LETTERS TO THE EDITOR

By R.C. Tino Bella*

Dear Editor,

Re: Steven McKoen, K.C., & Brook Greenberg, K.C., “On the Front Cover: Christopher McPherson, K.C.” (2023) 81 Advocate 15; “Entre Nous” (2023) 81 Advocate 9; and riding a bike

I enjoyed the cover of your January 2023 issue and the write-up on Christopher McPherson, K.C., as well as the editorial on cheating. They brought back memories of cycling as a lawyer and made me think about developments in biking, cheating and human rights— and some random thoughts about Lance Armstrong, Scott Mercier, George Everett Klippert and Mr. McPherson.

In 1971, I was fortunate to secure articles at Farris, Vaughan, Wills and Murphy, which had new offices in the Pacific Centre. I decided to commute on my bike. I asked at the carpark whether I could park my bike there. I was told the cost would be the same as for a car. So instead I smuggled my bike up the elevator early in the morning, took it to my office and hid it behind the door. During the day, Robert Gardner came in, saw my bike, mounted it and rode it around the hallways. This was reported to and dealt with by the management committee. My commuting days were over.

Some years later, I resumed commuting when I worked in one of the Bentall towers and had access to a locker and shower. One of my clients was the Continuing Legal Education Society. One day I had to attend an early meeting at their office. I asked if I could come in my biking gear on my way downtown. No problem. After the meeting, I asked at the front desk if I could use the washroom facilities. The receptionist gave me the once- over and said, “Couriers down one floor.” I almost gave her a hug.

Cheating has long been a part of cycling. It is distressing for those who believe in honesty to watch so many young cyclists succumb to doping. We all know of Lance Armstrong. But how many of us know of Scott Mercier?

Some years ago, I did a ride in Colorado called “Ride the Rockies”. Every evening, the organizers brought in a speaker. One evening, the speaker was Lance Armstrong. While he was contrite about the individuals he had wronged, he expressed no remorse about doping itself. His excuse was “everyone else did it.”

This troubled me. When Armstrong confessed to doping, he said one of the hardest things he did in his life was come home to his 12year-old son and admit that he had cheated. I asked Armstrong what he would tell his son if he came home and asked if it was OK to cheat in school because everyone else was doing it. I didn’t get an answer.

The next evening, the speaker was Scott Mercier. He had been as talented a young rider as Lance Armstrong. When he graduated into the professional ranks of cycling, he found that he couldn’t keep up with the other members of the peloton. When he told the team doctor, the response was: “Do you know how to self-inject?” He real- ized that he was going to have to dope. The next morning, he told the team doctor that he was leaving the team. This ended what could have been an illustrious career.

Not everyone cheats. Scott Mercier did not. His career was sacrificed because others cheated and thought it was OK. It was not. I would venture to say that most American fans of Lance Armstrong would say it was OK. I wonder what the would-be lawyers in Ontario thought.

In 1971, cyclists were not required to wear helmets. The picture of Mr. McPherson shows him in full court regalia while riding a bike. Artistic licence, no doubt. I don’t know whether he has ever tried riding a bike in his robes , but it looks risky. However, I am sure he always wears a helmet!

I belong to an organization called Barristers Into Kinetic Energy (“BIKE”). A list of some of the members is included at the end of this letter. I can safely say that every member of BIKE wears or wore a helmet. I wonder whether your artist could be persuaded to refinish the portrait so that Mr. McPherson would not be seen to be afoul of the law.

Speaking of being afoul of the law, we come to the case of Everett George Klippert. When I started my articles in 1971, he was languishing in jail—essentially for the crime of being gay. He had been imprisoned after admitting to having had recent homosexual relations. He was ruled a “dangerous offender” and imprisoned indefinitely. His appeals failed, including to the Supreme Court of Canada ([1967] S.C.R. 822). He received what was in effect a life sentence. (Compare that to the punishment of the would-be lawyers in Ontario.)

I was moved by the fact that Mr. McPherson is the first cycling and openly gay president of the Law Society. Can you imagine being a gay articling student (and therefore a criminal) in the 1960s?

This brought me back to the editorial (with which I agree). I wonder how many of our profession had to lie about their personal circumstances in order to be able to practise law? I can recall being asked at my articling interview by a bencher (later a member of our Court of Appeal) whether I was a communist. I think this question was also asked of Gordon Martin, who answered it honestly and was not admitted. Either of us could just as well have been asked about our sexual orientation, in order to ensure that “criminals” were not admitted to the profession.

It left me wondering: Would it have been appropriate to lie about one’s sexual orientation in order to be permitted to practise law? Would it have been appropriate to lie in order to gain admission to

Trinity Western University’s law school?

We are indeed fortunate that our president of the Law Society was not required to face those issues.

Dick Hamilton, K.C. Gabriola Island

Some of the erstwhile and current members of BIKE (in alphabetical order):

Joe Arvay, O.C., O.B.C., Q.C. (who cycled even as a paraplegic)

Gary Atkinson

Suzanne Bizon

Matthew Cooperwilliams

Dugald Christie (killed tragically while cycling to Ottawa in 2006 to raise support for access to justice)

Tony Crossman (a.k.a. “Tony Crossbike”)

Neil de Gelder, K.C. (latest inductee to the Sacred Order of the Cog)

Robbie Fleming

Chris Forguson

Patrick Foy, K.C.

Gary Fraser

David Hay, K.C.

Nicole Howell

Valerie Jewison

Doug Johnson

Val LeBlanc

Bill McNaughton

Gerry Massing (now deceased, but who was known for riding every day at lunch, in any season or weather, wearing a pair of skimpy shorts and shoes—no shirt, ever)

Mark Powers

Al Ross (Honorable Secretary of Le Peloton)

Duff Waddell

Dear Editor,

Re: Gavin Hume, K.C. & Timothy Harvey, “On the Front Cover: Christopher Harvey, Q.C.” (2023) 81 Advocate 177

I enjoyed reading the welldeserved tribute to Chris Harvey, Q.C.

Chris was the epitome of a barrister: strive mightily in court but afterward eat and drink as friends.1

I had more than 15 cases against Chris and never once did he lose his temper when things went badly for him. We always remained friends and I was shocked to learn of his passing.

Having said that, there is an error in the tribute that requires correction. During an unsuccessful attempt by Chris to have a proposed class action certified against the federal Crown, I argued that despite the importance of Magna Carta to our legal history, it is not part of Canada’s constitution and is subject to our laws. To make that point, I referenced, before Brenner C.J. who was presiding over our case, a B.C. Court of Appeal decision that made it clear that a municipal bylaw could and did override Magna Carta

During the afternoon break, Chris took me to a plaque on the third floor in the Vancouver courthouse containing the text of Magna Carta in support of his position that it was good law in Canada. I pointed out that clause 11 discriminates against Jews and that is another reason why there is no basis to suggest that Magna Carta is good law in Canada let alone part of our constitution. Chris had no response.

As for the right of public fishing under Magna Carta, it again is subject to the Fisheries Act and can be modified by validly enacted legislation. This is not in any way to denigrate the remarkable career of Chris Harvey, but I seek only to correct the record.

All the best,

Harry Wruck, K.C. Vancouver

Endnote

1. [We hate to be sticklers for detail (actually we love it), but if Harry Wruck is going to correct Chris Harvey about the Magna Carta when Chris is no longer here to defend himself, we are going to correct Harry on his Shakespeare. “And do as adversaries do in law / Strive mightily, but eat and drink as friends”: Taming of the Shrew, 1.2.280. – Ed.]