Martin v. Law Society of British Columbia, 1950 CanLII 242 (BC CA)

173

MARTIN v. LAW SOCIETY OF BRITISH COLUMBIA

British Columbia Court of Appeal, Sloan C.J.B.C., O’Halloran, Robertson, Sidney Smith and Bird JJ.A. April 26, 1950./p
 

174 Dominion Law Reports. [[1950] 3 D.L.R.

John S. Burton, for appellant.
Alfred Bull, K.C., for respondent.

SLOAN C.J.B.C.:— The Benchers of the Law Society of British Columbia exercising the authority vested in them by the Legal Professions Act, R.S.B.C. 1936; c. 149 [now R.S.B.C. 1948, c. 180] 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 [[1949] 1 D.T, R,105]. 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 re-jute within the meaning and intent of the Legal Professions Act.” [p. 114]

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 1949, c. 35, s. 2, 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
 

Martin v. Law Society of B.C. (O’Halloran J.A.) 175

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 Benchers 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 rehear 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.

O’HALLORAN J.A.:  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 ss. 36 and 39 of the Legal Professions Act, R.S.B.C. 1948, c. 180.  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 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
 

176 Dominion Law Reports. [[1950] 3 D.L.R.

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 practise 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 enquiry.  The notice of appeal is dated May 20, 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 March 7-8, 1950, when judgment was reserved.

In this Court counsel for the appellant centred his argument upon the submission 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 advocate the introduction of a Communist 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 common-sense 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 Communists at home and abroad.  They have had revealing encounters with the machinations 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
 

Martin v. Law Society op B.C. (O’Halloran J.A.) 177

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 succeeded 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
 
12—[1950] 3D.L.R.
 
178 Dominion Law Retorts. [ [1950] 3 D.L.R.

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 ill-judged 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 “in-tellectuals” 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 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 the 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 the 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
 

Martin v. Law Society of B.C. (O’Halloran J.A.) 179

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 mainspring 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
 

180 Dominion Law Reports. [[1950] 3 D.L.R.

authoritatively:  “In bourgeois study of 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 guarantees 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 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 October 2, 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 something 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 interests of the landlords and the capitalists.  We say that our morality is entirely subordinated to the interests 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 italics).

(And cf. editorial in “Saturday Evening Post” of November

Martin v. Law Society of B.C. (O’Halloran J .A.) 181

5, 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 warmongers, reactionaries, 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. U.S. (1943), 320 U.S. 118 (a 5-3 decision).  I have read also Stromberg v. California (1931), 283 U.S. 359; Herndon v. Lowry (1937), 301 U.S. 242 (a 5-4 decision); De Jonge v. Oregon (1937), 299 U.S. 353; U.S. v. Lovett (1946), 328 U.S. 303 (a 5-2 decision); and Bridges 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 Korematsu v. U.S. (1943), 320 U.S. 81 and Korematsu v. U.S. (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 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

182 Dominion Law Reports. [ [1950] 3 D.L.R.

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. U.S. (1946), 328 U.S. 61 (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 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 band 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 his dissent in U.S. 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”.  [pp. 654-5] In his dissent (in which Mr. Justice Brandeis joined) in Abrams v. U.S. (1919), 250 U.S. 616, Mr. Justice Holmes adopted as a formula, “the best test of truth is the power of the thought to get itself accepted in the competition of the market”; [p. 630] this latter statement was quoted approvingly by the 5-3 majority in Girouard v. U.S., 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

Martin v. Law Society op B.C. (O’llalloran J.A.) 183

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 declamations 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 naiveté 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 consequentially 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 the 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. O. 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

Dominion Law Reports. [[1950] 3 D.L.R.

Law, 189.8, 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. U.S. (1919), 249 U.S. 47, and in Debs v. U.S. (1919), 249 U.S. 211; how difficult he found it to reduce the abstractions of this verbal formula to reality is exemplified by his forceful dissent in Abrams v. U.S., 250 U.S. 616, when he refused to find clear and present danger in the printing and circulation during wartime of seditious leaflets by five Russian born anarchists.  One of the leaflets was entitled “Revolutionaries unite for action”, and the other “The 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, Veblen, Beard, and Robinson (see Toronto Saturday Night Editorial March 21, 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.

Martin v. Law Society of B.C. (O’Halloran J.A.) 185

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 the 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 innate 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. U.S., supra) cannot fail to impress itself as the thinking of the huckster 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 Holmes and Karl Marx should reach this basic agreement upon “the market” as the final 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

186 Dominion Law Reports. [ [1950] 3 D.L.R.

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 be 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.

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 “po-

Martin v. Law Society of B.C. (O’Halloran J.A.) 187

litical” 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 non-technical 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 Communism, 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 opinions” 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” and many 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 respect 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-

188 Dominion Law Reports. [ [1950] 3 D.L.R.

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’ 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 clerks 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 requirements of ss. 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 compared 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

Martin v. Law Society of B.C. (O’Halloran J.A.) 189

able to marry within ten years of the time he started studying law.  It is doubtful (unless he is particularly 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 examinations, there would be no protection for

190 Dominion Law Reports. [ [1950] 3 D.L.R.

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.

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 ideologically 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.

ROBERTSON J.A.: —— In my opinion the Benchers of the Law Society of British Columbia reached the right conclusion [[1949] 1 D.L.R. 105], 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, amongst others, two well-known Communists, Buck and McEwan, 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 R. v. Buck, [1932] 3 D.L.R. 97, 57 Can. 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.  He was a candidate for the Labour Progressive Party at the

Martin v. Law Society of B.C. (Robertson J.A.) 191

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 “1 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 Government.”

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

192 Dominion Law Reports. [ [1950] 3 D.L.R.

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?”

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 June 27, 1946, in which the following paragraph, referred to by the Benchers in their report, appears:  “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 this destroys his integrity as a citizen”. [l[1949] 1 D.L.R. at p. 111]

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 oath 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 Communist 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.

SIDNEY SMITH J.A. :—It seems to me there are two funda-

Martin v. Law Society op B.C. (Sidney Smith J.A.) 193

mental 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 is clearly a mistaken view of the amendment to the Legal Professions Act giving us jurisdiction.  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, [1950] 3 D.L.R. 236 at p. 241, 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.B.C. in Re Hagel and Law Society of B.C. (1922), 31 B.C.R. 75, admission to the Society is a privilege that no one can claim as of right.  That in itself is an indication that the Benchers are an administrative and not a judicial body.  The fact that they are left free to decide what considerations shall govern them, points in the same direction.

13—[1950] 3 D.L.R.
 

194 Dominion Law Reports. [ [1950] 3 D.L.R.

I apply the language of my brother Robertson in describing the Public Utility Commission’s functions in Veterans’ Sightseeing & Transportation Co. v. Public Utilities Com’n, [1946] 2 D.L.R. 188 at p. 203, 59 C.R.T.C. 63 at p. 80, 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 between the legal rights of the parties; neither of the parties here had any except the right to apply under the respective Acts.”

Similarly in Re Brown & Brock & Rentals Administrator, [1945], 3 D.L.R. 324, O.R. 554 (affirmed ibid.) Roach J.A. said of a Rental Board (p. 334 D.L.R., p. 564 O.R.):  “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 Gen’l 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 L.C. at p. 634, described the Council as “not a judicial body in the ordinary sense”.  And at p. 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 p. 640 he said:  “The council is not a court of law”; and at pp. 641-2 he applied to the Council decisions that were in terms decisions on 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.

Martin v. Law Society of B.C. (Sidney Smith J.A.) 195

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 s. 98 of the Cr. Code in 1936 [by c. 29, s. 1], 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 advocating 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 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.

I agree with the views of the Benchers.  But that is not necessary 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

196 Dominion Law Reports. [ [1950] 3 D.L.R.

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.

BIRD J.A. : —— 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, 1945, 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, c. 180, s. 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 Colum-bia, Faculty of Law, was favourably regarded by his fellow students, although he then was 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 hope I will not see anything necessary in Canada in any other respect”; further,

Martin v. Law Society of B.C. (Bird J.A.) 197

that if the Labour Progressive Party should advocate anything subversive he would fight the policy or would leave the Party.

At the conclusion of the hearing held on September 25, 1948, the Benchers refused the petition, upon the ground that Mr. Martin had failed to satisfy them of his good repute.

On October 23, 1948, the investigation was reopened upon the application of Martin’s counsel, to permit of the presentation of further evidence and argument, upon the conclusion of which decision was reserved.

On October 30, 1948, the Benchers again refused the petition, and then delivered extended reasons upon which their decision was founded [[1949] 1 D.L.R. 105].

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 Co. v. Minister of Nat’l Revenue, [1947] 1 D.L.R. 501 at pp. 515-6, [1946] Ex. C.R. 471 at p. 487.

Subsequently after Martin’s application to the Supreme Court of British Columbia by way of manadamus 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, [1949] 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 submission cannot be found in the language of the Act, whereby authority to call and admit is given the Benchers.  Section 36 (3) and (5) read in part as follows:

“36. The Benchers … .
” (3) … may call to the Bar …
” (a) Any person …. of …. good repute &c.
” (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
 
Dominion Law Reports. [ [1950] 3 D.L.R.

persons as are found by the Benchers to have the prescribed qualifications.  The onus is upon the appellant to satisfy them.  As was said by Hunter C.J.B.C. in Re Hagel & Law Society of B.C. (1922), 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 becomes a right only after admission”.

The Benchers have found that the applicant “(a) is not a fit person to be called to the Bar or 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” [[1949] 1 D.L.R. at p. 114].  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 extend to the advocacy of anything subversive or to the commission of subversive acts, the Benchers considered that adherence 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 conduct by Martin mere membership in a Communist party, i.e., the Labour Progressive Party and adherence to Communist philosophies do not warrant the conclusion that he is not a person of good character and repute, or that he cannot conscientiously take the barrister’s 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 positions of public trust, despite oaths of allegiance and office which they had taken, I am satisfied have created in the public mind an utter distrust of that philosophy 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 connotation equivalent to Fifth
 
199

Column.  It is common knowledge 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 towards 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.

                                              Appeal dismissed.
 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s