One Mans Justice: My Life in the Courts
Thomas R. Berger*
The author offers a personal account of his life in
Canadas courts, highlighting in particular the influence
that Quebec jurists and legal events have had on his
career. In recounting his experiences involving clients
from many different walks of
the author
demonstrates how law, and the lawyer personally, can
assist the cause of justice.
life,
Lauteur offre un rcit de son exprience
personnelle devant les tribunaux canadiens, soulignant
plus particulirement linfluence sur sa carrire des
juristes qubcois et des vnements juridiques s’tant
produit dans la province. En retraant ses expriences
avec des clients de divers horizons, lauteur dmontre
comment le droit, ainsi que lavocat lui-mme, peuvent
servir les fins de la justice.
* O.C., Q.C.
Thomas R. Berger 2005
To be cited as: (2005) 50 McGill L.J. 987
Mode de rfrence : (2005) 50 R.D. McGill 987
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
988
I should begin by saying that really all I can offer you is one mans perspective on
the law and my belief that law can make a differencethat in the practice of law you
can assist the cause of justice.
[Vol. 50
I am going to try to show the influence that Quebec lawyers and institutions have
had in my own career. There have been a few brief encounters that I have had with
Quebec lawyers and institutions from my unilingual redoubt in Vancouver, where I
have lived virtually all of my life. Its been forty-nine years since I graduated from the
University of British Columbia School of Law. Thats a long time; a lot has happened
and Im not going to try to recall it all tonight. But my recollection of those three
years at UBC, which I enjoyed, was of a quiet time. And what astonished me when I
left law school was to find out that while I was at law school, there was a titanic
struggle taking place here in Quebec between the Duplessis regime and some very
fine lawyersFrank Scott and Pierre Trudeau among themwho were seeking to
defend the rights of minorities. Those were the famous cases of the 1950s, when the
Duplessis regime was persecuting (the term is not too strong) Jehovahs witnesses
and communists. Communists were to be persecuted because we were in the middle
of the Cold War. Jehovahs witnesses were to be persecuted because they were on the
street-corners of Quebec City and Montreal distributing leaflets about the
shortcomings of the Catholic Church. Duplessis and the Catholic Church were allies
at the time and worked together in the suppression of these minorities.
At the forefront of the struggle to protect these minorities was F.R. Scott, a
professor here at McGill for many years and then dean in the 1960s. Frank Scott
argued the Padlock Law case.1 Duplessis had the legislature pass a law that enabled
the government to lock up any venue where the communists met.2 The communists
themselves couldnt be locked up because this would have had to fall under the
Criminal Code,3 but any place where they had their meetings could be shut downit
didnt matter who owned it, didnt matter who rented it. The Padlock Act was
something that was enforced from the 1930s until Frank Scott succeeded in 1957 in
convincing the Supreme Court of Canada that it was unconstitutional. Frank also
argued the case of Lady Chatterleys Lover,4 D.H. Lawrences first attempt at
describing acts of sexual intimacy in an explicit way. It was a different era, an
innocent era. But Frank succeeded in persuading the Supreme Court that Lady
Chatterlys Lover, an acknowledged landmark in English literature, was not obscene.
And of course he argued the case of Roncarelli v. Duplessis,5 still cited in the courts
of the English-speaking world and taught in law schools everywhere. That was the
case in which Premier Duplessis directed that Frank Roncarelli, a wealthy restaurant
owner here in Montreal, who was putting up bail for all of the Jehovahs witnesses
arrested for distributing anti-Catholic literature on the street-corners, should have his
1 Switzman v. Elbling, [1957] S.C.R. 285, 7 D.L.R. (2d) 337.
2 An Act respecting Communistic Propaganda, R.S.Q. 1941, c. 52 [Padlock Act].
3 R.S.C. 1985, c. C-46.
4 R. v. Brodie, [1962] S.C.R. 681, 32 D.L.R. (2d) 507.
5 [1959] S.C.R. 121, 16 D.L.R. (2d) 689 [Roncarelli cited to S.C.R.].
T. BERGER ONE MANS JUSTICE: MY LIFE IN THE COURTS
2005]
liquor licence cancelled and thus be deprived of the revenue to put up bail for all of
the people who had been arrested. The Supreme Court of Canada held in a famous
judgment by Mr. Justice Ivan Rand that this was an abuse of statutory power. The
case was actually tried under the Civil Code of Quebec, something that most of us in
the common law world werent altogether familiar with. Mr. Justice Rand, after
saying that Duplessis act was tortious under the Civil Code, stated that in the
common law it would be as well. I think some of those decisions laid the groundwork
for the Quiet Revolution here in Quebec.
989
Frank Scott became one of my heroes, and in 1963 we went to the Supreme Court
together to argue the Oil, Chemical and Atomic Workers case against the Attorney
General for British Columbia.6 Frank argued it and I was his junior, carrying his bags.
In that period it wasnt just Premier Duplessis who brought in repressive legislation.
Premier W.A.C. Bennett of British Columbia brought in a law which said that trade
unions could not contribute to political parties. You can guess the political party that
he did not want them to contribute to. There was no equivalent restriction on
contributions by corporations. We lost by four judges to three at the Supreme Court,
but it was an opportunity for me to get to know Frank. I recall as a young man still in
my twenties, from the backwoods of British Columbia coming down to Montreal to
work on our factum, he took me out to a lovely restaurant on Saint Helens Island,
and he did something I had never seen anyone do: when our wine was brought and he
was asked to sample it, he sent it back! Ive never had the courage to do that myself,
but its something Ive never forgotten.
When the Atomic Workers case was before the Supreme Court of Canada, Frank
was asked questions by the Francophone judges in French, and he answered in
French, and of course answered in English to the Anglophone judges. I as his junior,
and all of the lawyers representing the Attorney General for British Columbia, were
consternated by this and looked at each other with a wild surmisea whats going
on here? I decided then that Frank was the kind of lawyer I wanted to be.
***
Not long after that, I too took on a case against Premier Bennett, who bestrode
the political life of our province like a colussus for twenty years. He had made a
speech at a political gathering about the chairman of the Purchasing Commission,
whom he had just fired. The chairmans role was something like that of an auditor
generalan independent post reporting directly to the legislature. The chairman, Mr.
Jones, wouldnt leave his office, so they had the RCMP remove him. At a certain
point, someone questioned the premier as to why he had fired Mr. Jones. The premier
said: I’m not going to talk about the Jones boy. I could say a lot, but let me just
assure you of this; the position taken by the government is the right position. Well,
6 Oil, Chemical and Atomic Workers International Union, Local 16-601 v. Imperial Oil Ltd., [1963]
S.C.R. 584, 41 D.L.R. (2d) 1 [Atomic Workers cited to S.C.R.].
[Vol. 50
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Mr. Jones came to me and we sued Mr. Bennett for defamation and succeeded.7 The
award was $15,000, which was the highest non-jury award for damages in a
defamation case in British Columbia up until that time, and it went all of the way to
the Supreme Court of Canada, where the decision was upheld.8 Mr. Jones, during the
pendency of the case, spoke to a group of students at the University of Victoria law
schoola group something like this. He had a gift for turns of phrase. He was asked:
Why were you fired, Mr. Jones? The premier wouldnt say. Jones said: Ive got so
many skeletons in my closet, I could keep a Halloween party going for a month!
***
I mentioned at the outset that when I went to law school we didnt discuss civil
liberties. In the mid-1950s, we discussed the decisions of nineteenth-century English
judges. They were good judgments and gave you a good grounding in the law, but we
didnt discuss R. v. Boucher,9 we didnt discuss Switzman v. Elbling,10 we didnt
discuss any of the cases in Quebec that were making history. And there was another
neglected subject: that of the rights of Aboriginal people.
Believe it or not, as law students we were never asked to consider how the
governments erected in North America by the Europeans acquired title to Canada.
How comes it that in Canada, a government established by Europeans is sovereign?
Most important of all, do the Aboriginal people who were here before us, occupying
this whole country, governing themselves by their own lights, who are still among us,
have any rights? The subject simply never came up.
I had the good fortune to be asked very early in my career to represent two Indian
men in a hunting case on Vancouver Island.11 Their names were White and Bob, and
the case went all the way to the Supreme Court, where we were successful.12 It meant
that I became the only lawyer in British Columbia with experience on these issues as
they relate to Aboriginal people.
The Nisgaa Tribal Council, representing the Nisgaa Tribe in the northwestern
portion of British Columbia, who live in the Nass Valley and have done so for
thousands of years, came to me and said: We would like you to sue the British
Columbia government to obtain a declaration that our Aboriginal title to the Nass
Valley has never been extinguished.
I was just starting my own practice. I didnt have many clientsdidnt have any
in factand I spent a lot of time in the law library at the courthouse studying this
subject, where I read the great judgments of Chief Justice John Marshall of the
7 Jones v. Bennett (1967), 59 W.W.R. 449.
8 [1969] S.C.R. 277, 2 D.L.R. (3d) 291.
9 [1951] S.C.R. 265, [1951] 2 D.L.R. 36, revg [1949] B.R. 238, 95 C.C.C. 119.
10 Supra note 1.
11 R. v. White (1964), 50 D.L.R. (2d) 613, 52 W.W.R. 193 (B.C.C.A.).
12 52 D.L.R. (2d) 481 (S.C.C.).
T. BERGER ONE MANS JUSTICE: MY LIFE IN THE COURTS
2005]
Supreme Court of the United States, delivered in the 1820s and 1830s.13 After reading
these cases, I thought: Yes, the concept of Aboriginal title is well-known to the
common law, and it is applicable to British Columbia because (with the exception of
southern Vancouver Island and northeastern BC) no treaties have ever been made
here. There has never been a surrender by the Indians in British Columbia of their
Aboriginal title.
991
We werent expected to get very far. Prime Minister Trudeau came to Vancouver
in 1969 while this case was before the courts and he was asked, What do you think
of the whole subject of Aboriginal rights? His answer was, We will not recognize
Aboriginal rights, because no society can be built on historical might-have-beens.
The action was brought in the name of Frank Calder, who was the president of
the Nisgaa Tribal Council.14 On the way, Chief Justice Davey of the Court of Appeal
for British Columbia, who was a fine and upright judge, said something about the
Nisgaa claim that reveals the attitudes that were prevalent in those days, which
obscured and obstructed recognition of Aboriginal title and rights: he said that
Aboriginal people were, at the time of European settlement, a primitive people with
none of our notions of private property.15 Well, the comment was quite revealing. The
famous French anthropologist Claude Levi-Strauss had said that the native peoples of
the West Coast of Canada, including the Nisgaa, deserved to be compared to the
Greeks and the Romans on the basis of their artistic achievements. Of course, they
also had their own notions of collective ownership of landit was a form of tribal
ownership, though families would own their own particular fishing places and trap
lines and so on. Justice Davey betrayed an appalling ignorance of people amongst
whom we had lived all of our lives, and I say this with all due deference to his
memory.
At the Supreme Court of Canada, Mr. Justice Hall wrote a judgment saying that
Aboriginal title had never been extinguished.16 He had the support of two of his
colleagues on the Court. Three other judges held that the Nisgaa had held title, but
that it was extinguished by the old colonial government of British Columbia. And a
Quebec judge, Mr. Justice Pigeon, refused to decide the matter on the basis that we
had not used the proper procedure to come to court. Prime Minister Trudeau and Jean
Chrtien, who was then Minister of Indian and Northern Affairs, turned to their legal
advisors and asked who was right, Mr. Justice Hall or his opposing colleagues on the
Court? Had Aboriginal title been extinguished in these non-treaty areas of Canada?
Grard LaForest later disclosed at a Conference in Victoria celebrating the thirtieth
anniversary of the Calder case, in 2003, that he was the chief legal advisor to the
Department of Justice on this question, and that he concluded Mr. Justice Hall was
13 See e.g. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
14 Calder v. British Columbia (A.G.) (1969), 8 D.L.R. (3d) 59, 71 W.W.R. 81 (B.C.S.C.).
15 (1970) 13 D.L.R. (3d) 64 at 66, 74 W.W.R. 481 (B.C.C.A.).
16 [1973] S.C.R. 313, 34 D.L.R. (3d) 145 [Calder (S.C.C.) cited to S.C.R.].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
992
right. Prime Minister Trudeau decided it was necessary to enter into land claims
agreements wherever no treaties had been signed in Canada. As a result, we now have
land claim settlements in the form of modern-day treaties in James Bay, Northwest
Territories, Nunavut, and the Yukon, and in British Columbia with the coming into
force of the Nisgaa Treaty in 2000.17
[Vol. 50
When the Nisgaa first came to see me, I had a walk-up law office and my
widowed mother was my secretary. I remember the Nisgaa chiefs entering my office;
there wasnt enough room for all of us to sit down, and they must have wondered,
Who is this young guy that were entrusting our case to? The rent was $120 for the
whole office. Out of that came the case that went to Ottawa and led to the judgment
of the Supreme Court, resulting in treaties being made since 1973 that now cover half
of the land mass of Canada.
There was always a question I had wondered about relating to Quebec, because
Quebec was not under the British Crown until 1763 with the Treaty of Paris. The
British, as they expanded their empire, had always accepted the notion of Aboriginal
title of the peoples inhabiting the land they occupied, whereas the French didnt
recognize the title of the original peoples. So if that had been true in New France, and
in Quebec, then there would have been no Aboriginal title here in Quebec: it would
have been extinguished before 1763, and Quebecs Aboriginal peoples wouldnt be
able to take advantage of Calder,18 Sparrow,19 and the whole line of cases upholding
Aboriginal rights.
In Adams,20 which went to the Supreme Court in 1996, the issue was squarely
before the Court. The question was one of Aboriginal fishing rights in Quebec. The
government of Quebec argued that those rights had been extinguished because they
were not recognized by the ancient regime, thus they didnt exist when Quebec came
under the rule of the British in 1763 and could not be asserted today. Chief Justice
Lamer, writing for the Court, disposed of that argument in just a few lines, saying that
section 35 of the constitution would fail to achieve its noble purpose of preserving
the integral and defining features of distinctive Aboriginal societies if it only
protected those defining features which received the legal approval of British and
French colonizers.21 So that disposed of my concern in just a few linesI neednt
have worried about it all those many years!
There is a postscript to this story about Aboriginal law. All along, there lurked the
question: if the Aboriginal people have a legal interest in this land, whether by treaty
or by reason of their claims to title, what rights to self-government do they have? In
2000, the Nisgaa signed a treaty with Canada and British Columbia, in which it was
acknowledged that they had a measure of self-government encompassing certain
17 See infra note 22.
18 Supra note 16.
19 R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385.
20 R. v. Adams, [1996] 3 S.C.R. 101, 138 D.L.R. (4th) 657 [Adams cited to S.C.R.].
21 Ibid. at para. 33.
T. BERGER ONE MANS JUSTICE: MY LIFE IN THE COURTS
2005]
powers that could not be interfered with by Ottawa or Victoria.22 The then leader of
the opposition in British Columbia, Gordon Campbell, claimed that the Nisgaa and
other Aboriginal peoples had no right to govern themselves, and he brought a lawsuit
against the Nisgaa to have the courts set aside those portions of the Nisgaa Treaty
that affirmed self-government.23 After the Nisgaa had come to see me so many years
before in that little walk-up law office, they came to see me again and requested that I
represent them, which I was pleased to do.
993
Mr. Justice Paul Williamson of the Supreme Court of British Columbia upheld
the Nisgaa Treaty, finding that the Nisgaa had an inherent right to self-government
that applied to their people, land, and resources. Mr. Campbell appealed to the Court
of Appeal for British Columbia, but in the meantime he had won the provincial
election of 2001 and become premier. He therefore had to abandon his appeal because
he realized, I think, that the treaty signed by the province was an engagement that had
to be honoured by a successor government. Nevertheless, in preparing our argument
for that case, we relied on what Prime Minister Trudeau had said in 1983, opening a
first ministers conference to consider an amendment to section 35 relating to
Aboriginal self-government. It was a conference between the premiers, Prime
Minister Trudeau, and leaders of the Mtis, Indians, and Inuit. Mr. Trudeau said he
had devoted more thought to this subject than any other since becoming prime
minister. Bear in mind that in 1969, Trudeau had said he couldnt recognize
Aboriginal rights. He said in 1983 that the heart of the matter, the crux of our efforts
to improve the conditions of our Aboriginal peoples and to strengthen their
relationships with other Canadians, is to be found within the set of issues concerning
Aboriginal self-government. So his journey was in a way that of the Canadian
people, rejecting the whole idea of Aboriginal rights in 1969, but by the 1980s
affirming the idea.
***
I served as a judge of the Supreme Court of BC from 1981 to 1983, and left
because I spoke out about the failure to include in the 1982 constitution a provision
earlier agreed-to, recognizing and affirming the Aboriginal and treaty rights of the
Indians, Inuit, and Mtis. That is something I wont go into now, but I will tell you
that I believe my intervention in the public debate had something to do with Mr.
Trudeau and the other premiers deciding to reinstate what is now section 35. I have
been asked whether I would have spoken out if I had known that it would mean my
leaving the bench. I have always said that I was glad to have spoken out. It was one
22 Nisga’a Final Agreement (entered into force 11 May 2000), being a schedule to the Nisga’a Final
Agreement Act, S.B.C. 1999, c. 2, online: Department of Indian and Northern Affairs
the department, online: Department of
Indian and Northern Affairs
23 Campbell v. British Columbia (A.G.), 189 D.L.R. (4th) 333, [2000] 8 W.W.R. 600, 2000 BCSC
1123.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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of those occasions where youre obliged, I think, to speak up for the things you
believe in. The motion to investigate me was, oddly enough, made by a Quebec
judge, Chief Justice Jules Deschnes, and I discovered that he had written a book in
which he castigated his fellow judges for failing to uphold a fetus right to be
considered a person.24 I thought, Isnt this whats known as the pot calling the kettle
black?
[Vol. 50
While all of this was going on, I was still sitting as a judge, and some people
wondered whether I should be hearing cases involving Aboriginal people. But Allan
McEachern, chief justice of the Supreme Court of British Columbia, had no qualms
about it. In fact, my wife was working at the time as a counselor to native students at
the University of British Columbia, and they often used our home as a meeting place.
One day, I heard a lot of laughter downstairs and my wife came up later on and said
that some of the students were going to occupy the offices of the Indian Affairs
Department overnight, and they wanted to borrow some of our kitchen utensils. The
next day, the Chief Justice phoned me and said that the federal government was
seeking an injunction, that they wanted to remove the occupiers, and would I hear the
case? I said, well, Chief Justice, I think I have a conflict of interest: as we speak, our
frying pan is being held hostage!
***
I left the bench in 1983 and returned to practice. In 1991, I represented a refugee
from Guatemala named Marcos Gonzales-Davi. He had been beaten by the secret
police in Guatemala, and had made his way somehow to Canada, but on entering
Canada through Vancouver was denied legal aid, as all refugees were in that day. We
went to the Court of Appeal for British Columbia, and they ordered the legal aid
society of BC to provide aid for Gonzalez-Davi.25 The precedent took hold, and all
refugees entering Canada through Vancouver or any other port in British Columbia
are now required to be provided with legal aid, which has cost BC approximately
$3.5 million annually.
***
I have been involved in much litigation involving the Charter,26 and I think that
section 15, the equality provision, is now the most litigated section. Under section 15,
the most salient issues in recent years has turned on the rights of homosexual persons.
In the Trinity Western case, which went to the Supreme Court of Canada in 2001, I
defended the authority of the British Columbia College of Teachers to refuse to
certify a teacher education programme at a private university that countenanced,
24 Jules Deschnes, The Sword and the Scales (Toronto: Butterworths, 1979).
25 Gonzalez-Davi v. British Columbia (Legal Services Society), [1991] 55 B.C.L.R. (2d) 236, 81
D.L.R. (4th) 12 (C.A.).
26 Canadian Charter of Human Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
T. BERGER ONE MANS JUSTICE: MY LIFE IN THE COURTS
2005]
based on Biblical authority, discrimination against gays.27 Well, we argued, they had
the right to keep gays out of their university, it being a private institution, but having
inculcated in their students the view that homosexuality is a perversion, they were not
entitled to have them qualified, without more, as teachers in the public school system,
where, of course, there is not supposed to be discrimination. That was the argument.
995
The board of governors of Trinity Western is purportedly guided by the teachings
of Saint Paul, who wrote letters (which now form the bulk of the New Testament)
after he had visited places throughout the Mediterranean spreading the Christian
religion. It is my respectful view that Saint Paul urged upon his readers a somewhat
different view of Christianity than the founder himself had argued for in his lifetime,
but many of the churches, including the Catholic Church, have adopted what Saint
Paul said about homosexuality. By this time, the Church had long ceased to be a
vessel of Quebecs identity, but it was still a force in secular affairs. The National
Council of Catholic Bishops intervened. We argued that Trinity Western as a private
institution could teach anything it wanted, but that students who trained as teachers
and wished to teach in public schools should be required to take six months at Simon
Fraser University, where they would be exposed to a broader view of the world and to
opinions other than those expressed by the instructors at Trinity Western. We lost in
the Supreme Court of Canada. I wont go into the judgment because I become almost
speechless every time that I have to. I will point out that Madame Justice Claire
LHeureux-Dub, the Supreme Courts greatest champion of civil liberty and minority
rights, wrote a powerful dissent. She described the struggle taking place in these
terms:
[T]he principal metaphor for the homosexual and bisexual experience of
discrimination has been that of the closet, an isolated refuge of invisibility often
enveloped in fear. Indeed, the history of struggles against sexual orientation
discrimination has been described as a battle against the apartheid of the
closet.28
Primordial fears and ancient stereotypes still inform our attitudes. Religious
institutions continue to denounce homosexuality as perverse and unnatural. The place
of homosexuals as a vulnerable minority entitled to the protection of the Charter has
not yet been fully accommodated in our consciousness. Ive discussed the Trinity
Western case not just because I lost the case (the advocates lament: Ive never lost a
case that wasnt wrongly decided), but to show that the elaboration of Charter rights
is not going to be easy. We are not there yet.
***
Aspects of Quebecs legal historyits great legal figures and historic cases, and
the role of the Catholic Churchcontinue to be relevant to cases that I have taken on
in my recent career. In November 2004, I argued D.E. (Guardian ad litem of) v.
27 Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 199
D.L.R. (4th) 1, 2001 SCC 31 [Trinity Western cited to S.C.R.].
28 Ibid. at para. 89 [references omitted].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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British Columbia (A.G.),29 a case before the British Columbia Court of Appeal on
behalf of eighteen mentally infirm women who were sterilized between 1940 and
1968, during a period when the province had a eugenics law. Alberta, too, had such a
law, but no other provinces did, even though the eugenics movement had spread far
and wide in North America. It was the influence of the Catholic Church in Quebec
and other provinces that held the eugenics movement at bay in Canada.
[Vol. 50
The case required me to argue, relying on Roncarelli,30 that there had been an
abuse of statutory power (now properly called misfeasance in public office) by
successive superintendents of the British Columbia Mental Hospital and, in order to
get around the provinces limitation period (thirty years), that the medical sterilization
of these women amounted to sexual assaultthe only exception allowed in British
Columbias limitation law. This gives you an idea of what it means, in a practical
sense, to think like a lawyer.
The D.E. case was decided last Friday, on the 11th of March, 2005. The Court of
Appeal held in favour of our claim that the offense perpetrated against these women
constituted sexual assault and ordered a new trial for nine of them.31
Then there is the case of the Manitoba Mtis Federation against Canada and
Manitoba. It has already been to the Supreme Court of Canada once, on the issue of
the Mtis right to bring the suit.32 I will be arguing this case at trial before the
Manitoba Court of Queens Bench, commencing 3 April 2006. The case takes us back
to 1869-70 and the Mtis uprising at Red River led by Louis Riel. It involves John A.
Macdonald but principally Georges-Etienne Cartier, his partner in the creation of
Canada, who made promises to the Mtis which, though never kept, we will claim are
enforceable today. It was, of course, Cartiers dream that Manitoba should be
Catholic and French-speaking. The promises to the Catholic Church to fund Catholic
schools and to make French an official language of Manitoba were not kept. Nor was
the promise to provide 1,400,000 acres of land to the Mtis. It is the latter promise we
are litigating. We shall see how it turns out.
Well, that brings me to the present. It is time to sum up. In doing so, I would like
to leave you with the words of Frank Scott: If human rights and harmonious
relations between cultures are forms of the beautiful, then [Canada] is a work of art
that is never finished.33
29 252 D.L.R. (4th) 689, 2005 BCCA 134 [D.E.].
30 Supra note 5.
31 A settlement of their claims for $450,000 was announced on 21 December 2005.
32 Dumont v. Canada (A.G.), [1990] 1 S.C.R. 279, 67 D.L.R. (4th) 159.
33 Frank R. Scott, Essays on the Constitution (Toronto: University of Toronto Press, 1977) at ix
(Preface).
