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.1 “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 colony in 1763. The British Columbia colonial government had alienated the title by legislative action prior to confederation, thus expropriating the lands lawfully though without compensation. Anyway, there couldn’t have been a title because, as the chief justice of the court of appeal asserted, the Nishga had then been “a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property.”
In 1969, the federal government issued a Statement of the Government of Canada on Indian Policy, otherwise known, appropriately, as the White Paper on Indian Policy, which asserted that native land rights, except those established by treaty, would not be recognized. Berger notes in Fragile Freedoms:
Prime Minister Trudeau, speaking on this subject in Vancouver on August 8, 1969, said, “Our answer is no. We can’t recognize aboriginal rights because no society can be built on historical ‘might have beens’.”
Trudeau and the government of Canada later rescinded this position, but in 1969 it expressed the view of the government that was launching “the just society.”
In 1971, the Nishga’s case went to the Supreme Court of Canada, where it was curiously resolved. Although the Canadian Supreme Court, like the American, consists of nine justices, it assigns cases deemed less important to smaller panels. The Nishga rated seven, though these seven included the Court’s most eminent justices. They split, three to three, on the question of whether the Nishga’s land claim still existed. The seventh justice took no position on this issue at all, but ruled against the Nishga on the grounds that they couldn’t sue the province of British Columbia; and that they should have proceeded by means of a “petition of right”—that is, by asking the province to permit itself to be sued, the course of action that had been seen as futile from the outset. Berger argues that this decision is, on balance, favorable to the Nishga, since the split undermines the province’s claim to have extinguished any possible aboriginal title. It also demonstrated that the defense of aboriginal rights under existing Canadian law was a Sisyphean task.
In 1974, the Trudeau government named Mr. Justice Berger as a one-man Royal Commission of Inquiry into the proposal to build a pipeline through the Mackenzie River valley to bring Arctic gas and oil primarily to American markets. “Berger, a quiet, courteous man,” June Callwood notes in Portrait of Canada, “conducted hearings all over the north and listened to everyone who wanted to speak. Using a bush plane and, sometimes, dogsled and canoe, he traveled the north and attentively heard from trappers, scientists, Marxists, oil tycoons, toothless tribal matriarchs and chiefs…. Berger’s recommendation was to delay construction along the Mackenzie route for at least ten years.” His 1977 report, Northern Frontier, Northern Homeland, which won a distinguished achievement award from the Sierra Club of North America, is probably the best account of the human ecology of the Canadian northwest ever published. It also effectively killed the pipeline project, which the Ottawa government had been supporting strongly.
Berger has been perhaps the most effective and certainly the most respectable champion of the aboriginal peoples of Canada. He sees their plight as part of the darker side of entrenched Canadian tradition, through which there also runs a bright if fragile thread of decency and respect for human dignity, courageously asserted especially by a few distinguished former justices of the Supreme Court of Canada like the late Ivan Rand, or Emmett Hall who; at eighty-four, is still an active factor in the conscience of Canada. Incontestably, the judgments of such men rank in breadth of humane wisdom with those of Brandeis or Learned Hand. They were often, however, minority positions.
In Fragile Freedoms, therefore, Berger counts heavily on the proposed new constitution with its promise of an entrenched charter of rights and freedoms to provide firmer judicial safeguards to liberty. At the time his book went to press, the Constitution Act was in a limbo imposed upon it by a Supreme Court decision curiously reminiscent of its Delphic decision in the Nishga case. Eight of the ten provinces opposed adoption of the charter, and several had appealed to the Supreme Court to rule that Parliament could not legally ask the British government to adopt the constitution—and thus make Canada finally and formally independent of it—without their endorsement. The Court held that Parliament could do this legally; but that in so doing it would violate constitutional convention—which meant that Westminster, in turn, might not be bound by convention to accede to the request of the Canadian government to pass the Constitution Act over the provinces’ protest.
Trudeau decided not to take this chance, and called a meeting with the provincial premiers in a final effort to get their agreement. He got it—although not from René Levesque, who would not accept the charter on any terms—by deleting from the charter the references to aboriginal rights and to equality rights for women and ethnic and religious minorities; and by adding an article allowing Parliament or a provincial legislature to suspend any of the supposedly entrenched rights for a renewable five-year period and to opt out of any rights that might be added by subsequent amendment. These override clauses are, as The Globe and Mail noted, “peculiarly Canadian…. To the best of anyone’s knowledge [they do] not appear in the bill of rights of any other country.”2
“Not necessarily nullification; but nullification if necessary,” the ghost of Mackenzie King remarked.
The castration of the constitution took place November 5 during an informal, middle-of-the-night conference between two provincial cabinet members—one from Ontario, which nominally supported the charter—and the federal minister of justice, Jean Chrétien. Announced the next morning as a triumph of the Canadian genius for compromise it was stonily rejected by Levesque and greeted with foreboding followed by consternation in the media. Justice Berger, quoted by the cbc, called the action “mean-spirited,” and on November 18 The Globe and Mail published a calm but sternly critical article by him: “Steps That’ll Give Canada a Fairer Form of Constitution.” Prime Minister Trudeau, asked to comment on Berger’s remarks, said, according to The Globe and Mail, “I just regard that as the judiciary getting mixed into politics. I hope the judges will do something about it.”3
They did. A complaint was brought by Mr. Justice George Addy, of the Federal Court of Canada and the Court-Martial Appeal Court, before the Canadian Judicial Council, made up of the twenty-seven chief justices of Canadian courts, alleging that Berger’s statements were capable of doing incalculable harm to the independence of the judiciary. No such complaint had ever previously been laid before the Council, which reported: “We view his conduct seriously and are of a view that it would support a recommendation for removal from office.”4 It forbore to make such a recommendation, however, because it had been “advised…that Justice Berger had disengaged himself from the constitutional debate” and because “it is possible that Justice Berger, and other judges too, have been under a misapprehension as to the nature of the constraints imposed upon judges.” The Honorable Jean Chrétien, reporting the Council’s determination early last June, expressed satisfaction that these limits were now utterly clear. “For me, it’s one of the cornerstones of our judicial system in Canada—complete separation of powers,” the minister of justice observed.5
Until the controversy over Justice Berger’s comments surfaced last June, I had not read Fragile Freedoms, and I probably wouldn’t have. I expected to find it solemn and almost pious in its fundamental devotion to the Canada its author so lovingly chastises. It is. It consists of eight historical case accounts of groups whose liberties have been seriously threatened in Canada, beginning with the Acadians and ending with the Nishga. It is nevertheless a hopeful book, which is probably why the constitutional debacle troubled Berger so much. Apparently, he didn’t expect it. On the basis of his book, he should have.
June Callwood’s Portrait of Canada is both sprightlier and more systematically historical; her approach is simple and essentially chronological. Callwood, too, is a considerable public figure though, God knows, no politician or bureaucrat. She is a member of the Order of Canada, and currently vice-president of the Canadian Civil Liberties Association. The two books go well together: Caliwood supplying breadth; Berger, depth. Both books suffer from a dearth of attention to political and social structure. Even Canadian readers, and certainly others, might have benefited from closer consideration of the curious institutions that make the government of Canada in many respects the least accountable democratic government in the world.
Berger, for example, notes that the most egregious abuses of civil liberty he discusses, like the detention and threatened deportation of Canadians of Japanese descent, the banning of the Communist Party in 1939, and the invocation of the War Measures Act in October 1970, were accomplished by orders-in-council. But he does not examine this curious procedure by which the executive acts in Canada—more than three thousand such orders are issued each year, by a body whose members are sworn to secrecy for life, who need not be selected from any elected body or confirmed by Parliament, and whose proceedings are specifically exempted from scrutiny under the terms of the new Freedom of Information Act.
Meanwhile, as has been generally reported, public pressure, especially by women’s and native peoples’ groups, has effected a partial restoration of the damage done to the constitution which is now the—largely untested—law of the land. Equality rights for women and ethnic and religious minorities have been restored and, as such, exempted from the override clauses—but this antidiscrimination provision will not become effective for three years. The override clauses have been retained, and remain applicable to all the fundamental freedoms and legal rights purportedly guaranteed by the charter which, in any case, is subject “to such reasonable limits prescribed by law as can demonstrably be justified in a free and democratic society.” Premier Lougheed of Alberta, who had been most insistent that the section of the constitution that recognizes and affirms aboriginal and treaty rights of the aboriginal peoples of Canada be deleted, agreed to its restoration with the insertion of the word “existing” to modify those rights. Jean Chrétien, in defending the final version of the charter to the press, dismissed this change as inconsequential. The denouement of the Nishga case strongly suggests that it is not.
The great debate on the constitution ended, then, with the least decisive possible victory for fundamental freedoms in an upset that occurred during overtime. At no time did the process resemble the lithographs I recall from my childhood, showing the Founding Fathers deliberating in Independence Hall. I recall these images with nostalgia and mounting foreboding.
November 4, 1982