136 THE ADVOCATE
VOL. 78 PART 1 JANUARY 2020
I fretted about the matter again and then decided to make full disclosure
to the Crown counsel, George Cumming, the night before the hearing.
There had been no time to amend the notice of appeal, which had been
typed up by the guards, and I was bound to give the Crown some notice in
any event. I gave the Crown my cases and my argument.
We assembled the following morning in that tiny Court of Appeal courtroom
in the old courthouse, which is now the Art Gallery of Vancouver. The
courtroom was an odd shape, being wider than it was long, and had the
worst acoustics in the province, perhaps in the world. There was an elaborate
amplification system to allow the justices to hear counsel and appellants.
Many accused appear in the Court of Appeal without counsel.
I began bravely by stressing the youth and good character of my client
and then explained that I thought the lay judge aboard the RCMP motor vessel
Tofino sitting in adult court was without jurisdiction to take the plea and
sentence the accused because of his age.
Justice Thomas Norris, who was chairman, stopped me and turned to Mr.
Cumming for the Crown. “Well, Mr. Cumming, what do you have to say
about that?” he growled. Mr. Cumming stood up, shuffled his papers, looked
at me, looked at the three members of the Court of Appeal, paused a bit and
said, “I agree with Mr. Gargrave. I think the learned magistrate was without
jurisdiction at the time in question”. Mr. Justice Lord and Mr. Justice Sullivan
began to close their bench books and look at their watches. I wanted to
continue the argument! I had spent about two weeks on this case, and I
wanted to be heard. As every lawyer knows, the Court of Appeal does not
encourage verbose counsel, and in any case, lawyers know that the greatest
sin for lawyers or for clients is to say too much or ask one question too
Mr. Justice Norris looked at me and said “Well, Mr. Gargrave, that just
about settles it. An order will go accordingly.”
I wrote to my client at the Pierce Creek Camp and to Father Fagan in
Chilliwack telling them of the good news. Father Fagan wrote back. In those
days people did not use the long-distance telephone so much as they do
now. He signed his letter “Gratefully yours in Christ, Very Reverend J.E.
Fagan, V.F.”. Well, I guess God does do good work, especially when He gets