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ers. Tom objected, saying that the judge had no right to bring these men in
and ask them questions that may be used later to convict them. At one point,
Justice Manson said, “Sit down, young man, or you will be the next to be
found in contempt.” He carried on with his line of questioning while Tom
continued to rise time and again to object to his questions.
Justice Manson found the union and its officers guilty of contempt and
imposed heavy fines. Tom took it to the Court of Appeal. They held that
there was no justification for the findings of contempt and set aside the
fines. They also referred to the point in the case when the judge had told
Tom to sit down or face contempt, and they said that Tom had been doing
his duty as a lawyer and that he was to be commended for that.
That would be a trial by fire for any counsel of two years of call. Tom
came out of it with a reputation for scholarship and courage that became the
hallmark of his career.
Tom had a strong sense of justice and was at his best when representing
a person or group suffering from oppression or discrimination by government.
Once he had his teeth into a case, he would not let go. In the 1960s,
he acted for a man defamed by the premier of the province, W.A.C. Bennett.
The defamation case was dismissed at trial and restored on appeal. On the
re-trial, Tom was successful, but this time he lost on appeal. He appealed to
the Supreme Court of Canada. Tom was about ten years of call and had the
eminent J.J. Robinette, Q.C., against him. The court found in favour of
Tom’s client, restoring the trial judgment (Jones v. Bennett, 1969 S.C.R.
By a series of accidents, Tom wound up representing First Nations in the
sixties. Aboriginal law was a completely unknown concept at that time, not
mentioned in any law school or in the press. Tom may justly be given credit
for establishing its place in Canadian law. It all began with Hurley’s wife,
Maisie, bringing into the office two members of the Saalequun Tribe who
had been convicted by the magistrate in Nanaimo for killing deer out of season.
They told Tom that their forefathers had a treaty with Governor Douglas.
Tom listened, then looked into it. He retained an archivist, who found
the document all covered in dust in the public archives. It was nothing more
than a blank piece of paper with “X” marks on it. It is hard to imagine a more
flimsy foundation for a case. Even if the words of similar documents were
read in by the court, as they ultimately were, the words indicated merely a
conveyance of land to the Hudson’s Bay Company. However, Tom developed
a brilliant argument based on the complete historical record. The rest
is history. Tom persuaded the Court of Appeal that it was indeed a treaty,
thus forming the basis for a right to hunt and fish in areas on Vancouver