The Advocate

iBENCH AND BAR>

Messrs. Ealdane & Campbell have moved their offices to 305 Canadian Bank ofCommerce 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 SocieyKeadonj for )tU4ament

Court o/J/ppea

THE HON. THE CHIEF JUSTICEThe Benchers of the Law Society of British Columbia exercising the authority

vested in them by the Legal Professions Act, considered at length the applicationof the appellant Martin for call to the Bar and admission as a Solicitor of theSupreme Court of this Province, and refused his application. The reasons of theBenchers actuating this decision were reduced to writing, and after a review of theevidence adduced and references to relevant decisions it is stated that the applicationbe refused because the applicant

"(a) is not a fit person to be called to the Bar or admitted as a Solicitor of theSupreme Court of British Columbia and

(b) has not satisfied them that he is a person of good repute within themeaning and intent of the Legal Professions Act."

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Consequent upon this ruling of the Benchers the Legal Professions Act wasamended to permit an appeal therefrom to this Court. Section 41A as enacted bySec. 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 admitas a solicitor may appeal from such refusal to the Court of Appeal . . . On theappeal the Court of Appeal may, in whole or in part, either reverse or confirmthe decision of the Benchers or refer the matter to the 19enchers for furtherinquiry."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 froman administrative body. There is nothing in the section which calls upon this Courtto exercise any original as opposed to appellate jurisdiction. We are not requiredto re-hear the application de novo but we are, as I view the matter, acting in ourusual and ordinary capacity as a Court of review.

That being so, then we must consider whether the discretion vested in theBenchers was properly exercised according to law.

It must be borne in mind that the Benchers are essentially an administrativeand not a judicial body. In the exercise of their administrative functions they have,within the Legal Professions Act, a wide discretion, and that discretion extendsto determination of the qualifications and disqualifications of those who seek theprivilege of becoming a member of the Legal Profession.

In this particular case the applicant is a Communist. The Benchers, consideringthe ideological values and motives and loyalties of an adherent of that alienphilosophy, reached the conclusion that such a person was unacceptable for thereasons given refusing his application to become a member of the Bar of thisProvince.

I have given careful consideration to those reasons of the Benchers. In myopinion they reflect the exercise of a proper discretion according to law. I mayalso add that I am in agreement with the reasons of the Benchers and with theirconclusion. 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'sapplication for call to the Bar and admission as a solicitor, on the ground he wasnot a person of "good repute" within the meaning of secs. 36 and 39 of the LegalProfessions Act, C. 180, R.S.B.C. 1948. The Appellant appeared personally beforethe Benchers. He was represented by Counsel and he answered the questions hewas asked. The Benchers explained their decision in extended written reasons-seeIn re Martin 1949-1 D.L.R. 105.

The Appellant having admitted he has been a Marxist Communist for sometime, the Benchers came to the conclusion that the Marxist philosophy of Law andgovernment, in its essence, is so inimical in theory and practice to our constitutionalsystem and free society, that a person professing them is eo ipso, not a fit andproper person to practice law in this Province, and hence cannot be of "goodrepute" within the meaning of the Legal Professions Act.

An appeal to the Court of Appeal from the decision of the Benchers-the firstof its kind-was made possible by an amendment to the Legal Professions Actenacted in 1949. This Court was thereby empowered to reverse or confirm thedecision of the Benchers in whole or in part, or refer the matter back to them forfurther inquiry. The notice of appeal is dated 20 May, 1949, and was given tothe May-June, 1949 Sittings of the Court. But as the result of postponements askedfor 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 therewas no evidence before the Benchers he had advocated overthrow of our system ofgovernment and free society by force or by non-constitutional methods, or thathe had been engaged in activities subversive to the State. The appellant himselfcontended before the Benchers that he could be a Marxist Communist and still

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advocate the introduction of a Communi9t system of government into this countrywithout the use of force or by resort to subversive methods. The argument onbehalf of the appellant came to this, that an avowed Marxist Communist can be agood citizen of our country; that the contrary cannot be said unless he is caughtplanning or perpetrating some overt act against the State, such as (to give anextreme example) blowing up the Parliament Buildings.

Counsel for the respondent Law Society in answer confined his brief submissionto what he described as the commonsense realities of the present day. He said ineffect that particularly since the end of the European War in 1945 the UnitedStates, 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 undergroundand with the activities of Communists in the role of "intellectuals" and advancedlibertarians, often specially trained for the purpose, posing as the defenders ofpersonal liberties and promoters of peace and goodwill among nations. Communistsand their sympathizers have been astute to find their way into so-called peace,youth, cultural, student welfare and various other societies and organizations, andthere 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 orenquiry to give their support to anything on its face sounding as if it would benefitmankind in general. With Soviet Russia engaged in a "cold war" with the Westernnations and determined to obtain mastery of the World, these friends of SovietRussia would weaken the Western nations to the point that Soviet Russia, withtheir fifth and sixth columnist assistance, could be able to capture Canada and theUnited States by telephone. They would repeat here the methods of nationaldisintegration their fellow Communists so successfully carried out in France duringthe early stages of the last War after Germany and Soviet Russia had come to amutual understanding.

Widely publicized trials in the United States, Britain and Canada, havedisclosed Communist activities to a degree inconceivable and incredible to theaverage citizen, if the facts had not been conclusively established by the most carefuland impartial judicial investigations. Wherever there is an opportunity to creatediscontent and disaffection there may be found Communist agents and neo-communists actively engaged in doing whatever they hope will promote the Worldrevolution. A recent trial was that of Dr. Klaus Emil Julius Fuchs in England, ascientist morally blinded by Communist inoculation. The Attorney-General inopening the case said Dr. Fuchs was a Communist and that at once was theexplanation of his conduct. Lord Chief Justice Goddard in sentencing Dr. Fuchsdescribed Communism as a "pernicious creed".

It is true that Dr. Fuchs pleaded guilty in a Criminal Court to an overt actof communicating to a person unknown information directly or indirectly usefulto an enemy. But it was his Communist beliefs that led him to what he did. Andwhat 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, suchas it was, reminds one of the submission of the appellant here that he could be aCommunist and loyal to Canada at the same time. Dr. Fuchs' defence was describedas "controlled schizophrenia" by which he insisted one half of his mind wasCommunist and the other half loyal to Britain. Lord Chief Justice Goddard isreported to have said he did not understand "such metaphysical talk", and did notknow that he ought to understand it.

But recognition of that defence to the full extent it may warrant, points upmost vividly the danger of allowing a Communist to occupy any position of trust orinfluence. It at once proves him untrustworthy and concedes he is subject toRussian influence. It is of course not uncommon for "intellectuals" who seek todiscard the age old concepts of right and wrong, to build up some elaboratesubstitution in an effort to escape illjudged or wrongful use of their free will. Buteven if one gives full vent to the "split personality" and analogous theories, it butserves 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 yearsof age) are to any democratic country in which they live. The pull of the Kremlinis never absent.

Marxism exercises a strange power over its adherents. The moral needs ofman which Marxism forbids to be expressed in terms of human ideals, are injectedinstead into a mechanistic conception of politics to which they impart the force ofa blind passion somewhat like that which inflamed the minds of Nazi youth during

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the Hitler regime. Communism is a complete philosophy of life. It wishes to benot only a state but a church judging the consciences of men. No person in ourday who is not blind to realities can fail to recognize the strange but menacingpotentialities present and future that the Marxist philosophy engenders in eventhe mildest appearing of its adherents. This was illustrated in our own Canadian"spy trials", which disclosed that some Canadians became so indoctrinated withCommunist ideology, that they convinced themselves they should secretly befriendRussia 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 theirdecision. But they had ample before them concerning the nature of Communistactivities in the United States, Britain and Canada to compel them to the conclusionthey reached. Governments in United States, Britain and Canada have been forcedby convincing experiences to be more than distrustful of Communists. LabourUnions, Universities, and other public bodies have publicly sought and are stillseeking to rid themselves of men and women professing Communist beliefs. Ithas come to be universally accepted in the Western nations that it is dangerous toour way of life to allow a known Communist or Communist sympathizer to remainin a position of trust or influence. The Benchers as men of the world and trusteesof an ancient and honourable profession, in my opinion, would have been recreantto their trust, if in the light of convincing public knowledge and accepted justifiedbelief in the Western world at the present time, they had failed to act on theevidence before them, in any way other than they did.

Counsel for the appellant permitted himself some forensic latitude in declaimingupon freedom of expression, freedom of thought, freedom of the individual, andthe safeguard of minorities. According to him we would be a "servile, people" if theappellant, an avowed Communist were denied the opportunity to engage in thepractice of law. How these "freedoms" can be invoked on -behalf of an avowedCommunist 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 ofinfiltration which disclosures in the United States in particular have made amatter of common knowledge in our day.

For a Communist to talk about personal freedom of action, expression andthought is like the Devil talking about the delights of Heaven. There is no suchthing as personal freedom in Soviet Russia, where organized practices of inhumanity,lawlessness and depersonalization continue to shock the conscience of the civilizedworld. Moreover, the existence of personal rights in the sense we know them isdenied by the Communist philosophy, as their existence was denied by the Nazidoctrinaires who took their political philosophy from Hegel, who was also, in somany respects, the inspiration of Karl Marx. Hegel it was who taught the doctrineof progress by antagonism which Karl Marx took for his own as a metaphysicalsupport 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 theopportunity 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 denyany merit whatever in the Western idea that freedom to talk against the governmentin 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 GosudarstvennoePravo 485 (Moscow 1938'] lays it down authoritatively:

"In bourgeois study oi public law the department concerning so-called personalrights is the most false and hypocritical department of law, the farthest fromthe tasks of investigation of an authentic scientific sort."

And see Professor Hazard's article, on the Soviet Union and a World Bill of Rightsappearing in the Columbia Law Review of November, 1947. Marxist economistsregard Western guarante s of personal freedom as hollow phrases, put forwardthey say as propaganda on behalf of a private enterprise system in a dying effortto prolong its existence.

Not only do Communists reject our understanding of personal freedom, butas a logical corollary they reject our conception of ethics and morality. To themanything is right that advances the World revolution, and everything else iswrong and must be ruthlessly destroyed. According to the Marxist scheme of thingsthe whole structure of society is determined by the economic life of the CommunistState. In the Communist ideology, it is inconceivable for any right to be more

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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 theAmerican Declaration of Rights, Jefferson put the accent at once not upon theeconomic basis of well being, but upon the moral aspect of life.

In his address to the third Congress of the Russian Communist League on2 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 ispreached by the bourgeosie, who derived ethics from God's commandments:or instead of deriving ethics from the commandments of God, they derivedthem 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 conceptsWe say that it is a deception, a fraud in the interest of the landlords and thecapitalists. We say that our morality is entirely subordinated to the interest ofthe class struggle of the proletariat.

"The class struggle is still continuing . . . we subordinate our communistmorality to this task.

"We say morality is what serves to destroy the old exploiting society andto unite all the toilers around the proletariat which is creating a new Communistsociety." (My bold face.)

(And cf. editorial in "Saturday Evening Post" of 5 November 1949, "Our quarrelwith the Communists is moral rather than Political".)

To Communists, neo-Communists, Communist sympathizers and what have cometo be described as "fellow travellers", Soviet Russia is the apostle of peace, theinevitable instrument of a new World and model order of Society, while the WesternNations are war-mongers, re-actionaries, and capitalistic obstructionists in thepath of the World Revolution to create a "classless Society". The Communism ofMarx and the Communism of Stalin are by no means identical. But the originalvision of Marx is the dynamo which supplies millions of adherents with faith inthe Communist creed, and hence with the crusading instinct to serve fanaticallySoviet Russia's ambition to rule the World.

Counsel for the appellant sought comfort in certain expressions of opinionfound in decisions of the United States Supreme Court particularly in Schneidermanv. United States-1943-320 U.S. 118 (a 5-3 decision). I have read also Strombergv. California-1931-283 U.S. 358; Herndon v. Lowry-1937-301 U.S. 242 (a 5-4decision); 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 5-3decision). In so far as any of these decisions were founded on what is describedas the "clear and present danger" doctrine, it is in point to note the Court does notappear to have acted on that doctrine in Hirabayshi v. United States-1943-320U.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 donot permit us to take the neutral and detached view of Communism which themajority of the United States Supreme Court, as it was constituted between1937-1947, persuaded themselves to adopt in the Schneiderman, Bridges and otherdecisions. We are compelled today to take a more informed view of Communistideology and practice than was generally prevalent in Canada and the United Statesprior to 1946. Up to that time, it was very difficult for people educated in Canadaor the United States to realize the true extent of the influence of Marxist philosophyupon what was happening not alone in Europe, but right here at home on theNorth American continent.

If however we are to speak of United States decisions, I must refer toIn 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 hisreligious 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 goodfaith. The United States Supreme Court upheld the ruling in a 5-4 decision. Thatdecision is particularly significant since the constitutional issue raised was the"free exercise of religion". In the case at Bar, there is no such powerful supportingargument for the appellant. For that reason I do not think that Girouard v. UnitedStates-1946- 3 28 U.S. (a 5-3 decision) can be said to weaken the result in theSummers decision.

It has been pointed out that in countries which Communists control personalfreedom does not exist. I have already shown that the Communist philosophydenies the very existence of personal freedom, and acknowledges, only a freedomin a collective form, viz., a freedom in the Communist State to regiment and control

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every aspect of the individual's life and thought until, as Engels would have usbelieve, the State will have "withered away", and the happy Communists, a greathand of brothers without police and without Courts, will have reached that mythicalmillenium upon earth which they have conjured up in substitution for the ChristianHeaven that Karl Marx sought to abolish with a stroke of his pen.

There may still be those, however, who would invoke for an avowed MarxistCommunist the cliche "I disagree entirely with what you say, but I will defend todeath your right to say it"; or what Mr. Justice Oliver Wendell Holmes in hiZdissent 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 agreewith 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 thoughtto get itself accepted in the competition of the market"; this latter statement wasquoted 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 Frankfurteronce described as "so remote from the common currents of life that he did notread the newspapers". These statements do not recognize moral limitations; theydo not recognize a distinction between propaganda as such, and reasoned statementsfounded upon historical experience. They push the right of free speech to a limitthat makes it only metaphysically distinguishable from an absolute right whichignores any attendant duties. They would make it legally impossible to decidejudicially when an abuse of free speech has occurred. They would reduce loyaltyto one's country to an impersonal metaphysical abstraction, totally beyond the kenof ordinary mortals.

These statements make no exception for emotional and inflammatory declama-tions which incite disaffection to the State, and create the incentive for preparationsleading to conspiracies to undermine and destroy our free institutions. Should wenot hate what is wrong? Should Canada permit people to preach disaffection whichmay lead to consort with the enemy and the weakening and ultimate destructionof our own Country? Such language and thinking can easily give reason toCommunists to believe there is no limit to the naivete of the people of Canada andthe United States.

But the principles of constitutional democracy upon which free society isestablished, cannot be based upon pragmatic values, determinable by circumstanceand consequently variable. They must be based on certain absolute values, justice,truth and reason. That is why inalienable rights were written into the United StatesConstitution. That is why we have Magna Carta. Hence freedom of expression musthave some limitations-it cannot be used to destroy our free society, to destroydemocracy itself. Freedom of expression cannot be given to Communists to permitthem to use it to destroy our constitutional liberties, by first poisoning the mindsof the young, the impressionable, and irresponsible. Freedom of expression is nota freedom to destroy freedom. Among many noted writers that may be referredto I mention only the French philosopher Julien Benda (See "Benda on Democracy"by E. 0. Siepman-in February 1948. "Nineteenth Century and After"),who hashad ample opportunities to study not only the philosophy of Communism, but alsoits actual application in practice.

Likewise it must be recognized "freedom of thought" may become dangerousif it is translated into speech or writing aimed to destroy our free society. LordJustice Bowen once said "the state of a man's mind is as much a fact as the stateof his digestion". When the Benchers enquired into the appellant's state of mindregarding his attitude toward Communism, they were enquiring into a fact. Whatis "fact" lies in the conception that a thing is existing or true. It is not limitedto 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 trueare conceived as facts. All enquiries into the truth, the reality, the actuality ofthings, are inquiries into the facts about them.

Mr. Justice Holmes recognized in the abstract at least, that unbridled speechand expressed thought may be dangerous to free society, for he invoked what iscalled 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 realityis 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 circulationduring war time of seditious leaflets by five Russian born anarchists. One of theleaflets was entitled "Revolutionaries unite for action", and the other "The

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Hypocrisy of the United States and her allies". Both were couched in violent andinflammatory language.

If a danger is "clear" the limitation of "present" seems superfluous. Manyexamples could be given but it is sufficient to say it seems like an attempt to placea limit upon foreseeability that is as repugnant to law as it is in the affairs of dailylife. If there is "clear danger" that a nation may be attacked, it does not postponepreparing its defences, until that danger is crystallized into the "present" when theenemy lands on its shores. It will then be too late. In the Abrams case Mr. JusticeHolmes professed to believe that the Russian anarchists had as much right toprint and circulate in the United States seditious pamphlets threatening the freeinstitutions of the United States, as the Government itself had to publish theconstitution of the United States.

The "Olympian" was something more than a constitutional Judge. WithJohn Dewey, Veblem, Beard, and Robinson (See Toronto Saturday Night Editorial21 March, 1950) he was the proponent of a distinctive American philosophy, whichhe introduced assiduously and vigorously into his famous dissents. He adopted anearlier anti-authoritarian philosophy to support fictions and formulae difficult toreconcile with the realities of modern life. Many of these dissents particularly thoseapplying that philosophy seem to have been adopted by a majority of the membersof the United States Supreme Court as constituted between 1937-1947 and mayperhaps explain the Court's detached (and one might say quixotic if attempted tobe applied to present day conditions in this Province) attitude towards Communismin some of the decisions to which I have referred. One may have a deep venerationfor the Supreme Court of the United States as an institution (which I have), andyet be prepared to examine carefully theories of philosophy of government andmoral conduct adopted by slim majorities of the Court during disturbed periods inits existence.

It may be a compliment to his mental vigour and the force of his personalityif the Holmesian philosophy in a peculiarly distilled form maintains its hold uponmany in thc teaching field of law (in Canada as well) when that of his co-thinkersJohn Dewey, Veblen, Beard, and Robinson under more searching analysis in theirrespective fields, is gradually succumbing to its ie weaknesses. The Holmesianidealistic concept of freedom of thought and expression as developed and ostensiblyapplied by his announced followers, leads in our day not to the strengthening of thefoundations of freedom, but tends on the contrary to encourage the suppressors offreedom. On analysis it emerges as a reconstructed anti-authoritarian formula ofliberty in vogue even before the nineteenth century synthesis (now itself brokendown) sought to elevate science almost into the position of a religion.

When the great constitutionalist and philosopher was at the zenith of hispowers (Mr. Justice Holmes retired in 1932 at the age of ninety-one after fiftyyears on the Bench, the last thirty of which were on the Supreme Court of theUnited States) the Nazi and Communist application in practical form of Hegelianand Marxist philosophic concepts had not yet become exposed in their nakedconsequences, and many thinkers, before that time, would have dismissed thereality of such consequences as hopelessly inconsistent with the "inevitability oforderly progress" and the "scientific advancement" of the human race. The plainmenace of the tyrant state and the conditions which beget it were not so obvioustwenty-five years ago as they are today.

The Holmesian reduction of the test of truth to the power of thought to getitself 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 capitalismdehumanized man by subordinating him to the impersonal mechanism of "themarket". The circumstance that Holes and Karl Marx should reach this basicagreement upon "the market" as the1ftial test, gives reason to ponder the warningsof Pandit Nehru, Einstein and Mauriac, that the thinking of Soviet Russia andthe United States have reached an identical low point in materialism. If that betrue, there is ultimate danger in the Holmesian thinking as there is present dangerin 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 itselfonly by asserting that it is the only true teaching among many that are false. Ifthe Courts and the Universities fail to recognize this simple fact one need not bea prophet to predict that the life of our free society will he short-lived indeed. Thefreedom I mean is not unrestrained or abstract licence contained in the anti-authoritarian formula of liberty emotionalized by Rousseau and sought to berationalized on this Continent since the turn of the century by John Dewey,Mr. Justice Holmes, and others of their school of thought.

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When called before the Benchers to explain his beliefs in the tenets ofCommunism, the appellant declared himself to be a Marxist Communist. Theevidence shows his belief is not a temporary youthful enthusiasm, but one reachedafter many years of thought, study and practice, by a man of mature years. He isnot a constitutional or Christian Socialist. To my mind he is a logical product ofthe philosophy of Holmes, Dewey and Beard when that philosophy receives thefull impact of the thinking of Hegel and Karl Marx. If the concept of free expressionis to be pushed to the point it becomes unbridled licence, it is but a short step tothe time when forces within the nation may be attracted to invoke some form ofauthoritarian State as the only remaining way to curb the resulting excesses.

The views expressed here are in no wise inconsistent with a firm belief inInherent Rights of the individual which this writer has developed extra-judiciallyelsewhere (See 1947-8 Fall, Winter and Spring Issues of "Obiter Dicta" OsgoodeHall).

Freedom is not licence. It is something more than an abstraction. It gives riseto inseparable duties. There can be no such thing as a freedom to advocate apolitical philosophy, which of its very nature cannot fail to be directed to thedestruction of our free society, and to the setting up in its stead of a dictatorshipwhich denies the very foundations of freedom. There is an old saying "who playswith fire will be burnt". Freedom like fire is a real thing with positive consequencesand it is dangerous to leave its definition and appraisal to the negative fictions andformulae of idealistic libertarians.

It was also urged on behalf of the appellant that the Benchers had penalizedhim for his "political opinions". As used in the study of "political science" in theUniversities, the term "political" may be wide enough to include all the politico-economic philosophies of government that have engaged mankind's attentionamong 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 useof the term "political opinions" is not related to the philosophies underlyingdifferent systems of Government, but is directed to adherence to or acceptance ofthe policies of a political party that upholds the constitution and is not subversivein its programme and tendencies.

For example, if a well-known lawyer member of the Liberal party or of theProgressive-Conservative party should publicly declare his belief in Marxist Com-munism, the Benchers of the Law Society might well find it their duty (after aproper hearing, of course) to disbar him from practice. Such action by the Bencherswould not be directed toward his "political opinions" but toward beliefs of hisinimical to his country and repugnant to the ancient and honourable profession oflaw, even if his pernicious beliefs might be included in the expression "PoliticalScience" as it is understood in the Universities. It is clear from the reasons fortheir decision the Benchers were not concerned with the appellant's "politicalopinionF" as such, but on the contrary were deeply concerned with opinions andbeliefs he stated he held, which in our day, under the conditions we know, cannotbe 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 morethan passing thought to these subjects that the adherents of Communism andNazism have quite a different conception than that of the Anglo-American countriesin regard to "freedom", "democracy" antany other common terms we use sofrequently as if they had only one meaning. To a Communist the "dictatorship ofthe proletariat" is the ultima Thule of democracy. This difference in viewpoint isdue in large part to the political philosophy of Hegel (who was influenced byHobbes) in fespect to rights of the individual. The subject is treated fully bySpender in "Government of Mankind" and by other writers who have given itmore than casual study.

Those who accept common-law theory and practice confess to a belief ininherent rights of the individual diametrically opposed to the Hegelian and Marxistconcepts of the State. The political philosophies underlying Communism have nomeeting point whatever with the true political philosophies of the Anglo-Americandemocracies. One dividing point appears clearly on the subject of inherent individualrights as adopted by Locke (who wrote the political philosophy of the ConstitutionalRevolution of 1688) and later with some variations, by Jefferson, when contrastedwith the denial of these inherent rights by Hegel, Marx, Lenin and others uponwhose political philosophy any type of totalitarian state is based. Hegel is thesource of modern Fascist and Communist perversions.

It was said also on behalf of the appellant that it was rather late in the dayto deny him the right to practice law after he had been allowed to complete histhree-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'

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knowledge in time to act before they did, but even if it had, and whatever powersthe Benchers may have in disciplining students-at-law and articled clerl:s underthe Legal Professions Act, there is an inescapable statutory duty upon the Benchersto act at the time when call to the Bar and admission as a solicitor is sought. Manyexamples might be given to illustrate the wisdom of the course prescribed in theLegal Professions Act in this respect. The study of law even if one does notpractice law is extremely useful in a wide variety of occupations.

Inherent in the last objection was more than a faint suggestion that a lawstudent who completes his course and passes University law examinations, shouldbe admitted to practise law as of right. This is denied by the requirement of sec. 36and 39 that the applicant must be of "good repute". Moreover apart from thosesections, the law is a profession; it is not a business or trade. Nor can the LawSociety be copipared to a Trade Union; nor can lawyers as members of the LawSociety be likened to members of a trade union. A man can become reasonablyproficient in hundreds of unskilled or semi-skilled manual or clerical occupationswith 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 greatdeal, 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 yearsCollege, he must take three years at law school and an additional one year'sexperience in a legal office; a minimum of six years of study and training before heis eligible to practice. Then he faces the big problem of establishing himself inpractice. Ordinarily he would be lucky if he is able to marry within tenyears 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) themoney spent on his education. Quite different indeed if he were earning onedollar or more an hour during that lengthy period.

Moreover, the law student's training is not manual training, but is training ofthe mind, not only in law, but if he wishes to be something more than a mere legalmechanic, he must study logic, history, in particular constitutional history, politicalscience and economics, a certain amount of philosophy and acquire a reasonablefamiliarity with English literature, and know something at least of the literature ofother countries. The job of the lawyer is basically to advise people upon all mannerof 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 toreduce to purely material terms. It is not too much to say that the training andexperience a lawyer undergoes fits him for leadership to a greater or less degree.Obviously such men should not be partial to political philosophies and movementsthat conflict with the interests of their own country.

By reason of these things, all countries throughout the ages have given thelawyer a correspondingly high place in society-particularly so in the case of thelawyer who pleads in the higher Courts. The object of law training is to attractyoung men of high character, and to train them in a manner that they will betrustworthy, 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 todestroy our Canadian constitutional democracy. They are to be the defenders andnot the destroyers of liberty. They are expected to be sufficiently well-informed andexperienced to distinguish between liberty and licence.

It is true these objectives are not always attained. It sometimes happens thatmen of unmoral and amoral outlook or unstable character, or of little integrity, orwhose object is to use the law solely to make money, find their way into theprofession of law. But they are the type of men who bring the profession intodisrepute. To prevent these undesirables entering into the practice of law and tokeep up the standard of legal practitioners the Benchers are elected by the lawyersunder statutory authority to act for the protection of the public. If every personhad the right to practice law upon passing the University law exaninations, therewould be no protection for the public. It is the duty of the Benchers to protect thepublic by refusing admission to the practice of law, not only the type of personwho will prey upon the public for his own selfish ends, but also the type of personwho 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 anunfriendly country to destroy the rights and privileges a free people haveestablished in Canada.

I respectfully agree with Lord Chief Justice Goddard of England in the Fuchscase that Communism is a "pernicious creed". Furthermore by reason of what hasbeen said I am of opinion (see the decisions of the United States Supreme Courtpreviously discussed) that Communism is a "clear danger" to our Canadian freesociety; what has happened during the past five years alone shows that "cleardanger" is not remote, and also that it is foreseeably greater in the future.

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I dismiss the appeal on the broad ground (although narrower grounds may befound) that a Marxist Communist cannot be a loyal Canadian citizen; at best hisloyalty must be divided between. Canada and the Communist leadership outsideCanada which is engaged idealogically through him (whether he knows it or not)and others of like indoctrination in promoting disruptively in Canada and othercountries what Lenin called "the class struggle of the proletariat" for the worldrevolution.

I would dismiss the appeal. C. H. O'HALLORAN, J.A.Victoria, B.C., 26 April, 1950.

THE HON. MR. JUSTICE ROBERTSONIn 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 theLabour Progressive Party which is a Communist organization formed in 1942after the Communist Party of Canada had been declared illegal and outlawed by,amongst others, two well-known Communists, Buck and McEwen, the same crowdthat immediately prior to 1942 ran the Communist Party of Canada. Buck andMcEwen were convicted in 1931 of being members of an unlawful association, ofacting as officers of an unlawful association, and being parties to a seditiousconspiracy. See Rex v. Buck et al (1932) 57 C.C.C. 290. Martin admitted that theLabour Progressive Party was a successor of the "old Communist Party", but hesaid he would not say there was "an unbroken thread of development". The oldCommunist Party was clearly a party of violence. See reasons for judgment ofMulock, C.J.O. in R. v. Buck supra. He was a candidate for the Labour ProgressiveParty at the Provincial 'election held "two or three years ago". He was asked "sothe L.P.P in Canada occupies the same position as the Communist party does inthe 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 UnitedStates has been in recent years. The Committee on Un-American Activities, U.S.House of Representatives, Washington, D.C., "prepared and released" in 1948some pamphlets, two of which are called (1) "Communism and Government",and (2) "Communism and Education". These are to be found in the ProvincialLibrary 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 VIOLENCEis inevitable in their struggle for the world. And in all their captures, fromRussia in 1917 down to China in 1948, they have USED violence as theirweapon."

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. Thenconfusion 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, inpeace or in war".

It is stated in "American Communism" by Oneal and Werner, published in1947 (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 ofthe Russian dictatorship pledged to carry out the aims and policies of Moscowin the expectation that eventually a Communist dictatorship will be establishedin each nation and the "world revolution" become a reality. The Communist inFrance, in China, in the United States and in all other countries does notregard the nation in which he lives as his. Russia is his "fatherland" andCommunist literature in all countries refers to Russia as the "fatherland" orthe "worker's fatherland", or the "socialist fatherland", it is not a matter ofRussia first and his own nation second; it is Russia only. There is no secondchoice unless the servitude he plans is extended to the nation where he livesand even then Russia is the mother country with the responsibility of guidingor punishing its new offspring. Need it surprise one, therefore, that the childrendutifully respond to the commands of the parent no matter how ridiculous sucha response may be?"

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At p. 340-"J. Edgar Hoover stirred the delegates to the national convention in SanFrancisco in October by stating that Communism had made its deepest inroadinto our national life in the previous five years. It is probable that the Canadianinvestigation of Soviet spies had revealed the network extending into privateorganizations and institutions as well as the government itself. Hooverexpressed confidence in the Legion's ability to expose Communism which is"built and supported by dishonor, deceit and tyranny and a deliberate policyof 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 notonly to inculcate a high degree of 'loyalty to the Party' and 'obedience to theParty' but to instil in the mind of the adherent the view that loyalty andobedience to the leadership of this organization takes precedence over hisloyalty to Canada, entitles him to disregard his oaths of allegiance andsecrecy, and thus destroys his integrity as a citizen."

Everyone knows that many trade unions are expelling Communists from theirorganizations. I think that neither the Government of Canada, nor that of theUnited States, nor that of England knowingly would employ a Communist.

Experience gained from the prosecution and conviction of such men as Fuchsand May in England and Boyer in Canada, all of whom had taken the oaths ofallegiance to His Majesty, leads to the belief that Communists' protestations ofloyalty are not to be accepted, and that they consider their first obligation to theCommunist Party. Under these circumstances it is not to be expected that anavowed Commtnmist is to be believed who denies that he personally adheres to allthe 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 existingsocial conditions; coupled with a warning to the ruling classes to tremble at aCommunist revolution.

The appeal must be dismissed. HAROLD B. ROBERTSON, J.A.Victoria, B.C., 26th April, 1950.

THE HON. MR. JUSTICE SIDNEY SMITHIt 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 LegalProfessions Act givig us i'risdiction. The amendment simply states that thereshall be an appeal to this Court, and nothing more. Had it been the intention of theLegislature that we should embark on new proceedings, nothing would have beeneasier than to say so. The appeal is from a decision of the Benchers, and in myopinion the Benchers are an administrative body. That being so, the usual and wellknown principles governing appeals from such bodies apply here; and so we canonly interfere with their finding if their procedure was wrong, or if they actedin bad faith or against all reason, or the public interest, or if they formed theiropinion upon grounds never brought to Appellant's notice.

The second misconception is the assumption by Appellant, and apparentlyalso by some of the Benchers, that they could only refuse to admit him on theground of ill "repute". That, too, I think is a mistaken view. Ill repute completelydisqualifies; but good repute is only the beginning of the matter. The truth is thatthere is nothing in the whole of the Legal Professions Act that entitles any personto be admitted to the Society (and in this I include call to the Bar). There are varioussections stating that the Benchers may admit an applicant who complies with suchand such conditions; but no section says that they must admit anyone. The whole isleft to their discretion. And we must take the Act and the Amendment as we findthem. We cannot add to or detract from them. I may perhaps venture to repeatwhat 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 donot 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 excludepersons who do not comply with them. But compliance imposes no obligations onthe Benchers. As indicated by Hunter C.J. in Re Nagel and the Law Society ofBritish Columbia (1922) 31 B.C.R. 75, admission to the Society is a privilege that

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no one can claim as of right. That in itself is an indication that the Benchers arean administrative and not a judicial b dy. The fact that they are left free to decidewhat considerations shall govern them, points in the same direction. I apply thelanguage of my brother Robertson in describing the Public Utility Commission'sfunctions in Veterans' Sightseeing and Transportation Company Limited v. PublicUtilities 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 matterof 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 variousacts."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 areimposed on the exercise of that power, and no standards by which it is to beguided are set up. It has a free hand. It is a law unto itself. It may determineits own policy, and expediency is its only guide. That is an administrativepower, 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 anadministrative body. Viscount Simon, at page 634, described the Council as "not ajudicial 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 toapply and whether to hold that the particular conduct is infamous, not in theabstract, but 'in any professional respect'."

At page 640 he said "The Council is not a Court of law"; and at pp 641, 642 heapplied to the Council decisions that were in terms decisions op administrativepowers.

The reasons for saying that the Benchers are an administrative and not ajudicial tribunal are even stronger. The Act relating to expulsion of physiciansonly allows this for "infamous conduct" in a professional sense, which applies astandard of a sort, though with a subjective element. Here the Benchers are givenno standard whatever to apply; so they can only base their decisions on what theyconsider 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 ajudicial tribunal too) to conclude that the appellant belonged to a Communistorganization, and that it is one of the tenets of the Communist movement that theybe prepared to overthrow existing governments by force if necessary.

The appellant cited against this the case of Schneiderman v. U.S. (1942) 320U.S. 118, where in proceedings to revoke the Naturalization Certificate of aCommunist the Court held that it was not proved that the Communists advocatedthe overthrow of governments by force. That, however, was a judicial proceedingin a judicial tribunal to deprive a person of a vested right; and in any case thedecision turned entirely on the question of onus. It has no bearing on the rightof an administrative tribunal to conclude that it is imprudent and inexpedient togrant a privilege to a Communist.

The appellant made much of the repeal of section 98 of the Criminal Code in1936, the implication being that this made it legal to advocate the overthrow of theGovernment by force. In my view, the repeal did nothing of the sort; it merelyremoved the specific penalties provided by the section, and what was unlawful atCommon Law remained unlawful. In my view an organization that aims at theoverthrow of the Government by force is unlawful at Common Law. Even if itwere not, still, membership in that is something that the Benchers are entitled totreat as making an applicant an undesirable member of their Society.

In connection with this point it was argued for the appellant that no man canbe penalized for "mere opinions" without any overt act, and that the Benchers couldnot exclude a man because of his "politics". I quite agree with the latter point, solong 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 conspiringagainst the Government he goes beyond mere opinion; his very joining is an overtact.

Assuming that the evidence here would be inadequate to establish conspiracyin 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 quiteenough evidence on which an administrative body could reasonably hold that theCommunist movement probably advocates the overthrow of government by force.The Benchers need go no further to justify their acts.

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I agree with the views of the Benchers. But that is not neLessary for mydecision. It is obviously the intention of the Legislature that the Legal Professionitself through its Benchers shall decide who shall join their ranks. We have theright to override them if they act dishonestly against all reason or against thepublic interest. Appellant's counsel admitted below that he did not challenge theirbona fides. And I find that I cannot say that their refusal to admit the appellant iseither against all reason or against the public interest. Therefore I see no groundfor interfering with their decision.

The appeal must be dismissed. SIDNEY SMITH, J.A.Victoria, B.C., 26th April, 1950.

THE HON. MR. JUSTICE BIRDW. 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 asolicitor of the Supreme Court.

On July 30th and 31st, September 25th and October 23rd, 1948, the Benchersheld formal hearings for the purpose of considering the petition, and particularlywith a view to determining whether the powers conferred upon them by the LegalProfessions Act, R.S.B.C. 1948, Cap. 180, Sec. 36 should be exercised to call andadmit 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 BritishColumbia, 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 ofallegiance, and would abide by them. He then stated that he had been a member of theLabour Progressive Party since 1943; that Party being described in its Constitutionas "the Party of Canadian Communists"-"Dedicated to the struggle for socialism,the fundamental extension of democracy through the establishment of commonownership of the means of production; a government of the working class in alliancewith the working farmers; the abolition of classes and of exploitation, throughthe 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 neverbeen ashamed of the term as applied to himself and did not consider that beingknown as a Communist had adversely affected his reputation.

He then declared that he would not follow the Marxian doctrines to the extentof using force if necessary to overthrow constituted authority, that he always feltfree to disagree with the application of such doctrines and in lieu to advocatesocial change by means of education and social organization. He said "I never hadand do not expect, and I hope I will not see anything necessary in Canada in anyother 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 Benchersrefused the petition, upon the ground that Mr. Martin had failed to satisfy them ofhis good repute.

On October 23rd, 1948, the investigation was reopened upon the application

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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 thendelivered extended reasons upon which their decision was founded.

If I may say so, with deference, the Benchers have made a careful and thoroughinvestigation of the petition to the end that the discretionary power conferred uponthem by the statute should be honestly exercised, with due regard to the publicinterest and the responsibility imposed upon them, that is to say, that they haveexercised the discretion conferred upon them as an administrative body upon properlegal principles. Pure Spring Company v. Minister (1946) Ex. C.R. 471 at p. 487.

Subsequently after Martin's application to the Supreme Court of BritishColumbia by way of mandamus to the Law Society had been dismissed upon theground that mandamus did not lie since the Court found that the Benchershad 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 theLegislature, whereby an appeal to this court in the present proceeding was madepossible.

On this appeal counsel for the appellant argued that Martin had establishedthe right to be called and admitted since he had complied with the academic andservice requirements prescribed by the Legal Professions Act and had introducedevidence 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 andadmit 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 conformedto the rules of the Law Society.

These statutory provisions give power to call and admit such persons as arefound by the Benchers to have the prescribed qualifications. The onus is upon theaopellant 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 whocomply with certain conditions, including proof of good character and reputation.""There is no right of admission, but only a privilege on compliance with certainconditions to the satisfaction of the Benchers, and the privilege only becomes aright after admission."

The Benchers have found that the applicant "(a) is not a fit person to be calledto the Bar and admitted as a solicitor, (b) has not satisfied them that he is a personof good repute within the meaning and intent of the Legal Professions Act." Thereasons given I think make it clear that these conclusions were based upon thefact that Gordon Martin then was a Communist. Counsel for the Law Society sodeclared on the hearing of this appeal.

Notwithstanding Martin's assertion that his personal philosophy did not exendto the advocacy of anything subversive or to the commission of subversive acts, theBenchers considered that adherance to that philosophy extending over a periodof 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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The Advocate

sive Party and adherance to Communist philosophies do not warrant the conclusionthat 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 whichhave occurred since the cessation of hostilities in 1945. The revelations made in theReport of the Royal Commission on Communist Espionage in 1946 which disclosesthe debauching by Communist influences of Canadian public servants occupyingposition 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 philisophyas well as of its adherents. That distrust has been accentuated by the disclosure ofsimilar activities in Great Britain, i.e., the Fuchs case and also the Alger Hiss andother like proceedings in the United States.

Communism and all that pertains to that philosophy I think is now recognizedas having a common connotation equivalent to Fifth Column. It is common knowl-edge that governments on this continent, public and private organizations, moreparticularly among trades and labour unions, alive to the danger of Communistinfiltration 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 rightand that the findings made by them disclose a lawful and proper exercise of thediscretion and public responsibility imposed upon them under the Legal ProfessionsAct.VICTORA, B.C.26th April, 1950.

B. C. CURRENT CASESNote: 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 withcurrent litigation in the B.C. Courts. Reference is made to the commercial reportswhere cases digested have been published at the time of going to press. The digestinghas been done by Dr. M. M. Maclntyre of the Faculty of Law of the University ofBritish Columbia who wishes to make it clear that the digests are not presented asan authority but as information that the subject matter was discussed in the casesdigested.-Ed.

ASSAULT AND BATTERY-Limits of self-defence. Waster and servant. Beer parlorattendant 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 thebounds of self defence; and exceeded the force necessary to maintain order in the beerparlor. 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 seconddefendant's argument that Phelan's blow was an act outside the course of his employ-

LOST WILL-JOHN CHARLES WILKS, DECEASEDA 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.

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Lawyer will rent private room, with joint use of outer office, with object ofmutual assistance and sharing of certain expenses. Younger man preferred asttenant but essential that he be lawyer of several years standing with own privatelpractice and financially responsible. Apply MArine 1848.

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