Law Practice in Nanaimo, British Columbia

By Ron MacIsaac

Profiling B.C. lawyers whose work or life experiences are inspirational, instructive or plain interesting has been a recurring theme in BarTalk. Remember our Olympian series in the lead-up to the Vancouver Olympic Games? Our latest contributor meets all three attributes, with a legal career spanning more than 70 years (and counting), Ron MacIsaac is the Nestor of our profession. In this article and several future instalments in BarTalk Online, Ron shares with us his recollections of “the early days.”

If you would like to suggest a colleague who should be featured in BarTalk, please contact Deb at bartalk@bccba.org.

IN THE BEGINNING
I graduated in law from the University of Saskatchewan in 1948 and intended to check out the boom town of Port Alberni. I arrived by ferry in downtown Nanaimo and while waiting for the Alberni bus, I dropped in on a street level law office and invited lawyer Vic Harrison out for tea (it was tea in those days, not coffee). He said, “Why look for articles in Alberni, you can article to me.” “But I want a partnership at the end of articles.” “You can have that,” he said.

I went on anyways to Alberni but found the boom was over and there were no article positions. So back I went to Nanaimo and signed articles at $100 a month. I took a $20 a month job as a night shift fireman and took up the Gallop Poll on tea breaks for another $18 a month.

I soon found that my benefactor had been the Mayor for over a dozen years and work had piled up. Mr. Harrison almost never came to the office. He delegated his only inside office to me and stayed away. I had to go to police court every day so I hired two more article students, Hugh Heath and Doug Greer. They had working wives so articles paid only $15 a month! We had only the one inside office so we interviewed clients in the empty billiard room at the back of the building.

YOU DON’T GET PAID UNLESS YOU FIND THE ACCUSED GUILTY
Police court had an inbuilt barrier to justice, the stipendiary magistrate. He only got paid if he found the accused guilty and fined him x dollars plus costs (the stipend). Most of the magistrates were retired B.C. police officers or retired archdeacons, none on the Island were lawyers. I used to fill the car with retired seniors when I went out of town. During the trip, we would discuss the defense theories. The magistrate would see his audience nod in agreement with everything I said, and would think... “if these old guys think the chap is not guilty, what can I say but acquit.”

Two very senior criminal lawyers of the day told me their practise was to tell the stipendiary magistrate that while their view was that their man was not guilty, nevertheless, he should pay the costs of the court hearing (which was then pre-paid). What I did was to join all sorts of societies and associations and have myself appointed Resolutions Chair. Then I flooded the premier with resolutions calling for salaried magistrates. The premier obliged.

In 1948, the courts were quite casual about students doing trials. I appeared a few times in county court as well as being a regular in police court.

ONE MEMORABLE CASE WAS THE FIRST WIN OF THE JEHOVAH WITNESSES
These religious people were charged all over the U.S. and Canada with obstructing traffic. Glen How, the in-house counsel for the Jehovah Witnesses, asked me to adjourn the Nanaimo case. Magistrate Beevor Potts refused the adjournment and convicted Eustace Kite. I got the late Ted Strongitharm, who shared an office building with us, to go with me on the appeal. Its success is recorded in 1925 WWR. At this time, there were no LL.B.s among the Island’s stipendiary. The closest was Magistrate Beevor Potts. He enlisted in WW1 with the proviso that all time in the service would count on his five-year apprenticeship. The Beaver, as we called him, did six years in the service, two in India and was called to the Bar on his return.

Again, I did the resolutions thing asking the premier to appoint a lawyer as traveling magistrate to handle disputed charges. Again, the premier obliged.

LAWYER/FIREMAN
I used to go over my cases with the night shift firemen and they came up with a lot of good ideas. For example, I once took a print of the famous Gleaners painting in defense of coal miners charged with theft to illustrate the gleaning they were doing for bits of fuel left on the tall mountains of tailings. The stipendiary convicted them. Another time, I argued that a man’s car was his castle. He was arrested for drinking in his car, as everyone did during dance hall intermission. A visiting non-stipendiary acquitted the drinker. It made Time magazine, but it didn’t make the Court of Appeal!

THE PERILS OF THE ASSIZE SYSTEM
In 1949 to 1952, all of us in the office used Mr. Harrison’s wood-floored, 1920s Chev coup to go to our four branch offices, and to Victoria for weekly Assizes. Coming back from Victoria on the Island highway (paved, I believe) the floor caught fire from the battery. I got out. There were almost no cars on this road, so I could not hope for help. There was no water or sand nearby but I managed to put the fire out with natural body fluid. As I was performing this fireman’s manoeuvre, the head of BC Hydro came by. Later on, I was at his cocktail party and this was his highlight story!

A STUDENT RUN LAW OFFICE
1950-52: By this time, we had the backlog of VB Harrison’s files under control. Hugh Heath had left, and it was me, Doug Greer, Jungle Jim Gourlay (as he was known when he went to head up prosecutions in the Income Tax Dept.) and incoming Sid Clark, later Judge Clark.

THE IDEA OF BRANCH OFFICES
To broaden our base we opened one day a week branches in Ladysmith, Chemainus, Parksville and Qualicum. This gave us mini holidays... swimming, hunting and fishing. Hunting for me was disastrous. On one trip to Qualicum, I turned in my seat to stop my rifle from banging against a wrench. Suddenly there was a thump and the windshield filled with sliced bread. My heart sank, I was sure I had hit an old lady coming back from the bakery! I went into a shallow ditch, came to a stop, looked back, I’d hit a mailbox!

My next imbroglio was stopping to hunt on Nanoose Mountain. I left the firehall at 4:00 a.m. and settled at the foot of a deer trail to await the dawn. As the sun came up, I rose to my feet and a bullet zipped past my head. Without thinking, I fired back. Again, my heart sank. I imagined a dead body on the deer trail. There was none. I imagine neither of us hunted deer again. I did though, at later Assizes, defend hunters who shot their hunting partners. I later even defended a Nanaimo zookeeper who left his African lion out all night. Not my choice of a case but it was handed over to me by a trial lawyer who was appointed to the bench. I got a lot of cases from this source, one was an Alert Bay chap charged with stealing the hospital ship!

A GREAT CHARACTER OF THE “EARLY DAYS” WAS THE HONOURABLE ALEX MANSON
He was noted for the severe sentences he handed out... ten times the average was one assessment. He was deeply religious and he would go, visit and pray with the men he had put into prison. The protests were so broad-based that it led the government to introduce the 75-year age cap on judicial careers. Everyone has heard the story of the Manson retirement ceremony. The Canadian Bar and the Law Society representatives stood by while the judge gave his customary severe sentence to the felon. Asked if he had anything to say the felon said to the judge, “You are a cruel son of a bitch!” Then the Law Society president spoke of the long and worthy career of the retired Justice. The Bar president said he associated his views with those of the Society president. Don Smith, the court reporter, then said he associated his views with those of the convicted felon!

My experiences with The Honourable Manson were unique. A civil action for damages for noise killing of newly born mink intrigued The Honourable Manson. The facts were that a bulldozer operator refused to silence his noisy machine during the birthing month of the mink. The mothers ate their offspring. The biologist testified that one in four of the babies would be the highly valued platinum... three of four would be ranch brown. The tort was trespass by noise. The defense was that the defendant could do what he wanted on his own land. See WWR 1953. The judge was on the side of the mink.

THERE CAN BE HAZARDS IN THE PRACTICE OF TRIAL LAW. HERE IS A DOOZER I WOULD NOT WISH ON ANYONE
One day, a Monday, two boys came into my office, kitty-corner from the Greek restaurant. (There were only four trial counsel in Nanaimo in 1950.) The boys were charged with going into the Palace Hotel and buying a case of beer. Their evidence was that they had gone into the beer parlour entrance and asked a man going in to buy them a 6-pack. This looked like a reasonable defence. They so testified. Before Magistrate Beevor Potts made the decision, I was charged with obstruction of justice in composing a fictional defence.

I was the young upstart competing with the late Arthur Leighton and the late Frank Cunliff. They initiated the prosecution in full belief that I had invented the defence story. At the trial, defence counsel asked the first boy on cross-exam about a discussion between the boys on the Saturday night above the restaurant. This boy related the 6-pack defence. Counsel then said, “You never met MacIsaac until two days later.” The boy broke down and confessed his lie and blamed the above lawyers for promising an acquittal if the boys would admit that MacIsaac made up the fiction. The hearing was over in ten minutes. The boys were excoriated for lying and putting my whole career in jeopardy. My defence was conducted by famed trial lawyer, Senator Farris, who was then almost 90 years old.

AN UNTYPICAL LAW CONFERENCE EXPERIENCE
In the fifties, when there were few trial lawyers yet using juries, I kept going to U.S. conferences of trial lawyers to polish up my alleged skills and take a holiday. At that time, the New York Trial Lawyers were holding a seminar in Puerto Rico. I joined their association and attended their conference. I then took a DC-3 plane to Haiti as I had read Graham Greene’s book The Comedians. When the plane landed in Port-au-Prince, two Tonton Macouts (the enforcers of President Doc Duvalier) hauled off two passengers and shot them in front of their horrified fellow passengers. The rest of us cancelled our stay there and flew on to Jamaica. I did not again visit Haiti until the end of the Duvalier reign. The highlight this time was attending a Voodoo service.

EARLY DAYS IN THE PRACTICE OF LAW...THINGS WERE DIFFERENT THEN
In the early fifties, civil juries in injury claims were unknown, the last being before the war. In all probability, the Depression had litigants not wanting to pay jury fees, and WW2 reduced the numbers of young trial lawyers.

About 1952, I was on a horseback riding holiday in Vegas. One morning, waiting for the cowboy to pick me up, I idly noticed a man seated at a lobby table registering people for something called the N.A.C.C.P.A. He told me this was a trial lawyers association. “What does it cost to register?” I asked him. It was only $65, so to make my riding holiday deductible, I registered.

At the N.A.C.C.P.A. meetings, I listened to reports of awards for death and injury in the million-dollar range. Having just had a judge alone award of $10,000 for the death of a breadwinner, I looked for the reason for such disparity below the 49th parallel. The use of a jury that would give awards on what they would consider fair if they were the claimant spelled the difference.

Returning to B.C., I had a pending trial converted to civil jury and their award was the Canadian high for the death of a woman. It was upheld on appeal.

THE CREATION OF THE LAW FOUNDATION
In the early 1950s, I noticed that the banks were getting all the benefit of the interest that could be payable on trust funds held briefly in commercial transactions. Many big law firms, I was told, benefited considerably from the retention of such interest. I inquired of our Society whether it would be ethical to keep such interest. They held that it was not. Subsequently, Ken Meredith and Art Harper thought up the concept of a Law Foundation so that charities would get the money instead of the banks. It was such a successful idea that it was quickly copied in all ten provinces and 48 states.

PROHIBITION, NOT ALCOHOL – DRUGS
In my 1948 search for articles, I was offered a post with the State Justice people in Helena, Montana. Later in 1952, I had a similar offer from the Governor’s office in Honolulu. (Hawaii was then a territory, not a state.) While there, I spoke to five service clubs, Monday to Friday, on the topic of prohibited drugs. My thesis was that we had 10,000 opium addicts in Canada, mostly elderly Chinese smokers. That if we aggressively started to prosecute drug addicts, the Mafia would do as they did in the days of alcohol prohibition, that is, start pushing the forbidden substance to many, many more people. Friday night of my week of speeches, I had a phone call: “If you give that speech again we will kill you.”

Having finished my series of talks, I happily agreed not to give the speech again!

DO YOU LIKE TO TRAVEL INEXPENSIVELY?
In the 1950s, I was asked to say a few words at a Citizenship ceremony at the Nanaimo Court house. An Indian attending the ceremony asked me how much I would charge to handle an application for citizenship. I said a hundred dollars plus expenses. This was apparently a lowball figure. Soon I was traveling to India, Colombia, Jamaica, Hong Kong, London and Athens with a good excuse to leave my partners at the firm while I holidayed in these and other exotic destinations. Much later while passing through India enroute to a Commonwealth Law Conference in Australia, I went to the Punjab to see a client. With me for the North India experience was John Crosbie of Newfoundland. We rented an elephant with Mahout as our travel vehicle! It cost us $6 a day.

THE COMPLEXITY OF IMMIGRATION LAW
At one immigration hearing in South America, the presiding officers quizzed me for an hour on hockey issues. We never once discussed the applicant, but he passed her for landed immigrant status. In Hong Kong, I visited brother lawyers in their offices in my spare time. To my surprise, I found no white men in the offices: all were Chinese. At this time, the Chinese did all the work, but the Brits did not allow them to be called to the Bar! To find a white lawyer at that time in history, you went to the golf course!

THE LEGALITY OF WORLDWIDE BRANCH OFFICES
In my immigration and other travels, I set up branch offices in Scotland, England, France, Hawaii, Hong Kong, Turks and Caicos Island, New Zealand and Singapore. I did this by asking the foreign lawyer if he would like to have a branch office in Canada. The answer invariably was yes. So I then said, “I am your branch office and you are mine.”

Sometime after this our Society advised me that I could not have out-of-province branches. I closed them. I must have put out the germ of an idea, for some time later they were authorized!

ANOTHER HISTORICAL ITEM ILLUSTRATING HOW CASUAL THINGS COULD BE IN THE EARLY DAYS
In the early sixties, I signed up for a world tour with a law conference destination. A client had retained me to try and free-up his frozen Egyptian currency. He had left his home in Port Said and moved to Nanaimo, but due to the dispute of ownership of the Suez Canal, movement of money out of Egypt had been blocked.

Arriving in Cairo, I met the local lawyers to negotiate the release but found that following long-ago French occupation of Egypt, law business was to be conducted en Français per le Code Napoléon. Two celebrated Supreme Court of Canada jurists, The Honourable E. Hall, and The Honourable R. Martland, who were part of my tour, offered to help with the proceedings and did so, successfully, I might add.

HYPNOTISM IN THE EARLY DAYS
My principal, Victor Harrison, was fond of relating his civil action in the early days against the infamous Brother X11 and of the criminal proceedings as well. In the latter proceedings, Crown Counsel told the court that the Brother had hypnotized him and he could not go on with the trial. The case had to be adjourned. It would be most unlikely that you could get a case put over on this basis today. (Mind you Harrison said that in his opinion the prosecutor could not proceed because of John Barleycorn,) not Black Magic as the media of the day reported the unusual event.

A FEW MORE ODDITIES IN THE LEGAL PROFESSION IN THE EARLY DAYS – CALL TO THE BAR, VANCOUVER, 1949
After my call I was driving west on Hasting to go for a swim at English Bay. A policeman stopped me. “Why did you go through that red light?” he asked. We have no red lights in Nanaimo (we did not at that time) so I am not used to them,” I replied. “Let’s see your driver’s license.” I don’t have it with me.” I answered. (I was in my bathing suit.) “Whose car is this?” He asked. “Jim Fisher, a lawyer friend.” I handed over the car registration.

“This says Rita Baker!” “That’s his sister,” said I. “Get going,” he said, “there are so many charges I could lay that I’s be in court for a week, have a good swim.”

Shortly after this, I was pulling away from the nurse’s home at 3:30 a.m. in our office car, a 1951 Olds, when I was hit from the right by another 51 Olds, driven by prominent counsel D. MacKenzie Brown, my opponent for that day’s court case!

This office car had a short life; Sid Clark took it over the Malahat cliff. No seat belts in those days. A 1000-foot fall and Sid was unhurt, and retired at 75 from the Provincial Court.

When I got my own car the next year, I set out with five others to a Boxing Day party. The middle-aged social worker in the group asked if she could drive. Going around a curve by the Pacific Biological station, she swerved to the left then shot out to the right, over the cliff and landed balanced on the roof of a house. The owner of the house was loud in protest, but there was no damage. A few months later, he asked me to defend him on a sodomy charge.

Gabriola Island produced an unusual legal story. A local person was murdered. The sole witness lying under a truck could only describe the killer’s costume. Crown counsel called all the Island’s males to account for their location at the time of the murder and bring their clothes!

DIVORCE IN THE EARLY DAYS
Just after the war, there was a plethora of divorces. The grounds, adultery. This led to a lot of faked up adultery evidence. One evening I was attending a Legion dance when a lady for whom I had done a divorce came up to me to chat. I said, “You look very happy.” “I am,” said she, “it was the best $1000 I ever spent.” “What?” I said in surprise, “My fee was $100.” “It was the detective that charged me the $1000.”

Since the usual charge of the detective was less than that of the lawyer, I inquired of the investigator whether it was true that he had been paid $1000. He affirmed that it was true and set out what he had done. He came over to Nanaimo with a muscleman and a prostitute, went down to the defendant’s boat where the man was sleeping off a drunk. The girl undressed on the wharf and got into bed with the sleeping fisherman. Photos were taken. Apparently, the defendant believed that he had taken the woman onto his boat and the divorce was not defended.

This was all too much for me and I left off doing marital law.

A year or so earlier I was up at Qualicum Beach when a man came up to me and said:

“You are my wife’s lawyer and you might as well forget about getting a divorce for her.”

“I said: “She tells me that you are living with a woman at Port Hardy, and that is grounds for her divorce.” “You can send an investigator to Hardy, but as soon as a stranger shows up I will know about it and I will get out of the house of my girlfriend.” “You have given me the evidence by what you said, and your wife will get the divorce on my evidence.” I pulled my old partner out of retirement and The Honourable Macfarlane heard the strange story and granted the divorce.”

LAWYER ACTIVITIES IN THE EARLY DAYS
While I was still a student-at-law (as they called us then) a man came in for a divorce, paid the full fee in advance $100. I did a marriage registration search turning up no record. Got him in again and asked to tell me about the ceremony. He described a three-day celebration, but when asked for the “I do” part, I found out that they had gone to the courthouse and were of the impression that the marriage license had married them. I returned $98 to the client who was happy to know that he had never been married.

REID ISLAND
In the fifties, I defended native fishermen the Silvey brothers on a charge of assaulting the Chemainus bootlegger. Found their ancestry interesting. A Spanish sailor jumped off the Quadra ship tracing the Inside Passage and swam to Reid Island. He married a native girl and Reid Island is 100 per cent their descendants.

CHARGE AND COUNTER CHARGE
In the fifties, I defended a customer of the famous Pygmy dance hall of assaulting the owner, Captain Shelby Saunders who would not let the boy in. I had charges of assault laid against the Captain. All charges were dropped. Saunders was so angry that he closed the dance hall and never invited me anymore to his wonderful house parties. A few years later he and I were in adjoining hospital room and resumed our friendship. When he died he left me four pairs of riding britches and a Scottish dirk. In 1918 or 1919, he had liberated many collectible items from the St. Petersburg Winter Palace. The dirk, he said, was a gift by King Edward VII to his cousin, the Tsar.

EARLY DAYS COMMUNISM 1949/50 THE EARLY DAYS IN SPADES
Among the first law class UBC grads were about 14 idealistic young world war two veterans, some of whom had also fought in the Spanish civil war. They were members of the Labour Progressive party. 1948, their graduation year, was also the height of McCarthyism, an era when there was supposed to be a communist under every bed.

The 14 law grads had one of their number test the waters re: call to the Bar. Graduate Martin applied and was turned down by the B.C. Law Society. The reasons are set out in 1950 3 DLR 173. The decision of the then benchers was that Martin was not a good person nor of good repute... since he was a member of the Communist party.

Martin then took up the trade of television repair and did this for the rest of his life.

The B.C. Court of Appeal unanimously opined that freedom of expression could not 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.

NO MORE LAWYERS TO REPAIR TELEVISONS
The surviving left-wingers resigned from the party and were duly called to the Bar. One became the head of the Law Society. (Harry Rankin, QC)

In 1950, mere belief in a philosophy contrary to the public interest was enough to justify exclusion from the legal profession. Forty years change came with the Charter.

This article was published in the June 2010 issue of BarTalk. © 2010 The Canadian Bar Association. All rights reserved.