"Race," Rights and the Law in the Supreme Court of Canada: Historical Case Studies

Christopher English is a professor of history at Memorial University of
Newfoundland.

A generation that has embraced a Bill of Rights (1960), federal and
provincial human rights acts, and the Canadian Charter of Rights and
Freedoms (1982) may not appreciate the transformation in legal values
that they signal. This study of four cases between 1914 and 1955, which
were finally decided by the Supreme Court of Canada, challenges easy
assumptions about the tolerant and inclusive nature of the Canadian
community in the period. What we now identify as blatant discrimination
might have been enshrined in statute, like a Saskatchewan law that
prohibited the employment of white women by “Chinamen.” Or it might
have informed private commercial arrangements, denying a black man
service in a Montreal tavern, and prohibiting the sale or rent of a
summer property to a “person of the Jewish ... or coloured race or
blood.”

Each case required judges to choose between the individual’s right to
be free of discrimination, as against Parliament’s power to stipulate
law and the common law’s traditional emphasis on freedom of contract.
The courts consistently reaffirmed the status quo as long as it met the
test of constitutional legitimacy or accorded with judicial precedent.
Accordingly, the issue of “race” was backgrounded in these cases as
they were framed, argued, and decided as “division of power” cases.
In showing how and why, Walker gives us a fascinating introduction to
the Canadian law on race. The book is historically contextualized,
widely researched, carefully organized, and very readable.

While the cases were ultimately decided at the level of the Supreme
Court, the story of their progress through initial hearing and appeal at
the provincial level is both gripping and illustrative. Minority
dissents that anticipated the later evolution of the law were recorded.
But the historical range of Walker’s material—the footnotes
themselves comprise almost a quarter of the book—convinces us that in
confirming the supremacy of the law over individual rights the courts
reflected contemporary opinions. In the process Walker shows that judges
neither simply announced the law nor passively reflected community
standards; they actively participated in the process of legalizing
systemic racism.

Judges then and now have argued that reform of the law properly lay
with politicians. Ultimately legislatures responded, and law is now
subject to individual rights. But the author offers two cautions. First,
the law has outdistanced contemporary opinion and a new consensus is
required. Second, overt discrimination has been banished, but subtle
inequalities remain in areas such as hate crimes and employment.