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Fragile Freedoms: Human Rights and Dissent in Canada
From a series of lectures on civil liberties. Includes chapters on Louis Riel and the new nation and the Nishga Indians and aboriginal rights.
298 pages, Hardcover
First published January 1, 1981
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Displaying 1 - 3 of 3 reviews
August 29, 2021
Berger would become a Supreme Court Justice, but first prepared this survey of the historic treatment of rights in Canada from the perspective of the newly-prepared Charter of Rights and Freedoms.
Sitting as it does before any Court rulings on the Charter, it occupies a remarkable place in legal history and thought - one that raises interesting questions about both the nature of rights and their historic contingency.
We've come to accept that there were no rights that could preempt legislative powers before the Charter, but Berger's treatment of the Jehova's Witnesses cases in the 1950s and the judgments of Rand, J. prove that not to be the case. In fact, preemptive rights were recognized even before the Bill of Rights of 1960. The pivotal case Berger presents is a 1978 case in which the right to free speech was narrowly read to exclude public assembly as an expression of that purpose.
Query the extent to which the 1978 decision, one which takes a different tack from that of previous cases, had an outsized influence on the Charter. Giving it perhaps not only a purpose - to clearly preempt legislative powers in the face of recent judicial reluctance - but the specific articulation of "freedom of association" in direct response to that 1978 ruling.
To the extent that this raises the question of historic contingency - see also the Second Amendment in the US - it should raise the question of how universal or fundamental rights can meaningfully be. That underscores the importance of the living tree doctrine, though given a long enough span of time, it is bound to conflict with the doctrine of precedent that grounds the common law.
This calls back to the historic contingency of the rights addressed in many other sections of the work - those of the expelled Acadians, the Métis, and the Indigenous peoples of Canada. The rights impugned in these circumstances were not "fundamental" in the sense that they could be said to relate to any person, anywhere, in any society. They are specific to the people in question at the time in question, and cannot be said to stem from their fundamental humanity but from the circumstances in which they find themselves.
These historically contingent rights present a different challenge than those recorded as "inalienable", and require a different account. The Charter provides a unifying feature for these two groups of rights in Berger's work, but it cannot, therefore, give us a united account of "human rights" in the sense that the subtitle might suggest.
Sitting as it does before any Court rulings on the Charter, it occupies a remarkable place in legal history and thought - one that raises interesting questions about both the nature of rights and their historic contingency.
We've come to accept that there were no rights that could preempt legislative powers before the Charter, but Berger's treatment of the Jehova's Witnesses cases in the 1950s and the judgments of Rand, J. prove that not to be the case. In fact, preemptive rights were recognized even before the Bill of Rights of 1960. The pivotal case Berger presents is a 1978 case in which the right to free speech was narrowly read to exclude public assembly as an expression of that purpose.
Query the extent to which the 1978 decision, one which takes a different tack from that of previous cases, had an outsized influence on the Charter. Giving it perhaps not only a purpose - to clearly preempt legislative powers in the face of recent judicial reluctance - but the specific articulation of "freedom of association" in direct response to that 1978 ruling.
To the extent that this raises the question of historic contingency - see also the Second Amendment in the US - it should raise the question of how universal or fundamental rights can meaningfully be. That underscores the importance of the living tree doctrine, though given a long enough span of time, it is bound to conflict with the doctrine of precedent that grounds the common law.
This calls back to the historic contingency of the rights addressed in many other sections of the work - those of the expelled Acadians, the Métis, and the Indigenous peoples of Canada. The rights impugned in these circumstances were not "fundamental" in the sense that they could be said to relate to any person, anywhere, in any society. They are specific to the people in question at the time in question, and cannot be said to stem from their fundamental humanity but from the circumstances in which they find themselves.
These historically contingent rights present a different challenge than those recorded as "inalienable", and require a different account. The Charter provides a unifying feature for these two groups of rights in Berger's work, but it cannot, therefore, give us a united account of "human rights" in the sense that the subtitle might suggest.
January 3, 2025
This book is about minority rights in Canada. Very topical and I can read a chapter in isolation about the plight of Japanese Canadians during Ww2 and the later fight for compensation or Jehovahs witnesses who were harassed by a Premier. Much to learn and build on- minority rights are always in jeopardy when there is a mob mentality and at risk during these days of social media. The thesis is how important it is in a democracy to protect minorities within: ethnic, religious, racial and now gender and sexual orientation. - time for another book
November 4, 2012
Provocative reading - though Berger's book is a little dated he makes some excellent points about the need for strong laws to protect minority groups and more importantly those fundamental freedoms we so often take for granted - especially the freedom to dissent!
Displaying 1 - 3 of 3 reviews