Fragile Freedoms: Human Rights and Dissent in Canada
by Thomas R. Berger
Clarke, Irwin (Toronto), 298 pp., $17.95; $9.95 (paper)
Portrait of Canada
by June Callwood
Doubleday, 378 pp., $14.95
Formal civil liberties are not highly valued in Canada, where disorder is feared more than oppression. While Canadians of course regard themselves as free people in a free society, they prefer to rely on tradition, compromise, and the common law to safeguard their liberties. “This business of rights, that’s not our concept of government,” Sterling Lyon, then premier of Manitoba, asserted in an interview last fall. “We know what our rights are. We enjoy them. We don’t have to state them. This rather American approach to it is really not ours. We don’t worry about things like that. We do what’s right.”
Not all Canadians would agree, of course. Lyon’s Tory government was swept from office by a landslide victory of the Manitoba New Democratic Party less than two weeks after he made this statement. Still, the publication within a six-month period of two readable and respectably documented books about the vicissitudes of freedom in Canadian history is noteworthy. Even more noteworthy is the action recently taken against the author of one of these books, Mr. Justice Thomas Berger, who became the object of an astonishing attack on freedom of expression: a measured and shrewdly calculated attack intended to discourage any comparable tendencies to activism among his judicial peers.
Thomas Rodney Berger is a pure product of British Columbia: born in Victoria in 1933, he began practicing law in Vancouver in 1957, and did so until he was appointed to the Supreme Court of British Columbia in 1971. Among his clients were the Nishga Indians who have lived in the Nass River valley of northwest British Columbia since long before white settlers came to the region, and who along with other British Columbia Indians had been trying unsuccessfully since before British Columbia joined Canada in 1871 to establish and defend title to the land that a white government would recognize. In 1967, the Nishga brought suit before the Supreme Court of British Columbia, where they were enmeshed in technicalities unrelated to the substance of their claim from the start. A province of Canada cannot be sued without its consent; and this the province had steadfastedly refused to grant in many previous actions. (Hostility to aboriginal land claims had become so great in Canada that Parliament, in the first Indian Act of 1927—since revised—made it a criminal offense to raise funds for the purpose of pursuing any such claim.) So the Nishga did not ask the court to restore their title; they asked only that it assert that their original title, if they had one, had never been extinguished. The mere fact that the British government had established by royal proclamation in 1763 a policy of negotiating treaties with native peoples for surrender of their lands seemed to recognize their aboriginal title.
But the Nishga lost, both in the trial court and in the British Columbia Court of Appeal. The royal proclamation didn’t apply to British Columbia, which was an entirely separate …