UBC Law: History

Chapter 9: Opening the Portals

"Dirty" Politics

Despite the need for ongoing efforts, 1945 did mark the beginning of a distinctly different era for the status of women and "minority" groups in the British Columbia legal profession.

Darker clouds were on the horizon, however, for freedom of political belief and values. Professional distaste for unconventional political belief acquired a new visibility and a harder edge in the immediate post-war period. This distaste was no doubt influenced by the mass-hysteria which was to become known as McCarthyism. It may be too that a strong, unspoken professional ethos had made itself powerfully felt in former times in informal ways. Small in number, the British Columbia legal profession may in the past have preserved its ideological purity simply and without unnecessary fuss: the thoroughly unorthodox would not be taken on as articling students.

The University of British Columbia, however, could employ no such admissions criteria. The university had a number of left-wing or socialist student clubs and organizations and individuals whose politics might have been deemed unacceptable to the profession at large were able to pursue three years of legal studies unhindered by the organized legal profession. Within the law faculty the left-wing students were able and willing to return as good as they received when arguments were entered into as between equals. In his 1975 book Rankin’s Law: Recollections of a Radical, Harry Rankin recalls that "some" of his "professors were openly hostile to my politics but many could remain objective. In general, the more establishment oriented they were, the more they felt threatened and fearful." None however felt it appropriate to take any punitive action in their role as professors at the law faculty. Well-known socialists such as Dalhousie’s John Willis and McGill’s Frank Scott ranked among the most capable and highly respected Canadian law teachers of the day and most of the academic law teaching profession likely had little taste for political repression.

The law society, however, took a rather different approach. It routinely grilled left-wing students about their political beliefs when they applied for admission to articles and, when the first such student graduated from the university bachelor of laws programme, the law society went to extraordinary lengths to exclude him. That student was Gordon Martin. In a day when a very high proportion of law teachers were elite practitioners, it may well have been impossible to shield a student’s political views from the probing gaze of the law society’s governing body. Martin in any event, was neither given to hiding his beliefs nor to compromising them. There was, Mr. Justice Lloyd McKenzie recalled, "nothing covert . . . about him. . . . he was a doctrinaire Communist." It would, in any event, have been hard for Martin to conceal his political identity from the Benchers even if he had wanted to. He had been the Labor-Progressive Party (that is, communist) candidate for Point Grey in the previous provincial election and, while at university, served as president of the student Communist Forum.

When, at the end of his legal education and completion of articles, Martin applied to be called to the Bar, the Benchers of the law society put him on notice that he would be required to prove to them that he was a "fit and proper person". A inquiry before the Benchers—"this private inquisition" as Harry Rankin has it—took place in September 1948. Garfield King appeared to represent Martin and a number of witnesses were called to give evidence as to Martin’s "character". One of the witnesses called on his behalf was Lloyd McKenzie: then class president, later "Mr. Justice McKenzie". He recalled the occasion during a 1995 interview:

Now he asked me, as president of the class, to speak on his behalf as a character witness, which I did, before the Benchers. . . . and I remember being cross-examined by Senator Farris. First and last time I think I have ever been the subject of a cross-examination. He was questioning me, "Do you think he can take an oath of allegiance being a Communist and all that?" I have no idea how adequately I performed. I know that I was waiting outside the Bencher’s room outside in the old Courthouse . . . all day long to be called in to give evidence . . . and the hearing for the day ended at four o’clock or something and I was told to come back the next day. While I was out in the hall I was talking to John Stanton, . . . John Stanton was a Communist at that time and the News Herald, the morning paper of the day, had a headline story about this and said that two well-known Communists, Lloyd George McKenzie and John Stanton, were waiting to give evidence . . . .

Gordon Martin, LL.B. 1948, was denied admission to the legal profession of British Columbia on account of his political beliefs.

At an earlier hearing Martin had, according to the Vancouver Sun, admitted to being a communist but refused to answer questions about his political views, the Sun quoted him as saying "I do not believe the Benchers have the authority to inquire into mine, nor anyone else’s politics." He indicated his willingness to "take the barrister’s oath which requires applicants to swear allegiance to the King, and to ‘do his utmost to make known any treason or conspiracy.’ " Neither this nor a series of strong legal arguments put on Martin’s behalf by Garfield King persuaded the Benchers and Martin was refused admission. The reason was simple. Cutting through a good deal of legal mumbo jumbo, Judge James Coady stated the essence of the law society’s position some months later when he ruled on a legal proceeding brought by Martin in an attempt to force the law society to admit him. The law society, Coady said, had decided that Martin was not "a person of good repute within the meaning of the Legal Professions Act, R.S.B.C. 1936, c. 149" for one reason and one reason only: "[W]hile otherwise satisfied with the applicant’s qualifications, the refusal is based on the finding that the applicant is a communist and an adherent to and a supporter of communist doctrines and teachings and consequently should not be admitted to membership in the society."

The case quickly became something of a cause célèbre. Students at the university campus mobilized behind Martin, "even", as Harry Rankin puts it, "members of the Young Liberals who had a sense of fair play". The university student newspaper strongly attacked the law society as early as September 1948 and, on October 17, fully 1,500 students converged in what would now be called a "demonstration" (then, more politely, denoted a "meeting"). The Victoria Daily Colonist reported the students’ resolution: "We will ask the Attorney-General to prevent any action by the society based on political discrimination against a legally-constituted organization."

Nothing in the power of the students or the university was able to save Martin from the Bencher’s whim. The Courts failed miserably to live up to their role as guarantors of liberty. Judge Coady, who in effect conceded that the case involved political discrimination pure and simple, refused to look into the substance of the complaint out of deference to the autonomy conferred upon the law society under British Columbia’s statutory scheme. "It is not," he said, "for the Court to substitute its view for that of the Benchers." The headnote to Coady’s judgment has it that the law society’s action was unreviewable at least to the extent that nothing deprived the society "of its discretionary power to determine, honestly, fairly and reasonably, and from no improper motives and on no irrelevant or alien ground whether applicant was a fit and proper person and of good repute. If this discretion is so exercised, it is not reviewable."

The matter was taken to the Court of Appeal where legal reasoning was thrown to the wind in favour of a more direct political assessment. Crudely, the reasoning adopted seems to have been as follows: "Martin is a communist. Communists lie. Martin says he is willing to take the barrister’s oath and oath of allegiance. This would be expected of Communists who, after all, would lie about such a thing. Therefore he is not a fit and proper person to be admitted to the legal profession." As Mr. Justice J. A. Robertson put it, a "Communist’s protestations of loyalty are not to be accepted". Mr. Justice Bird was even more explicit in taking judicial notice of and endorsing the witch-hunts that were then sweeping Canada’s southern neighbour:

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.

Although no proper study of the subject has yet been conducted it seems that the Martin case is something of a low point in political gate-keeping by Canadian law societies. Certainly, the Manitoba Benchers showed no inclination to follow British Columbia’s lead when a well-known young Communist veteran, Roland Penner (later provincial Attorney-General and dean of law at the University of Manitoba law faculty), decided to pursue a legal career. British Columbia’s law society continued to police the bounds of political belief, although perhaps somewhat less enthusiastically in the wake of Martin. The following year, four law students were selected for a political inquisition: Norman Littlewood, Harold Dean, Ike Shulman, and Harry Rankin. Rankin’s Law records that he had to appear at a hearing that he perceived as "a Star Chamber tribunal" and a "witch hunt". It was, he said, "the most undemocratic procedure that had ever been inflicted upon me. . . . This was simply political intimidation, the Law Society letting a whole generation of law students know that it was unacceptable to do any real thinking about change."

Before this meeting he had been summoned to the office of Sherwood Lett, chair of the law society’s credentials committee, where he was required to sign a document in the following terms.

I, Harry Rankin, do solemnly swear that I am not a communist or a member of any association holding communist views, that if called to the Bar I can take the Barristers’ Oath without reservations of any kind and that I have no intention of following any communist association in the future.
That I do not and will not advocate nor am I a member of any organization that advocates the overthrow of democratic government by force or violence or other constitutional means.

Having signed this declaration and survived the inquiry process, Rankin was called to the Bar. Littlewood, Dean, and Shulman also survived and they too were admitted to the British Columbia legal profession. Martin took up other work and fell off the legal circuit. Many years later an invitation from his former class president to attend a class reunion was politely declined: "[H]e wrote a very polite letter and said ‘No, I would be a Spectre at the feast.’ "

Over time political witch-hunts have fallen out of favour. The Martin case and its surrounding circumstances, however, blemish the record of a generation of lawyers whose other achievements include the regularization of legal education, significant advances for women lawyers and others drawn from groups that had traditionally suffered at the hands of "establishment" British Columbia, and a breakdown of institutionalized racism.

Chapter 10