of their Society.
In connection with this point it was argued for the appellant that no man can
be penalized for "mere opinions" without any overt act, and that the Benchers could
not exclude a man because of his "politics". I quite agree with the latter point, so
long as the man belongs to a company whose objects are wholly lawful. But advo-
cating the overthrow of the Government by force is not a matter of politics at all;
it is in the nature of conspiracy. If a man joins a body that is in effect conspiring
against the Government he goes beyond mere opinion; his very joining is an overt
act.
Assuming that the evidence here would be inadequate to establish conspiracy
in a court of law, I am of the opinion that the Benchers do not require such evidence;
they are entitled to exercise their evidence upon probabilities; and there is quite
enough evidence on which an administrative body could reasonably hold that the
Communist movement probably advocates the overthrow of government by force.
The Benchers need go no further to justify their acts.
[116]

13. The Advocate
I agree with the views of the Benchers. But that is not neLessary for my
decision. It is obviously the intention of the Legislature that the Legal Profession
itself through its Benchers shall decide who shall join their ranks. We have the
right to override them if they act dishonestly against all reason or against the
public interest. Appellant's counsel admitted below that he did not challenge their
bona fides. And I find that I cannot say that their refusal to admit the appellant is
either against all reason or against the public interest. Therefore I see no ground
for interfering with their decision.
The appeal must be dismissed. SIDNEY SMITH, J.A.
Victoria, B.C., 26th April, 1950.
THE HON. MR. JUSTICE BIRD
W. J. Gordon Martin appeals to this Court from the decision of the Benchers
of the Law Society, refusing his petition for call to the Bar and admission as a
solicitor of the Supreme Court.
On July 30th and 31st, September 25th and October 23rd, 1948, the Benchers
held formal hearings for the purpose of considering the petition, and particularly
with a view to determining whether the powers conferred upon them by the Legal
Professions Act, R.S.B.C. 1948, Cap. 180, Sec. 36 should be exercised to call and
admit the applicant, pursuant to his petition.
Upon that investigation Martin, who was represented by counsel throughout,
called witnesses as to his character and repute, and testified on his own behalf,
The evidence disclosed that Martin while a student at the University of British
Columbia, Faculty of Law, was favourably regarded by his fellow students, al-
though he was then considered or known to those witnesses to be a Communist.
Martin then stated that he was prepared to take the barristers' oath and the oath of
allegiance, and would abide by them. He then stated that he had been a member of the
Labour Progressive Party since 1943; that Party being described in its Constitution
as "the Party of Canadian Communists"-"Dedicated to the struggle for socialism,
the fundamental extension of democracy through the establishment of common
ownership of the means of production; a government of the working class in alliance
with the working farmers; the abolition of classes and of exploitation, through
the development of society to communism." He said he was a Marxian socialist,
was known as a Communist; sometimes referred to himself as such. He had never
been ashamed of the term as applied to himself and did not consider that being
known as a Communist had adversely affected his reputation.
He then declared that he would not follow the Marxian doctrines to the extent
of using force if necessary to overthrow constituted authority, that he always felt
free to disagree with the application of such doctrines and in lieu to advocate
social change by means of education and social organization. He said "I never had
and do not expect, and I hope I will not see anything necessary in Canada in any
other respect," further, that if the Labour Progressive Party should advocate any-
thing subversive he would fight the policy or leave the Party.
At the conclusion of the hearing held on September 25th, 1948, the Benchers
refused the petition, upon the ground that Mr. Martin had failed to satisfy them of
his good repute.
On October 23rd, 1948, the investigation was reopened upon the application
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[117]

14. The Advocate
of Martin's counsel, to permit of the presentation of further evidence and argu-
ment, upon the conclusion of which decision was reserved.
On October 30th, 1948, the Benchers again refused the petitition, and then
delivered extended reasons upon which their decision was founded.
If I may say so, with deference, the Benchers have made a careful and thorough
investigation of the petition to the end that the discretionary power conferred upon
them by the statute should be honestly exercised, with due regard to the public
interest and the responsibility imposed upon them, that is to say, that they have
exercised the discretion conferred upon them as an administrative body upon proper
legal principles. Pure Spring Company v. Minister (1946) Ex. C.R. 471 at p. 487.
Subsequently after Martin's application to the Supreme Court of British
Columbia by way of mandamus to the Law Society had been dismissed upon the
ground that mandamus did not lie since the Court found that the Benchers
had lawfully exercised their discretionary powers-re Martin (1942) 2 D.L.R. 559,
the Legal Professions Act, upon request by the Law Society was amended by the
Legislature, whereby an appeal to this court in the present proceeding was made
possible.
On this appeal counsel for the appellant argued that Martin had established
the right to be called and admitted since he had complied with the academic and
service requirements prescribed by the Legal Professions Act and had introduced
evidence of his good character and repute. In my opinion support for this sub-
mission cannot be found in the language of the Act, whereby authority to call and
admit is given the Benchers. Sec. 36, subsecs. 3 and 5 read in part as follows:
36. The Benchers . . .
ss. 3. May call to the Bar . . .
(a) Any person ..... of good repute, etc.
ss .5. . . . . . may admit as solicitors of the Supreme Court
(a) Any person being of . . . good repute . . . and who has conformed
to the rules of the Law Society.
These statutory provisions give power to call and admit such persons as are
found by the Benchers to have the prescribed qualifications. The onus is upon the
aopellant to satisfy them. As was said by Hunter C. J. in Re Hagel (192) 31 B.C.R.
75, "it is expressly enacted that the Benchers may call to the Bar persons who
comply with certain conditions, including proof of good character and reputation."
"There is no right of admission, but only a privilege on compliance with certain
conditions to the satisfaction of the Benchers, and the privilege only becomes a
right after admission."
The Benchers have found that the applicant "(a) is not a fit person to be called
to the Bar and admitted as a solicitor, (b) has not satisfied them that he is a person
of good repute within the meaning and intent of the Legal Professions Act." The
reasons given I think make it clear that these conclusions were based upon the
fact that Gordon Martin then was a Communist. Counsel for the Law Society so
declared on the hearing of this appeal.
Notwithstanding Martin's assertion that his personal philosophy did not exend
to the advocacy of anything subversive or to the commission of subversive acts, the
Benchers considered that adherance to that philosophy extending over a period
of years since 1946 was sufficient to disqualify him in terms of the Act.
However, counsel submits that in the absence of evidence of subversive con-
duct by Martin mere membership in a Communist party, i.e., the Labour Progres-
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[118]

15. The Advocate
sive Party and adherance to Communist philosophies do not warrant the conclusion
that he is not a person of good character and repute, or that he cannot conscien-
tiously take the barristers' oath.
This submission I think must be considered in the light of developments which
have occurred since the cessation of hostilities in 1945. The revelations made in the
Report of the Royal Commission on Communist Espionage in 1946 which discloses
the debauching by Communist influences of Canadian public servants occupying
position of public trust despite oaths of allegiance and of office which they have taken,
I am satisfied have created in the public mind an utter distrust of that philisophy
as well as of its adherents. That distrust has been accentuated by the disclosure of
similar activities in Great Britain, i.e., the Fuchs case and also the Alger Hiss and
other like proceedings in the United States.
Communism and all that pertains to that philosophy I think is now recognized
as having a common connotation equivalent to Fifth Column. It is common knowl-
edge that governments on this continent, public and private organizations, more
particularly among trades and labour unions, alive to the danger of Communist
infiltration and influence are now alert to the menace, and are actively moving to-
wards its elimination.
In these circumstances I consider that the decision of the Benchers was right
and that the findings made by them disclose a lawful and proper exercise of the
discretion and public responsibility imposed upon them under the Legal Professions
Act.
VICTORA, B.C.
26th April, 1950.
B. C. CURRENT CASES
Note: The publication of a digest of current B.C. cases has been undertaken by the
Advocate in order that the members of the Bar may be kept readily conversant with
current litigation in the B.C. Courts. Reference is made to the commercial reports
where cases digested have been published at the time of going to press. The digesting
has been done by Dr. M. M. Maclntyre of the Faculty of Law of the University of
British Columbia who wishes to make it clear that the digests are not presented as
an authority but as information that the subject matter was discussed in the cases
digested.-Ed.
ASSAULT AND BATTERY-Limits of self-defence. Waster and servant. Beer parlor
attendant striking customer in anger held an act within course of employment.
(Reversed on appeal.)
Defendant Phelan, "a former boxer of great experience" presently employed in the
second defendant's beer parlor, hit back in anger when struck by a tipsy customer.
The court found that Phelan's blow which fractured the customer's jaw exceeded the
bounds of self defence; and exceeded the force necessary to maintain order in the beer
parlor. The court was of the further opinion that self defense did not in the cilrcum-
stances require the defendant to strike the customer at all, rejected the second
defendant's argument that Phelan's blow was an act outside the course of his employ-
LOST WILL-JOHN CHARLES WILKS, DECEASED
A Victoria Solicitor is said to have drawn a will for the above deceased
within the past five years.
Any practitioner in Victoria having information of this will or of deceased's
affairs is requested to communicate with the undersigned.
J. R. KIDSTON, Official Administrator, Box 608, Vernon, B.C.
OFFICE SPACE FOR RENT'
Lawyer will rent private room, with joint use of outer office, with object of
mutual assistance and sharing of certain expenses. Younger man preferred ast
tenant but essential that he be lawyer of several years standing with own privatel
practice and financially responsible. Apply MArine 1848.
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