HARD CHOICES: A LIFE OF TOM BERGER
CAROLYN SWAYZE
Published by Pacific Place Publishing
Smashwords Edition
Copyright 1987 Carolyn Swayze
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To the memory of my brothers DOUGLAS M. SWAYZE
3 November 1937 - 6 June 1986 and
HUGH E. SWAYZE
6 June 1940 - 25 December 1978 and for C. J. MOYER, who believed in this book and in my hard choices.
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Table of Contents
Chapter 2: The Young Barrister
Chapter 3: The Defender of Human Rights
Chapter 4: The Man for Maisie’s People
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The first though least important fact about Thomas R. Berger is the pronunciation of his name. Berger rhymes with merger. Or, as one transcript typist heard it: “Thomas, our verger.”
The second and most important fact about Tom Berger is that he believes, and believes passionately, in the integrity of Canada’s system of equitable justice and its attendant jurisprudence.
In late 1983, after a twelve-year sojourn on the bench of the Supreme Court of British Columbia, during which time he conducted three royal commissions for the governments of three national political parties, he also wrote a book, published articles, taught law school, served on the boards of a number of associations, gave numerous speeches, and provoked politicians and the public more often than is fitting for a judge, Tom Berger resigned. He then chaired the Alaska Native Review Commission for two years before returning to the practice of law. He continues to advocate justice at every opportunity, and even during “The Music in My Life,” a CBC radio program on which he was a guest, he managed to inject his views: “How we treat minorities, says a lot about who we are. I speak as a member in good standing of the majority.” His choice of music on the show suggests the dimensions of the man and his life: “Moon River,” a romantic ballad that was popular during the 1950s when Tom and his wife Beverley were courting; Judy Collins singing Gordon Lightfoot’s “Early Morning Rain”; songs by Indian rights activist Buffy Sainte-Marie, whom Berger met in the 1960s; Inuit throat singers, like the ones he heard on his travels in the North, and Gordon Lightfoot’s “Canadian Railroad Trilogy.” Of the latter he said: “It’s a good song. It reminds us that it was not just Lord Strath- cona who built the railway. It pays tribute to the thousands of people, known only to their families, who do the world’s work. That’s worth celebrating.” He also chose Beethoven’s Pastoral Symphony, because it reminded him of what man is capable, of what he can achieve, as well as imbuing him with a sense of humility. “That music is immortal. What we’ve been talking about is pretty limited in time and space.”
Tom Berger’s comments during this show serve to summarize why I chose to chronicle his career.
I first met Tom Berger in my second year of law school at the University of Victoria. Once a week he travelled by ferry from Vancouver to teach a three-hour class in civil liberties. Initially, Berger was to have taken leave from the bench so that he could serve a term as a visiting professor. But plans had gone awry. Allan McEachern, chief justice of the Supreme Court of British Columbia, had decided that the court’s work load was too heavy to spare him. Berger, however, was determined to teach something of the history of human rights and dissent in Canada, so he reorganized his work load to make time to teach the class. A measure of the esteem accorded him by law students was the size of the class; upon occasion, the aisles were dotted with visitors from other faculties.
We were drawn to the class by the Honourable Thomas R. Berger’s reputation as one of the few Canadian heroes of our generation. Although he was not a consistently dynamic lecturer, his reputation was tangibly evidenced by the published reports of his commission work, by his precedent-shattering cases as a lawyer, by his intellectually rigorous decisions as a judge and by his just- published book, Fragile Freedoms, which formed the basis of his lectures. We were aware also of his willingness to put his judgeship on the line in order to ensure the protection of minority rights and had hopes that through him we would learn how the law could be used altruistically.
By the end of that term I had decided that the story of Tom Berger’s work was a story worth telling, that an account of his career would likely make a greater contribution to legal awareness than I might accomplish as a practising lawyer. He did not, however, react enthusiastically to my idea. After I wrote to him requesting his co-operation in the project, we arranged a meeting. Sitting face to face in a vacant office, he asked the question uppermost in his mind: “Do you think I’m about to die?”
He was nearly fifty years old, his brown hair was beginning to silver, his square jaw and blue eyes were resolute. “Not yet,” I told him, “not yet.”
“In that case,” he said, “not yet.” He was far too young to have a biographer, he said, and reiterated his rejection with clearly thought out reasons why it was a bad idea. One objection was the time it would require of me: he thought that as a law student who was nearly forty, I should make articling and practice my immediate priorities. He also naturally had some concerns for his personal privacy and more for that of his family, as well as for the sensitivities of other people still living who might be hurt by my prying.
I countered with my reasons why a biography was a good idea: it was a way to show how one person could make an impact on society, an opportunity to encourage understanding of our recent history and to head off apathy on the part of the rising generation of lawyers. And besides, I persisted, I had been a writer before law school and would continue to write. I also said I doubted that readers wanted to learn only about dead Canadians.
Our dialogue continued by mail for months, and by the last term of my final year I had begun to send him draft chapters based on my law library research. He could not resist setting me straight on the law, and eventually the chapters would come back, their margins filled with scrawled comments and corrections, which I incorporated into new versions.
Tom Berger officially conceded a year later when I followed him to Alaska where he was conducting hearings in native villages. “When I saw you get out of that floatplane in the bush,” he said, “I realized that you were as determined to do your work as I was mine.”
The story of Tom Berger’s hard choices is the result of many interviews, together with library and archival research. Some of the story I pieced together by reading articles in scholarly and popular publications, by plowing through 40,000 federal government documents obtained through the Access to Information Act and by looking over a carload of files, news clippings, transcripts and scrapbooks taken from the basement of the Berger family home. I talked for many hours with Tom Berger and members of his family and people who had worked with him, I attended his speeches and I sat at commission hearings. I also interviewed and corresponded with dozens of other people; and hundreds more, upon learning of my work, reacted with information and comments that reaffirmed my belief that Tom Berger’s life is one worth chronicling.
Of course, the career is, in essence, the man. But Tom Berger has stubbornly played down his role in the social changes his work has accomplished, changes that he diligently and tenaciously pursued through education, research, legal case work, political activism, in elected office, in the classroom, from the bench, through royal commissions, on the air, in the written word and in public forums. His work and his personal example of selfless service stand as a tribute to his dedication. Consequently, Tom Berger’s work shaped the format of this book, rather than chronology: Tom Berger, lawyer for oppressed native Indians, workers and accused criminals; Tom Berger, politician, federal member of parliament, leader of the New Democratic Party of British Columbia, member of the legislative assembly; the Honourable Mr. Justice R. Berger of the Supreme Court of British Columbia; Commissioner Berger, and twenty-five years later, full circle to Tom Berger, lawyer. In all these, the consequences of his hard choices speak eloquently for him.
In writing this book, I am grateful for the initial encouragement of John Pearce and Bo Hansen, and for the sustained interest and support of Bella Pomer, C. Heather Allen, Brendan Allen, Ann Knight and Val Chapman. I commend my daughter, Natalie Moyer, for her unflagging sympathy and my son, David Moyer, for never taking me seriously. Diana Priestly, Terry Wuester, Hamar Foster and Dave Godfrey of the University of Victoria assisted me in my efforts to fit the preliminary research and writing within the prescribed curriculum of the Faculty of Law. This book was also made possible by a grant from the Explorations program of the Canada Council.
Numerous people-politicians, judges, lawyers, clients, family and friends-gave freely of their time and information. The great joy of this project was the opportunity it presented to meet with so many intelligent and thoughtful people. The native people of village Alaska were consistently hospitable and generous. I regret not being able to thank everyone personally.
I am indebted to Tom Berger for his unremitting courtesy and assistance. Although both he and I experienced separate professional and personal difficulties during the course of this project, our working relationship never wavered. Beverley Berger met my requests with candour and good humour, as did other members of the Berger family and their friends.
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When Tom and Beverley Berger’s daughter, Erin, Y V commenced legal studies at the University of Calgary in 1984, she became the fourth-generation Berger to embark on a life in the law. The tradition had begun in Sweden where Tom Berger’s grandfather, the original Judge Berger, presided in Goteborg. His son Theodore, Tom’s father, emigrated to Canada and made a career in the law with the Royal Canadian Mounted Police. He, in turn, instilled his son Tom with a respect for the place of justice in the life of a nation and taught him that the law must uphold not only great principles but protect small people from injustice of all kinds.
When Theodore was a young boy in Sweden, his mother left the family and Judge Berger remarried, but the boy and his stepmother never got along well. Theodore was sent to a military academy, an institution at odds with his independent temperament. When he returned home, it seemed to him that his differences with the judge and his wife were profound and irreconcilable. And so in 1911, at the age of twenty, he packed his bags. Although his eldest stepsister, Malin, aged ten, cried and begged him not to go, he walked away and did not contact his family until fifty years had passed.
As two of the five or six languages that Theodore spoke were English and French, he chose to emigrate to Canada where he became Ted Berger. For the next six years this tall, strong loner worked as a fireman in Montreal, but it was not a way of life that satisfied him. It lacked the sense of purpose he had hoped to find, and Montreal was not the Canada he had envisioned. That country was in the west. At the age of twenty-seven he joined the Royal Canadian Mounted Police, which had, he thought, the potential to satisfy both of his needs. After ten years, he was assigned to the Bulkley Valley farming community of Telkwa in northwestern British Columbia. Corporal Berger thrived on his work and was a highly regarded member of the force. The conscientious way in which he fulfilled his responsibilities and brought justice to the district earned him the respect of fellow policemen and of local inhabitants, among them Tom McDonald, his wife Susanna and their four daughters.
McDonald was an immigrant homesteader, an Irish Protestant, who had left Northern Ireland in the 1880s to find a haven in Canada. When the family arrived in the remote Bulkley Valley, one of his daughters, Perle, was just thirteen. “Things were different then,” she recalls. “It was a hard life, but we didn’t think it was primitive. Now, I guess, you’d say it was.” Perle left the valley to board with a married sister while attending the New Westminster Modern School of Business, but after earning her diploma, she returned home. Commerce in the Bulkley Valley in the 1920s was primarily in the hands of a local entrepreneur, Dick Sargent, and Perle worked for him, dividing her time between doing the bookkeeping for his store and minding the Telkwa post office.
Perle McDonald was twenty-two when the strapping Corporal Berger caught her eye. He was thirty-seven, a pipe-smoking man inclined to be taciturn and shy with women. Although Perle was quiet, she had the friendly, forthright manner of a person raised and working within a warm circle of family and friends. She was irresistible to the lonely officer, and they were married in Telkwa in 1928.
Six months after the wedding, the RCMP detachment was moved sixty miles north to Hazelton at the confluence of the Skeena and Bulkley rivers. Here Corporal Berger was in charge of a four-constable unit with jurisdiction over a scattered population, the majority of whom were Gitksan Indians.
Vivid memories of Corporal Berger are retained by James Teetzel Harvey, who in the 1930s was a young lawyer practising in nearby Smithers and Hazelton. “He was a tall, rather slim man of an erect, soldierly bearing; balding, with a long face and large eyes. I disliked what I thought was his total absence of humour, although later I realized that he either deliberately concealed it from me or I was too young to see it. Even then, I knew that for sheer capability, competence and decency, you couldn’t fault Corporal Berger. I see some of his attributes in young Tom.”
Perle and Ted’s first son, Teddy, was born in 1930. Two years later, a promotion took the family to the provincial capital, Victoria, where a second son, Thomas Rodney, was born in 1933. Like Teddy, Tommy was good-natured and healthy, and he gave his parents no indication he would grow up to take life quite as seriously as he did. That he did may have had something to do with his father, for Ted Berger soon took a fateful step in a small matter that to him was nevertheless a fundamental issue of justice. He chose to enforce the law against a high-ranking and well-connected naval officer. The ramifications of his steadfast belief that the law should be applied equally to all people were to reverberate through the remainder of Ted Berger’s working life. Although normal advancements no longer came his way, a measure of good resulted. Out of the experience emerged a visionary Tom Berger, imbued with the conviction that principles must be defended, wrongs righted and the justice system upheld, no matter what the cost.
Tommy was still a toddler when the first signal came that Sgt. Ted Berger was not to be forgiven. He was transferred from the capital to Penticton, a dusty fruit-growing town in the south Okanagan Valley, where in January 1939, a third son, Brian, was born. Then the sergeant and his family were sent farther away to Prince Albert, Saskatchewan, “where no one was born,” Perle Berger says with a faint smile.
Before long the Bergers were assigned to Regina, Saskatchewan, the national headquarters and training centre for the RCMP, where the top brass abounded and there was little opportunity to make independent decisions or to take individual responsibility. Sergeant Berger was in charge of the downtown detachment and also taught recruits at the barracks on the outskirts of the city. His duties left little time for family life, but Tom was proud of his father, the policeman. “He had trophies for marksmanship and he used to clean his revolver at home.”
The family’s quarters on the fifth floor of the town station were somewhat grim, but the joy of the posting was the birth of a daughter, Susan, in 1940. The boys were then ten, seven and two. For the young mother, that summer was interminable and insufferably hot. Each morning they hurried to escape their stuffy, noisy rooms. The first stop was the public library where Tom, already an eager reader, would choose a book. Then, it was on to the park where the newborn Susan slept as Mrs. Berger brushed away the incessantly moving, clicking grasshoppers. After a picnic lunch, Tom walked back to the library to exchange his morning book for an afternoon read. One day, his mother remembers, he returned in a fury, empty-handed.
“That stupid woman!” he fumed. “She won’t let me have another book!”
“The librarian meant well,” Mrs. Berger asserts. “And I know what she was thinking. She didn’t believe Tom was reading the entire book. She thought he was just making work for the library staff.”
It was a cruel rein on one of Tom’s greatest pleasures, and the incident embodied what would become the two great passions of his life-an intolerance of injustice and an abiding love of literature.
By 1943 it was apparent to Sergeant Berger that the force would offer him no further opportunities and that he had little choice but to retire. A second career in the public service, which might have been expected to come his way after twenty-five years with the RCMP, did not materialize. This disappointment, too, may have been a consequence of the episode in Victoria, but he never discussed it with his children. In those days there was no Canada pension plan and his RCMP retirement stipend was not sufficient to support his young family, so the Bergers left Regina for British Columbia, which they considered to be home and where they thought employment prospects would be good. Their hopes were not realized, however, as available jobs were going to men returning from the Second World War.
The family moved around the Lower Mainland, taking low rental houses in White Rock, Richmond, Vancouver, and finally in Dollarton on the North Arm of Burrard Inlet. Jobs were scarce, but Ted Berger did not complain. He looked for work constantly, and he never expressed bitterness about the hard consequences of having done his duty, even though for four or five years during the 1950s, he was out of work altogether.
“You can’t understand the degradation, the destroying of dignity, that this does to a man and his family,” Tom Berger later told Vancouver Sun columnist Allan Fotheringham. “When he did find work, the jobs made little use of his talents. In White Rock, Dad was a security guard at the Boeing Aircraft plant on Sea Island. Later, he was a night watchman, a warehouseman, and he worked for Eaton’s. In his sixties, he was employed as a bank messenger.
“For someone who’d been a sergeant in the RCMP, the jobs he held afterward might have seemed menial, but he treated them as jobs that deserved to be done,” Tom said with pride. “I’ve always been struck by that.”
To Tom Berger, his father was a rather remote figure, but kind. Ethical and stoic, Ted Berger conveyed to his son an understanding of how the tension between politics and law made an impact on everyday life. His commentaries on the times clearly made an impression on Tom, who would later struggle to protect civil liberties in Canada. “One of my earliest memories of my father and his politics was his telling me how much he admired Angus Maclnnis for defending Japanese Canadians. I think it was said during the time of their expulsion, which would make it the early Forties. We often discussed current events.”
Family life remained solid, despite the hardships. Ted Berger shared a love of reading with the older boys, and both parents encouraged them in their studies. “But my mother was the centre of our family. Through the good times and the difficult times, she managed the household. She took a keen interest in our school work and, like my father, always insisted that we should tell the truth and do the right thing. My mother believed, and still believes, that family members must always be loyal to one another.”
It is a philosophy of life that Tom Berger embraced. He is loyal to his late father’s faith in the RCMP and does not entertain any exploration of the inside politics that may have contributed to the demise of Ted Berger’s career and that brought the family so
many years of privation. But he also deplores the injustice that caused it, and from the time he understood what had happened, he resolved to fight such wrongs.
Because of the vagaries of rental housing and of Ted Berger’s jobs, the family moved many times and Tom was in a different school every year, sometimes two in a year. Fortunately, his early reading habits paid off, and perfect report cards came effortlessly to him. But Tom lost sight of his star in high school. “He slumped,” says his mother. “He only went to school for track and English rugby. I remember talking to Mr. ‘Mickey’ McDougall, the principal and math teacher. He said of Tom, ‘There’s a boy who’s only doing enough to get by.’ “
His tenure as a secondary school student cannot be termed distinguished, but Tom Berger did set his goals. “I decided I wanted to be a journalist, a teacher or a lawyer. I see, looking back, all three had to do with the same kind of skills. I guess, even then, I had ideas I wanted to communicate. And I was lucky. I was able to have those three careers and more. That happened, I think, because I regained Mr. McDougall’s confidence. As principal, ‘Mickey’ often had to absent himself because of his other duties and he would have me take charge of the class for him. I became enthusiastic about school again.”
As a chagrined 1950 graduate whose grades were only average, Tom told his mother, “I should have worked harder, sooner. I could have had scholarships.” Because he did not, he was forced to take senior matriculation, the equivalent of first-year university, at high school where tuition costs were lower. This time he did earn scholarship money, and the following year he commenced his studies in the Faculty of Arts at the University of British Columbia (UBC). Having earned the highest first-year mark in the provincial English examination, he was invited to join a special English literature class in which all members of the faculty took turns discussing their specialties. “In addition to my regular English lectures, I had the pleasure of being taught by Earle Birney, Stanley Reed and others. Each discussed his own poetry or period. I remember Roy Daniells on Milton. I loved it.”
Tom’s brother Ted was attending UBC at the same time, and both were living on campus, struggling to support themselves. Tom lived in the cheapest housing, the old military barracks known as the Fort Camp huts, sharing a room with Richard D’Andrea (later a judge of the Provincial Court in Castlegar, B.C.), and their friendship endured until D’Andrea’s death in 1986.
In the 1950s UBC was the realm of a goodhearted troika: Gordon Shrum, Norman MacKenzie and the benevolent Walter Gage. “If you ran right out of money, and I did, despite the scholarship and the summer jobs,” Tom recollects, “you went to Walter Gage and he took a bursary off the shelf. He really was the students’ friend.”
The summer he was eighteen, Tom had a job as a labourer for McKenzie Barge and Derrick in Dollarton where they built and repaired the vessels that carried hog fuel, sawdust for the now- obsolete beehive burners. The outdoor job suited his taste. Not for him a stint in a library or an insurance agency. “It was a nice summer,” Berger says dreamily. “I haven’t thought about it in years. I remember standing on top of an eight-inch barge wall, maybe twenty-five feet from the ground, swinging a sledge hammer to drive spikes.”
The following summer he took a job at a logging camp on the Brandy wine River. “We worked in a cedar swamp. We were making telephone poles. We’d cut down the trees, peel them, drag them to a railway siding, peavey them onto a flat car. We did the whole thing, just the three of us-the owner, his son and me,” Tom says with satisfaction.
Every summer after that Tom worked at Norwood Sawmill in North Vancouver on the green chain. He held an International Woodworkers of America union card for five years-his first experience with the collective protection of workers’ rights. “I would go to Norwood in the morning after my last exam in the spring and would leave at the end of the afternoon shift before school started again the next fall. I never took a holiday. It was out of the question. There was no real sense of sacrifice about any of this. The opportunity to go to university and to get into a profession was one I eagerly accepted. By second year, I was determined to be a lawyer.”
One day Tom went home to visit his parents in Dollarton. “A surprise visit. My father was home when I arrived, which was odd since he was employed at the time. But my mother and father said that he was simply ill and had taken the day off. I turned up a few weeks later for some reason, unexpectedly, and again he was at home. I remember both of them insisting that he was still working. My brother Ted and I then realized that he had been laid off, but they had not wanted us to find out about it because they
were afraid that one or both of us would give up university to go to work to support the family.” As much for their parents as themselves, the boys stayed in school. When Ted graduated in engineering, his father was intensely proud.
For Tom, who was still a student, leisure and money continued to be scarce. “I had a job in the evenings working in the campus canteen. This, together with study, didn’t leave an awful lot of time for anything else.” Still, he found time to notice a vivacious, outgoing young woman in the cafeteria. In the spring of 1954, he had a date with her. Beverley Ann Crosby. Her home was in Powell River, an isolated upcoast milltown, so she, too, lived on campus in student housing. Tom had no car and very little money. “Our dates consisted of walking to the Varsity Theatre to see a movie or just going for a long walk.”
Bev was a fun-loving, first-year arts student who could always take time away from her studies for a mean game of tennis. Just as Perle Berger’s friendly manner had drawn the taciturn Ted Berger into her life, so Beverley Crosby’s engaging personality enticed the younger Berger out of his narrow, work-dominated world into hers. She taught him to play tennis and did it so well that they are still tennis partners thirty years later.
Tom and Bev became engaged in the summer of 1955. Her parents had been divorced when she was younger, and her aunt who came to take care of the household had introduced her to Catholicism, so the engaged couple attended marriage preparation classes sponsored by the Catholic Church. Tom took issue with some of the tenets of the faith but persevered. Although he had been raised in the Anglican Church, he attended only sporadically and with no particular fervour. Thus, it made sense to defer to Bev’s choice and to begin their new life united by one church.
Bev completed first-year university, a prerequisite for Normal School which she went on to attend, and in November of 1955, after she had been teaching primary school for three months, she and Tom were married. They could not afford a wedding photographer, but a few friends took snapshots. Bev looks young, lovely and radiant. Tom looks young, tense and his eyes are half-closed. “From the stag party,” Bev explains. “They tried to kill him with alcohol the night before. I was so upset.”
It was Tom’s last year of law school.
“We lived in a basement suite of an old rooming house on Twelfth Avenue in Vancouver. One of the jobs I had to defray the rent was to keep the furnace stoked by shovelling coal every night. But we had such a sense of wonder and excitement. We thought, and so did our friends, that we could achieve things that our parents had been unable to.”
The young couple’s friends were, for the most part, people they had met at school, particularly law students who enjoyed visiting “off-campus.” One law student friend was John Bruk, a Yugoslavian immigrant who, though older than Berger, was a year behind him. Bruk, now the chairman of Asia Pacific Foundation and formerly the president of Cyprus Anvil Mining Corporation, still cherishes the times as a student spent with Tom and a few others, discussing “people, nations and humankind. It was always stimulating to be exposed to those brilliant minds.” Bruk worried whether the legal community would have room for a New Canadian, and he turned to Berger for advice. “I went to see him at his office, and he said, ‘John, as long as you do the same good work you did at school and do your best, you’ll have clients.’
Tom Berger took what was then called a double degree. After three years in the arts faculty he went directly into law, and after three more years, emerged with two degrees: a Bachelor of Arts and a Bachelor of Law. “Isn’t that remarkable?” Berger muses. “I didn’t deserve a B.A. What did I know?” He received his LL.B. in the spring of 1956, standing third behind Rendina Hossie and Elaine Evans, two of the three women in his class.
Tom’s father was even prouder than when Ted had graduated. “Not because he preferred me in any way, but because it was law,” Tom explains. “It was then that he asked me to write to his family in Sweden-to tell them after an absence of nearly fifty years where he was.”
RCMP Constable Ted Berger and his bride-to-be, Perle McDonald, in Telkwa, B.C., 1926.
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CHAPTER 2: The Young Barrister
During the last year of law school, Tom Berger had been searching for a legal firm with which to complete his articling year-an apprenticeship of sorts under the eye of a supervising principal. An articled student, if lucky, has experiences, instruction and opportunities that help to prepare him or her for a life in the law. The articled student is paid very little, works long hours and prepares for yet more exams.
Beverley Berger’s stepfather, Clifford Worthington, was a business agent for the carpenters’ union, which was represented by Shulman, Tupper & Southin, and he suggested that Tom apply to article with them. “They were in the old Standard Building in downtown Vancouver and in addition to representing the carpenters, they did a lot of work in the labour law field,” Berger recalls. “I wasn’t a particularly aware or active union member when I worked at the mill, but I had studied labour law and done well in it. The kind of work Shulman, Tupper & Southin did interested me, so I went down to see them and they took me on.”
Shulman, Tupper & Southin not only took Tom Berger on, they exposed him to the grittiest kind of legal work and allowed him to carry as much responsibility as he was capable of. His experience under the tutelage of Isaac “Ike” Shulman, Harold Tup- per and Mary Southin catapulted him into the branches of law that would make him famous.
“On my first day, the partners took me down for coffee. There was a large booth where they always sat. Tom Hurley, who had his office in the same building, joined us for coffee that day. Hurley was then in his mid-seventies, the doyen of the criminal bar. Everyone was talking about the Coffin case that day.”
In 1953 the bodies of three American hunters had been found in the Gaspe woods, and Coffin, a local prospector, had been charged with murder and convicted. Because rumours were rampant that he had not received a fair trial, the cabinet referred the matter to the Supreme Court of Canada; but the court upheld Coffin’s conviction, and he was hanged on 10 February1956.
The discussion over coffee that morning was based on the court’s decision, which had just been published. “They deferred to Tom Hurley and wanted his opinion on the judgment. After he gave it, he turned to me and said, ‘Mr. Berger, what do you think of the judgment?’
“I can’t remember what answer I may have made, but what struck me was his genuine interest in my opinion, even though it was only my first day as an articled student. I got to know him well after that,” says Berger fondly. “Tom Hurley had an extensive law library, but in those days, you had to send the weekly law reports back to the bindery every month to be bound, and he never did. So he had walls full of shelves of unbound law reports. This meant that you could never find anything in his library. Yet he knew the cases; in the criminal field, because he had argued many of the principal cases, and in the civil field, because he had a remarkable knowledge of the law anyway. Often, as we were walking into the old police court, now the provincial court, he would draw an envelope on which he’d written a few notes out of his jacket pocket. This would form the basis of his cross- examination and argument.”
Berger not only admired Hurley’s style, he adopted it. For both barristers, old Tom Hurley and young Tom Berger, the “envelope defence” was a practice that reflected expertise and competence rather than a lackadaisical approach. Hurley also helped Berger with substantive and tactical preparations. “I used to go to talk to him about cases. Many young lawyers used to do that since he was always available. We would leave his office and walk across to the beer parlour. We spent many hours in beer parlours, having a few beer and talking about the law. I learned much from Tom Hurley during those sessions. Often, I would drive him home and there we would have another drink together and talk more about the law.”
After Berger completed his year of articles in May of 1957, he was called to the bar as a full-fledged practising lawyer. Shulman, Tupper & Southin asked him to continue working for them, and life looked even more promising. Tom was in his element. Law was everything that he had hoped it would be. On one occasion he was in Quesnel, a small country town in the interior of British Columbia, defending a client on a murder charge. It was a jury trial. When he had finished his summation, Berger phoned his office. “The jury has just gone out,” he told them. “They’ll be back in forty minutes with a ‘not guilty’ verdict.” That was exactly what happened.
The Bergers moved to rental housing on Kings Road near UBC after Erin was born on 5 May 1958. Bev had resigned from teaching, as Tom’s working hours were far too long and demanding for the young couple to consider sharing child care responsibilities and Bev wanted to be a full-time wife and mother. Before long, however, it became apparent that Tom’s propensity for representing worthy but nonpaying clients meant that the Bergers could not live on his salary alone. When Erin was nine months old, Bev resumed teaching, this time at University Hill Elementary School.
Despite the financial pinch, the Bergers were giddy with the richness of their family life and their prospects for the future. The Bergers’ optimism really was unbounded, and they shared it with their friends. John Bruk recalls, *’Carol and I had young children, too, and little money. Entertainment was good conversation and the television. Bev and Tom had one and that was a great treat. We could go there for ‘Hockey Night in Canada.’ Sometimes we even had a case of beer.”
For the most part, however, Tom Berger’s life was centred on the law. He truly loved it, reading law reports the way other people read newspapers, and he was always looking for and thinking about ways to use the law for the advancement of worthwhile causes. One cause that was not popularly viewed as being worthwhile was communism. “I espoused, not communism itself,”
Tom explains, “but the right of communists to freedom of expression, which included running for office and so forth.” Berger knew about the McCarthy-style purges that had rid trade unions of people with communist connections during the early 1950s. Frequently, the first to be ousted were members of the Labour Progressive Party (formerly the Communist Party of Canada), whose members had been instrumental in organizing the trade union movement in British Columbia during the 1930s and 1940s.
To some extent the communism issue was a reflection of the times in British Columbia-times that showed little sympathy for people in trouble or for labourers. The province was governed by a populist Social Credit premier, W. A. C. Bennett, who had wrested power from a coalition of the Liberal and Conservative parties. His government had not implemented the “funny money” policies of prairie Socreds but had adopted a strong free- enterprise stance that emphasized traditional conservative values. Bennett’s Socreds were in tune with the ideas of western voters in a way that meant virtual extermination of the Progressive Conservative and Liberal parties. The Social Credit party was in direct opposition to the Co-operative Commonwealth Federation (CCF) party with its labour support and leftist tinge. This political and social climate conspired to push Berger into the arena of labour law where his fresh approach to contentious and controversial cases shot him to prominence.
One such case involved George Gee, who had become the business agent for the International Brotherhood of Electrical Workers in 1949 and had responded to anticommunist pressure by renouncing his Labour Progressive Party membership “for the good of the union.” In December of 1954, the American Federation of Labor and its Canadian counterpart, the Trades and Labour Congress, announced a drive to rid member unions of all “red-tinged leadership” and ordered Gee to fire an assistant business agent, Don Wilson. When Gee refused, the international union claimed that the reason he would not fire Wilson was because Gee himself was “a secret agent for the Communist Party” and was obliged to wait for its orders. Gee laughingly dismissed the allegation as ridiculous, but a short time later he found himself charged with violating the union’s constitution by supporting a cause detrimental- to the union.
During a union-conducted tribunal in which the same men acted as both witnesses and prosecutors, numerous alleged transgressions were cited. Among them were assertions that Gee had rented space to the leftist Mine, Mill and Smelter Workers’ Union, that he had attended a Paul Robeson concert and that he had attempted to have his union local pass a resolution demanding freedom for the Rosenbergs, the convicted U.S. spies who were later executed.
The tribunal convicted Gee. He was dismissed as the union’s business agent and, as of n April 1955, was expelled from the union in which he had held membership for twenty years, on the grounds that he had worked “on behalf of the communist cause.” He was only one of hundreds of unionists driven from office, even from the ranks. Gee returned to his old job as a lineman for B.C. Electric, but when his employer realized he was no longer a “union member in good standing” as required under the collective bargaining agreement which, ironically, Gee himself had negotiated, he was pulled off the job. He turned immediately to Shul- man, Tupper & Southin to bring suit.
“I was only a year at the bar, then,” Berger says. “Ike Shulman was to act as counsel. I was assisting in the preparation of the case. In the end, Ike was too busy, and we brought in Tom Hurley as senior counsel; I was junior. But Tom, always generous, made the opening address to the court and then had me take the witnesses through their testimony. He reserved to himself only the examination of some of the key defendants.
“Hurley was unfailingly courteous, never had a bad word to say about anyone-not even judges before whom he had just lost a tough case. He never received any of the professional accolades that he should have. He was never a Queen’s Counsel; never offered an appointment to the bench. Of course, he had a drinking problem and lived many years with Maisie, a woman not then his wife. I suppose that in the Fifties when I knew him those were quite dreadful things, but I remember him as a man who taught me much.”
In 1958 Tom Berger and his mentor Tom Hurley told Mr. Justice J. O. Wilson of the B.C. Supreme Court that a still- unemployed George Gee had been sentenced to “industrial death” through smears and by conspiracy. Berger’s cross-examination of union officials was designed to show how trivial the union’s allegations against his client had been. And, Berger argued, they were not bona fide charges in the first place, because they had been laid with malicious intent to deprive Gee of his livelihood.
But Justice Wilson sided with the international union’s position that Gee had demonstrated “leftist political inclinations.” He said, “Some of [Gee’s] subsequent acts are capable of being interpreted as showing that he maintained his loyalty to communism ... I think I might safely say that communism is inimical to free trade unions. The known history of all communist-ruled countries clearly demonstrates that the existence of free trade unions, the practice of employer-employee bargaining, cessation of work in an attempt to obtain better wages or working conditions . . . are unknown and indeed inconceivable in those countries.”
In his decision, the judge also affirmed the principle that a closed-shop collective agreement can bar a nonmember from employment. That principle was a matter of judicial interpretation, and though Berger hated to lose, the judge’s reasoning was clear. Despite losing the case, Berger benefited from the front-page status the press accorded the story, as workers with problems increasingly turned to him for help.
Berger and Tom Hurley worked together on another union case the following year, but this time with the union supporting its members fully and paying for their counsel. The men were ironworkers employed by Dominion Bridge on the Second Narrows Bridge project in Vancouver.
Today, the Second Narrows Bridge arches solidly over the waters of Burrard Inlet. But at 3:40 P.M. on 17 June 1958, with less than half of the planned two-mile span built, the structure had collapsed. Men and their tools, steel and heavy equipment tumbled into chaos. Eighteen died and twenty were injured. All were members of the International Bridge, Structural and Ornamental Ironworkers Union, Local 97. In the wake of the disaster, a royal commission established that “compound human error” had caused the collapse: the weight-bearing ability of the bridge falsework had been inadequate. Although the ironworkers’ faith in the engineers was “shaken to a degree,” they went back to work.
A year later the union, demanding an increase over the $2.62- per-hour basic rate of their then-expired contract, called a strike. The bridge was still incomplete, with a portion of the structure resting on a falsework bent. The employer, Dominion Bridge Company, contending that it was a “serious hazard to persons and property,” sought to have the men remain on the job. The company’s lawyer, J. L. Jestley, appeared before Mr. Justice A.M.
Manson of the B.C. Supreme Court to obtain a back-to-work injunction, which directed the union to order their men to continue with the section until it was “rendered entirely safe in the opinion of the consulting engineers.” The order was doubly contentious: the consulting engineers were Swan and Wooster, the same company that had certified the bridge’s safety prior to the 1958 collapse, and the company’s application to the court had been made ex parte, which meant that only one party, in this case Dominion Bridge, had been heard. Consequently, when the ironworkers read the press reports, they concluded that there had been a secret hearing in which the company had told the judge that the bridge was unsafe.
Union secretary Norm Eddison conceded that the injunction barred strike action, but he also said that if the engineering company statements were true, the bridge was not safe enough for his men to resume work. “I personally would rot in jail rather than withhold this information from our membership.” He announced that, in compliance with the injunction, no strike existed and that refusal to work for reasons of safety could not be construed as strike action.
The men did not return to work, and the union turned to Shul- man, Tupper & Southin. Berger, now into his second year of law practice, spent a weekend immersing himself in the law of injunctions. As the four-day term of the back-to-work order had lapsed, Dominion Bridge was forced to apply for a new one. This time engineer Hiram Wooster filed an affidavit that said the danger was merely typical of all structures under erection, “but to state that it is dangerous for workers is an exaggeration completely unwarranted and unjustified by the facts.”
Berger accused Dominion Bridge of having misrepresented and suppressed material facts. He told Justice Manson that not only was there no evidence of an unlawful strike but the employer had not shown any infringement of its legal rights. He cited cases to support his contention that there is “no right whatever under the laws of the Province of B.C. to obtain an injunction unless you can show that a legal right has been infringed.”
Justice Manson serenely replied that the legal precedents relied upon by Berger might have been relevant “when the courts were sticklers for technicalities” but were “not persuasive today.”
Berger then pointed to the contradictions inherent in the engineering partners’ affidavits: Wooster’s assertion of safety did not square with Swan’s allegation of danger. Danger did exist, Berger argued, and it arose from the placement of the support legs close to motor vehicle and railway traffic rather than from the refusal of the workers to work.
Manson would hear none of this and granted the new injunction, compelling the union to order the men to return to the job site until the span reached the permanent support of Pier 16.
Norm Eddison relayed the news by telephone to as many members as could be reached, saying, according to his affidavit:
As many of the members know from the newspapers and the radio, Mr. Justice Manson has ordered the Union to order the employees of Dominion Bridge Company Ltd. working on the south portion of the new Second Narrows Bridge to return to work. Our solicitors have advised us that in their opinion the order granted by the Judge is contrary to the law and the order is being appealed immediately. However, we have also been advised that the order of the Judge must be obeyed. We therefore have no alternative but to order the men to return to work, and now hereby do so.