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H.A.D. Oliver
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On January 14, 2011, the Honourable Herbert Arnold Dimitri Oliver, Q.C. (known to us all as Bert), shuffled off this mortal coil just five months shy of his 90th birthday. His heart had been giving him trouble for several months, but he fought on and had spent his last Christmas at home with his wife of 52 years, Jeanne, and their children David, Mark and Alexandra. Yet time waits for no man, and Bert's internal clock was ticking down. Irrepressible to the end, he summoned his great friend, Ian Donaldson, Q.C., to his bedside shortly before he died to give him his instructions as executor. Bert knew the end was near and approached it with fortitude and practicality. Bert thanked Ian for coming and said, 'I thought I should let you know that your services [as executor] will soon be required." The message to Ian was clear: Bert's affairs were to be handled in a timely and orderly fashion. Not long after Ian had taken his leave of Bert, Bert took his leave of this world.
Bert led a remarkable life, not only in the law, but in numerous other fields. He was a man of dignity, compassion, courage, resolve, creativity and wit. When reviewing the breadth of his accomplishments, one is left with a sense of exhaustion wondering how any person could accomplish so much at such a high level over the better part of six decades. To give full effect to Bert's life would require the writing of a lengthy biography. For present purposes, a sketch will have to suffice.
Bert was born on June 11, 1921, in Berlin, Germany. His mother was born in India, growing up in the British Raj at the height of its power. He was, however, rather coy about his father's family. If pressed he would say that his father was of "Austrian extraction". In fact his father's family was Russian. They ran an iron foundry in St. Petersburg, making cannon for the Imperial Russian army. One of his not-so distant ancestors was the illegitimate offspring of a Russian duke and a ballerina at the Kirov Ballet.The family name was Obolensky. Bert's father was deeply involved in the German film industry in the 1920s and 1930s until he was asked by Dr. Josef Goebbels to make documentary propaganda films for the Third Reich. He realized that this was a "request" that one dared not refuse. He immediately moved his family to Paris and thence to England, where Bert's father built Denham Studios and, with Sir Alexander Korda, produced many well-known movies. Bert did not enjoy the insincerity and egotism of the theatre, and after World War II he switched to a more straightforward and uncomplicated career.
Bert was educated at Dean Close, Cheltenham. He was fluent in French and German and spoke passable Italian. At the outbreak of the Second World War he joined the Royal Norfolk Regiment. He divulged little about his wartime activities, but it is known that he served as an intelligence officer in occupied Germany at the end of the war.
Eventually he returned to London, where he read law and then articled with Pickering, Kenyon and Company, reputedly the oldest firm of solicitors in England—with a provenance dating from the mid 16th century. Then Bert joined the firm of Rowley Ashworth. A few years later, for reasons now lost to us, he pulled up stakes, journeyed to Vancouver and set up his practice in 1952, quickly establishing himself as a criminal defence lawyer of note. He rented an office, along with Perry Miller, in the old Bank of Montreal building across the road from what was then known as the Magistrates Courts on Main Street. He made a habit of taking every legal aid case in town, slowly building up his practice and his reputation. Moving to Vancouver was a move that required considerable gumption. In today's context, think of it as the equivalent of a fledgling solicitor at a large downtown firm in Vancouver leaving everything behind to move to Perth, Western Australia, to start from scratch as a barrister in the criminal courts—and doing it successfully. This is the very stuff of which grand things are born.
Bert's cachet as counsel became quickly acknowledged in our profession. Undoubtedly, he had some of the qualities of a thespian, but in his case form did not trump substance. Bert was possessed of a keen intellect, an agile and creative mind, a broad understanding of law and evidence and a very quick wit. Add to these the qualities of courage and determination, and one has the makings of a formidable barrister.
Over the years, Bert acted as counsel in many matters of public interest. Perhaps the first was in 1955, when he represented a Vancouver police officer in what was titled "The Tupper Royal Commission into Graft and Corruption in the Vancouver Police Department", colloquially known as "The Mulligan Inquiry". The royal commission was headed by the venerated R.H. Tupper, Q.C., and was created for the purpose of looking into allegations of corruption against then Chief Constable Walter Mulligan and other members of the Vancouver Police Department, including Bert's client, Len Cuthbert, who attempted suicide when the scandal became public and later became one of the key witnesses at the inquiry. The matter was a cause célèbre, and anyone with even a fleeting interest in Vancouver history would do well to read the 1997 book The Mulligan Affair: Top Cop on the Take, by lan MacDonald and Betty O'Keefe. The authors describe Bert in the following terms:
Recently arrived from England, Oliver had quickly established a reputation as an experienced, confident, capable and scrappy criminal lawyer, respectful of, but not awed by, the judges of the Vancouver courts (with whom he had some spectacular run-ins).
If Bert's career had been well off the ground by the time of the Mulligan Inquiry, it soared thereafter. For the next three decades he remained firmly in place as one of the leaders of the bar. To give some sense of the esteem in which Bert was held, the Honourable W.R. McIntyre, C.C., Q.C., was asked, after his retirement from the Supreme Court of Canada, to name the finest lawyers who had appeared before him. Bert was among those he named. To the writer's knowledge, Bert never learned of this high accolade, but if he did he likely would have been humbled by it—assuming, of course, that Bert was capable of being humbled. (It must be acknowledged that on one memorable occasion Bert did refer to himself as "a humble toiler in the vineyards of the Goddess of justice"; to be sure, he may have been feeling light-headed at the time).
At the core of his being, Bert had an abiding belief in the independence of the bar and would stand his ground with the toughest of judges when he thought the boundary had been crossed. In the late 1970s, Bert was defending a murder case before a jury presided over by a Supreme Court judge known to be stern and sometimes slighting of counsel. While he was cross-examining a key witness in the case, the judge interrupted and turned to the jury saying, "Ladies and gentlemen of the jury, what my good man Mr. Oliver means is... " When the judge had finished speakng to the jury, Bert turned to him and said, "With respect, I am not your Lordship's good man." The judge abruptly adjourned court, and shortly after sent the clerk to speak with Bert. The clerk said that the judge would like to see Bert in his chambers. Bert asked the clerk whether this was an order or a request. If the former, Bert said he would attend. If the latter, he respectfully declined the invitation. The clerk departed, and shortly thereafter court resumed without further ado, apart from the judge extending a brief apology to Bert for his "misstatement".
Bert was a counsel of considerable creativity. Two cases will suffice to illustrate the point. In the 1970s Bert was acting for the person sought in an extradition case brought by the United States. The government chose to call an American lawyer as an expert witness in United States criminal law. Before the case started, Bert overheard the expert witness say that he would "eat up" any lawyer who sought to challenge him on the scope of his knowledge. Bert quicky sent his junior to the courthouse library. In due course, the junior returned with a small stack of photocopies of U.S. cases. When Bert's turn came to cross-examine, he picked up the first sheaf of papers and asked the expert if he was aware of the case of State v. A. and what legal principle it stood for. In a somewhat pronounced drawl, the expert replied, in a derisive manner, that of course he knew of the case and then proceeded to give a lengthy dissertation on the principle of law arising from the judgment. Undaunted, Bert moved to the next sheaf of papers and continued the process. Each time the expert replied in the same smug way. Bert was clearly gaining no ground. Finally, Bert came to the last "case". In fact, what Bert held in his hand was nothing more than blank pages of photocopy paper. Bert turned to the witness and asked if he knew of the case of State v. X. The witness replied, as previously, that he was well familiar with the case and proceeded to expound its legal principles. At the end of the expert witness's comments, Bert looked at him, held out the blank pages and said, "Would it surprise you to know that no such case exists?" The witness was thrown into a tizzy and unable to explain himself. The case for the U.S. government was now in disarray. What was not in doubt, however, was the creativity of the advocate.
In a case in 1983, Bert was defending in an impaired driving trial. He was accompanied by his then articled student, the aforementioned Ian Donaldson. The accused was a constable with the RCMP, as was the arresting officer. In the course of cross-examination, Bert dismantled the alleged reasonable and probable grounds for the arrest. Towards the end of his cross-examination, Bert paused and poured himself a styrofoam cup of water. As he raised the cup to his mouth he paused and held the cup out as it was dripping water from the base (with sleight of hand Bert had punctured the cup). For the better part of 30 seconds, Bert held the cup in front of him while he, Donaldson, the witness and the judge watched it leak water onto the courtroom floor. At the end of the exercise, Bert turned to the judge and said, "This decidedly reminds me of the case for the Crown." The point was made, and an acquittal followed.
Bert was appointed Queen's Counsel in 1982, not long after the tradition of such appointments had been reinstated by the government of the day. This was followed in 1983 by his election as a bencher of the Law Society, in which capacity he served until his appointment to the County Court of Vancouver in 1988 and, later, to the B.C. Supreme Court upon merger in 1990. He served as a judge until he turned 75 in 1996 and encountered what he referred to as "the statutory age of senility".
As a judge in criminal cases, Bert was known to apply generous dollops of reasonable doubt. Having said that, he was not known to be lenient in sentencing. Bert had little time for those who caused serious harm to others or damage to the administration of justice. When Ian Donaldson attended upon Bert shortly before his demise, Bert told him that he had done quite well "for the bomber", referring to the nine-year sentence meted out to Inderjit Singh Reyat for his conviction for perjury in the Air India trial. Ian replied that it was not a good result, as his research had shown that the sentence of nine years was 50 per cent higher than any case that Ian could find in Commonwealth history. Bert's reply was terse: I would have given him more."
Of all Bert's qualities, perhaps the most enduring was his wit. This is the quality that first comes to mind when he is remembered by those who knew him. His mind was quick, and he was able to call upon a vast reserve of knowledge of history, literature and events in the blink of an eye. Once, when discussing the appointment of a certain lawyer to a position of prominence, he was heard to say: "Well, Caligula appointed his horse as consul, and here we only have the rear end."
On another occasion, in the summer of 1987, Bert attended the first conference of the International Society for the Reform of the Criminal Law, which was held at the Inns of Court in London, England. The event was attended by judges, lawyers and legal academics from around the world. The days were filled with lectures, speeches and panel discussions on various aspects of the criminal law, and the evenings were marked by cocktail parties at a variety of locations, including Lancaster House (hosted by the Home Secretary) and the Australian embassy. Bert was in his element. During the week, Bert stayed at the East India Club (or, as he would say, "The East India, Royal Devonshire and Athletic Club") on St. James's Square. The closing dinner for the conference was held at Lincoln's Inn, and various and considerable potables were consumed by those in attendance. Bert left the affair, late in the evening, accompanied by two companions from B.C., one a defence lawyer and the other a high-ranking prosecutor. When the cab let them out near St. James's Square, the prosecutor invited Bert and the defence lawyer up to his room in a six-storey hotel adjacent to the East India Club. The invitation was readily accepted.
As they were leaving (after several nightcaps), the prosecutor advised the defence lawyer to look up to his hotel window when they were on the street. By this time, none of the protagonists were feeling any pain. As they were walking down the street, the defence lawyer tapped Bert on his shoulder and, pointing up to the sixth-floor window of the prosecutor's room, said: "Bert, what do you make of that?" There, perched on the sill, was the rather large and pasty-white posterior of one of Her Majesty's Crown counsel (this, to the uninitiated, is referred to as "mooning"). Without a moment's hesitation, Bert replied, "Oh, just another ass from the Attorney General's department".
Bert Oliver was many things to many people. How he accomplished so much, filled so many positions and held such a breadth of knowledge of matters ranging from the arcane to the practical will remain a mystery. He was Liberian Consul from 1954 to 1988. He was a member of Provincial Judicial Council from 1978 to 1981 and vice-chairman of the Forensic Psychiatric Services Commission from 1980 to 1988. He was an honorary fellow of the International Academy of Trial Lawyers, a member of the B.C. Arbitration and Mediation Institute, a governor of the Law Foundation of B.C. from 1983 to 1988 and conflict of interest commissioner for the province from 1997 to 2007. The list goes on. He knew about heraldry. He could give a lecture from memory respecting the origin and evolution of our courtroom attire. He could carry on for hours on a variety of topics, including fine wines, the arts, literature, historical events and noteworthy people. His memory was prodigious.
Bert was a man of dignity and grace. While he achieved great heights in our profession, he never lost sight of his obligation to help other lawyers by giving his time in terms of mentorship and advice. He had a generous spirit. In excess of 40 articled students passed under his tutelage.
There was nothing malicious about Bert, and he always had a twinkle in his eye when recounting the foibles of others. Perhaps, most importantly, he had a sense of self and a sense of others.
If one were to attempt to grasp the essence of Bert Oliver, one could do no better than to recount his final words to Ian Donaldson:
I have been very fortunate. I have been privileged to have a colourful life, good friends and a wonderful family. I can't think how much more difficult it is for those who at this time in their lives are not able to say the same thing.
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Richard Peck, Q.C.
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Reprinted with permission from THE ADVOCATE, vol. 69 part 3 May 2011. p. 425 - 430.
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