‘ ‘ R A C E , ’ ’ RIGHTS AND THE LA W I N T HE
SUPREME COUR T O F CANADA
Historical Case Studies
PA TRONS OF THE OSGOODE SOCIETY
Aird & Berlis
Blake, Cassels & Graydon
Borden & Elliot
Davies, Ward & Beck
Gowling, Strathy & Henderson
McCarthy Tétrault
Osler, Hoskin & Harcourt
The Harweg Foundation
Tory Tory DesLauriers & Binnington
Weir & Foulds
BENEFACT ORS OF THE SOCIETY
Bastedo Stewart Smith
Roger T. Hughes, Q.C.
The Society also thanks The Law Foundation of Ontario and the
Law Society of Upper Canada for their continuing support.
‘‘Race,’’ Rights and
the Law in the
Supreme Court of
Canada
Historical Case Studies
JAMES W. ST. G. WALKER
The Osgoode Society for Canadian Legal History
and Wilfrid Laurier University Press
© 1997 The Osgoode Society for Canadian Legal History
and Wilfrid Laurier University Press
Printed in Canada
ISBN 0-88920-289-3
∞
Printed on acid-free paper
Cover design by Leslie Macredie using a photograph of the Gibson Block,
Edmonton, Alberta. The photograph shows the building as it still existed when it
was photographed by Peter Macklon in the late 1970s or 1980.
Canadian Cataloguing in Publication Data
Walker, James W. St. G., 1940-
‘‘Race,’’ rights and the law in the Supreme Court of Canada
Co-published by the Osgoode Society for Canadian
Legal History.
Includes index.
ISBN 0-88920-289-3 (bound)
1. Race discrimination – Law and legislation –
Canada – Cases. 2. Race discrimination –
Law and legislation – Canada – History – 20th
century. 3.Canada. Supreme court. I. Osgoode
Society for Canadian Legal History. II. Title.
KF4395.W34 1997 342.71′0873 C97-931762-2
KF4483.C58W34 1997
This book has been published with the help of a grant from the Humani-
ties and Social Sciences Federation of Canada, using funds provided by
the Social Sciences and Humanities Research Council of Canada.
Contents
Foreword vii
Preface ix
Acknowledgments xi
Invitation 3
Chapter 1 Orientation 12
1. ‘‘Race’’ and the Law 12
2. Approaching the Bench 32
3. Approaching the Past 36
Chapter 2 Quong Wing v. The King 51
1. TheLegislation 51
2. TheChinese Problem 56
3. Restrictionand Regulation 67
4. Litigation 72
5. Defendingthe Family 78
6. TheMoral Crusade 83
7. ChineseResponse 87
8. Quong Wing and Quong Sing 90
9. Quong Wing v. the King 100
10. Explanations 106
11. Quong Wing as Precedent 120
Chapter 3 Christie v. York Corporation 122
1. TheIncident 122
2. ‘‘Jim Crow’’inCanada 124
3. TheMontreal Community 137
4. Issuesand Initiatives 143
5. La Question de la Liberté 151
6. In the Supreme Court of Canada 158
7. Aftermath 168
8. Christie as Precedent 173
Chapter 4 Noble and Wolf v. Alley 182
1. ExclusiveClientele 182
2. CounterAttack 192
3. Principlesand Policies 199
4. ThePublic Interest 206
5. Preparing for the Supreme Court of Canada 219
6. Noble and Wolf v. Alley 226
7. Noble and Wolf as Precedent 235
Chapter 5 Narine-Singh v. Attorney General of Canada 246
1. ‘‘Race’’and Immigration 246
2. RestrictiveTradition 249
3. SouthAsian Immigration 253
4. Rehearsal: Narain Singh and Munshi Singh 257
5. West Indian Immigration 262
6. PolicyShifts, 1945-52 265
7. The Immigration Act, 1952 271
8. Campaign for Immigration Reform 274
9. The Inevitable: Harry Singh in the Ontario Courts 285
10. Anticlimax: The Supreme Court of Canada 291
11. Confirmation 296
Chapter 6 Implications 301
1. ‘‘Race’’ and ‘‘Race Relations’’ 303
2. LegalSensibility 309
3. HistoricalStudy 319
Afterword 324
1. Directions in Public Policy 325
2. Apprehensions 337
3. Reflections 343
Notes 345
Index 437
vi ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Foreword
THE OSGOODE SOCIETY FOR
CANADIAN LEGAL HIST OR Y
The purpose of the Osgoode Society for Canadian Legal History is to
encourage research and writing in the history of Canadian law. The Soci-
ety, which was incorporated in 1979 and is registered as a charity, was
founded at the initiative of the Honourable R. Roy McMurtry, a former
attorney general for Ontario, now Chief Justice of Ontario, and officials
of the Law Society of Upper Canada. Its efforts to stimulate the study of
legal history in Canada include a research support program, a graduate
student research program and work in the fields of oral history and legal
archives. The Society publishes volumes that contribute to legal-histori-
cal scholarship in Canada, including studies of the courts, the judiciary
and the legal profession, biographies, collection of documents, studies in
criminology and penology, accounts of significant trials and work in the
social and economic history of the law.
Current directors of the Osgoode Society for Canadian Legal History
are Jane Banfield, Tom Bastedo, Brian Bucknall, Archie Campbell, Susan
Elliott, J. Douglas Ewart, Martin Friedland, Charles Harnick, John Hons-
berger, Kenneth Jarvis, Allen Linden, Virginia MacLean, Wendy Mathe-
son, Colin McKinnon, Roy McMurtry, Brendan O’Brien, Peter Oliver,
Paul Reinhardt, Joel Richler, James Spence and Richard Tinsley.
The annual report and information about membership may be
obtained by writing: The Osgoode Society for Canadian Legal History,
Osgoode Hall, 130 Queen Street West, Toronto, Ontario M5H 2N6.
Professor James Walker is a distinguished historian who has made a
substantial contribution to understanding the role of minority groups,
especially aboriginal populations and those of African ancestry, in the
Canadian past. The present study is a culmination of years of thought
and research in this critical area. ‘‘Race,’’ Rights and the Law in the Supreme
Court of Canada: Historical Case Studies is a superb analysis of how the
Canadian judicial system dealt with four cases where ‘‘race’’ and ‘‘law’’
intersected: Quong Wing v. The King (1914); Christie v. York Corporation
(1939); Noble and Wolf v. Alley (1950); and Narine-Singh v. Attorney General
of Canada (1955).
Professor Walker himself aptly notes that the events described in this
book will ‘‘challenge many Canadians’ image of our national history and
character, and the nature of our justice system.’’ But these events are on
the whole encouraging and even inspirational, revealing how minority
Canadians confronted restrictions in the past despite institutional barri-
ers.
The book also illustrates the rich possibilities of using case law to illu-
minate Canadian social history and the value of understanding the con-
text of the times in interpreting court decisions. Not least impressive is
how surefootedly Professor Walker, without formal legal training, has
tackled and understood legal issues of great complexity and subtlety.
‘‘Race,’’ Rights and the Law achieves new standards of legal-historical anal-
ysis in Canada. It will be of great interest to scholars of law and history
and to all those concerned with building a Canadian future worthy of
those who challenged racial disadvantage in the past.
R. Roy McMurtry
President
Peter N. Oliver
Editor-in-Chief
viii ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Preface
Racism is a hot and handy target. We recoil when accused of it, whether
at the expense of Aboriginals, Jews, immigrants or Blacks, or in its more
cultural anti-French, anti-English forms in Canada. Virtually no Cana-
dian openly condones such beliefs or any acts based on them. Yet, we
live in a country whose history remains full of words and deeds rooted
in presumptions of racial superiority-inferiority.
If we are to avoid leading unexamined lives, then the need for a defini-
tion of racism, in legal and in popular parlance, becomes all the more
urgent. That is why James Walker ’s cool, complex, vivacious reconstruc-
tion of these four case histories, analyzed within their well-documented
social contexts, demands our full attention. And that is also why Wilfrid
Laurier University Press and The Osgoode Society deserve Canada’s
gratitude for courageously publishing what some may think is an exami-
nation of our legal-judicial culture that is best left unacknowledged.
Each case came before the Supreme Court of Canada and was resolved
there. The two that could have been appealed further to England’s Judi-
cial Committee of the Privy Council were not. Each dramatically illus-
trated Canadian racism in action. Two plaintiffs challenged legislated
racism, in 1912 and 1955; and two cases arose out of custom-based civil
actions of private discrimination, in a public establishment (1939) and in
a restrictive, private property covenant (1950). If the issue in each case
had been put to a referendum, Walker ’s evidence leaves little doubt that
a majority of Canadian voters at each case’s time would have allowed
the racism. The juridical path proved equally accommodating, because in
each case Canada’s highest court effectively left racism where legislation
and common practice placed it.
But that was there and then, and we are here and now. If we cannot
avoid having our own judgments about these cases, and about the men
who prosecuted, defended and judged them, where then does James
Walker ’s book locate itself, and its readers, regarding the Canadian legal
system’s treatment of racism? The short answer is in Walker ’s method.
He takes his reader beyond the judges’ formalistically reported reasons
for judgment, beyond the courts’ bureaucratic case files, back to each
case’s local origins and the bits and pieces of primary, archival evidence
that produced patterns of facts, unique to each case’s social context but
common to the racism that created and sustained all four cases. Walker ’s
view of the role of law in these cases follows that of Clifford Geertz: that
law is not organic or autonomous but ‘‘genuinely situated in a social con-
text,’’ all around us in the forms of explicit rules, judgments and habitu-
ated norms of behaviour.
In his opening chapter, racism is defined and located as consistent with
much of the science, sociology, even theology that prevailed in popular
and academic circles during the first half of the twentieth century.
Racism in these four cases was a social construct, an asserted truth about
civilized v. primitive cultures, that made law into an instrument which
privileged those of European origins who controlled it. Thus, racism
often had less to do with skin colour, more to do with hostility to cultural
differences and to prospects of assimilation. Professor Walker makes
clear how pervasive was the public policy protecting racism in the
1914-55 period, and how thoroughly private citizens, often without mal-
ice, practised it. He then traces how historians from past to present have
also constructed racism, ending with his own rejection of it.
Professor Walker ’s book holds special appeal to anyone concerned for
Canada’s constitutional, political, social and moral values. To those who
think that the Charter of Rights and Freedoms and social progress have
remedied racism, Professor Walker ends with ‘‘apprehensions’’ and
‘‘reflections’’: about the historicist who rationalizes past laws that con-
doned racism as relatively right for that era, and about the presentist
who recognizes those past laws as wrong because present laws and val-
ues are right. The result is a book that will be a double clarion to all
Canadians, to be vigilant in making our legal culture express our highest
aspirations, especially when judging the mere mortals we employ to
operate it, and to understand how our legal system actually works, espe-
cially when recognizing and correcting its misjudgments.
DeLloyd J. Guth
Faculty of Law, University of Manitoba
x ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Acknowledgments
Early in 1988 I entered the Supreme Court of Canada building in Ottawa
to seek the advice of the Consultant Curator, DeLloyd Guth, for a
research project I then had under way. By the time I emerged several
enlightened hours later Professor Guth had recruited me to write an arti-
cle for a book of thematic essays to be published by the Supreme Court
of Canada Historical Society. My contribution was to be a piece of about
30 to 40 pages on the Court’s ‘‘race’’ decisions. It did not seem too daunt-
ing a task at the time. As my research progressed it became apparent to
me that a single article would not convey the impact of the several
important decisions I was uncovering. Fortunately DeLloyd Guth’s pro-
ject was expanding as well, and we decided that I would write an entire
volume for a series he would edit on Supreme Court history. Over the
years that followed DeLloyd and I were in frequent contact as I struggled
and drafted chapters, and his advice was often decisive in the shaping of
the project. But before my volume could appear the series was obliged
for financial reasons to discontinue, and I had to find a new publisher.
Though he is no longer listed as its editor I am delighted that Professor
Guth has been invited to contribute a preface to the present publication,
for he has been intimately involved since its inception.
In its early stages I believed I could proceed with this project at mini-
mal expense, but travel costs in particular began to mount as I discov-
ered more and more pertinent archival collections that had to be visited,
and more surviving participants who should be interviewed. At that cru-
cial moment Judy Young, then Multicultural Program Director in the fed-
eral Multicultural Department, lent her assistance so that I was able to
obtain a grant to continue with the research in a more appropriately thor-
ough fashion. I am grateful to her and to the Multicultural Department
for their essential support. Some of the material that now appears in
chapters 3 and 4 had been collected under a previous grant from the
Social Sciences and Humanities Research Council of Canada for a project
on ‘‘The Movement for Racial Equality in Postwar Canada,’’ and I am
pleased to express my appreciation for that assistance as well.
It is not possible to pursue historical research without the professional
assistance of archivists and librarians, and I gratefully record my debt to
dozens of them from coast to coast in Canada. A few, in my view, went
beyond their formal responsibilities to take a personal interest in my pro-
ject, to discuss my progress and problems in research, to draw my atten-
tion to records that I would otherwise have missed, to make me aware of
potential subjects for interview. In the National Archives of Canada,
Myron Momryk and Lawrence Tapper fell easily into this category, as
did Stephen Speisman and Howard Markus in the Ontario Jewish
Archives in Toronto and Allan Dunlop in the Public Archives of Nova
Scotia. In my home library at the University of Waterloo, Diane Fitz-
Patrick and Susan Moskal regularly and generously exceeded their job
descriptions in helping me find obscure materials. Permission to con-
duct research in restricted archival collections was kindly extended by
John Brewin, Daniel G. Hill, Kalmen Kaplansky and Walter Tarnopolsky.
Constance Backhouse graciously shared some of her own research on
topics of our mutual interest.
As I have indicated in my Introduction, this project and its resulting
publication have been immeasurably enriched by my interviews with
people who were directly involved in the stories I was pursuing. I am
grateful to them all, and they are warmly acknowledged in my endnotes.
Once again it is the case that among my benefactors in this category there
were some who offered much more than their reminiscences, providing
me with documentation in their personal possession, advice and com-
mentary on the direction of my research, introductions to other partici-
pants; some even read and criticized portions of the manuscript. I am
pleased to acknowledge such extraordinary contributions from Vivien
Mahood Batke, Carrie Best, Hugh Burnett, Jack Desmond, Stanley
G. Grizzle, Donna Hill, Kalmen Kaplansky, Ben Keyfetz, Ted King, Anne
and Eddie Packwood and Ted and Marion Richmond.
Once I had a manuscript in hand I continued to require professional
assistance. As will be immediately apparent to most readers, I am not a
xii ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
lawyer. One of the reasons this project lasted so many years was that I
had to teach myself some rather basic law, even how to read a case
report, before I could immerse myself in a more familiar archival envi-
ronment. Inevitably, I sometimes got it wrong. For reading a large
manuscript and offering advice on legal or human rights issues I thank
sincerely Arthur Drache, Doug Ewart, Augie Fleras, Alain Goldschlager,
Karin MacHardy, Jim Phillips, Patricia Roy, David Schneiderman and
Paul Winn. The manuscript was submitted to several anonymous
reviewers whose commentary directed me towards improvements in my
final draft. They rest unknown and therefore unsung, but by no means
unappreciated. It is customary to absolve critics of any responsibility for
the end product, and this is especially necessary since there remained
some areas of disagreement with certain of my reviewers. They will rec-
ognize passages where I have taken their advice, and others where I have
reinforced my original interpretation in response to their commentary.
Peter Oliver of the Osgoode Society and Sandra Woolfrey of Wilfrid Lau-
rier University Press picked up this orphaned project at just the right
time and have marshalled it to its ultimate, publishable version. This
book has been published with the help of a grant from the Humanities
and Social Sciences Federation of Canada, using funds provided by the
Social Sciences and Humanities Research Council of Canada. Finally
recognition is due to Stephanie, Timothy, Marcus, Julian, Paulette and
Nathaniel Walker, whose familial interruptions drive me to distraction
just often enough to keep me sane.
Acknowledgments xiii
This page intentionally left blank 
‘ ‘ R A C E , ’ ’ RIGHTS AND THE LA W I N T HE
SUPREME COUR T O F CANADA
Historical Case Studies
This page intentionally left blank 
Invitation
The cases described in this book will challenge many Canadians’ image
of our national history and character, and the nature of our justice sys-
tem. We tend to seek distinctions between ourselves and Americans, and
both ‘‘race’’ and ‘‘law’’ feature strongly in the comparisons that we draw
in our own favour. In the first instance, Canadians perceive themselves to
be tolerant of racial and cultural diversity, to possess a history of equal
treatment towards all, to have avoided the syndrome of racism so evi-
dent south of the border.
1
As a case in point, Canadians have the Under-
ground Railroad era, when oppressed American slaves were welcomed
and protected against marauding slave-catchers and legal extradition
attempts by the American government. In a 1990 survey more Canadian
high school students could identify the Underground Railroad than
John A. Macdonald or the date of Confederation.
2
A 1993 televised ‘‘Her-
itage Moment’’ sponsored by the C. R. Bronfman Foundation presented a
one-minute vignette illustrating 19th-century white Canadians deliver-
ing a grateful black fugitive to freedom and equality. These characteris-
tics have been incorporated into the Canadian identity: asked in a 1989
survey which word best described the ‘‘ideal Canadian,’’ Canadians put
‘‘tolerant’’ in first place. (Americans in the same survey picked ‘‘indepen-
dent minded’’ for themselves.)
3
The notes to the Invitation are on pages 346-47.
In a very real sense this is our ‘‘national dream,’’ and it is attributed to
our nonviolent history and our respectful attitude toward peace and
order, our dedication to the rule of law.
4
It is frequently remarked that
Americans elect their judges or subject them to public confirmations
where they are required to pander to current fashion. Canadian judges,
on the other hand, are appointed by the appropriate authorities because
they are learned in the law and equipped to select the right law for any
occasion. Canadians therefore have faith in their law and their judicial
system, that the principles of justice will be administered fairly and
equally. Canada’s response to the Tienanmen Square massacre and re-
ports of widespread human rights abuses in China was to give grants to
Chinese scholars to study the Canadian justice system.
5
On 19 February
1981 MP Serge Joyal, co-chair of the constitutional committee, introduced
the Charter of Rights and Freedoms to the House of Commons on a note
resonant with this imagery:
Canada is a dream; a dream of equality, a dream of liberty, a dream in which the
right to be different is guaranteed in the basic law, in which the rights of Canadi-
ans as Canadians, because they belong to this country, are the same everywhere,
whether they are men or women, native or from mother countries, or whether
they are immigrants full of hope who have just arrived dreaming of liberty and
justice.
6
The project set for this book is to engage in some detailed historical
case studies where ‘‘race’’ and ‘‘law’’ intersected, to test the ‘‘Canadian
dream’’ against specific incidents from our past and in particular to
explore the role of the Supreme Court of Canada in effecting the dream.
Four cases have been selected for intimate study, representing different
Canadian minority groups from different regions and periods, address-
ing distinct issues within the general theme: Quong Wing v. The King
(1914); Christie v. York Corporation (1939); Noble and Wolf v. Alley (1950);
and Narine-Singh v. Attorney General of Canada (1955).
Quong Wing, a naturalized Canadian born in China, owned a cafe in
Moose Jaw, Saskatchewan. In 1912 the Saskatchewan legislature passed
an act to prevent ‘‘Chinamen’’ from hiring or managing white females,
and Quong Wing was charged under the provincial act for employing
two white waitresses. He refused to pay his fine, and appealed his con-
viction by the local magistrate on the grounds that the federal Naturaliza-
tion Act guaranteed his equal rights.
4 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Fred Christie was a Montreal chauffeur and hockey fan. Before a 1936
game he entered the York Tavern, located inside the Forum, and ordered
beer for himself and two friends. The waiter explained that house policy
prevented him from serving ‘‘Negroes,’’ so Fred Christie sued the tavern
for damages, claiming it as a right to be served equally in a public estab-
lishment.
Beach O’ Pines is a Lake Huron summer home development. Under a
covenant attached to the original titles, no ‘‘person of the Jewish ... or
coloured race or blood’’ could rent or purchase land within the develop-
ment area. Bernard Wolf, a Jew, purchased a cottage from Annie Maude
Noble in 1948, but the restrictive covenant was invoked by the other
owners to invalidate the sale. Mr. Wolf proceeded with his purchase,
bringing the covenant before the scrutiny of the courts.
In 1953 Harry Singh, a Trinidadian of East Indian ancestry, sought to
join the Canadian army. When he presented himself at the Toronto immi-
gration office, he was served with a deportation notice stating that he
was excluded from Canada as a member of ‘‘the Asian race,’’ though the
Immigration Act had eliminated ‘‘race’’ as a ground of admissibility in
1952. He turned to the courts when the minister of Immigration refused
his appeal.
Quong Wing challenged the constitutionality of racial discrimination,
Fred Christie objected to a widespread practice of private business,
Bernard Wolf disputed the validity of a legal instrument dependent for
enforcement on the courts, and Harry Singh protested a bureaucratic
interpretation of parliamentary intent. For all four the legal issue was
‘‘race’’ and its meaning in Canadian law. For all four, constituent organi-
zations rallied behind the challenger and financed appeals to the
Supreme Court of Canada, rendering the cases symbolic as community
causes. These cases have been deliberately selected and are not presented
as random or representative ‘‘samples’’ in the normal use of the term. All
have been significant for their subsequent use as judicial precedent or
their effect upon policy changes through legislative enactment. They are
offered as ‘‘keys’’ to the Canadian dream in the first half of the 20th cen-
tury, as aids to understanding the meaning of ‘‘race’’ in the lives of Cana-
dians, the operation of the law as an instrument for social equality and
the often-hidden history of the minority experience in Canada.
A court decision, particularly in the nation’s highest court, settles a
specific dispute, but it also establishes principles and sets rules for future
conduct. Decisions are perpetuated through their use as precedents or
interpretations in subsequent cases, they influence the way the law is to
Invitation 5
be administered by state authorities and they set the standard which a
law-abiding population uses to measure its behaviour. Case law, there-
fore, has a shaping influence on the conditions that exist in society and
becomes in effect part of the social circumstances within which further
incidents and disputes will be defined. An analysis of case law can illu-
minate the rules for ‘‘race relations’’ in Canada and, of equal interest,
efforts to change them. From the vantage point of people who fought
against it, a reader may experience a sense of what racial disadvantage
was like, how the law was perceived as an ally in the struggle and how
resolutions produced in court affected minority communities.
Attitudes and policies toward ‘‘race’’ in Canada were not static; they
participated in the general cultural developments with which they were
entwined. There was, for example, an apparent watershed, even a
‘‘paradigm shift,’’ during and just after World War II. Almost every com-
mentator on Canadian human rights policy mentions it; Drummond
Wr en, described in chapter 4, is often designated as the point where the
turn became legally manifest. The nature of the ‘‘shift’’ and how Cana-
dian courts were involved in it can be discerned not only through Drum-
mond Wren itself but in other cases dealing with racial issues in the same
period. Over the half century examined in the book there was a profound
change in the conceptualization of ‘‘rights,’’ not just that certain things
became ‘‘rights’’ and other things lost that status, but a change in per-
spective over time, so that the interpretation even of who had a right and
how it should be exercised was redefined. As a single example, in the
Quong Wing case a provincial law was passed to prevent Chinese men
from employing white women. This was challenged as a restriction on
the right of a Chinese Canadian to employ whomever he chose; it was
defended as a province’s legitimate right to protect white women. No
record exists of any legal contention that the law restricted the right of
white women to choose their own employment. To understand the per-
spective expressed in these arguments would be to gain insight not only
into the racial stereotypes of 1914 but into the operation of ‘‘common
sense’’ on the perception of problems and, consequently, on the choice of
solution. Every one of the cases has equivalent opportunities.
Unless it behaved differently toward ‘‘race’’ questions than otherwise,
these four case studies should also lend insight into the functioning of
the Supreme Court of Canada and perhaps even the functioning of ‘‘the
law.’’ The cases grant an occasion to see whether judges really did simply
apply existing rules, or whether they participated in the making of the
law. Judges themselves urgently disclaimed any innovative role, but that
6 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
is one of the assumptions that can be tested against actual cases. At the
same time the cases allow an impression of how legal issues were con-
ceptualized in order to make them amenable to judicial resolution, how
the ‘‘pith and substance’’ was extracted and interpreted. If the outcome
in each case was not inevitable, as it rarely was, then some consideration
of alternative choices and why they were not taken might enlighten the
decision that was in fact reached.
One route to follow would be to examine dissenting opinions (they
exist for three of the four cases): if the conclusion was foregone, how
could some judges learned in the law and steeped in their own historical
context arrive at decisions so different from their colleagues? Do individ-
ual judges make a difference after all? Two of Canada’s most renowned
jurists, Lyman Poore Duff and Ivan Rand, can be observed at work in
these cases. Ten present or future chief justices, obviously persons of
learning and influence, sat on one or more, and two other future chief
justices, John Cartwright and Bora Laskin, were connected as counsel.
They offer an array of talent upon which to test theories of judicial per-
sonality. Were any special interests being served through these decisions,
and was there any reason why Supreme Court justices might ally with
certain ones over others? Were power struggles identifiable, over which
judges acted as mediators? Was it simply that ‘‘community standards’’
were being interpreted according to the honest understanding of the
judges? Are there signs of an ‘‘implied Bill of Rights’’ discernible in these
cases? Did the abolition of appeals to the Privy Council make any differ-
ence to Canadian enthralment with British standards? Two of the cases
occurred before and two after the change in 1949, making it possible to
form some observations.
More generally still, judicial decisions can provide a fruitful research
resource for the social history of Canada, especially for those groups or
issues which are underrepresented in the more standard sources. Legisla-
tures operate by majority rule, reflecting the outlook and aspirations of
the dominant elements in society. In court, where each side is given an
opportunity to present an argument, the articulation of minority con-
cerns and goals becomes possible. Court provides a forum where an
injured party can challenge a law or a contract, even a social convention
or a bureaucratic practice, as the case studies exemplify. Invisible policies
were made visible and documents were generated and preserved for his-
torical analysis. The challenge as defined by the appellant, and the
response of opposing interests, were assessed by the courts in the light of
precedent and fashioned for future application. By definition, those who
Invitation 7
challenged prevailing conditions were people who did not accept the sta-
tus quo. This provides an opening to evaluate the notion of ‘‘multiple
trajectories’’ in Canadian history through these tales of resistance to the
‘‘common sense’’ of their own times. Entire communities stepped in to
support these different visions, demonstrating the extent of the discon-
tent and a willingness to participate in change. In the files of the
Supreme Court of Canada, case law and social history converge.
Each of chapters 2 to 5 begins with an incident or situation that led to
the Supreme Court case as described in the case files. This is followed by
a historical exploration of the conditions that allowed this incident to
happen, the policy context and the cultural environment. Then comes a
more specific discussion of the legal instruments, both legislation and
case law, which contributed to the incident and the eventual decision.
Although the outcome is never in doubt, it is hoped that readers will be
given enough legal information to assess the eventual judgment in terms
of the available options. The narrative will then proceed through the
lower courts and eventually to the Supreme Court of Canada, examining
the arguments put before the judges as well as their final decision. Where
there has been critical comment a canvassing of scholarly opinion upon
the case will be presented, both contemporary and retrospective, to give
readers different insights and, perhaps, more foundation upon which to
build their own evolving analysis of the procedures under observation.
Once made, the Court’s decision will be appraised for its impact on the
development of ‘‘race relations’’ in Canada (its social legacy) and its
implications for an understanding of Canadian society and history (its
theoretical, or interpretive, legacy). Finally the selected case will be pur-
sued as a precedent in subsequent court cases (its legal legacy). This
post-decision examination, of the case as ongoing legacy, is intended to
give the benefit of hindsight in weighing the issues that were at stake,
and above all to illuminate the Supreme Court decision as process. Only
through placing each case on a historical continuum can it be recognized
not just as a product but as an agent, as an active participant in the cre-
ation of the legal and social strata supporting current laws, attitudes and
choices.
Chapter 1 offers an ‘‘Orientation’’ to the conventional wisdom or pre-
vailing discourse about ‘‘race’’ and the law, the common sense and the
public policy that lent context to the events unfolding through the four
case studies. This orientation is intended to illustrate the cultural pack-
age, the loosely bound but widely accepted network of assumptions,
which contained Canadian law and society at the time each decision was
8 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
made. Included is an indication of scientific opinion as well as common
understanding, with hints that specialized theories did in fact break into
public discourse at least occasionally. The second section of chapter 1,
‘‘Approaching the Bench,’’ is primarily for non-lawyers. It is intended as
a quick and convenient passage into the mechanical operations of the
courts and how a Supreme Court of Canada decision was reached, the
technical apparatus brought into play in each of the subsequent cases.
Section 3, ‘‘Approaching the Past,’’ is a discussion of developments in
social and legal history and in the study of ‘‘race relations.’’ It is pre-
sented with the intent of assisting readers to analyze the cases for them-
selves and to assess the analyses contained in chapters 2-5. Readers
concerned with history as a discipline may find it interesting to identify
the emerging historiographical trends that have influenced this book.
Besides, it can be therapeutic to recognize that our current ‘‘approach’’ is
situated on a trend and is not some final revelation. This section is also
intended for non-historians. People often take for granted that there will
be more than one interpretation of most legal issues – and hence the need
for courts to settle disputes – but they assume when it comes to historical
issues that there is a correct version which any industrious historian
must be able to discover. ‘‘Approaching the Past’’ can be regarded as a
review of the evolving common sense about our own history, the things
we take for granted, the cultural web we wear without always being con-
scious of it. But if a survey of scholarly methodology seems uninviting,
Section 3 can be skipped, or perhaps postponed until after the four cases
have been examined. It should become more apparently relevant once
chapter 6 is reached, where the implications of the entire sequence of
cases will be evaluated for the lessons they offer to legal and social theo-
rists as well as to practitioners in Canadian courts and classrooms, and
ultimately to the citizen concerned about justice in Canada. Finally an
‘‘Afterword’’ surveys developments in Canadian law and public policy
since the cases occurred, and discusses the impact of our current system
of rights guarantees on ‘‘race relations’’ in Canada. If, as the ‘‘Afterword’’
suggests, the problems have not yet been eliminated, then our attention
to circumstances seems to be of more than academic interest.
Each chapter in this book, therefore, pays a great deal of notice to
‘‘context,’’ but context is not in itself an explanation: it is something that
needs explaining. The goal has been to facilitate a reader ’s understand-
ing of what these four cases ‘‘meant’’ in their own times, a prerequisite
for deciding what they might mean for our own. The research path taken
in pursuit of this objective began with the individual case files located in
Invitation 9
the bowels of the Supreme Court of Canada, or for Quong Wing in the
National Archives next door,
7
and proceeded through the records of the
various courts where the four cases were heard en route to Ottawa.
Sometimes the Supreme Court of Canada dossiers contained complete
transcripts from original hearings, and there were often hundreds of
pages of additional information deemed pertinent by the lawyers argu-
ing the case. But the case files alone did not hold enough information, or
the right kind of information, to acquire a sense of the context in which
the cases were disputed and decided. Since legislation featured in all the
decisions, and in two cases recent legislative changes had precipitated
the court challenge,
8
recourse was had to any relevant statutes and also
to debates of the legislatures during their enactment to help discern their
intent. Departmental records of the government agencies administering
the laws in question were examined, for in its application a law is often
made more clear than in parliamentary debate. Official documentation
provided a certain kind of context, but for the more general discourse of
the period, the ‘‘cultural formation’’ of which the cases were a part, con-
temporary newspapers, magazines and popular literature, even speeches
and pamphlets, proved to be fruitful. Memoirs were useful for evoking
the tenor of an era, however self-interested the author. To learn about the
judges involved, about contemporary modes of judicial expression, any
hints about ‘‘common sense’’ as seen from the bench, a wide range of
case reports was examined, even if they had no obvious connection to
racial issues. Census data and other statistical reports built impressions
of the broader picture, to help in assessing the significance to contempo-
raries of incidents that might be regarded differently today. Archival
research was especially valuable. Some participants themselves have left
personal documents which were not included in the case files preserved
by the Supreme Court of Canada. The lawyers involved have sometimes
left records of their own, which were broadly useful even when they
referred to different cases. Local records turned up details about partici-
pants that helped portray the life behind the litigant, such as background
information on Chinese in Moose Jaw or blacks in Montreal. Most abun-
dant were the records of community and advocacy organizations. Each
court challenge studied here was taken up by an association of some
kind, and for three of the four cases there are extensive archival papers
available for consultation.
9
To supplement the written record, interviews were sought with living
persons connected with the incidents or with the associations and com-
munities that became involved. Direct participants were found for every
10 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
case but Quong Wing. Their memories were a fertile source of details
unpreserved elsewhere, but most vital were their reminiscences about
characters, feelings, motives and disappointments. They made the notion
of ‘‘multiple trajectories’’ a concrete reality, for here were people whose
vision of society differed from that of the mainstream. Besides being the
most interesting and enjoyable research experience, interviews offered an
opportunity to record perspectives that might otherwise be lost. ‘‘Docu-
ments’’ are literally created in the course of an interview. Equally signifi-
cant, the interview format suggested a model of inquiry to be carried
into the analysis of written documents as well, an engagement, as it
were, in a dialogue with every source of information. This approach had
the advantage of treating each document not just as a subjective source
but as a source of subjectivity. In the final analysis this book is about sub-
jectivity, about common sense, and about the participation of the courts
in generating and applying common sense through the law of Canada, as
revealed in four cases singled out for that purpose.
Despite the challenge the following stories present to our national
image, they are on the whole encouraging and even inspirational. They
are, above all, Canadian stories: the heroes are unsung and the achieve-
ments undramatic, the approach is cautious and the demeanour always
polite. Quintessentially Canadian, it might be said. Quite apart from any
historical lessons that may be derived from them, these are fascinating
episodes from Canada’s past and they deserve to be told.
Invitation 11
1
Orientation
1. ‘‘RACE’’ AND THE LAW
Common Sense
In 1900 a prominent English scholar and humanitarian, Gilbert Murray,
expressed a sentiment that was then unchallengeable:
There is in the world a hierarchy of races.... [Some] will direct and rule the oth-
ers, and the lower work of the world will tend in the long run to be done by the
lower breeds of men. This much we of the ruling colour will no doubt accept as
obvious.
1
It was indeed ‘‘obvious,’’ for wherever one looked in the world white
people were ruling over others. Although themselves colonials, in a
world divided by colour Canadians could identify with the ruling ‘‘race’’
and with the imperial mission. At a 24th of May speech in Toronto in
1914, R. B. Bennett explained to his fellow Canadians why ‘‘we’’ were
ruling over places such as India and Egypt:
We are there because under the Providence of God we are a Christian people that
have given the subject races of the world the only kind of decent government
they have ever known [applause]... and you and I must carry our portion of
The notes to this chapter are on pages 347-59.
that responsibility if we are to be the true Imperialists we should be.... An
Imperialist, to me, means a man who accepts gladly and bears proudly the
responsibilities of his race and breed [applause].
2
Canadians did not invent ‘‘race’’: it was the product of a global
paradigm emerging from European expansion and conquest. In the vast
imperial structures that were created, the world itself became a system in
which different peoples were assigned particular economic functions
consequent upon their local resources, their power to resist, their geo-
graphical location, and ultimately their potential contribution to the
enrichment of Europe. Human beings inherit various genetic characteris-
tics from their parents which determine such phenotypes as skin colour,
hair texture and facial structure. Only in certain historical circumstances
are these visible features responsible for the assignment of people into
groups for social or economic purposes. In ancient Europe, for example,
physical differences were noticed and recorded, but they did not govern
the roles people played in society.
3
The expansion of Europe into regions
with populations bearing dramatically different physical features led to a
global stratification of conqueror and conquered, superior and subordi-
nate, by which was created, through military and political means, an
observable coincidence between phenotype and social position. The fact
that phenotypes are indelible and heritable meant that any individual’s
position was immediately recognizable and that it would be passed from
one generation to the next. Physical features had been rendered signifi-
cant; persons who were grouped according to phenotype shared with
members of the same group not only physical characteristics but func-
tional characteristics as well, particularly social and economic, and a com-
mon relationship with members of other groups. Nineteenth-century
Europe’s attempt to explain these readily observable structural distinc-
tions produced the doctrine that inherited physical attributes were
indicative of immutable behavioural traits which suited different people
for different roles. Thus was ‘‘race’’ produced.
By the late 19th century a racial typology existed across the world.
Positions in the structure had been set and were being accepted as ‘‘natu-
ral,’’ and elaborate scientific doctrines were being developed to explain a
phenomenon which had evolved circumstantially. Canadians accepted
the racial explanation, along with the functional aspects of European
supremacy. It was ‘‘common sense.’’ It did not need to be examined or
proved, for it was self-evident. Pierre Bourdieu has commented that
‘‘common sense speaks the clear and simple language of what is plain for
Orientation 13
all to see.’’
4
In an essay entitled ‘‘Common Sense as a Cultural System,’’
Clifford Geertz maintained that common sense is not ‘‘rational,’’ it is
‘‘not a fortunate faculty, like perfect pitch’’; rather, ‘‘it is a special frame of
mind,’’ ‘‘a cultural system’’ which reveals ‘‘a loosely connected body of
belief and judgment.’’
5
The sense of ‘‘race’’ shared by Canadians in the
decades surrounding the Quong Wing decision was such a system. It was
assumed that ‘‘races’’ were evolutionary units, fixed in their physical and
behavioural characteristics. These units were destined to compete at the
group level, for their interests, dictated by biology, were inherently in
conflict. Some ‘‘races,’’ it was thought, bore characteristics that were
unsuitable as foundation stock for the fledgling Dominion of Canada.
Physically, some ‘‘races’’ could never adjust to the Canadian climate. Fur-
thermore those same ‘‘races’’ were not equipped to participate in Canada’s
democratic government and free institutions. If admitted to full partici-
pation, they would unwittingly subvert those institutions and ruin them
for everyone else. An increasing concern in the early 20th century was
sexual morality. ‘‘Races’’ less evolved than the Anglo-Saxon were more
likely to be driven by base instinct; their presence would not only con-
taminate the ‘‘moral fibre’’ of the new nation but would pose a specific
threat to white women whose health and safety were essential to the
future of the Anglo-Saxon ‘‘race’’ in Canada, leading to ‘‘race degener-
ation.’’
6
‘‘Races’’ who did not possess the appropriate characteristics, or
who could not readily gain them through assimilation, would endanger
the nation.
The prevailing common sense about ‘‘race’’ permeated a book written
in 1909 by James S. Woodsworth, superintendent of the Methodist All
People’s Mission in Winnipeg and later to become first leader of the Co-
operative Commonwealth Federation. Though it expressed a generous
compassion towards new immigrants and revealed its author’s experi-
ence in Winnipeg’s North End immigrant communities, Strangers within
Our Gates, or Coming Canadians presented and perpetuated the assump-
tion that ‘‘race’’ determined human behaviour. In Woodsworth’s scheme,
adopted from leading American commentators of the day, very fine lines
divided the different racial categories, making Czechs more intelligent
than Slovaks, Magyars less industrious than Slavs, northern Italians
more independent-minded than southern. Woodsworth’s concern was to
ensure the eventual assimilation of these disparate European types into
the Anglo-Saxon mainstream of western Canada. The alternative was
‘‘race’’ conflict and ultimately ‘‘race suicide’’ for the Anglo-Saxons, who
would be degraded to the level of the lowest immigrants. For some
14 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
‘‘races,’’ however, the gulf was too wide to make assimilation possible.
‘‘The Mongolians, the Hindus, and the negroes’’ would remain forever
distinct, creating a ‘‘fatal barrier’’ to the development of a Canadian
nation. The only solution was to exclude this kind of immigrant com-
pletely.
7
A more succinct version of the same common sense appeared in
a petition organized by the Edmonton Board of Trade in April 1911 to
demand the exclusion of African-American migrants: ‘‘It is a matter of
common knowledge that it has been proved in the United States that
negroes and whites cannot live in proximity without the occurrence of
revolting lawlessness, and the development of bitter race hatred.’’
8
In
April 1914 the Vancouver City Council passed a resolution calling for the
removal of Chinese pupils from the public schools because ‘‘association
of the two races must result in a condition detrimental to the future wel-
fare of our children who have nothing to gain, either mentally or morally,
by daily association with Orientals.’’
9
Parliamentary debate was equally specific. Prime Minister Sir Wilfrid
Laurier confessed that ‘‘racial antagonism’’ was irreconcilable and
‘‘amalgamation’’ with Asians was ‘‘neither possible nor desirable.’’
10
Nanaimo MP Ralph Smith discovered a ‘‘universal principle’’ of struggle
that was part of the human condition, illustrated ‘‘not only in the conflict
of man against man but of race against race.’’
11
His colleague R. G.
Macpherson from Vancouver told the House of Commons that ‘‘the ori-
ental and the Caucasian’’ could never co-exist in Canada. ‘‘It is just as
impossible to do this as to mix oil and water.’’
12
Duncan Ross, from Yale-
Cariboo, traced racial antagonism to the biblical Noah, whose sons were
assigned different roles on earth by ‘‘an all-wise though inscrutable Prov-
idence’’; being divinely ordained, ‘‘race prejudice . . . will continue to
exist for all time.’’
13
Mr. Ross quoted the Edinburgh Review on the insur-
mountable differences fixed in the Asian soul:
Should they, conceivably or inconceivably, adopt Christianity, they will produce
an entirely different sort of Christian; should they break themselves into the
Roman character, they will still read life from right to left. We shall never be able
to foretell their mental processes more accurately than those of the cat upon the
hearth-rug, even had we as favourable opportunities for study.
14
Unassimilable ‘‘races,’’ such as Asians and Africans, were considered
‘‘dangerous to Canadian interests,’’ a threat to ‘‘the life of this democ-
racy,’’ perpetually and inconvertibly ‘‘alien.’’ An article by Hilda Glynn-
Ward from the Vancouver World was read into Hansard:
Orientation 15
Between the Orient and the Occident there is more than a mere ocean, there is a
great divide, intangible and insurmountable. The leopard cannot change his
spots any more than a white man can be orientalized or an oriental be brought to
live by the customs and laws of the European. The morals of the one are neither
worse nor better than the other; but they are different.
15
In 1922 Prime Minister Mackenzie King drew an analogy to ‘‘Gresham’s
law of the precious metals’’: ‘‘the baser metal tended to drive the finer
metal out of circulation.’’ The same thing would happen if lower ‘‘races’’
were allowed to mingle freely in Canada; Anglo-Saxons would be
debased. Opposition Leader Arthur Meighen concurred. For certain
‘‘races,’’ ‘‘their temperaments, their habits and their very natures are
such that assimilation with our people is an impossibility. Assimilation
is always an impossibility where marriage itself is forbidden by the very
essence of the fact.’’ It was essential for the future of Canada ‘‘that we
maintain here our racial purity.’’
16
These were not intended to be inflammatory remarks, or populist
appeals to the fears of Anglo-Canadians; J. S. Woodsworth and the par-
liamentarians were reflecting, and often quoting, the most advanced sci-
entific opinions of their time. Then in the 1930s scientific orthodoxy
began to shift. The definition of ‘‘race’’ as a biological category lost its
precision. American sociologist Robert Park taught that a division of
labour imposed by the dominant party created the situation of competi-
tion and conflict, resulting in group interests and group consciousness.
For the sake of preserving their advantages, the dominant party estab-
lished fixed structures of privilege and disadvantage according to racial
categories.
17
Swedish economist and sociologist Gunnar Myrdal, whose
research team produced a massive study of ‘‘race relations’’ in the United
States, proposed that centuries of discrimination, not ‘‘nature,’’ must be
held responsible for the distinct characteristics demonstrated by black
and white Americans. Far from being insurmountable, according to
Myrdal, the observable differences could be eliminated if only American
ideals of democracy and equality were applied indiscriminately.
18
At the very least, this emerging scientific opinion caused confusion
about the meaning of ‘‘race’’ both as a biological term and as a social cat-
egory. In 1938 John Murray Gibbon published Canadian Mosaic: The Mak-
ing of a Northern Nation, inspired by the ‘‘racial problems’’ then being
manifest in Europe which made it imperative that Canadians ‘‘should
examine the progress being made in the amalgamation of their own and
other racial groups in the new democracy of the Dominion.’’
19
Gibbon
16 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
took racial differences for granted, but attributed them to cultural habits
as well as to biology. His colour illustrations of different ideal ‘‘types’’ –
Scots-Canadian, Dutch-Canadian, Hebrew-Canadian – depended as
much on ethnic costume as on physical features. Gibbon’s goal was to
celebrate those differences and to show how the different types all con-
tributed something positive to Canadian society. The assimilation of the
Canadian-born generation, in the most important characteristics, was a
well-established trend, while the preservation of Old World folkways,
music and dance merely enriched the Canadian ‘‘mosaic.’’ Although he
considered only immigrants of European origin, Gibbon’s analysis repre-
sented a notable movement away from the views offered by Woodsworth
only 30 years before.
The biological-cultural ambiguity found in Gibbon was found as well
in a study of the 1931 census on ‘‘Racial Origins and Nativity of the
Canadian People.’’ This commissioned study, written by economics pro-
fessor W. Burton Hurd and published in 1942, was intended ‘‘to measure
the progress of assimilation and to discover and evaluate the forces
which are working toward that end.’’
20
Like Gibbon, Hurd both acknowl-
edged and demonstrated the prevailing lack of confidence in biological
‘‘race.’’ In his Introduction, Hurd wrote that the term ‘‘nativity’’ pre-
sented no problem, but ‘‘Unfortunately the same can not be said of the
term ‘racial origin.’ ’’ He elaborated:
In a strictly biological sense, the term ‘‘race’’ signifies a subgroup of the human
species related by ties of physical kinship. Scientists have attempted to divide
and subdivide the human species into groups on the basis of biological traits,
such as shape of the head, stature, colour of skin, etc., and to such groups and to
such only, would the biologist apply the term ‘‘race.’’ The use of the term, how-
ever, even in this strictly scientific sense is neither definite nor free from confu-
sion, for there is no universally accepted classification. Furthermore, the
identification of certain types of culture with definite biological types has led
inevitably to the result that, even in the hands of the ethnologist, the term ‘‘race’’
has acquired a cultural as well as a biological implication.
Hurd went on to explain that most modern nations were composed of
different ‘‘races’’; even the ‘‘English type, if such exists in the biological
sense, is the product of the commingling of perhaps half a dozen primi-
tive stocks.’’ ‘‘Racial origin’’ must therefore have both biological and cul-
tural meaning, and the relative importance of each ‘‘is not subject to
quantitative measurement.’’ ‘‘One merely follows popular usage in
Orientation 17
employing the terms,’’ he admitted. ‘‘Such usage is familiar to the public
in general, and only when our ‘origin’ classifications follow such lines
can they be collected by a census, be understood by the people or have
any significance from the practical standpoint of the development of a
Canadian nation.’’
21
Data on racial origin were useful as a measurement
of immigration and as a means of monitoring the pace of assimilation,
but Hurd also offered statistics by ‘‘race’’ for such things as criminal
activity, illiteracy and insanity, and his ‘‘index of segregation’’ implicitly
attributed segregation to the initiative of the segregated group. ‘‘Immi-
grants from Scotland show the least tendency to segregate,’’ he observed.
‘‘The Japanese show the greatest tendency to segregate.’’
22
In a final
demonstration of the ambiguity surrounding racial terminology, Hurd
cited the instructions given to enumerators for the 1931 census:
A person whose father is English and whose mother is French will be recorded as
of English origin, while a person whose father is French and whose mother is
English will be recorded as of French origin, and similarly with other combina-
tions. In the case of the aboriginal Indian population of Canada, the origin is to
be traced through the mother.... The children begotten of marriages between
white and black or yellow races will be recorded as Negro, Chinese, Japanese,
Indian, etc., as the case may be.
23
Under the Indian Act, native Indian status was traced through the father.
Census and Act were contradictory.
Once again, parliamentary debate offered a confirmation that common
sense about ‘‘race’’ was in a state of flux. About the time that Fred
Christie was refused service in the York Tavern and launched his court
challenge, Canada’s representative to the League of Nations was quoted
as saying ‘‘that we did not have any minority problems in Canada.’’
24
Not long afterwards Prime Minister King told the House:
The problem is not one of inferior or superior races. It is not a racial problem at
all. The problem is one of different civilizations, of different economic structures
in the different countries. As long as there are those differences there is bound to
be unrest as a consequence of immigration which leads to unfair and undue com-
petition on the part of those who have lower standards of living and who may
not assume the same measure of responsibility with regard to their citizenship as
do the citizens of the country to which they come. I think it is from that broad
point of view, that this question must be faced.
25
18 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Economic competition had long been regarded as a consequence of racial
difference, but the prime minister seemed to be giving it causal signifi-
cance. Mr. King’s own certainty about the meaning of biological ‘‘race,’’
as expressed in 1922, had apparently come unstuck.
This direction in thinking about ‘‘race’’ was being reinforced both by
scholarly analyses and by the reverberations from World War II. Psy-
chologists began to theorize that the tendency to discriminate was a char-
acterological defect to be found and explained within the discriminatory
individual, rather than a symptom of group competition. John Dollard
developed a ‘‘frustration-and-aggression’’ hypothesis in 1937,
26
in which
he proposed that accumulated resentment can turn into aggression
against ‘‘acceptable’’ targets such as racial minorities, compensating for
feelings of individual powerlessness. Psychological explanations were
made more attractive by the horrors of war, when many people found it
impossible to accept that ‘‘normal’’ individuals could have perpetrated
the Holocaust. The most elaborate interpretation was developed by
Theodor Adorno and his colleagues at Frankfurt, who discovered what
they called ‘‘the authoritarian personality.’’
27
They too attributed discrim-
ination to the dysfunctional individual harbouring suppressed anger
from childhood, but to suit the image of the Nazi functionary the same
individual had to remain respectful and subservient toward authority
figures. The Frankfurt scholars identified an ‘‘F-scale,’’ which purported
to measure submission to authority above coupled with aggression
towards those who are below. Other psychological explanations retained
the focus on the prejudiced individual, but enhanced the part played by
social context. Since prejudice is so widespread, to the point of ortho-
doxy in some settings, it must be explicable as a learned behaviour.
28
Franz Boas, who led the attack on old concepts of the meaning of
‘‘race,’’ wrote in 1936: ‘‘We talk glibly of races and nobody can give us a
definite answer to the question what constitutes a race.’’
29
This view, con-
sidered radical in the 1930s, gained universal endorsement in the
UNESCO Statement on Race issued on 18 July 1950, in the midst of the
Supreme Court of Canada’s deliberations over Noble and Wolf . In clause
14 of the Statement, the scientists assembled by UNESCO in Paris main-
tained that
for all practical purposes ‘‘race’’ is not so much a biological phenomenon as a
social myth. The myth of ‘‘race’’ has created an enormous amount of human and
social damage. In recent years it has taken a heavy toll in human lives and
caused untold suffering. It still prevents the normal development of millions of
Orientation 19
human beings and deprives civilization of the effective co-operation of produc-
tive minds.
30
Canada was not exempt from the impact of the ‘‘war conscience’’ and
the emergence of a new common sense linking racism to inhuman atroci-
ties. Of most significance in attracting Canadian attention to the ‘‘race’’
issue was the treatment of Japanese Canadians at the hands of their own
democratic government. In 1942, when more than 20,000 Japanese Cana-
dians were displaced from their homes in British Columbia, most Cana-
dians were prepared to accept this extreme measure in the face of an
alleged threat during wartime. Public opinion was far less tolerant of the
goverment’s decision in 1944 to disfranchise the Japanese Canadians
who had been moved to other provinces where, until this time, they
would have been entitled to vote. Letters and petitions from outraged
citizens, church groups and civil liberties organizations flowed to
Ottawa. In the House of Commons, Liberal Arthur Roebuck described
racial equality as one of the main principles of Liberalism, yet a Liberal
government was disfranchising certain citizens on grounds of ‘‘race.’’
‘‘To my untutored mind, to my simple way of thinking, that is race dis-
crimination,’’ Roebuck charged. ‘‘If you keep that up, it will not be long
before Canada will be Hitlerized.’’
31
North Battleford MP Denise Nielsen
insisted that ‘‘Race discrimination is a fascist trend which should have no
place in our country.’’
32
Acadia’s Victor Quelch agreed. ‘‘We are not fight-
ing to-day merely to defeat Germany and Japan; we are fighting in
defence of definite principles. We are fighting for a peace based on jus-
tice, and justice must be granted to minorities as well as to majorities. It
seems to me that this legislation is a negation of the declaration of princi-
ples contained in the Atlantic charter.’’
33
Though the controversial mea-
sure was passed, the identification of racial discrimination with the
wartime enemy had been established in the prevailing rhetoric.
Discrimination was being viewed as aberrational, and ‘‘new eyes,’’ as
the Vancouver Sun put it, were seeing Canadian minorities in an entirely
different light.
34
‘‘What is plain for all to see,’’ in Bourdieu’s phrase, was
undergoing profound change. Not just racial discrimination but ‘‘race’’
itself came under attack in parliament. In 1952, not long before Harry
Singh walked into the Immigration Office in Toronto, Winnipeg North
MP Alistair Stewart denounced the government for using the word
‘‘race’’ in immigration regulations and the census because ‘‘it is a word
which had very little scientific validity.’’
35
The discourse of scientists
seemed to be en route to the conventional wisdom in Canada, settling
20 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
the ambiguity about ‘‘race’’ and consigning racial discrimination to the
realm of the unacceptable and the aberrational. By 1956 the popular mag-
azine Saturday Night was instructing its readers on ‘‘The Myth of White
Supremacy,’’ explaining that ‘‘So far as anyone can tell, all the evidence
shows that, within the limits of normality, there is no relation between
the character of the mind and either brain weight, brain shape, cranial
capacity or anything physical that we can measure.’’ Racial prejudices,
the article continued, ‘‘are attitudes that have to be cultivated for they do
not grow naturally in the young human mind.’’
36
Throughout the period under study, that is the first half of the 20th
century, Canadians also held a ‘‘common sense’’ view of their judicial
system, a ‘‘frame of mind’’ concerning the nature and meaning of law
and the courts and what they were supposed to do in a parliamentary
democracy. Its fundamental principle was a belief in ‘‘rule of law.’’ In a
mechanical sense this meant that judges applied the law to particular
cases and that everyone in society was subject to the same law. Judges
must therefore not only be learned in the law, they must be absolutely
impartial in administering it. To ensure judicial impartiality in the appli-
cation of the law, courts did not themselves initiate proceedings. Cases
were brought before them by the contending parties, and the adversary
process provided each party with a full opportunity to develop legal
arguments on its own behalf for the judges to weigh. Judges served as
neutral arbiters in a concrete dispute; their judgment was an adjudication
between two contesting arguments, following their interpretation of the
appropriate law relevant to the case at hand. The judges then wrote a
legal decision in which they set out not only the result but the reasoning
behind it. They clarified the meaning of the disputed law, articulating its
underlying principles and, especially in an appellate court, thereby es-
tablishing guidelines for future application in comparable cases.
This procedural format emanated from an understanding that an
objective judiciary ‘‘discovers’’ the applicable law. Judges did not insert
their personal views or decide what the law ought to be, according to
this theory, they simply administered and enforced the law as it was. In
1923 Justice Anglin of the Supreme Court of Canada, soon to become
chief justice, defined the judicial process as a search for fixed rules, as in
the natural sciences. ‘‘Our common object is to make the administration
of justice as nearly certain and scientific as it is possible that any human
institution can become.’’
37
Although politicians made the law, its explica-
tion was entrusted to apolitical judges unaffected by immediate pres-
sures or the balancing of divergent interests. Judges would determine the
Orientation 21
intent or legislative purpose of any statute, and they would ensure that
established principles were incorporated into their interpretation of what
the law was saying in any particular set of circumstances. Central to this
procedure was the doctrine of stare decisis, by which courts followed
prior decisions or precedents relevant to the case before them. Stare deci-
sis promoted adherence to the rule of law by limiting the individual
judges’ interpretive scope; they must follow the established authorities,
the guidelines produced by their predecessors. Capricious decisions
were avoided, and the public could have some reasonable confidence
that a sitting judge would not suddenly move in an arbitrary direction.
This meant that the law was generally stable and predictable, and as a
consequence that change was very gradual.
38
Also fundamental to the legal context during the period under study
was the current understanding of how the British North America Act
affected judicial interpretation. According to the Preamble of the Act,
the new Dominion of Canada was invested with ‘‘a Constitution similar
in Principle to that of the United Kingdom.’’ On the one hand this
meant that the rights of the subject as evolved through legislation and
the common law would operate in Canada as in Britain, and the courts
would protect those traditional rights against encroachment. On the
other hand the British constitution incorporated the principle of parlia-
mentary sovereignty: the elected representatives of the people could
‘‘ m a k e or unmake any law whatever,’’ as A. V. Dicey explained in
1885.
39
In Britain there was only one parliament, but in Canada, by that same
BNA Act, parliamentary authority was divided between federal and
provincial legislatures, both of them elected by the people and both of
them inheriting the Westminster mantle. What the BNA Act had to do
was distribute parliamentary sovereignty between the two legislative
levels, primarily through sections 91 and 92 which delineated those
powers exclusive to either the central parliament or the provincial legis-
latures.
40
In 1912, just as Quong Wing’s case was beginning to work its
way through the courts, the Privy Council ruled that ‘‘whatever
belongs to self-government in Canada belongs either to the Dominion
or to the provinces within the limits of the British North America
Act.’’
41
This ‘‘principle of exhaustive distribution of legislative powers’’
was the application in Canada of parliamentary sovereignty, as adapted
to the requirements of a federal system.
42
Canadian decisions could be
appealed to the Privy Council in London where the sovereignty of par-
liament was taken for granted and, in addition, where constitutional
22 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
interpretations tended to favour provincial over federal authority in
disputed areas of law.
43
Although it would be argued that there had his-
torically existed ‘‘a convention against exercise of parliamentary power
to abrogate the common law principles which the courts have devel-
oped,’’ and in particular a ‘‘received convention of legislative restraint
where civil liberties are concerned,’’
44
the regnant orthodoxy in the
early decades of the 20th century was neatly expressed by Justice W. R.
Riddell of the Ontario Supreme Court:
Parliament can do everything but make a woman a man and a man a woman....
An Act of Parliament can do no wrong though it may do several things that look
pretty odd. . . .
The Legislature within its jurisdiction can do everything which is not naturally
impossible, and is restrained by no rule human or divine. . . .
But while we do not allow a court to set aside legislation as unwise or unjust,
opposed to natural justice or what not, it is sometimes necessary for the Courts to
enquire whether the particular legislation of Dominion or Province comes within
the ambit of powers conferred by the British North America Act.
45
When a legislative act was challenged the Canadian judiciary, following
the Privy Council example, tended to limit its investigation to the deter-
mination of whether the legislature passing the act was operating
within its jurisdiction under the BNA Act. In the absence of explicit
guarantees, claims to racial equality had to be expressed in terms recog-
nizable to contemporaries, and legal arguments had to be organized
under principles which the courts of the time felt themselves equipped
to consider.
Such was the ‘‘cultural system’’ that existed in Canada surrounding
the significance of ‘‘race,’’ the propriety of racial discrimination, and the
function of the courts. The extent to which this context affected the
legal deliberations instigated by Quong Wing, Fred Christie, Bernard
Wo l f and Harry Singh is a major question for the case studies that
follow.
Public Policy
In 1938 the German government sought advice on the introduction and
implementation of racially discriminatory legislation. One of the places
they turned to was Canada. On 14 March the German consul-general in
Ottawa, Dr. H. U. Granow, wro t e to the Department of External Affairs
Orientation 23
for an account of federal or provincial laws which ‘‘make race (racial
origin) of a person a factor of legal consequence.’’ Herr Granow went
on to specify his interest in ‘‘laws governing the exercise of civil and
political rights, the marriage, the illegitimate sexual relations, the exer-
cise of a profession, the administration of schools and universities, and
the immigration’’ with any provisions depending on ‘‘race or colour.’’
46
It took O. D. Skelton of External Affairs until 27 June to compose a
re p l y. Following a small flurry of letters to different departments, Mr.
Skelton told the Germans ‘‘that the laws of the Dominion and of the
provinces do not make the race of a person a factor of legal conse-
quence.’’ The only exceptions, the letter continued, were some immi-
gration laws and ‘‘certain provincial laws affecting Asiatics’’; otherwise
there were ‘‘special provisions’’ for native Indians but they were ‘‘pro-
tective rather than restrictive’’ and in any case Indians were fre e at any
time to ‘‘assume the legal status of other Canadians.’’
47
Undersecretary Skelton’s reply was not entirely candid. It is true that
there was no national policy coordinating ‘‘race’’ as a ‘‘factor of legal con-
sequence,’’ but there was an inherent logic connecting federal and
provincial legislation. By the BNA Act civil rights were a provincial con-
cern, whereas aliens and naturalization were federal matters.
48
The con-
stitutional division of power shaped many of the ‘‘race-related’’ policies
introduced by provincial legislatures and led the provinces to articulate
their restrictions in explicitly racial terms to apply to the Canadian-born,
for to apply them only to the alien or naturalized subject would be to
invade federal jurisdiction and risk disallowance. The Canadian political
structure also translated local and provincial concerns to the federal
level, so that national policies affecting immigration, military service and
the franchise, to offer some outstanding examples, could be determined
by regional interests.
Canada also operated in an imperial context, as part of an empire that
justified its existence by its contribution to human equality and progress.
Colonial Secretaries insisted that the Empire was free of racial distinc-
tions, at the same time urging Canadian governments to disguise their
discriminatory restrictions behind tactical euphemisms such as literacy
tests in a European language. Specific British and imperial interests
added restraints to Canada’s available policy options. Anglo-Japanese
treaties guaranteeing personal movement and reciprocal rights forced
Canada to modify several policies aimed at Japanese Canadians. Renego-
tiation of the so-called ‘‘Unequal Treaties’’ between Britain and China in
the 1920s brought imperial pressure to bear upon policies toward Chi-
24 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
nese in Canada. India’s loyalty to the Empire could not be undermined
by thoughtless decisions in Ottawa or the provincial capitals. At the
same time Canada was watching other countries design policies to main-
tain white exclusivity: American, Australian and South African legisla-
tion restricting immigration and limiting civil rights served as an
inspiration and a conscious example for the framing of Canadian policies
toward minority ‘‘races.’’
49
Within this general environment it is possible to identify policies that
trespassed on each of the areas mentioned in Herr Granow’s letter. In the
‘‘civil and political’’ category, regulations were developed to exclude
unsuitable persons from the rights, privileges and duties normally
accompanying Canadian birth or naturalization. In one of its first acts
after Confederation, the BC legislature in 1872 disfranchised Chinese in
the province, adding Japanese and East Indians in 1895 and 1907, respec-
tively, as their numbers began to warrant similar attention. Saskatche-
wan followed BC’s example and disfranchised Chinese residents in 1908.
Since the federal franchise derived from provincial qualifications, per-
sons barred by a province were automatically denied the federal vote.
Many other rights and privileges depended upon being on the provincial
voters’ list as well, including the right to public office, jury service,
employment in the public service and the practice of law.
50
Without any
direct reference, these regulations greatly extended the distinctions
imposed on grounds of ‘‘race.’’ In the case of native Indians, explicit leg-
islation at both the federal and provincial levels denied them the vote.
51
Emphasizing their lower-class citizenship, when World War I broke out
young men of native Indian, African and Asian origin were at first re-
jected as volunteers by the Canadian Expeditionary Force, on the
grounds that their racial qualities made them inadequate soldier mate-
rial. In late 1915 native Indians began to be recruited, initially in separate
Indian units, and in 1916 a segregated battalion was formed for black
volunteers. Although individuals were admitted to regular fighting units
on the discretion of their commanders, only Japanese Canadians were
widely acceptable as front-line soldiers, and their recruitment began only
in 1916 in the midst of a recruitment crisis.
52
Rules governing ‘‘marriage’’ and ‘‘sexual relations’’ were rampant
through various versions of the Indian Act,
53
though Mr. Skelton would
undoubtedly explain that they were ‘‘protective rather than restrictive.’’
Otherwise the most overt barriers within this category were provincial
laws banning the employment of white women by Chinese Canadian
men, as in the case of Quong Wing in 1914, designed to eliminate sexual
Orientation 25
exploitation. Legally enforced residential and recreational segregation,
however, sometimes had the prevention of sexual contact as an admitted
motive.
54
Most elaborate were pieces of legislation restricting economic activity
on racial grounds, expressing an underlying principle that certain
‘‘races’’ were permitted in Canada only to perform certain chores. A
racially defined and usually unskilled ‘‘caste’’ was created and main-
tained by policies limiting the kinds of employment legally available, or
imposing prohibitive conditions to discourage employers from hiring
minority group members. British Columbia introduced racially specific
laws prohibiting Asian Canadians from employment on public works or
in underground mines, from the purchase of Crown lands, and even
from cutting timber on Crown property. Liquor licences, in exclusively
provincial jurisdiction, were withheld from Asians and native Indians in
British Columbia, and hawkers’ licences carried differential fees depend-
ing on the ‘‘race’’ of the applicant.
55
The federal government restricted
fishing licences to Japanese Canadians in the 1920s, with the ultimate
intention of driving them out of the fisheries.
56
Less directly, an early
form of ‘‘contract compliance’’ was employed to ensure that private con-
tractors working on provincial or federal government projects in BC
would not hire Asians. And quite apart from its own enforcement of
employment discrimination, the federal government permitted discrimi-
natory practices by private and Crown corporations and by the civil ser-
vice.
57
During the Depression unemployed Chinese Canadians in Alberta
received less than half the relief payment accorded to whites.
58
In many parts of Canada access to ‘‘schools and universities’’ was gov-
erned by ‘‘race.’’ In order to enforce their attendance at residential indus-
trial schools, native Indian children were denied the right to attend
provincial schools near their homes.
59
In both Nova Scotia and Ontario
the segregation of black schoolchildren was established by law in the
19th century and those laws still existed at the time of the Granow
inquiry. Nova Scotian legislation further limited the educational benefits
of black children by requiring schools with provincial subsidies (includ-
ing all black schools) to employ teachers with nothing higher than a
fourth-class certificate. ‘‘De facto’’ separate schools existed for black chil-
dren in New Brunswick, Saskatchewan and Alberta, supported, but not
created, by provincial laws and policies. Several attempts were made to
legislate segregated schools for Asian children in British Columbia. The
law condoned the widespread use of quotas for the admission of Jewish
students to universities, especially in Ontario and Quebec.
60
26 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Mr. Skelton was required to admit that ‘‘some immigration laws’’ con-
tained provisions making ‘‘the race of a person a factor of legal conse-
quence.’’ The 1869 Immigration Act, anticipating only British applicants,
was silent on the racial issue; by 1910, experience having revealed the
error of this expectation, the Act specified ‘‘race’’ as a ground for admis-
sion or exclusion. This was not soon enough for British Columbia, the
province chosen by most Asian immigrants. Victoria passed a series of
provincial acts banning or limiting Asian immigration, but until the com-
pletion of the railroad Ottawa disallowed the exclusion of Chinese
labour. Finally in 1885 the federal government passed its own act to dis-
courage the Chinese, imposing a $50 head tax on new arrivals from
China. Under continual pressure from BC governments and MPs, parlia-
ment increased the head tax to $100 in 1900 and $500 in 1903, and in 1923
passed the Chinese Immigration Act which virtually ended Chinese admis-
sion until after World War II.
61
Certain other immigrants, though considered just as unsuitable, could
not be treated so abruptly as the Chinese. Japan was Britain’s Pacific ally,
and Japan itself was ready to protest any perceived insult to its dignity as
a rising global power. BC’s persistent restrictions on Japanese immi-
grants were as persistently disallowed by Ottawa, usually citing imperial
interests. Only when frustrations erupted in a public riot in 1907,
directed against Chinese and Japanese districts in Vancouver, was the
Laurier government embarrassed into action. A ‘‘Gentleman’s Agree-
ment’’ was negotiated with Japan whereby the number of emigrants per-
mitted to leave for Canada was voluntarily limited.
62
India, as part of the
Empire, presented its own complications. The failure of negotiated limi-
tation led to Canada’s unique contribution to euphemistic legislation: the
‘‘continuous journey rule.’’ By order-in-council the federal government
stipulated that all immigrants must arrive by an unbroken journey from
their country of origin.
63
Since no direct travel connections existed with
India, Indian migration was eliminated without any specific racial refer-
ences to disrupt imperial relations. Similarly, restraints operated against
an explicit exclusion of African Americans, for despite its domestic treat-
ment of black citizens the United States was not content to see them
openly insulted by a neighbouring country. American influence was rein-
forced by the presence in Nova Scotia and southwestern Ontario of
African-Canadian voters who objected to any policy directed against
black immigrants. Instead, immigration officials engaged in a campaign
to discourage African-American applicants, and rejected them on medi-
cal or other grounds rather than ‘‘race.’’ An order-in-council was passed
Orientation 27
in 1911 to impose a one-year ban upon black immigration, but its imple-
mentation proved unnecessary as the informal measures achieved the
desired purpose.
64
In these various ways, each one designed to meet spe-
cific circumstances, policies excluded immigrants deemed unassimilable.
By the 1930s practically no persons of African or Asian origin were enter-
ing Canada.
Public policy, whether implemented through openly debated legisla-
tion or more surreptitious regulations, can be recognized as the practical
application of common sense. It was also a reinforcement, legitimizing
common attitudes with the dignity of the law. Legal barriers against
Asian immigration, for example, would be a none-too-subtle signal to
Canadians that the Asians in their midst were not worthy of equal
respect. This cycle of reinforcement was also visible in native Indian pol-
icy. The ‘‘special provisions’’ for Indians in Canadian law identified by
Mr. Skelton were not entirely as he represented them in his response to
the German consul-general. ‘‘Protection’’ was undoubtedly a feature of
federal policy, though even at its most innocent this suggests a relation-
ship of inequality, but from the very beginning of a formal policy in 1763
‘‘protection’’ meant ‘‘control.’’ By Royal Proclamation and by instructions
sent to Governor James Murray, Indians were permitted to trade only
with government-approved white men, use of alcohol was regulated,
credit and debt were allowed only under the strictest supervision, and
Indian land could be purchased exclusively by the Crown.
65
In the name
of protecting Indians against unscrupulous whites, the law prevented
Indians from selling their land or trading their goods or entering a con-
tract with persons of their choice; it kept them dependent on the Crown.
By the time of Confederation the assimilation of the Indian population
was the avowed purpose of native policy, while the British North America
Act granted responsibility for ‘‘Indians, and lands reserved for Indians’’
to the federal parliament.
66
The first consolidated Indian Act in fulfilment
of this responsibility was passed in 1876, and it contained at least in
embryo the characteristics that would dominate native policy until
World War II.
67
The 1876 Act outlined the steps to be taken by an Indian who wished
to become enfranchised; that is, in Skelton’s term, to ‘‘assume the legal
status of other Canadians.’’ First the individual had to be ‘‘sober and
industrious’’ and had to convince his local Indian agent that he was qual-
ified for the franchise. If convinced, the agent gave the applicant a ticket
for a parcel of reserve land. After three years of successful cultivation,
the Indian would receive personal title to this land. There followed an
28 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
additional three-year period during which the applicant had to demon-
strate ‘‘good behaviour,’’ and if he passed this probationary term satis-
factorily he ceased to be an Indian and became an ordinary Canadian.
68
For those who remained Indians, the federal government assumed
control, or at least supervision, of their local affairs, ostensibly to further
the project of gradual assimilation. Traditional leaders were replaced by
elected chiefs and band councils. This was intended to give Indians expe-
rience with democratic processes, but since those elected could be
deposed on grounds of intemperance, immorality, dishonesty or incom-
petence, the band leadership remained dependent on the good will of the
Indian agent.
69
An assimilationist motive also lay behind the stipulation
that an Indian woman who married a non-Indian man automatically lost
her band membership and her Indian status, theoretically becoming an
independent Canadian, but it amounted to a direct government imposi-
tion in total disregard of individual wishes.
70
Many native cultural prac-
tices, notably the west coast ‘‘potlatch’’ and prairie dances, were
outlawed because they perpetuated traditional mores and impeded the
kind of sobriety and industry considered a prerequisite for full member-
ship in Canadian society.
71
To accelerate assimilation, attendance at resi-
dential schools was made compulsory for Indian children.
72
Finally,
admitting the failure of contradictory policies, the government actually
implemented compulsory enfranchisement in 1920 for those whom the
Indian agent considered suitable. This policy was withdrawn in the face
of Indian objections in 1922, but it reappeared in somewhat softer terms
in 1933 in a mockery of the principle that enfranchisement represented
self-reliance.
73
Other components of the 1876 Act and its many amendments were
overtly controlling, with no pretence of preparation for democratic citi-
zenship. The very definition of who was an Indian, and therefore who
was eligible for band membership, treaty considerations, residence on
reserves, and so on, was the privilege of the federal government.
74
Inti-
mate details of daily life were subject to government control: who could
consume alcohol and under what conditions, sexual morality, responsi-
bility for deserted families, recreation in poolrooms or pubs, the use of
band money raised through the sale of goods or services, the dispensa-
tion of personal estates and the appointment of executors; Indians could
even be forced to go to the hospital against their will if the agent felt it to
be in their best interests. Indian land, as specified in the BNA Act, came
under especial scrutiny. Indians could not sell or lease their land, but the
government could do so on their behalf, even without their consent. The
Orientation 29
presence on reserves of non-Indians or Indians from other bands was
severely regulated, and even the traffic passing through a reserve was a
matter for government regulation. Sanitary provisions on reserves were
dictated from Ottawa. In case a band did not like what the federal
authorities had done in any instance, the Indian Act was amended in 1927
to prohibit Indians from hiring lawyers to press any claims against the gov-
ernment.
75
None of these conditions could reasonably be expected to pro-
mote self-reliance and some regulations, indeed, seemed deliberately
designed to retard Indian progress towards independence. When prairie
Indians became successful agriculturalists in the late 19th century, for
example, and began selling their surplus produce into local markets, the
government introduced a ‘‘permit system’’ whereby Indians’ ability to sell
their produce was restricted. At the same time Indians were eff e c t i v e l y pre-
vented from utilizing mechanized farm equipment, thus seriously limiting
their ability to engage in efficient modern agriculture.
76
Of course not all
these regulations were put into effect at the local level,
77
but their exis-
tence even in potential is a powerful representation of majority Canadian
attitudes towards the native people and their apparent incapacity to
manage their own affairs. The syndrome represented in Canadian Indian
policy could not have been established except as part of the evolving
common sense about ‘‘race’’ and imperial responsibility that infused
Western culture in the late 19th and early 20th centuries.
But, as was discussed above, the assumptions about ‘‘race’’ and racial
discrimination began to change not long after the exchange of letters
between Messrs. Granow and Skelton in 1938. When the War began in
1939 the military rejected black volunteers, as had been the case in World
War I. A Special Committee on Orientals in BC concluded in October
1940 that both Chinese and Japanese should be excluded from the armed
services, and a 1943 federal interdepartmental committee decided that
East Indians must not be conscripted and could be accepted as volun-
teers only if they assimilated to Anglo-Canadian dress and dietary stan-
dards.
78
Eventually these barriers would be lowered in the face of
overseas military requirements. When called to serve, East Indian and
Chinese Canadians took advantage of the opportunity to point out that
their citizen’s duty to fight in defense of democracy was not matched by
a citizen’s right to participate in democratic elections in Canada. At the
same time African and Jewish Canadians protested racially discrimina-
tory hiring practices in defense industries, and although private employ-
ers remained free to discriminate, the government itself eliminated
‘‘race’’ as an employment criterion in 1942.
79
30 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Following the unsuccessful campaign over the disfranchisement of
Japanese Canadians in 1944, the public conscience was again aroused
against the government’s attempt to deport certain Japanese Canadians
to Japan after the War. A broad coalition of Canadian groups, led by the
Co-Operative Committee on Japanese Canadians, eventually forced the
plan’s abandonment by the federal government in 1947.
80
Encouraged,
university students demonstrated against Toronto facilities that discrimi-
nated against blacks; the Committee for the Repeal of the Chinese Immi-
gration Act united labour and church groups behind the Chinese
Canadian demand for reform; public opinion polls began to show
majorities in favour of enfranchising East Indians and Chinese. There
was a new concept dawning in international thought, of ‘‘human rights’’
as a distinct entity with universal applicability. Canadian policy had not
recognized this concept early in the War, but through its participation in
UN declarations Canada was accepting the international intention to
promote fundamental rights. This was reflected in Canada’s first Citizen-
ship Act, passed in 1946, which represented the notion that Canadian citi-
zens must share equally in all rights and duties, that there could be no
legal distinctions between Canadians on racial or any other grounds.
There was, in short, a new Canadian self-image, a new and less restric-
tive meaning to the very term ‘‘Canadian.’’
81
Racial disadvantage, as it was understood to exist, would have to be
addressed. In 1947 Parliament repealed the discriminatory Chinese Immi-
gration Act and enfranchised East Indian and Chinese Canadians; in 1949
the final legal restrictions were removed from Japanese Canadians. A
re v i s e d Indian Act in 1951 allowed greater autonomy to Indian bands,
ended compulsory enfranchisement, and eliminated the increasingly of-
fensive term ‘‘Indian blood’’ fro m the requirement for Indian status. In 1960
native people became eligible to vote in federal elections.
82
But generally
there was no sense of urgency to legislate change. The existing ‘‘British
freedoms’’ were understood to protect minorities once the few overt excep-
tions were removed from public policy, and those ideals also served to
r e s t r a i n legislative interfer ence which could restrict the white majority’s
freedom of thought, speech and association. The minorities themselves,
however, remained dissatisfied. They formed pressure groups, produced
briefs to provincial cabinets, and conducted educational campaigns
through union locals and church groups. By the late 1940s public opinion
polls showed a majority of Canadians in favour of legislation protecting
individuals against religious or racial discrimination, demonstrating
political support to encourage provincial legislatures to act.
83
Orientation 31
As a consequence of these campaigns, prohibitory policies were de-
clared, making racially specific practices illegal. The Fair Employment
Practices and Fair Accommodations Practices Acts, passed in Ontario in
1951 and 1954 respectively and soon emulated by the other provinces,
contained in their preambles the absolute statement that racial discrimi-
nation was contrary to public policy.
84
By the legislation passed in the
1950s, ‘‘race’’ was eliminated as a legitimate reason to distinguish people’s
rights and access to public facilities. There was, however, one major excep-
tion: access to the country itself. When the Chinese Immigration Act was
re p e a l e d in 1947 Prime Minister King made his ‘‘classic’’ statement on
Canadian immigration policy, declaring that ‘‘the people of Canada do not
wish, as a result of mass immigration, to make a fundamental alteration in
the character of our population.’’ Assimilation, or rather the presumed
inability of certain peoples to assimilate, remained the guiding criterion.
85
Continuing international pressures, especially from the ‘‘new Common-
wealth,’’ bro u g h t forth gestures of equality, such as the decision in 1951 to
admit an annual quota of immigrants from India, Pakistan and Ceylon.
Campaigns for further reform achieved one apparently significant change
in 1952 when the Immigration Act eliminated the term ‘‘race’’ as a condition
for immigration, substituting the new term ‘‘ethnic group.’’
86
It seemed to
be a victory for the newly emerging common sense.
2. APPROACHINGTHE BENCH
The British North America Act authorized the federal parliament to estab-
lish a ‘‘General Court of Appeal for Canada,’’
87
but provincial (especially
Quebec) opposition delayed the introduction of a Supreme Court of
Canada Act until 1875. The Court first met in 1876. It was not, however, a
court of ‘‘final’’ appeal, for parliament decided to honour the traditional
right of the British subject ‘‘of going to the foot of the Throne for re-
dress,’’
88
which in practical terms meant that decisions could be appealed
to the Judicial Committee of the Privy Council in London. The Court
would also continue the Canadian practice of following the common law
precedents established in Britain, with those of the Privy Council
regarded as binding. Since the French Civil Law Code prevailed in Que-
bec, the Supreme Court of Canada would sit as a civil law court when
hearing private law appeals from that province, though once made a
Court decision would be accepted by Quebec courts over the provisions
of the Code. For this reason the Supreme Court Act required one third of
the justices to come from Quebec. Originally this was two of the total of
six judges. The Quebec quota remained unchanged when the bench was
32 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
increased to seven in 1927, but became three of nine when the Court
grew again in 1949. (Regional distribution of judges appointed from
other provinces was based on political considerations and was not
required by the Act). Despite the high public profile and undoubted
prestige of the Supreme Court of Canada today, throughout much of the
period covered in this book the Court operated in relative obscurity. Not
only could its decisions be appealed higher but appellants could bypass
it altogether and go directly from a provincial court to the Privy Council.
This discouraged many prominent lawyers from accepting appointment
to the Supreme Court of Canada, so that elevation to the Dominion’s
highest tribunal tended to become a patronage appointment for political
allies of the current prime minister. In 1949 appeals to the Privy Council
were abolished, opening the possibility that a more vigorous and more
Canadian tradition might be launched.
89
The Supreme Court of Canada hears appeals under both federal and
provincial jurisdiction, and in both the public and private realms of law.
Two of the case studies in this book will be public (where one party to
the dispute is a government), and two private (where both parties are
private). Apart from the provision that the government may refer a ques-
tion to the Court for an advisory opinion, disputes arrive via provincial
courts of appeal or, with the consent of both parties, directly from the
court of original jurisdiction.
90
During the era under study, a capital
criminal case or a civil suit for more than $10,000 had an automatic right
of appeal; otherwise a dissatisfied litigant applied for ‘‘leave to appeal’’
before a panel of judges, and if they decided that the case or the issues it
represented were sufficiently important they permitted it to proceed as
an appeal case. The appellant would then be required to post a bond, to
cover court costs in case the appeal failed. Most of the time, therefore, the
Court was addressing a concrete dispute which had already been heard
(usually twice) before at lower levels, which had already been recog-
nized as significant, and with litigants capable of posting a fairly sub-
stantial bond. The Court did not have to give reasons for rejecting or
accepting a case for appeal.
Under the adversary system, it was the contestants who presented the
facts and precedents to the Court. This was done through a written fac-
tum, prepared by each party’s lawyer, containing their argument and the
relevant case law. The appellant also filed an appeal or pleading, stating
the explicit objections in law to the lower court decision (the ‘‘grounds’’)
and the purpose of the appeal. Either side could also submit supporting
documentation, and the decisions or transcripts of the cases giving rise to
Orientation 33
the appeal were placed before the Court. A panel of judges (usually four
or five for the period under study) was assigned by the chief justice to
consider the case. They read the appellant’s factum first, then the re-
spondent’s, followed by the pleadings and the trial and provincial
appeal court materials. At an appointed time the parties met before the
judges at the Supreme Court building in Ottawa for a public hearing.
Each party beginning with the appellant made an oral presentation, sum-
marizing or emphasizing the most significant points from their factum.
Since the judges were already familiar with the basic arguments from
their preliminary reading, they may have isolated certain issues for de-
tailed consideration or prepared questions for the lawyers. The hearing,
therefore, could be a lively exchange, as judges challenged and prompted
the contenders to develop their arguments further. Traditionally the
judges were supposed to keep an open mind until the hearing was com-
pleted, but the nature and direction of the questioning sometimes sug-
gested that minds had been made up on the basis of the written
submissions or on the individual judges’ legal outlook. A hearing was
usually completed in a single sitting, but sometimes the lawyers’ state-
ments or the questioning from the bench would extend a case over two
or more days.
Following the hearing the judges formulated their decision. Typically,
when these four cases were being considered, each judge made an indi-
vidual decision on the case; though they regularly consulted, and judges
would sometimes concur in the reasoning articulated by a colleague,
there was no formal conference or assignment of writing a majority deci-
sion as there is today. In reaching their decision they relied on the argu-
ments presented by or extracted from the litigants, applying certain
fundamental precepts. In any dispute involving the interpretation of a
statute, one precept was that the judges must determine and respect the
‘‘intent’’ of Parliament in passing the law. In doing so they were discour-
aged from consulting the ‘‘parliamentary history’’ of the act, that is the
things said about it or changes made to it during parliamentary debate
and in committee, on the theoretical ground that judges were to discern
the meaning from the statute itself and from the purpose it was designed
to meet, for in the product as passed by Parliament was distilled the will
of the majority. Still a statute may be ambiguous, and for it to reach the
Court at all there must be at least two possible interpretations. Judges
would decide which meaning was appropriate through the context (the
‘‘surrounding circumstances’’) of its passage or, since only part of a
statute was usually in dispute, through the context of the statute as a
34 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
whole. In the final analysis judges could apply the ‘‘plain-meaning rule’’:
how would the language of the act be construed by the ‘‘average reason-
able person,’’ for in a democracy this must have been what Parliament
intended it to mean. Justice Lyman Duff put it succinctly in 1935: ‘‘The
duty of the court in every case is loyally to endeavour to ascertain the
intention of the legislature, and to ascertain that intention by reading and
interpreting the language which the legislature itself has selected for the
purpose of expressing it.’’
91
Another fundamental precept was stare deci-
sis, so that common law precedents must be followed if the circum-
stances or legal principles were the same. In a disputed case the facts
would rarely be identical, and almost always the contending lawyers
could find precedents implying directly opposite conclusions. It fell to
judges, therefore, to interpret the underlying principles informing the
precedent. For this they would look to the reasoning behind the earlier
decision, the ratio decidendi, to determine its relevance to the current case.
If they found that it did not fit, the precedent could be ‘‘distinguished,’’
to show that it was sufficiently different that it need not be followed.
92
When the issues seemed clear enough, when the language was plain or
the precedent exact, the judges could announce their decision from the
bench. More often they would retire and each judge would indepen-
dently write a decision based on his interpretation of the statutory and
case law, or concur in that of a colleague. The tendency was for each
judge to recount the facts of the case and the results in the lower courts,
before giving his own decision and the reasons for it. Written decisions
were therefore often lengthy and repetitious. If a majority of the judges
agreed on a decision, even if their reasons were different from one
another, that was the ruling of the Court. This was a frequent occurrence,
and will be reflected in several of the following case studies. It seems
anomalous, since it is not only the decision itself but the reasoning
behind it that entered posterity as a precedent. The ratio decidendi,
according to the doctrine of stare decisis, contained the underlying princi-
ples of law, the ‘‘rule,’’ that could be applied in subsequent cases. In
effect, multiple and even contradictory reasons created a choice for
future judges in applying the precedent. Stare decisis, in these circum-
stances, would be less restrictive (and predictive) than it might at first
seem. The results, including the written decisions and a summary giving
the basic facts and the important principles, were finally published in
Supreme Court Reports, usually six months or so after the decision came
down, and would be available to every judge and lawyer in Canada.
Orientation 35
3. APPROACHINGTHE PAST
Over a three-year period, from 1987 to 1990, the Gitksan and Wet’su-
wet’en people of British Columbia argued a claim for more than 50,000
square kilometres in the Skeena River district, in a case known as Delga-
muukw v. BC.
93
Chief Justice Allan McEachern’s weighty Reasons for Judg-
ment appeared in 1991, deciding against the native land claim. While the
Delgamuukw decision contains a great deal about aboriginal rights in
Canada, it also illustrates the absolute significance of historical theory, or
the historian’s approach to the past, in determining the meaning of the past
and even in deciding what happened in the past. Of additional importance
for this book, Chief Justice McEachern demonstrated that historical inter-
pretation can be directly implicated in judicial decision-making.
In his Reasons the chief justice announced that courts of law usually
cannot consider ‘‘subjective considerations,’’ such as native oral histories
or even anthropological reconstructions of community traditions. Rather,
‘‘cases must be decided on admissible evidence.’’
94
What he considered
admissible evidence, untainted by subjectivity, became clear as he con-
cluded his comment on the various kinds of evidence presented to him
during the long trial:
Lastly, I wish to mention the historians. Generally speaking, I accept just about
everything they put before me because they were largely collectors of archival,
historical documents. In most cases they provided much useful information with
minimal editorial comment. Their marvellous collections spoke for themselves.
95
The interpretation of native life accepted by Judge McEachern showed
the Indian cultures as weak, dependent and unable to adapt to the pro-
gress brought by European settlers. Their displacement, in other words,
was inevitable. This view did once prevail as orthodoxy in Canadian his-
torical writing,
96
but more recent research using a broader range of
source material has suggested that, on the contrary, native cultures did
develop rational strategies for adapting to the European presence and in
many cases were so successful that they offered economic competition to
white traders and farmers. Their ultimate collapse as independent soci-
eties and their continuing dependency grew not from some inherent
weakness but from government policies, some deliberately designed to
impede their competitiveness.
97
The fact that Chief Justice McEachern’s
historical content is not entirely up-to-date is not, however, the most sig-
nificant point to be made. Far more important is his methodological
assumption, first that historical documents ‘‘speak for themselves’’ and
36 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
secondly that the historian’s role is to collect those documents and thus
uncover a past which is preserved intact and waiting to be excavated
from the archival record. The judge’s approach to history corresponds to
a historical theory and method known as ‘‘positivism.’’
Historians have traditionally been reluctant to discuss theory, partly
because the kind of models used by social scientists can seem trivial and
partly because almost any empirical study reveals the impossibility of
determining general laws applicable to every circumstance. Historical
research forces a consideration of detail, by which every case is seen to
be a special case. But historical writing is not simply the narration of dis-
covered facts: to order events in a coherent narrative is necessarily to
suggest their meaning; in effect, historians create history. In the interest
of becoming more self-consciously aware of what the historical process
entails, historians are belatedly entering the theoretical debates, subject-
ing their activities to critical reflections, and assessing the theoretical
frameworks for their potential usefulness.
Developments in Social History
‘‘Positivism’’ was a product of the Victorian era with its faith in science
and its belief in a universe directed by cause-and-effect which could be
uncovered and explained. Thus could it be insisted that ‘‘the study of
history is a study of causes’’ which begins with ‘‘the selection and mar-
shalling of facts.’’
98
The sequence was rendered coherent for a reader
through a logical narrative, a ‘‘plot,’’ which both described and explained
what happened.
99
The story tended to be about governments and states,
leaders and elites, and historical writing was categorized according to
periods rather than subject matter or approach. When G. M. Trevelyan
described ‘‘social history’’ in 1944 as ‘‘the history of a people with the
politics left out,’’
100
he implied that it was something marginal to the
more meaningful course of events.
Thirty years later social history had moved from the margins to a dom-
inant position in North American history departments,
101
and in the pro-
cess it had become a far more complex discipline than Trevelyan had
indicated. Following the example of the French Annales historians,
102
and
British Marxists such as E. P. Thompson,
103
the ‘‘new’’ social history was
characterized both as a subject matter and as a method. The focus of
attention shifted from kings and parliaments to disempowered groups
and those features of their lives which did not belong to the political
elite: kinship and family, local customs and festivals, the private exis-
Orientation 37
tence at the core of people’s lives but on the periphery of politics. Fer-
nand Braudel took historical study beneath politics, to the long-term
historical forces established by geography and traced by economic and
demographic trends (la longue durée), and to the medium term (conjonc-
ture) whose fluctuations over 25 or 50 years establish social relationships
and community structures. These two levels of analysis, Braudel taught,
reveal the profound influences upon human life and history. The third
level, ‘‘events’’ (événements) in the political and cultural sphere, Braudel
presented as ‘‘surface disturbances, crests of foam that the tides of history
carry on their strong backs.’’
104
From Braudel and his Annales colleagues
came an insistence upon ‘‘total’’ history, upon society as an ‘‘integrated
organism’’: one event, one institution, one individual cannot be studied in
isolation from the broader systems and trends that make it functional and
therefore understandable. The works of E. P . Thompson demonstrated how
to write ‘‘history from below’’ or ‘‘from the bottom up,’’ to recover histories
hitherto left unstudied.
105
Wher eas T r e v e l y a n could r econstr uct a kind of
social life from literary evidence, ‘‘ordinary’’ people did not usually leave
similar records and in any case they proved relatively meaningless given
the new social history agenda. But as members of groups which had been
and could be counted, ordinary people provided a statistical record that
could be squeezed for meaning. The social history ‘‘movement’’ had a
sophisticating effect upon the discipline as a whole. It encouraged detailed
re s e a rc h , and avoided conceptual leaps beyond the available evidence in
offering causes or conclusions. It also extended the reach of historians
beyond elites to groups and to areas of life never before given any atten-
tion. Finally, the new social history enticed historians of all persuasions to
declare their interpretive orientations and to identify according to their
methodological approach, burying at last the pretence that historians
merely recovered and described the past.
106
By the 1980s a younger generation of social historians became impa-
tient with the limitations of statistical method and the analysis of socioe-
conomic factors, and turned their attention towards culture and group
consciousness. This shift in focus required further methodological adap-
tation, away from an affinity with sociology and economics toward
anthropology and literature.
107
One of the influences effecting this turn
was Michel Foucault. Though neither Marxist nor Annaliste, and not
even calling himself a social historian,
108
Foucault nevertheless marked
the conceptual orientation of recent social history writing through the
challenges he launched at the assumptions and implications of what was
becoming ‘‘mainstream’’ social history.
38 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Foucault denied the possibility of writing ‘‘total history.’’ The social
and economic structures supposedly underlying historical reality were to
Foucault not fixed entities amenable to historical analysis as convention-
ally understood, but ‘‘discursive formations,’’ themselves historically
contingent and constantly changing. At the centre of Foucault’s explana-
tion was this notion of discourse, of discursive networks and the power
of words and of those who control them. For example, his first major
book confronted the changing and contingent history of ‘‘madness’’
109
in
which, as he later explained, ‘‘the question was to know how and why
madness, at a given moment, had been problematized through a certain
institutional practice and a certain apparatus of knowledge.’’
110
Madness
is undoubtedly a state of mind, but of whose mind: the person desig-
nated ‘‘mad’’ or the party doing the designating? Foucault set out to
understand ‘‘the problem that madness posed to others.’’
111
By focusing
historical attention on ‘‘discourse,’’ Foucault revealed the fundamental
role of words in societal relationships. The generators of discourse, the
producers of designation, are in control of truth itself, for truth and fact
do not exist independently but are products created within a discourse
that is inherently neither true nor false.
112
He told an interviewer that
A few years ago, historians were very proud to have discovered that they could
write not only the history of battles, of kings and institutions, but also of the
economy. Now they’re all dumbfounded because the shrewdest among them
learned that it was also possible to write the history of feelings, of behaviors and
of bodies. Soon they’ll understand that the history of the West cannot be disasso-
ciated from the way in which ‘‘truth’’ is produced and inscribes its effects.
113
Foucault also challenged historians’ quest for ‘‘origins,’’ a concept that
implies a ‘‘cause.’’ Instead he looked for ‘‘beginnings’’ in moments of
change and differentiation, which may happen accidentally or coinciden-
tally, and he traced the subsequent ‘‘genealogies’’ which derived from
them.
114
What his exploration was intended to reveal was an analyzable
series of discursive forms and the relationships among them. In the pro-
cess he undermined the principle that society itself is the reality to be
studied, and he threatened the confidence of the quantifiers and objecti-
fiers who presumed to find meaning and direction merely by recounting
sets of numbers.
Perhaps more directly influential than Foucault in ‘‘turning’’ history
toward the preoccupations and methods of anthropology and literature
was the American anthropologist Clifford Geertz. Geertz, like Foucault,
Orientation 39
reacted against ‘‘trying to explain social phenomena by weaving them
into grand textures of cause and effect,’’ a process he derided as ‘‘laws-
and-causes social physics.’’
115
And like Foucault he emphasized that
social analysis was necessarily partial and incomplete:
116
there could be
no realistic aspiration for totality, for no one method or even any one dis-
cipline could supply the answers needed for a general explanation.
117
Instead, Geertz advocated and demonstrated an ‘‘interpretive turn’’
toward the discovery of meaning within specific institutional and cul-
tural formulations.
118
To accomplish this, he maintained, scholars must
examine ‘‘the ways in which the world is talked about – depicted,
charted, represented – rather than the way it intrinsically is.’’
119
Human
behaviour is ‘‘saying something,’’ to which the analyst must listen and
then construct a ‘‘reading’’ just as if it were a literary text.
120
To accom-
plish this the scholar must be ‘‘actor-oriented,’’
121
seek ‘‘the meaning par-
ticular social actions have for the actors whose actions they are,’’
122
and
try to enter ‘‘the conceptual world in which our subjects live so that we
can, in some extended sense of the term, converse with them.’’
123
Geertz’s great influence upon recent scholarship in a range of different
disciplines comes not just from his theoretical orientation but from his
methodological precision. This can most readily be characterized by the
terms he has used as titles for two of his most seminal works, ‘‘local
knowledge’’ and ‘‘thick description,’’ both of which suggest a method as
well as a theory. Things can be understood (can only be understood) in
‘‘local frames of awareness,’’
124
so the route to understanding is through
the analysis of local examples, ‘‘a series of concrete analyses.’’
125
This
demands ‘‘microscopic’’ attention to intimate detail, not to find ‘‘the
world in a teacup,’’
126
for there is no microcosm representing typical
human experience, but to discover the ‘‘orienting notions’’
127
which can
provide a key to that particular culture. Geertz endorsed particularism,
for it is in the ‘‘thick description’’ of observable phenomena that meaning
is discovered.
128
This model, of interpreting meaning rather than assign-
ing causes, was readily adaptable by historians seeking to restore expla-
nation to a social history that was losing its purposive sense.
The old, pre-social history paradigm of ‘‘reality and representation’’
129
was left further behind; cause-and-effect determinism fell more deeply
under suspicion.
130
Direct historical enquiry into culture and cultural
phenomena proliferated, shifting the emphasis away from the structural
analyses that had characterized both the Annales and the Marxist models.
After a brief absence politics were restored to the historian’s legitimate
concern, but in a new and more sophisticated fashion following Fou-
40 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
cault’s insights into power relations. It was not elections and legislatures
that attracted attention but patterns of influence and authority which
permeate culture in all its manifestations.
131
The result, not surprisingly, was a different kind of social history,
called the ‘‘newer social history’’ by Natalie Zemon Davis as distin-
guished from the ‘‘classic social history’’ of the 1960s and 1970s. Method-
ologically one of its characteristics was a return to events, to ‘‘telling
events’’ which speak beyond themselves to exemplify social processes
and cultural understandings.
132
The preferred unit of study was typically
a local one, a ‘‘singled-out case,’’ which could be teased for meaning to
offer a key to an entire period or phenomenon. It was a ‘‘subject-centred’’
approach, concentrating on ‘‘micro-units’’ and ‘‘lived experience.’’ It was
also ‘‘actor-centred,’’ seeking to assign meaning to the expressions of the
past as understood by contemporaries and acknowledging that people
play an active role in making their own history and defining their own
culture. This could be an individual actor or a community, a ‘‘being-in-
common’’ and its network of relationships. And the ‘‘newer ’’ version of
social history revived narrative presentation, the ‘‘thick’’ narrative in
Geertzian terms which combined description and analysis of cultural
meaning.
133
In the newer social history there is contained an acknowledgment that
history is plural, that there can be no definitive interpretation, that histor-
ical vision is fragmented and that some of the stories, as told, are mutu-
ally contradictory. Stories that have been deliberately excluded and
groups that have been ignored are now receiving attention and challeng-
ing the predominance of the reigning versions, and of the groups who
produced those versions. This has generated a critical attention to what
it is historians are doing, a self-conscious consideration of the effects of
historical writing, resulting in the theoretical debates which have reso-
nated through history departments and journals in the past few years.
134
The respectful acknowledgment of plurality has also demanded and
legitimized a plurality of strategies. Many types of research materials,
analytical approaches and methods of inquiry can co-exist peacefully
now that the notions of ‘‘master story’’ and ‘‘grand explanation’’ have
been abandoned.
Developments in Legal History
Comparable trends occurred in the study of legal history, though they
have not been entirely parallel. Laws change over time, and one’s
Orientation 41
approach to legal history depends on one’s understanding of the nature
of law. Where legal historians look for change, how they measure it and
explain it and even how they define it, connects directly to their underly-
ing theory of law.
As legal studies became professionalized in British and American uni-
versities, there was a movement to provide student lawyers with histori-
cal training particularly suited to their needs as future practitioners.
Legal history was designed for lawyers. Lawyers’ history not unnatu-
rally took a common law approach: begin with a current problem, and
then look for precedents to support the present case. This promoted a
focus on case law, and encouraged an impression that legal history was
continuous and cumulative, following an internal dynamic of its own.
The notion that history was evolutionary, that the purpose of the past
was to provide the present moment, fitted in with the 19th century
‘‘Whig’’ interpretation of history; that is, what now exists is good, natural
and normal, and the historian’s task is to discover the stages that led up
to it.
135
For reasons of its own, ‘‘lawyers’ history’’ retained a Whig-like
orientation for an extra century. Partly those reasons were methodologi-
cal. An exclusive reliance upon case law sources lent an organic design to
the development of the law; viewed in isolation, the law seemed to grow
naturally. Other reasons were more theoretical. The separate existence of
an autonomous law was an accepted concept: if law exists as an entity,
then obviously it can and must be studied on its own terms. In fact it
would be fair to say that the autonomous, organic quality of the law was
deemed to be responsible for the authority of the law. Legal decisions
were legitimate precisely because judges were consulting an objective
table of legal answers honed by history. In Darwinian orthodoxy, the
laws that survived must be the fittest. Legal historical method meshed
completely with this theory, one reinforcing the other.
136
The product was
something Robert Gordon has termed ‘‘internal legal history’’:
The internal legal historian stays as much as possible within the box of distinc-
tive-appearing legal things; his sources are legal, and so are the basic matters he
wants to describe or explain.... Legal scholars not only took the boxful of legal
things as their exclusive subject-matter, but whenever possible adduced as fac-
tors explaining the development of legal things only other legal things. The rule
seemed to be: stay inside the box. . . .
137
This kind of history was ultimately no more satisfying than social his-
tory when it was defined as ‘‘history with the politics left out’’; signifi-
42 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
cant questions could not always be answered without reference to social
context and the social effects of the law. As Graham Parker has sug-
gested, ‘‘To teach the lessons of history from this viewpoint is like trying
to plant cut flowers.’’
138
The scholar chiefly associated with the escape
from the box into ‘‘external’’ history is the American J. Willard Hurst. In
several major books published in the 1950s and early 1960s,
139
Hurst pio-
neered a more inclusive methodology in legal history – examining the
context in painstaking detail – and he developed a new theoretical per-
spective from which to interpret the relationship between law and soci-
ety. Hurst proposed that law, and indeed the legal order, is an expression
of prevailing social values, and in incorporating those values law func-
tions to direct social change. In other words, change originates outside
the law; law is contingent upon social context. For legal historiography
Hurst offered a convincing demonstration of the value of including con-
textual evidence in explaining changes in the law. The notion that law
operated in isolation was undermined.
A historical understanding that law is contingent upon social context,
or ‘‘historicism,’’ meant a transformation in the approach to law itself. In
the wake of the historicist challenge, two main intellectual orientations
emerged. One of these was to assimilate the new methodology into
orthodox common law theory: as society outgrows certain legal expres-
sions designed for earlier times, the law adapts to meet the needs of the
new circumstances. Legal anomalies do not long persist; law and society
march forward in mutual support of each other.
140
This perspective
would tend to promote satisfaction with the nature and pace of legal
change. An alternative theoretical response, often known as ‘‘instrumen-
talism,’’ promoted profound dissatisfaction with existing law. Instrumen-
talists argued that the law ‘‘adapts’’ to social conditions according to
deliberate efforts of special interests. The directive function of the law is
not part of a benign evolutionary process but an ‘‘instrument’’ in the
hands of the ruling elite.
141
One of instrumentalism’s leading practition-
ers, Morton Horwitz, has described his kind of legal history as ‘‘essen-
tially destabilizing and subversive,’’
142
whereas he characterized
traditional ‘‘lawyers’ history’’ as an attempt ‘‘to pervert the real function
of history by reducing it to the pathetic role of justifying the world as it
is.’’
143
Though very different in their explanations, and in their implica-
tions, these developments in historicism shared a vision of ‘‘what hap-
pened,’’ and both schools could therefore be regarded as members of the
‘‘Hurstian’’ family. Recent developments in legal theory also recognize
Orientation 43
Hurst as a parent, but new lines of descent from completely new disci-
plinary sources are also discernible.
One of those influential lines passed through Clifford Geertz, whose
contribution to social history has already been described. Geertz taught
that human experience is understood, expressed and explained through
‘‘local knowledge.’’ That is, humans perceive their reality translated by
the structures and commonplaces of their immediate culture. According
to Geertz, law participates in this kind of cultural and institutional pro-
cess.
144
He pointed out that by ‘‘law’’ is meant both a set of normative
ideas and a structure of decision procedures, for pervading sensibilities
and broad principles must work themselves through an actual case in a
real court. Law is a cultural system, a frame of mind and a framework.
‘‘Legal facts,’’ he went on, ‘‘are made, not born, are socially constructed’’;
facts are not ‘‘discovered’’ somewhere out there in nature but are ‘‘pro-
duced’’ in a legal system.
145
To make it workable in a courtroom, an
event or dispute has to be rendered into fact, and this happens via a set
of rules and procedures which are culturally relevant. From this theoreti-
cal position it is not possible to describe law as contingent upon specific
events or social developments. Geertz explicitly rejected ‘‘a social-echo
view of legal process’’;
146
law does not ‘‘reflect’’ society or adapt to a
‘‘normative consensus.’’
147
Nor is this perspective compatible with
instrumentalism, for law is not about social control or promoting the
interests of dominant classes.
148
Geertz proposed a grander vision, ‘‘an
approach to adjudication that assimilates it not to a sort of social
mechanics, a physics of judgment, but to a sort of cultural hermeneutics,
a semantics of action.’’
149
A key to understanding Geertz’s explanation is the concept of ‘‘legal
sensibility.’’ Every culture has one, not adjacent to or supportive of or
emanating from the society, but as an essential, integral and active part of
the society. Law and society cannot be separated. Law is local knowl-
edge.
150
Geertz concluded that legal sensibilities ‘‘do not just regulate
behavior, they construe it.’’
151
Legal systems are wound in culture. Law is
not simply contextualized wisdom: law and context are part of the same
cultural process.
The insights Geertz brought from interpretive anthropology were not
in the direct Hurstian line of descent, but they were not entirely isolated
from other streams of thought. Michel Foucault also argued that the his-
tory of law and the history of society are not separate developments
which occasionally overlap and influence one another, nor even two
streams deriving from ‘‘some common matrix,’’ but rather, he suggested,
44 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
‘‘both derive from a single process of ‘epistemologico-juridical’ forma-
tion.’’
152
Or as E. P. Thompson concluded more colourfully after examin-
ing the role of law in 18th-century England:
I found that law did not keep politely to a ‘level’, but was at every bloody level; it
was imbricated within the mode of production and productive relations them-
selves (as property-rights, definitions of agrarian practice) and it was simultane-
ously present in the philosophy of Locke; it intruded brusquely within alien
categories, reappearing bewigged and gowned in the guise of ideology; it danced
a cotillion with religion, moralizing over the theater of Tyburn; it was an arm of
politics and politics was one of its arms; it was an academic discipline, subjected
to the rigor of its own autonomous logic; it contributed to the definition of the
self-identity both of rulers and of ruled; above all, it afforded an arena for class
struggle, within which alternative notions of law were fought out.
153
These influences have intersected with a new intellectual movement
known as ‘‘critical legal studies.’’ Fundamental to the theoretical
approach of this movement is a perspective upon legal history that oblit-
erates the ‘‘box’’ altogether; the ‘‘new legal history,’’ or ‘‘critical legal his-
tory,’’ is neither ‘‘internal’’ nor ‘‘external’’ but ‘‘integrated,’’ in a
recognition that a new form of posing questions about legal develop-
ment is required.
154
There are many implications from this philosophical
orientation, and indeed many different paths are being followed under
the general heading of ‘‘critical legal history,’’
155
but there is a Geertz-like
quality linking them to a focus on law as culture.
The new scholarship is at base a new theory of the law and its role in
society, but like every shift in theoretical perspective it is having an
impact on historical interpretation.
156
The organic, autonomous, evolu-
tionary image of law is under attack, and therefore the notion of ‘‘contin-
gency’’ has had to change. Laws are not contingent as meaning reflective
of discrete events or influences, but rather ‘‘constitutive’’: law is ‘‘omni-
present in the very marrow of society’’; a law is not only a product of
prevailing consciousness but helps to reproduce it by confirming it.
157
Law as captive instrument is also transcended in the sense that it ‘‘helps
to create the conceptual universe shared by all parties to the struggle’’;
158
it is the dominant ideology, and not the dominant party, to which the
legal instruments conform. And when law is genuinely situated in a
social context ‘‘it varies with variations in that context’’ and straddles
multiple trajectories.
159
There is nothing automatic or predictable about
developments in the law, for it participates in the same turmoil as every
Orientation 45
other aspect of human history. Enigmas posed by critical legal scholars
are transforming the study of legal history as much as the study of law.
One very recent trajectory to emerge from Critical Legal Studies itself
is a movement known as Critical Race Theory. Primarily a method for
effecting reforms in American civil rights and equal opportunity law,
Critical Race Theory is also challenging traditional historical explana-
tions for such landmarks as Brown v. Board of Education, the school deseg-
regation decision in 1954, and the Civil Rights Act of 1964. The movement
insists that racism is inherent in American society and that the white
majority tolerates reform only when its own interests converge with
those of African Americans. Contextual analysis is therefore a fundamen-
tal requisite for Critical Race Theorists, and a host of new interpretations
is now emerging on the history of ‘‘race’’ in America. Interestingly, the
model of presentation most often adopted for these interpretations is
intensely narrative and subject oriented.
160
‘‘Race’’ and ‘‘Race Relations’’
When prevailing opinion accepted the existence of discrete, naturally
existing biological units who competed at the group level, scholarly
attention concentrated upon the physical aspects of ‘‘race’’: the object of
inquiry was to determine racial characteristics that motivated a distinc-
tive kind of ‘‘relations,’’ and that could help to illuminate the nature of
their interaction.
161
As the idea of ‘‘race’’ as a biological category lost sci-
entific credibility, replaced by ‘‘race’’ as a socio-political construct, the
concern was to discover how the relationship determined ‘‘race,’’ rather
than vice versa, and emphasis therefore shifted toward social analysis of
dominant and subordinate groups divided by colour.
162
Psychological
explanations, at first focusing upon pathological individuals, moved
towards an analysis of the acquisition of stereotypes and how they con-
nect with discriminatory social conditions,
163
defining a circular dynamic
not unlike the one described by Gunnar Myrdal: prejudice leads to dis-
crimination and subsequent disadvantage, which in turn justifies the
prejudice.
It is apparent that virtually all scholarly lines were converging upon
‘‘society.’’ The directing notion was that, on the basis of perceived
attributes, real groups had been established with substantive boundaries
between them and consequently with genuinely different interests and a
particular set of problems. The study of ‘‘race relations,’’ Michael Banton
suggested, should be about ‘‘the creation, maintenance and change of
46 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
such boundaries’’; the field was ‘‘defined by its problems.’’
164
Since the
object was to study ‘‘process’’ – of inequality, injustice, domination and
oppression, and the erection of structural systems to facilitate and per-
petuate them – the analytical orientation of ‘‘race relations’’ scholars
tended overwhelmingly to be historical.
165
One of the earliest and most influential of the new approaches was the
theory of pluralism as established by M. G. Smith and elaborated by Leo
Kuper and others. A ‘‘plural society,’’ as the name suggests, is ethnically
heterogeneous, but specifically it is one organized according to the prin-
ciple of ‘‘differential incorporation.’’ Typically in a colonial situation,
people are incorporated into the social and economic structure according
to their ethnicity and colour, and political and juridical provisions are
designed to maintain those positions. Thus there are distinct status
groups, or ‘‘estates,’’ characterized phenotypically, culturally and politi-
cally. The process of differential incorporation during colonization as-
signs group membership before class roles have developed. Competition
and conflict occur not between classes but between racial ‘‘estates,’’
shaped by their position in the plural hierarchy. ‘‘Race’’ becomes respon-
sible for economic role rather than vice versa, and a ‘‘plural society’’
exists in which phenotypically distinguishable groups have different
positions in the economic and political order.
166
A similar result is explained somewhat differently by the ‘‘internal
colonialism’’ approach. Robert Blauner sought to understand why some
American ethnic groups assimilated after the immigrant generation and
others did not. Like Smith, he discerned ‘‘differential incorporation’’ in
the way such groups as native Indians, African slaves and Chinese
migrants were assigned their domestic status, and he noted that it paral-
lelled the way conquered populations were treated in the European over-
seas empires. The colonial structures thus established were not
surmountable on an individual basis, and so the internal colony was per-
petuated over the generations.
167
Michael Hechter called this ‘‘a cultural
division of labour,’’
168
a concept he found more compatible with Marx-
ism than ‘‘pluralism’’ because in this model the cultural distinctions were
seen as being superimposed upon pre-established class lines, through
segregation and differential treatment. If assimilation was assumed to be
the norm, as in the case of European immigrants, it was possible to con-
clude that separate cultural development for unassimilated groups was
consequent upon class division rather than vice versa.
Another Marxist-compatible approach to have attracted much atten-
tion is the ‘‘split labour market’’ theory originated by Edna Bonacich.
Orientation 47
She was struck by the observation that ‘‘racism so often has taken the
form of keeping a group in a subordinate position for purposes of
exploitation,’’
169
but unlike the orthodox Marxists she recognized that
white labourers were often the most racist element in society. She
hypothesized that in a situation where an ethnic minority was vulnerable
to accepting a lower wage than majority workers, a three-way conflict
was produced among business and the two labour groups in which
employers sought to replace the more expensive with the cheaper work-
ers, and the majority workers, to prevent undercutting, would either
seek to exclude the cheaper competition altogether or to isolate it in cer-
tain ‘‘caste’’ positions. This might mean lower pay for performing the
same work or, more likely, relegation to the lowest paid and least skilled
employment categories. For Bonacich the capitalists provoked the result-
ing ethnic antagonism through an initial differential in the price of
labour, but based on an ideology of laissez faire rather than an ideology
of ‘‘race.’’ It was the white workers, through their voting power, who
enlisted the state apparatus in the struggle to preserve their advan-
tages.
170
Adherents to split labour market theory are satisfied that it
explains not only ethnic antagonism but the increase of racism in indus-
trial societies, despite capitalism’s interest in hiring the cheapest workers
whatever their colour.
Most of these theories identified certain common elements in the
history of ‘‘race relations,’’ such as the centrality of colonialism, differen-
tial assignment to labour, the significance of political and legal systems in
structuring inequality so that it became self-perpetuating, the cumulative
nature of barrier construction. Consideration of these components
brings an awareness of the universality of the ‘‘race’’ experience in the
modern world. Even if no single theory adequately explains the Cana-
dian experience, together they offer useful analytical questions and a
reminder that events in any one time or place must be understood
against a much broader pattern.
Applications
There are strategic and tactical lessons that might be drawn from recent
historiographical developments in order to formulate some operational
principles to guide this examination of the Supreme Court of Canada. At
the most broadly strategic level, Canadian racial practice can be ap-
proached as something coming from a long-term momentum, a very
‘‘longue durée’’ shaken into life by European overseas expansion and the
48 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
transatlantic slave trade. Global ‘‘pluralism’’ dictated differential access
to power and resources on the basis of ‘‘race’’; specific roles were
assigned according to imperial patterns of incorporation. What occurred
in Canada can therefore be understood not as an ‘‘origin,’’ requiring site-
specific causal explanation, but as a ‘‘beginning’’ in this country of a local
career, a ‘‘genealogy,’’ of a supra-national phenomenon. The approach,
then, would be towards an analysis of how the global paradigm was
articulated in Canadian terms, of how a universal idea became ‘‘local
knowledge.’’ Rather than treating the Canadian events as aberrations,
they can be understood as participants in a widespread cultural system.
Attention is drawn to a process whereby a certain ideology or power
relationship became ‘‘normative’’; it described a ‘‘reality’’ which was
accepted as ‘‘truth,’’ as ‘‘common sense,’’ and therefore not even requir-
ing analysis or proof. The strategic message would be to include contem-
porary discourse as a subject for analysis, to discern what was common
sense and how experience was interpreted. Ideas about ‘‘law’’ and
‘‘race’’ were embedded in the same cultural framework. The challenge is
to seek connections, exchanges and developments over time, the
dynamic context to ‘‘events’’ which cannot be understood in isolation.
There are some tactical suggestions accompanying these strategic con-
siderations. If the past is a conversation, then it is necessary to find a way
of listening in. Natalie Davis has suggested that there are ‘‘telling’’
events, incidents that ‘‘speak’’ beyond themselves, making it possible to
hear the ‘‘voice’’ of the past.
171
This gives tactical value to the ‘‘singled-
out case’’ which is ‘‘key to’’ a particular historical condition. As Davis
and Geertz among others have demonstrated, the actor-oriented micro-
study grants access into the deeper workings of society, providing data
that can be interpreted for meaning about the context, the dynamic
within which the individual case was manifest.
172
The structures, for
long the target of historical inquiry, become understandable at the
human level, where they impact upon an individual life. Legal records
can be instrumental in providing the ‘‘telling’’ case and in producing the
data that preserve the ‘‘voice’’ to which historians can listen. From a his-
torical perspective ‘‘race relations’’ in Canada have not produced an
abundance of personalized records or statistics for convenient analysis,
so that some Canadians deny that there is any history of ‘‘race’’ or racism
in this country. To employ the device of the ‘‘singled-out case’’ on the
analysis of court cases, to listen to the voices made audible through the
Supreme Court of Canada, therefore emerges not only as legitimate but
especially appropriate in the circumstances.
Orientation 49
There is a corollary. To listen to the voices of the past, and to under-
stand what they are saying, it is imperative to approach with an attitude
of respect, acknowledging their sincerity. Sometimes, it’s true, modern
observers do know certain things about the past that were obscured to
contemporaries, but they also carry concepts, values and ‘‘common
sense’’ of their own which come between them and the experience of the
people they study historically. Differences can seem like moral deficien-
cies, past lives less complicated than the present. ‘‘Presentism’’ is the
term used for a perspective that judges the past in terms of the present,
as if other ages should have had a supra-historical sensitivity that is
absent today. Beliefs have changed, and so have myriad behaviours con-
nected to them. It is not productive to isolate statements about ‘‘race’’
and listen to them alone. On the other hand a condescending attitude
toward the past may impose an amoral relativism upon the decisions of
former generations. To say that whatever they did must have been right
implies that they had no choices, that they were incapable of discerning
differences or the impact of their own actions. A respectful attitude
includes a recognition that there were multiple trajectories, that group
interests and personal positions affected choices then as now.
This is not only a tactic to take into historical study but a benefit to be
taken from it. In the course of examining the following cases, readers will
become increasingly aware of how ‘‘race’’ was instituted in Canadian
society and, especially, of how it has changed over time. The ideas, the
practices, the implications of ‘‘race’’ were not a consistent package
handed down intact from generation to generation. The four cases dem-
onstrate that racism – the ideology of ‘‘race’’ – was intimately attached to
and dependent upon the society that produced it. It was indeed a child
of its times. This would suggest that any racism existing today is a mani-
festation of our own society. The study of ‘‘race’’ in Canada’s past is not
an exercise in assigning blame, but in understanding historical processes
from which we are not exempt.
50 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
2
Quong Wing v. The King
1. THELEGISLATION
On 5 March 1912 the Saskatchewan legislature passed An Act to Prevent
the Employment of Female Labour in Certain Capacities.
1
Threatening a fine
of up to $100 or two months in jail, the Act specified that
No person shall employ in any capacity any white woman or girl or permit any
white woman or girl to reside or lodge in or to work in or, save as a bona fide cus-
tomer in a public apartment thereof only, to frequent any restaurant, laundry or
other place of business or amusement owned, kept or managed by any Japanese,
Chinaman or other Oriental person.
Attorney General W. F. A. Turgeon explained that the Act would not go
into force until 1 May to give affected businessmen the opportunity to
dispose of any white female help.
2
Immediately Chinese and Japanese residents in Saskatchewan regis-
tered their protests. A Japanese restaurant owner in Moose Jaw com-
plained the day the law was passed that it constituted an ‘‘insult to the
honour of Japan’’ and argued that at the very least it should be amended
to exclude Japanese: their numbers in Saskatchewan were too few to
pose a threat, and they were generally not found in the restaurant or
laundry businesses.
3
Japanese Consul Y. A. Hori travelled from Vancou-
The notes to this chapter are on pages 359-77.
ver to Regina to deliver a personal protest to the attorney general, claim-
ing that the new legislation contravened treaty provisions between the
empires of Great Britain and Japan, affirmed by the Canadian govern-
ment in 1907, guaranteeing reciprocal rights and freedoms.
4
The federal
government was inclined to support this interpretation of the treaty, and
there were in fact only 57 Japanese in the province at that time. The
Saskatchewan legislature therefore agreed to amend the Act by striking
out the terms ‘‘Japanese’’ and ‘‘or other Oriental person.’’ The retraction
came too late to avert the prosecution under the original wording, in
August 1912, of a recent Japanese immigrant named Yoshi who
employed three white waitresses in the Saskatoon restaurant he ran with
his wife. When the revised Act came into effect in January 1913, however,
it ensured there would be no further repercussions for Mr. Yoshi by
adding a clause to the effect that ‘‘The said Act shall be construed as
though the said words struck out by subsection (1) hereof had never
been contained therein.’’
5
This meant that the provision against white female employment now
applied only to Chinese. In early 1912 China was still in the midst of a
political revolution at home, and although the Chinese community held
a mass meeting of protest in Moose Jaw on the eve of the law’s imple-
mentation, and a letter from Sun Yat Sen to a local Chinese leader
promised Chinese government action if the law were enforced, Consul
Yang Shu-Wen was unable to register his official objections as effectively
as his Japanese counterpart. Consul Yang did not make a personal visit
to Saskatchewan, and by the time he asked the federal government to
disallow the Act he was advised that the one-year disallowance period
had already passed. There was in any case no comparable treaty status
for Chinese in Canada, and no strategic reason to assuage the honour of
the Chinese Empire. The Chinese interdiction therefore remained in
place.
6
But the Chinese diplomat continued to complain, and Chinese
residents of Saskatchewan sent delegations to Regina declaring that the
female labour law was a disgrace to the Chinese nationality. Finally in
1919 Saskatchewan Premier W. M. Martin conceded. A new Act to Pre-
vent the Employment of Female Labour in Certain Capacities was passed stat-
ing only that
No person shall employ any white woman or girl in any capacity requiring her to
reside or lodge in or to work in any restaurant or laundry without a special
licence from the municipality in which such restaurant or laundry is situated,
which licence the council of every municipality is hereby authorised to grant.
52 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The racial reference was omitted, and a grateful Yang Shu-Wen registered
his cordial thanks to the people of Saskatchewan.
7
An episode had apparently ended satisfactorily. Diplomatic niceties
had been restored. But while the Act had contained its explicit Chinese
prohibition, a Moose Jaw restaurant owner named Quong Wing had
been charged and fined $5 by a local magistrate. His appeal, which went
eventually to the Supreme Court of Canada in 1914, gave Canada’s high-
est tribunal its first opportunity to examine legislation with an overtly
racial intent. The decision upheld a province’s right to pass racially dis-
criminatory legislation as long as it did not exceed provincial jurisdiction
under the British North America Act, and came to be regarded as a base-
point from which to measure the evolution of egalitarian principles in
Canadian law.
8
If the Saskatchewan legislature seemed so conciliatory as to amend the
law after a few diplomatic protests, thereby apparently acknowledging
an error or at least a lack of conviction, was the Supreme Court reacting
precipitously in a situation that really did not deserve such attention? A
closer analysis of that era suggests that in fact the Court was reflecting
widely held values and attitudes, and that Saskatchewan’s gesture
towards equality in 1919 was no more than cosmetic. In its Quong Wing
decision the Supreme Court of Canada acknowledged that the Chinese
presence was perceived as a ‘‘problem,’’ whose features and whose
implicit threats could be recognized even in remote Moose Jaw of 1912.
9
At the time of the 1911 census there were 957 Chinese in Saskatche-
wan, a number larger than that of any other ‘‘visible’’ group apart from
native Indians but hardly significant in a total provincial population of
492,432. What was deemed significant was not the numbers but the rate
of growth. Since 1901 Saskatchewan had experienced an overall popula-
tion growth of over 400 percent, the largest rate in Canada both propor-
tionally and in absolute numbers. Saskatchewan knew it was a new and
growing society, and was conscious that some controls had to be set over
the kind of person permitted to join it. In this context a Chinese increase
of over 2,300 percent, from 41 persons in 1901, could indeed be regarded
as cause for concern. The local Evening Times estimated that there were
‘‘more than 500’’ Chinese in Moose Jaw in 1911, a situation that was
‘‘viewed with alarm by very many people.’’ This number was probably
an exaggeration, since the official census recorded only 268 Chinese in
Moose Jaw District. Still, this represented the largest concentration in
Saskatchewan and, after Winnipeg and Calgary, the third largest across
the Canadian prairies.
10
Quong Wing v. The King 53
The Chinese community of Moose Jaw did not resemble the city’s
other ethnic groups. Since the population was almost exclusively male,
there were few Chinese families and fewer children in the local schools.
Social contact was virtually non-existent, and even economic integration
was minimal. Some of the men worked as labourers in a white-owned
abattoir, a few were domestic servants in white homes, but most were
self-employed or worked in Chinese-owned enterprises. There were in
1912 more than 25 Chinese laundries and 10 restaurants in Moose Jaw,
and several hotels or rooming houses. Chinese homes and businesses
were concentrated along River Street West, where Moose Jaw’s version of
Chinatown existed. Discouraged from mixing with the white residents,
the Chinese men largely kept their own company, forming several frater-
nal organizations where Chinese cultural practices and social relation-
ships could be maintained. Their political attention focused upon China
itself, and the raising of funds to support Sun Yat Sen’s republican move-
ment. About 100 had been converted to Christianity, but they wor-
shipped in a separate Chinese congregation, Zion Methodist, founded in
1912 by Pastor Yip Sam. The pastor also conducted evening English lan-
guage classes in the River Street home of merchant Yip Foo, considered
Moose Jaw’s ‘‘leading Chinaman.’’ A separate Chinese cemetery had
been founded in 1911.
11
As was often the case in different parts of Canada, Moose Jaw’s China-
town was located in one of the least desirable sections of the city. River
Street was separated from the main residential areas by the business dis-
trict, and this degree of remoteness combined with the proximity of the
CPR station gave the street a certain attraction for businesses anxious to
avoid public scrutiny. With the cooperation of the city’s police force,
Moose Jaw’s River Street harboured brothels and bootleggers and effec-
tively became the red-light district for Regina, less than 45 miles away
along the CPR. According to one contemporary journalist, ‘‘You came
out of the Moose Jaw station, turned left on River Street, and you could
have been in New Orleans.’’
12
The north side of River Street contained an
assortment of gambling dens, drinking joints and hotels worked by up to
100 prostitutes in the summer season. The south side of the street was
occupied by Chinatown. Police Chief W. P. Johnson, ‘‘the wealthiest po-
liceman in the West,’’ conducted regular raids along River Street,
allegedly for tribute and perhaps to reassure the respectable citizens that
the law was being upheld. An inordinately large number of the raids
were aimed at the Chinese fraternal organizations on the south side of
the street, where gambling and opium smoking, both practices brought
54 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
from China, were among the most prevalent social activities.
13
China-
town’s association with drugs and gambling and its neighbourhood with
the city’s sin centre gave the Chinese community itself an aura of
immorality, and a stereotype was sustained of the ‘‘Chinaman’’ as invet-
erate gambler, drug addict and procurer of prostitutes. As such the Chi-
nese were an apparent threat to the white men who might become their
customers, and more ruinously to white women who could be corrupted
into prostitution. In introducing the Female Labour Bill, Attorney Gen-
eral Turgeon explained that ‘‘Its purpose was ... to suppress what had
become a menacing feature of the white slave traffic,’’ and though on
third reading he admitted that some ‘‘Oriental’’ businesses were run in a
proper manner, still he insisted the Bill was necessary ‘‘to prevent a cer-
tain state of affairs which frequently results from the employment of
white women in establishments conducted by Chinamen, Japs and other
Orientals.’’
14
No figures were given on the frequency of this state of
affairs, presumably because none were available. Although several mod-
ern commentaries claim that the Female Labour Act was inspired by a sex-
ual attack by a Chinese restaurateur upon his white employee,
contemporary Saskatchewan newspapers mentioned no precipitating
incident.
15
The attorney general, like the rest of the white population at
the time, seems to have formed an opinion based on stereotype rather
than fact, i.e., that Chinese would corrupt white women if permitted the
opportunity. Consul Yang Shu-Wen lamented this implication. ‘‘I find the
Act is based on the protection of morality of white women,’’ he wrote to
the federal justice minister. ‘‘This something is still ridicurous to me,
because morality, as I think, is more or less a self-restraining nature sub-
ject to no violence and influence at all.’’
16
The consul’s views, however, were in the minority; the assump-
tions expressed in the Saskatchewan legislature were widely shared. In
February 1913 Manitoba passed an identical Act to Saskatchewan’s 1912
version (including the Japanese reference),
17
and in May 1914 Ontario
amended its Factory, Shop and Office Building Act by adding a clause to
the effect that ‘‘No Chinese person shall employ in any capacity or have
under his direction or control any female white person in any factory,
restaurant or laundry.’’
18
By this time the Chinese consulate was mobi-
lized and arrangements were made to prevent the Manitoba and Ontario
laws from being proclaimed.
19
This did not prevent some Ontario munic-
ipalities from restricting the employment of white females in Chinese
restaurants, apparently in the belief that the amendment had in fact been
proclaimed as passed.
20
Quong Wing v. The King 55
In British Columbia the Royal Commission on Labour, reporting in
1914, declared that although they had no evidence that Chinese propri-
etors in the province employed any white women, ‘‘such employment
must have a demoralizing influence’’ if it did exist and recommended
legislation to forbid it. In 1919 the BC legislature duly amended its
Municipal Act with a clause duplicating Saskatchewan’s revised version
(applying to Chinese only).
21
Provincial police officer Thomas Parsons
assured his attorney general that ‘‘Apart from its ‘race bearing’ – the em-
ployment of Caucasian by Mongolian – there is no doubt white women
introduced to Orientals through this medium succumb to both im-
morality and narcotics.’’
22
Submitting in turn to Chinese diplomatic pres-
sure, BC brought in a Women and Girls’ Protection Act in 1923 which
omitted the specific racial reference but required local police officials to
determine whether each instance of the employment of females by Chi-
nese was ‘‘advisable in the interests of the morals of such women and
girls.’’ As a unique elaboration, BC included native Indian women in its
restriction.
23
In British Columbia, as indeed in Saskatchewan under its 1919 Act, the
omission of the term ‘‘Chinese’’ was not intended to impede the enforce-
ment of the prohibition. As the Regina Daily Post announced on 17 Jan-
uary 1919, the amendment requiring a municipal licence for the
employment of white women in restaurants or laundries meant that
‘‘The power to prevent the employment of white women by Chinese will
therefore rest with the local councils.’’ Attorney General Turgeon was
quoted as saying that Chinese diplomatic objections had caused the
change in wording, but that ‘‘The government desired to maintain the
same law.’’ Whatever euphemisms or generalities might appear in the
amended legislation, it is therefore clear that Chinese were the intended
target, and the Supreme Court’s Quong Wing decision more directly rep-
resented the intention of the legislature.
2. THECHINESE PROBLEM
This observation may absolve the Supreme Court from any charge of
holding peculiar racist tendencies, but it still begs the question of how
provincial legislatures arrived at the conclusion that Chinese in Canada
needed special regulation. The ‘‘beginning’’ of anti-Chinese feeling in
Canada dates virtually from their first arrival in 1858 with the discovery
of gold on the Fraser River and the migration of thousands of fortune
hunters from California. Few of the Chinese among them were actually
miners, but the mining camps offered innumerable employment oppor-
56 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tunities as cooks, laundrymen and general labourers. By 1860 there were
over 4,000 Chinese on Vancouver Island and the British Columbia main-
land, most engaged in unskilled ancillary enterprises generated by the
gold mining industry. As individual claims gave out and white prospec-
tors moved on to richer fields, Chinese would often take over the
depleted mine, content with a more modest return for their efforts.
Already the notion that Chinese would work for less was becoming
familiar on the West Coast.
24
By the mid-1860s the gold rush had subsided, and many Chinese left
the country. Those who stayed sought employment in the newly devel-
oping coal mines, in fishing and salmon canneries, as farm labourers and
domestic servants. Numbers remained small until CPR contractor
Andrew Onderdonk, following the example of the Northern and South-
ern Pacific Railways, began importing Chinese labourers to build his line
through the Rocky Mountains. Beginning with a few hundred experi-
enced construction workers from the United States, Onderdonk moved
on to chartering shiploads of unskilled labourers from China. Between
1881 and 1885 Onderdonk brought over 15,000 Chinese to British
Columbia, many of them contracted to gang bosses who permitted them
the merest subsistence living. In a BC white population of only 35,000 the
Chinese proportion was noticeable, as were their living and working
conditions. Once again the completion of the railway meant the depar-
ture of numbers of the Chinese workers, but thousands remained (the
1891 census showed over 9,000). Most were labourers, though increasing
numbers founded businesses as grocers, shopkeepers, market gardeners,
and especially laundrymen and restaurateurs. Many migrated back
along the railway line they had constructed, settling in railway towns
across the prairies and further east. The first Chinese laundry was estab-
lished in Moose Jaw in 1889, typical of what was happening all along the
frontier as a white male society looked to others for cooking, washing
and the performance of similar household chores. The Chinese stepped
into the opportunities thus created. In 1891, 98 percent of Canada’s Chi-
nese were located in British Columbia. By 1911 this had decreased to 70
percent, with the remainder moving increasingly into the small towns of
the prairies. Not all were CPR veterans. Between 1891 and 1910 over
50,000 Chinese entered Canada, though more than half of them returned
to China or crossed to the United States so that the 1911 census recorded
a total of only 27,774. The migrants from China, with very few excep-
tions, originated in a small region of Kwangtung Province southeast of
Canton. They were members of poor peasant families, sent abroad to join
Quong Wing v. The King 57
uncles and cousins already here, expected to submit the fruits of their
labour back to the family at home and, eventually, to retire in peace in
their Kwangtung villages.
25
For the Chinese themselves, then, Canada represented a source of
income to which they could migrate temporarily. Few would have con-
sidered striking permanent roots in this alien and often hostile land.
26
Wherever the Chinese migrated in the late 19th century the pattern was
similar: Chinese were attracted by an economic opportunity, engaged in
hard labour for low pay, and moved home or on to another opportunity. To
ensure their onward movement, California, New Zealand, and the Aus-
tralian and South African colonies passed a range of laws making it diffi-
cult for Chinese to settle. Their strange living habits, their association with
a ‘‘backward’’ homeland, and their readiness to accept minimal wages all
provoked a negative reaction from the fledgling communities of the Anglo-
Saxon diaspora. The experience elsewhere was becoming known in
Canada even as the first Chinese were arriving. The Victoria Gazette in
March 1859 warned that the Chinese in Australia and California had done
more harm than good: ‘‘They are, with few exceptions, not desirable as per-
manent settlers in a country peopled by the Caucasian race and governed
by civilized enactments. No greater obstacle to the coming of the class of
immigrants needed in British Columbia could be devised, than the pres-
ence of Chinamen in large numbers.’’
27
T w e n t y years later a select commit-
tee of the BC legislature confirmed this fear by reporting that the 6,000
Chinese in the province were virtually held in slave labour, the women
were all prostitutes and there existed ‘‘an inconquerable and not unreason-
able prejudice’’ against them on the part of the ‘‘free members’’ of the com-
munity. In the federal House of Commons restrictive laws of the Australian
type were urg e d upon Canada. The prime minister himself was moved to
make a statement in Parliament in 1882:
I share very much the feeling of the people of the United States and the Aus-
tralian colonies against a Mongolian or Chinese population in our country as per-
manent settlers. I believe that it is an alien race in every sense, that would not
and could not be expected to assimilate with our Aryan population, and there-
fore, if the temporary necessity had been overcome and the railway constructed
across the continent with the means of sending the European settlers and labour-
ers into British Columbia, then it would be quite right to join to a reasonable
extent in preventing the permanent settlement in this country of Mongolian, Chi-
nese or Japanese immigrants.... At present it is simply a question of alterna-
tives: either you must have this labour or you cannot have the railway.
28
58 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Macdonald’s brief pronouncement encapsulated opinion towards the
Chinese at that time, and implicitly identified the fundamental Chinese
characteristic: their definition as cheap labour. This definition developed
from various and complex influences. As Europe industrialized and
modernized and extended its imperial will over much of the world,
China came increasingly to represent everything Europe was not, and
wanted not to be: changeless, corrupt, effete, despotic. For Europe, China
was constructed as a negative, against which Europe’s own identity was
rendered positive.
29
This cultural legacy supplied a prism through which
Canadians and other Westerners would view China and the Chinese
people. Circumstances in beleaguered China disposed young men to
seek opportunities abroad, and though overseas opportunities might be
meagre for those lacking industrial skills they still appeared greater than
anything available at home.
30
China’s place in the evolving global eco-
nomic system in the late 19th century disposed receiving societies to
assign the migrants to the least attractive physical labour. The Chinese
workers, accustomed to subsistence conditions and unencumbered by
wives or children, acquiesced in a level of comfort that white Canadian
families would not contemplate. Limited material expectations meant,
consequently, that the Chinese could accept low rates of pay and still
have a small surplus to send home. These factors combined to direct
Chinese workers toward employment categories with the lowest pay and
the least power to bargain for improvements. The specific structuring of
Chinese employment in Canada further accentuated these limitations.
Most Canadian employers acquired Chinese workers through a Chinese
contractor, who provided labourers at a prearranged rate and often man-
aged them on the job. Such a system worked most efficiently with highly
disciplined gangs employed at low-skilled tasks; it did not facilitate
workplace integration, the acquisition of skills or consideration of indi-
vidual personalities.
31
International stereotypes were thus replicated locally, and the image of
China was translated to local experience. Accompanying it was the ideol-
ogy of ‘‘race,’’ which explained Chinese habits of life and labour accord-
ing to their genetic inheritance. It was accepted as scientific that ‘‘race’’
characteristics were fixed and would determine an individual’s behav-
iour throughout life. As Prime Minister Macdonald’s statement illus-
trates, the Chinese were perceived as utterly and permanently alien, too
remote from Anglo-Saxons in culture and physique ever to assimilate or
even to live in harmony. They were simply not the stuff wanted to popu-
late a new land. ‘‘The main objection to the Chinese is that they are not of
Quong Wing v. The King 59
our race and cannot become a part of ourselves,’’ the Senate was told in
1886. ‘‘We cannot build up a homogeneous people in Canada with races
of that description, a population totally alien to ours.’’
32
Canadian labour was the group most concerned with the presence of a
perpetual underclass, for it suggested direct competition for certain jobs
and indirect pressure keeping wages generally low. In 1878 BC’s first
trade union, the Workingmen’s Protective Association, came into being
explicitly for ‘‘the mutual protection of the working class of British
Columbia against the great influx of Chinese.’’
33
As industry enjoyed its
protective tariffs, labour needed protection from cheap imported work-
ers. Canadian labour generally was becoming more self-conscious and
militant, and manifestos denouncing the employment of Asians became
common features in the struggle for better wages and working condi-
tions.
34
There were boycotts organized against companies hiring Chinese
workers, campaigns to convince consumers to buy only union-made
products, pressure on governments to outlaw Chinese labour from cer-
tain fields, mining for example, and to insert ‘‘white labour clauses’’ in
government contracts, and finally demands to exclude Chinese immi-
grants altogether.
35
In periods of scarce employment all immigrants
offered competition, but Chinese were perceived as a special case. As the
BC Trades Unionist explained, ‘‘Admitting that European immigration, as
it has developed, constitutes a problem demanding immediate attention,
it is after all a problem of quantity, whereas Asiatic immigration is dis-
tinctly a problem of quality.’’
36
Although employment segregation and the contract system meant that
direct competition for ‘‘white jobs’’ was not widespread, conflict flared
when employers used Chinese as strikebreakers, and when economic
displacement forced white workers downwards into the employment
levels occupied by Chinese.
37
Such instances seemed proof that the Chi-
nese presence was damaging the interests of white labour. In British
Columbia, where the concentration of Chinese was becoming the cause
of considerable alarm, the provincial legislature passed a series of laws in
1884 prohibiting further Chinese immigration, imposing a $10 head tax
on those already there, and preventing them from acquiring Crown
lands.
38
The Preamble to the Act to Regulate the Chinese Population neatly
summed up the attitudes in BC:
The coming of Chinese to British Columbia largely exceeds that of any other class
of immigration, and the population so introduced are fast becoming superior in
number to our own race; are not disposed to be governed by our laws; are dis-
60 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
similar in habits and occupation from our people; evade the payment of taxes
justly due to government; are governed by pestilential habits; are useless in
instances of emergency; habitually desecrate graveyards by the removal of bod-
ies therefrom; and generally the law governing the whites is found to be inappli-
cable to Chinese, and such Chinese are inclined to habits subversive of the
comfort and well-being of the community.
39
Given the perceived need for Chinese labour in the construction of the
railway, the federal government disallowed British Columbia’s immigra-
tion restrictions,
40
but it did establish a Royal Commission to examine
the Chinese phenomenon on the West Coast. Chaired by federal Secre-
tary of State J. A. Chapleau and BC Supreme Court Justice John H. Gray,
the commission first heard evidence in California, where the ‘‘Oriental
question’’ had been an issue for a longer time, and then travelled to BC
to meet members of the provincial and municipal governments, repre-
sentatives of large and small business, labour unionists and concerned
citizens. The commissioners discovered in BC a racially stratified labour
market, in which skilled work went to whites and menial work to Chi-
nese. Chinese were paid less, even in those instances where they were
doing the same job: skilled whites averaged $3.50-4.50 per day, unskilled
whites $2-2.50 and Chinese $1. In their submission to the commission the
Nanaimo Knights of Labor stated that
All history proves that a free, manly, intelligent, and contented laboring popula-
tion, is the foundation and the source of prosperity of any and every nation, and
essential to the stability of free, popular institutions.... Now , Chinese labor is
confessedly of a low, degraded, and servile type, the inevitable result of whose
employment in competition with free white labor is to lower and degrade the lat-
ter without any appreciable elevation of the former. Their standard of living is
reduced to the lowest possible point, and, being without family ties, or any of
those institutions which are essential to the existence and progress of our civiliza-
tion, they are enabled to not only live but to grow rich on wages far below the
lowest minimum at which we can possibly exist. They are thus fitted to become
all too dangerous competitors in the labor market.
41
The commissioners concluded, however, that because of the segregated
nature of the workplace lower Chinese wages did not in fact create un-
fair competition for white workers. On the contrary, Chinese labour was
judged to have been absolutely essential to the material prosperity of the
province, doing jobs for which white labour was often unavailable. As
Quong Wing v. The King 61
one employer argued, ‘‘I do not see how people would get on here at all
without Chinamen. They do, and do well, what white women can not
do, and do what white men will not do.’’
42
Organized labour’s hostility,
several witnesses pointed out, had been artificially provoked by politi-
cians seeking to win the ‘‘labouring class vote.’’
43
Even when praising the
Chinese presence, however, the commission Report acknowledged the
inferiority of Chinese as human beings. As Justice Gray explained:
It is fortunate that, in a young and sparsely settled Province, this cheap labour
can be obtained, for it enables those whose minds are capable of higher develop-
ment and whose ambition looks to more enobling industry – to follow pursuits in
which they will rise rather than toil and slave in grovelling work, which wears
out the body without elevating the mind.
44
The commission also heard evidence on the dress, hairstyles, religious
traditions and moral standards of the Chinese migrants, which most wit-
nesses accepted as external expressions of inherent character traits. The
provincial surveyor-general proposed:
We want here a white man’s community, with civilized habits and religious aspi-
rations, and not a community of ‘‘Heathen Chinee’’ who can never assimilate
with us, or do ought to elevate us, and who can be of no possible use to a state in
any capacity other than that of drawers of water and hewers of wood.
45
Commissioner Chapleau admitted that since ‘‘the Chinese [are] a non-
assimilable race, clearly marked off from white people by color and
national and race characteristics, their presence in a country is not unat-
tended with disadvantages.’’ Still he concluded that their ‘‘labor is a
most efficient aid in the development of a country, and a great means to
wealth’’ and besides, ‘‘the statements as to their bad moral effect on the
community are grossly exaggerated. In fact their morality is not lower
than that of the same classes of other nationalities.’’
46
The Royal Commission Report of 1885 clearly did not accept the dan-
gers attributed to the Chinese presence. Justice Gray even protested that
‘‘It is something strange to hear the strong, broad-shouldered race, supe-
rior physically and mentally, sprung from the highest types of the old
and new world, expressing a fear of competition with a small, inferior
and comparatively speaking, feminine race.’’
47
And yet both commis-
sioners felt compelled to recommend restrictions against further Chinese
immigration. With the railway nearing completion their labour was no
62 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
longer necessary, and the prejudices of the white population were such
that future development could actually be retarded unless the whites’
anxieties were put to rest.
48
‘‘There seems to be an instinctive feeling of
preference for whites, independent of any reasoned opinion respecting
their merits or demerits as compared with Chinamen,’’ Chapleau wrote,
and in Parliament he lamented, ‘‘The fact is that we are naturally dis-
posed, through inconscient prejudices, to turn into defects even their
virtues.’’
49
It fell to Chapleau to introduce the government’s Bill to
Restrict and Regulate Chinese Immigration to the House of Commons
following the submission of his Report. In recommending the imposition
of unique barriers against one group of people, he explained:
it is a natural and well-founded desire of British subjects, of the white population
of the Dominion, who come from either British or other European States and set-
tle in this country, that their country should be spoken of abroad as being inhab-
ited by a vigorous, energetic and white race of people.
50
The reality of racial character, of fixed and insurmountable differences,
was accepted absolutely by the Royal Commission and by the govern-
ment of Canada, even though no convincing evidence had been offered.
It was a matter of ‘‘common sense.’’ While some witnesses argued that
the Chinese could continue to be useful, none contended that they
should or could become permanent members of Canadian society. The
Chief Justice of British Columbia, Sir Matthew Begbie, articulated the
common sense of 1885: ‘‘The Chinaman is in every respect the reverse of
the European except that he is a man.’’
51
The Chinese Immigration Act of 1885 placed a special tax of $50 on every
Chinese person entering Canada, and set shipping conditions intended
to make it more expensive to transport people from China.
52
The minister
for trade and commerce, Sir Richard Cartwright, explained the apparent
anomaly of a racially based law in a democratic society: ‘‘It appears to
me, although it may be said that this practice of taxing Chinamen is
opposed to British practice ... to a very considerable extent the instinc-
tive feeling which prevails in British Columbia has its origin in a whole-
some feeling of self-preservation.’’
53
Liberal Prime Minister Wilfrid
Laurier later addressed the same dilemma in equivalent terms. Though
‘‘one of the most tolerant of all races,’’ Anglo-Saxons shared ‘‘an invinci-
ble repugnance to the people of the Mongolian races.’’ ‘‘That is the fact,’’
Laurier continued, ‘‘and we have to reckon with it. I say at once that it
will not do for this Government, or for any Government, to ignore it; on
Quong Wing v. The King 63
the contrary, the Government is quite prepared to recognize it and to
deal with it accordingly.’’
54
It was legitimate for a democratic govern-
ment to respond to the needs of the voters. On this authority, in the face
of complaints that the $50 tax was becoming decreasingly effective, Par-
liament increased the Chinese tax to $100 in 1900 and appointed a new
Royal Commission to investigate ‘‘Oriental’’ immigration to Canada.
Commissioners Roger Chute, Christopher Foley and Daniel Munn
found a situation more desperate than in 1885. The threats perceived pri-
marily by organized labour in 1885 were recognized much more broadly
in the white population by the end of the century. Despite the head tax
the number of Chinese in the province had grown from 6,000 to 16,000,
and there were an additional 6,000 Japanese who had migrated in the
same period. Employment segregation and wage differentials for ordi-
nary labourers were still firmly entrenched – in the logging camps, for
example, Japanese received $1 per day, Chinese $1.25 and whites from
$2.25 to $3.75 – and the contract system still supplied gangs of unskilled
labour. ‘‘Each performed specific jobs for different rates of pay,’’ the com-
missioners reported.
55
And there were still defenders of the employment
of Asian labour. The manager of one colliery insisted that Chinese work-
ers upheld white wages, since ‘‘The cost of production would be greater
without the Chinese.... [Their absence] would compel us to reduce the
white man’s wage.’’
56
Exclusion from various occupations had, however,
produced a significant shift in Chinese employment patterns: whereas in
1885 only 3 percent of Chinese had been in business for themselves, by
1901 that figure was over 25 percent, leading non-Chinese merchants and
farmers to fear the effect of Chinese competition.
57
The consensus among
the witnesses, and accepted as valid by the commissioners, was that the
Chinese impact was ‘‘deadly’’ and their lurking presence in the economy
undermined the white working-class family. With their ‘‘customs, habits
and modes of life fixed and unalterable,’’ the Chinese formed ‘‘a commu-
nity within a community, separate and apart, a foreign substance ... a
people that cannot assimilate.’’ Their sanitary habits were ‘‘a continual
menace to health,’’ morally ‘‘their effect upon the rest of the community
is bad,’’ they were unsuited to democratic laws and institutions and
could never ‘‘become citizens in the sense of the term as we understand
it.’’ Discovering ‘‘entire unanimity’’ on this point, the commissioners
concluded that the Chinese ‘‘are so nearly allied to a servile class that
they are obnoxious to a free community and dangerous to the state.’’
58
The equivocations of the 1885 commissioners were not echoed in the
1902 Report: there were no reservations or excuses softening the conclu-
64 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
sion that Asians were a negative factor in the Canadian body politic. Nor
was it only in British Columbia that such an impression prevailed. These
were, after all, federal investigations, their reports were presented to the
House of Commons in Ottawa, their evidence was given national circula-
tion, their conclusions entered the national discourse, and ultimately
they produced federal legislation. Commenting on the 1902 Report, the
Canadian Annual Review argued that Canada was becoming ‘‘flooded
with an undesirable class of people, non-assimilative and most detrimen-
tal to the wage earning class.’’
59
In the next session of Parliament the gov-
ernment increased the head tax to a more effective $500, anticipating that
no Chinese labourer could ever afford to pay it. This met with the
approval of Saturday Night magazine, published in Toronto, which ad-
vised its readers in 1906:
This is a white man’s country and white men will keep it so. The slant-eyed Asi-
atic, with his yellow skin, his unmanly humility, his cheap wants, would destroy
the whole equilibrium of industry. He would slave like a Nubian, scheme like a
Yankee, hoard like the proverbial Jew. Turn these people loose in a country like
ours and they would make progress like a pestilence. Race prejudice! This is race
prejudice of course.... Let them swarm in once and the yellow stain on the
country will be one that cannot be rubbed out. We cannot assimilate them. They
are an honest, industrious, but hopelessly inferior race.
When a BC reader wrote in to insist that Chinese labour was a valuable
asset, Saturday Night’s editor responded in a subsequent issue:
The employers in British Columbia are favorable to the admission of Chinese
because these yellow fellows are great workers, cheap, docile, reliable. . . . They
are an inferior race of men like the Africans, who were brought over in thou-
sands to the Southern States and now constitute a serious and permanent danger
to the neighboring republic. . . . Yellow men would be more dangerous than black
ones, for the latter were frivolous and trifling, while the former are industrious,
plodding, patient.... These people will not possess value as citizens, and when
once fastened on the country will retard its development.
60
Though perhaps the most organized voice, white labour was not the
only element in Canadian society demanding restrictions upon Chinese
by the early years of the 20th century, and wage competition was not the
exclusive complaint. Alarm was raised over alleged ‘‘filth’’ and ‘‘deprav-
ity’’ in the overcrowded Chinese residential quarters. ‘‘[W]hat can we
Quong Wing v. The King 65
expect but vice unspeakable,’’ Emily Murphy demanded, when Chinese
were allowed ‘‘to swarm in filthy hovels and to burrow like rats in cel-
lars.’’
61
Danger was perceived in eating groceries raised by Chinese mar-
ket gardeners contaminated by ‘‘filth’’; it was even argued that in
Chinese laundries ‘‘the dainty garments of white women puddled
around in suds that reeked with dirt.’’
62
The Calgary Herald reported in
1910:
Chinese, when they come to reside in a place ought to be treated the same as an
infectious disease or an isolation hospital. They live like rabbits in a warren and
30 of them crowd into where 5 white people would ordinarily reside.
They have not the first idea of cleanliness or sanitation. Everywhere they go
they are undesirable citizens and furnish a problem to the municipality.
63
No doubt images from late-19th-century China fed such stereotypes, no-
where more clearly than in a Vancouver World story in 1912 on that city’s
Chinatown, which began:
Conditions prevailing in the cities of China are familiar topics of the returned
missionary, who will dwell at length upon the awful condition of the slums, the
armies of the unwashed, and the prevalence of vice in the shape of opium smok-
ing and gambling, in the empire across the seas. Would you believe that the same
condition of affairs is in existence in the city of Vancouver, in our China-
town . . . ?
64
The association of Chinese with gambling, opium and vice was univer-
sally made. In 1902 the Regina Standard decried the moral degeneracy
caused by narcotics use, tracing its supply to the Chinese community.
The Saskatoon Phoenix in 1907 concluded that opium destroyed moral as
well as physical and mental health. A Calgary Herald reporter toured his
city’s Chinatown in 1909 and described for his readers the extensive
gambling, prostitution and use of opium that went on there. Thousands
of young men, the Trades and Labour Congress lamented, ‘‘can lay their
ruin to the Chinese who taught them the terrible habit of opium smok-
ing.’’
65
An unsubstantiated but widely disseminated report from Win-
nipeg in 1911 claimed that most brothels were operated by Chinese or
Japanese, a conclusion accepted by delegates to a National Council of
Women convention in London, Ontario, in 1912.
66
The Women’s Chris-
tian Temperance Union and the Women’s Institute warned particularly
66 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
that women would be enticed into Chinese dens, addicted to opium and
held in prostitution. Reports came from Lethbridge and Saskatoon that
young girls were becoming addicts and prostitutes under Chinese aus-
pices, recruited right off the streets.
67
The Methodist Church listed Chi-
nese restaurants as ‘‘dangerous places’’ for white women.
68
In Toronto
the Vigilance Committee circulated a broadside urging ‘‘strenuous efforts
to break up Chinese dens of infamy, kept for the purpose of ruining
young Canadian girls.’’
69
‘‘Entrapment’’ of white women foolish enough
to work in Chinese restaurants or laundries, or even to visit them as cus-
tomers, became an accepted scenario in the popular imagination.
70
In
September 1911 the Toronto magazine Jack Canuck located the ‘‘Yellow
Peril’’ in the city’s laundries:
The bland smiling Oriental and his quaint pidgeon English does not appear very
formidable to the young woman who enters his store for the weekly wash. She
does not notice the evil lurking in the almond eyes as she accepts the silk hand-
kerchief or other trifling Oriental knick knack.
71
One labour official warned that not even home was safe, for Chinese
house servants were adulterating their employers’ food with drugs,
‘‘thus placing the female members of the household at their disposal and
unscrupulous will.’’
72
This assault upon white womanhood was
attributed to the lascivious urges of the Chinese libido, but it was also
alleged that the Chinese were deliberately setting out to undermine the
‘‘superior white race’’ through an attack on its moral fibre.
73
Emily Mur-
phy believed that both Chinese and ‘‘Negroes’’ were trying to bring
about ‘‘the downfall of the white race,’’ and the spread of opium and
prostitution was motivated by ‘‘their desire to injure the bright-browed
races of the world.’’
74
3. RESTRICTIONAND REGULATION
The experience of the Chinese community in Moose Jaw was typical of
what was happening across Canada, and especially in British Columbia
where the largest number resided: Chinese were excluded from political
participation, confined to a narrow sector in the economy, and harassed
and rejected in their daily encounters with white Canadians. Theatres,
dance halls, swimming pools and hotels regularly refused admission to
Chinese patrons. There were several attempts in Vancouver and Victoria
to segregate Chinese schoolchildren to prevent them from contaminating
the morals of white pupils.
75
Occasionally the urge to isolate the Chinese
Quong Wing v. The King 67
was expressed through physical violence. In Timmins, Ontario, in the
first decades of the 20th century, it was reported, Chinese people could
not walk in the streets without having things thrown at them. In Win-
nipeg, Chinese restaurants would be vandalized, just for ‘‘fun.’’ More
seriously, white construction workers attacked a Chinese camp near Lyt-
ton, BC, because, they believed, the Chinese were stealing white jobs. In
the melee two Chinese were murdered. A fully fledged riot broke out in
Vancouver in 1887 when hundreds of whites converged on the Chinese
district, chased the people out of town and looted and burned their
belongings. The allegation, again, was that Chinese were taking jobs
which belonged properly to whites. In 1892, 300 whites attacked Cal-
gary’s Chinese, attributing to them a recent smallpox epidemic. There
were scattered outbursts of vigilante activity directed towards forcing
Chinese out of town in Slocan Valley, Atlin, Salmo and Penticton, BC,
and in Whitehorse, Yukon, between 1898 and 1906. Mobs demolished
Chinese restaurants in Lethbridge in 1907.
76
Violence was therefore no stranger to the Chinese when Canadian his-
tory’s largest race riot occurred in Vancouver in 1907. The issue was Chi-
nese and Japanese immigration. The federal government had denied an
appeal that summer from organized labour to halt Asian immigration,
and a restrictive immigration law passed by the provincial legislature
was reserved by Lieutenant-Governor James Dunsmuir (whose Welling-
ton colliery was a large employer of Asian labour), and was subse-
quently disallowed by Ottawa. Feeling betrayed by their governments
and threatened by a rumoured influx of new Asian immigrants, Vancou-
ver workers formed an Asiatic Exclusion League and planned a mass
rally for the evening of 7 September. A crowd approaching 10,000 people
gathered at city hall, where speakers representing business and the
churches as well as labour denounced ‘‘Orientals’’ and demanded gov-
ernment action. Dunsmuir was burned in effigy. Though no violence was
apparently intended towards the Chinese that evening, Chinatown was
only a block away from the huge demonstration and some of the mob
strayed there. A window was broken, and the sound of violence inspired
more. Sticks and stones were picked from the streets and hurled at Chi-
nese homes and businesses. Fires were started. For four hours mob mem-
bers ravaged Chinatown, and then moved on to the Japanese district.
Forewarned, the Japanese were able to organize in self-defense. Virtually
all of the personal injuries sustained that night occurred during the
exchange with the Japanese. No one, fortunately, was killed, but an inter-
national incident had been created. The Japanese consulate was in con-
68 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
stant contact with the Laurier government throughout the riot and its
aftermath. The prime minister issued an immediate apology to the
Japanese Empire and sent W. L. Mackenzie King, the deputy minister of
Labour, to investigate the causes of the riot, to assess the damages to
Japanese property, and to arrange compensation. No thought was given
to the Chinese, who had in fact suffered much greater losses than the
Japanese, until the Colonial Office, engaged in negotiating compensation
for some Britons in China, pressured Laurier to settle the Chinese dam-
ages as well. Mackenzie King heard the Chinese claims eight months
later, in May 1908. In the end $9,175 compensation was paid to Japanese
claimants and $26,990 to Chinese.
77
The Vancouver riot of 1907 was the culmination of a ‘‘constitutional
tango’’ between Ottawa and Victoria on the issue of Asian immigration.
78
Beginning in 1884 British Columbia passed nine immigration acts re-
stricting Asian immigration; under the authority of the BNA Act the fed-
eral government disallowed eight, and the lieutenant-governor reserved
one in 1907.
79
At first, as has been seen, Ottawa was motivated by the
perceived need for Chinese labour on the railroad. Anglo-Japanese
treaties in 1894 and 1905 provided that ‘‘subjects of the two High Con-
tracting Parties shall have full liberty to enter, travel or reside in any part
of the dominions and possessions of the other Contracting Party,’’
80
and
this was interpreted by the federal government, as well as by London
and Tokyo, to preclude specific restrictions against Japanese. The
‘‘tango’’ effect emerged from the fact that a provincial law was in effect
until it was declared invalid, a period that could last a year or more.
Prime Minister Laurier advised the BC government ‘‘that if they were to
restrict their action to Chinese immigration, that if they were to except
Japanese immigrants from their legislation, we would not interfere, leav-
ing them to exercise their own will in regard to Chinese immigration.’’
81
On the West Coast, however, Japanese were regarded as an equivalent
threat, at least, and the legislature persistently restricted both Chinese
and Japanese in the face of federal disallowance. The ‘‘Gentleman’s
Agreement’’ negotiated with Japan in 1907-8 limited the number of emi-
grants leaving Japan to 400 per year.
82
China declined to enter a similar
agreement, but the federal government had been convinced by the 1902
Royal Commission Report to keep in place effective barriers against Chi-
nese immigration. BC no longer found it necessary to produce legislation
of its own.
83
In the meantime thousands of Chinese had arrived, but they were not
to be allowed to become a part of Canadian society. British Columbia
Quong Wing v. The King 69
joined Confederation in 1871; at the very first session of the provincial
legislature, in 1872, Chinese were disfranchised even if they became
British subjects and, in a symbolic gesture, Chinese were excluded from
registering their vital statistics.
84
When disfranchisement on racial
grounds was questioned, the Provincial Elections Act clarified its defini-
tion: ‘‘The expression ‘Chinaman’ shall mean any native of the Chinese
Empire or its dependencies not born of British parents, and shall include
any person of the Chinese race, naturalized or not.’’
85
Under BC law, dis-
qualification from the franchise also meant exclusion from public office
and from jury service, and since the provincial voters’ list was adopted
for federal elections, the federal franchise was lost de facto. Prime Minis-
ter Macdonald explained the federal position to the House of Commons
in 1885:
The Chinese are foreigners. If they come to this country, after three years resi-
dence, they may, if they choose, be naturalized. But still we know that when the
Chinaman comes here he intends to return to his own country; he does not bring
his family with him; he is a stranger, a sojourner in a strange land, for his own
purposes for a while; he has no common interest with us, and while he gives us
his labour and is paid for it, and is valuable, the same as a threshing machine or
any other agricultural implement which we may borrow from the United States
on hire and return it to the owner on the south side of the line; a Chinaman gives
us his labour and gets his money, but that money does not fructify in Canada; he
does not invest it here, but takes it with him and returns to China; and if he can-
not, his executors or his friends send his body back to the flowery land. But he
has no British instincts or British feelings or aspirations, and therefore ought not
to have a vote.
86
Saskatchewan, the only other province overtly to disfranchise the Chi-
nese, did so in 1908 as Chinese numbers crept into the hundreds.
87
It is arguable that at the time these provisions were enacted, few Chi-
nese would have been interested in the vote. Of more immediate concern
were restrictions on employment explicitly aimed at removing Chinese
from competition. Certain disabilities came circumstantially, by making
the franchise a qualification for eligibility. Hand-logging, for example,
was reserved for provincial voters in British Columbia, as were the pro-
fessions of law and pharmacy.
88
Other restrictions were undisguised. By
the Coal Mines Regulation Act of 1877, BC made it illegal for a Chinese to
‘‘occupy any position of trust or responsibility in or about a mine.’’
89
This
was amended in 1890 to give it broader effect: ‘‘No boy under the age of
70 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
twelve years, no woman or girl of any age, and no Chinaman shall be
employed in or allowed to be for the purposes of employment in any
mine to which this Act applies underground.’’
90
An Alien Labour Act in
1897 and a series of Labour Regulation Acts, aimed at prohibiting the
employment of Chinese and Japanese in certain undertakings, were dis-
allowed by the federal government as contrary to the terms of the Anglo-
Japanese Treaty.
91
As an alternative, the province passed orders-in-coun-
cil in 1902 making it necessary to insert an employment clause in all
Crown leases. The standard wording was: ‘‘Provided always, that these
presents are upon the express condition that no Chinese or Japanese shall
be employed in or about the said premises or any part thereof.’’
92
In a
province where logging and mining were the major industries, these
lease restrictions were widely effective. Railway construction was re-
served for white workers by the Subsidized Works Labour Regulation Act of
1902, which denied right of way over provincial lands to any company or
person who did not enter an agreement ‘‘as to the employment of labour
upon or in connection with said railway or other work, upon such terms
and conditions as to the Lieutenant-Governor-in-Council shall seem
meet and proper.’’
93
Similarly the Railway Assessment Act was amended
in 1908, exempting railway companies from certain taxes provided that
no aliens were employed or, if they were absolutely essential to the pro-
ject, the alien workers must be ‘‘paid such rates of wages as may be cur-
rently payable to white workingmen, labourers and servants engaged in
similar occupations in the district in which such railway is constructed
and operated.’’
94
In 1904 BC Supreme Court Justice Martin listed 22
provincial acts restricting Chinese, passed since 1884.
95
Such elaborate restrictions applied only in British Columbia, where
Chinese sought employment in the resource industries, though in 1918 a
United Mineworkers delegation asked Alberta’s Premier Steward to
eliminate Asians from all aspects of the mining industry. The premier
acknowledged his government’s opposition to Asian labour, but claimed
it was beyond provincial authority to ban their employment.
96
In other
parts of Canada Chinese were not perceived as an equivalent threat,
being largely engaged in personal service, laundries and restaurants. Yet
even in these relatively petty enterprises, discriminatory taxes and
restrictions were imposed. British Columbia amended the Municipalities
Act in 1885, authorizing local councils to levy semi-annual licensing fees
of $75 for operating a laundry. Vancouver passed a by-law in 1900 pro-
hibiting laundries where water was sprayed from the mouth while iron-
ing, a typical practice of the Chinese laundryman, and a Sunday
Quong Wing v. The King 71
observance by-law was enforced against Chinese laundries, the only
ones operating on Sundays. Toronto brought in a 1902 regulation impos-
ing oppressive ‘‘sanitation’’ requirements on laundries, intended to make
it more difficult for Chinese proprietors, and in 1903 Kamloops declared
Chinese laundries a public nuisance. Calgary city council passed a
motion in 1904 asking ‘‘That the City Clerk prepare a by-law, to prohibit
any more Chinese laundries,’’ and Lethbridge in 1906 placed a $100 tax
on laundries operated by Chinese. Hamilton, Ontario, restricted Chinese
laundries to certain limited neighbourhoods in 1911. Quebec put a pro-
vincial licence fee on all laundries not run by women, charitable societies
or incorporated companies, leaving basically the Chinese liable to pay.
97
Manitoba amended its Factories Act in 1916 to restrict the hours and con-
ditions of labour in ‘‘any laundry operated or owned by Chinese.’’
98
4. LITIGATION
Not all these enactments went unchallenged. In fact an impressive body
of case law was built up and the Chinese litigants enjoyed considerable
success. In the process, however, racial differences were recognized judi-
cially, as they were in legislation, and ‘‘race’’ became a constitutional cat-
egory assigned to provincial jurisdiction by the arbiters of Canadian
justice.
In 1878 BC passed An Act to Provide for the Better Collection of Provincial
Taxes from Chinese, requiring every Chinese over the age of twelve to take
out a licence every three months at a cost of $10. Any Chinese not having
such a licence in his possession, and any person employing an unli-
cenced Chinese, would be fined $100 or imprisoned for two months. Tai
Sing took the Act before the courts as a test case on behalf of a dozen fel-
low Chinese merchants in Victoria. Since there was no explicit guarantee
of Chinese rights available to support their claim, Tai Sing and his col-
leagues cast their argument as a division of powers issue, contending the
Act was ultra vires the provincial legislature as dealing with trade and
commerce, as an interference with aliens, and as interfering with the
powers and duties of the Dominion government arising under treaties
between Great Britain and China.
99
Justice John Hamilton Gray agreed
S91 ss2 of the BNA Act gave to the Dominion Parliament the regulation
of trade and commerce, and ss25 that of naturalization of aliens. ‘‘It is
plain, therefore, the local Legislature can legally pass no Act interfering
with the regulation of either the one or the other,’’ Gray concluded, and
he perceived that ‘‘the object of this Act is not so much to prevent the
evasion of the payment of taxes by the Chinese, as to prevent their living
72 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
or carrying on business in this country.’’
100
It was equally clear to Gray
that treaties of 1858 and 1860, imposed upon the Chinese by British
envoys seeking trading opportunities for Britons, granted permission
to the subjects of each empire to travel, work and trade in the other.
Section 137 of the BNA Act gave Ottawa ‘‘all powers necessary or
proper for performing the obligations of Canada, or of any province
thereof, as part of the British Empire, towards foreign countries aris-
ing under treaties between the Empire and such foreign countries.’’
Justice Gray therefore had no difficulty in pronouncing the Chinese Tax
Act unconstitutional and void. But his explanation reached beyond the
division of powers, and suggested that a case could be made on the
basis of Chinese rights:
Sumptuary Laws affecting the domestic and personal habits of a people, where
not necessary for the prevention of crime, the preservation of public health, or
purposes of morality, have always been considered objectionable. To enact that
employment shall not be given to classes, except on hazardous and ruinous
terms, is practically prohibiting intercourse with the particular class specified. If
you cannot deal or trade with a man, but at the risk of a penalty far exceeding the
value of the service, that dealing or trading will be put an end to. . . .
The Act, exceptional in its nature as to one class of foreigners, bristles with im-
prisonment and hard labour, and places the frightful power of conviction and
punishment in the hands of any Justice of the Peace throughout the country, at
the instance of a Collector whose interest it may be to gratify the promoters of the
Act. . . .
It was not intended to collect revenue, but to drive the Chinese from the coun-
try....
101
The British Columbia legislature tried again with the Chinese Regula-
tion Act of 1884, containing provisions for an annual $10 licence fee and
penalties against unlicenced Chinese or their employers, and adding spe-
cial sanitary conditions for any building occupied by Chinese. Wing
Chong of Victoria was fined for not having a licence in his possession,
and challenged his conviction before Justice Henry Pellew Crease of the
BC Supreme Court. Wing Chong’s lawyers pressed the Tai Sing prece-
dent, arguing that this tax exceeded provincial powers. Attorney Mon-
tague Drake, however, also inserted the argument that ‘‘the imposition of
the $10 tax was invalid because of inequality.... [I]rrespective of consti-
tutional limitation a particular class of citizens could not be burdened for
the advantage of others.’’
102
In his decision Justice Crease seemed to
Quong Wing v. The King 73
accept the point that the Act offended the Chinese as well as the federal
government. ‘‘On applying to the preamble,’’ he wrote, ‘‘we find that it
looks like a bill of indictment as against a race not suited to live among a
civilized nation.’’ Indeed, he found that the preamble ‘‘describes the Chi-
nese in terms which, I venture to think, have never before in any other
country found a place in an Act of Parliament.’’
103
While he applied the
Tai Sing decision and declared the act ultra vires as trespassing on federal
jurisdiction, Crease added:
if such a law can be tolerated as against Chinese, the precedent is set, and in time
of any popular outcry can easily be acted on for putting any other foreigners or
even special classes among ourselves, as coloured people, or French, Italians,
Americans or Germans, under equally the same law.
104
These dicta from Gray and Crease had not, however, established that
an underlying discriminatory purpose should be regarded as sufficient
grounds for invalidating any act of the legislature. In 1896 BC’s Coal
Mines Regulation Amendment Act of 1890 was referred to the provincial
Supreme Court sitting in full court to determine the validity of the pro-
hibition against ‘‘Chinamen’’ from working underground.
105
Justice
Walkem, who as provincial premier had authored the 1878 Act annulled
in Tai Sing v. Maguire, held that the issue was one of mine safety: ‘‘The
object of the Act before us is to regulate the working of coal mines, and
not to define the rights or disabilities of aliens. The latter subject, as dealt
with in the Act, is merely incidental to the main object of the Act. In my
opinion the Act is within the competence of the Legislature.’’
106
Justice
Drake, with Justice McColl concurring, looked beneath the safety
euphemism to the more realistic issue of economic competition, and this
they found acceptable. Justice Drake wrote:
The restriction, apparently, was imposed on the ground that by the employment
of Chinese the wages of the white labourer were reduced, and that involves the
larger question of right of employer and employee to absolute freedom of con-
tract. It is a clear principle of law that the employer of labour may engage whom
he pleases and that an employee is free to contract for his labour with whom and
at what rate and upon what terms he chooses. But the Legislature has imposed a
restriction on this freedom of contract; a restriction which may be supported on
the ground that it deals with property and civil rights and is a merely local mat-
ter.
107
74 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Even if it is discriminatory both against Chinese and the mine owners,
Justice Drake concluded, ‘‘this is not a case affecting trade and com-
merce, but a question of property and civil rights, and regulations of a
particular business hitherto untouched by Dominion legislation.’’ To dis-
tinguish this decision from his argument as attorney in Wing Chong,
Drake contended that both Wing Chong and Tai Sing had ‘‘turned on the
subject of special taxation imposed on the Chinese; and, although, inci-
dentally, the powers of the Provincial and Dominion Legislatures were
discussed, the points decided are no guide to the present case.’’
108
The
Coal Mines Act was upheld unanimously.
Justice Drake’s apparent attempt to minimize the significance of the
constitutional issue in the two earlier cases notwithstanding, the princi-
ple connecting these apparently contradictory decisions was in fact the
distribution of powers in a federal system. The discriminatory provisions
challenged in Tai Sing and Wing Chong were deemed to trespass on fed-
eral ground as determined by the BNA Act S91 ss2 and ss25, and S137.
The Coal Mines Act was upheld even though it was acknowledged to be
discriminatory because it was judged to concern the regulation of indus-
trial safety, freedom of contract and property and civil rights, all of which
fell properly within the provincial jurisdiction. This rehearsal helps to
reconcile two other decisions, taken by the Judicial Committee of the
Privy Council, which were to feature powerfully in the Quong Wing
case. What the judges were trying to decide was whether the determin-
ing principle in a given act placed it in federal or provincial control.
The first of these precedents arose out of the coal mines regulations
just described. John Bryden, a shareholder in the Union Colliery Com-
pany and son-in-law of its founder Robert Dunsmuir (and brother-in-law
of the current principal owner James Dunsmuir), instituted an action in
the BC Supreme Court for an injunction restraining the company from
employing Chinese underground, which it had continued to do in defi-
ance of the 1890 law. The provincial attorney general, aware that the suit
was a collusive attempt to force a reconsideration of the 1896 Coal Mines
decision, became a party to the litigation as intervenant. The case on
appeal was heard by the Judicial Committee of the Privy Council in July
1899.
109
The appellants, reviving the equality theme raised in Tai Sing and
Wing Chong, contended that the Coal Mines Act ‘‘disabled Chinamen for
the exercise of the ordinary right, preserved to all others, to earn their
bread by their labour, for no other reason than that of their origin.’’
110
But
in delivering the judgment of the court Lord Watson rejected the issue of
discrimination and focussed on the distribution of powers:
Quong Wing v. The King 75
In so far as they possess legislative jurisdiction, the discretion committed to the
parliaments, whether of the Dominion or of the provinces, is unfettered. It is the
proper function of a court of law to determine what are the limits of the jurisdic-
tion committed to them; but, when that point has been settled, courts of law have
no right whatever to inquire whether their jurisdiction has been exercised wisely
or not.
111
Having established the nature of the contest, Lord Watson noted that the
BNA Act S91 ss25 gave exclusive authority over ‘‘naturalization and
aliens’’ to the federal parliament, and he found that
the leading feature of the enactments consists in this – that they have, and can
have, no application except to Chinamen who are aliens or naturalized subjects,
and that they establish no rule or regulation except that these aliens or natural-
ized subjects shall not work, or be allowed to work, in underground coal mines
within the Province of British Columbia.
Their Lordships therefore concluded: ‘‘the whole pith and substance of
the enactments... consists in establishing a statutory prohibition which
affects aliens or naturalized subjects, and therefore trench upon the
exclusive authority of the Parliament of Canada.’’
112
The anti-Chinese restriction was declared illegal. Union Colliery had
won, but its strategic partner, John Bryden, was required to pay costs. To
reimburse him, his brother-in-law James Dunsmuir had the pay of each
Chinese worker at Union Colliery docked 50 cents per month until the
costs were recovered.
113
The second and apparently contradictory case was provoked by a nat-
uralized subject of Japanese origin, Tomey Homma (or Tomekichi
Honma as he is remembered in the Japanese Canadian community), who
sought to be registered on the BC voters’ list in October 1900. The Van-
couver Collector of Voters refused because S8 of the Provincial Elections
Act stated that ‘‘No Chinaman, Japanese or Indian shall have his name
placed on the register of voters for the electoral district, or be entitled to
vote at any election.’’
114
Chief Justice McColl, hearing Homma’s appeal
sitting as a County Court judge, decided that the Bryden judgment bound
him to find in favour of the naturalized subject, and he allowed
Homma’s appeal with costs.
115
He added that
the residence within the Province of large numbers of persons, British subjects in
name, but doomed to perpetual exclusion from any part in the passage of legisla-
76 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tion affecting their property and civil rights would surely not be to the advantage
of Canada, and might even become a source of national danger.
116
When the full BC Supreme Court upheld McColl’s decision,
117
British
Columbia appealed to the Privy Council in 1902.
118
In this judgment the
Empire’s highest tribunal repeated Lord Watson’s disclaimer that the
courts might serve as a legal conscience, for ‘‘the policy or impolicy of
such an enactment as that which excludes a particular race from the fran-
chise is not a topic which their Lordships are entitled to consider.’’
119
Lord Halsbury, delivering the judgment, distinguished Homma’s case
from Bryden:
That case depended upon totally different grounds. This Board, dealing with the
particular facts of that case, came to the conclusion that the regulations there
impeached were not really aimed at the regulation of coal mines at all, but were
in truth devised to deprive the Chinese, naturalized or not, of the ordinary rights
of the inhabitants of British Columbia and, in effect, to prohibit their continued
residence in that province, since it prohibited their earning their living in that
province. It is obvious that any such decision can have no relation to the question
whether any naturalized person has an inherent right to the suffrage within the
province in which he resides.
120
The Canadian Naturalization Act, Lord Halsbury explained, did not grant
the right of suffrage in any province. Furthermore ‘‘In the history of this
country the right to the franchise has been granted and withheld on a
great number of grounds, conspicuously upon grounds of religious
faith.’’
121
British Columbia, therefore, could legally exclude an alien from
the franchise if it wished. Two further points were made. Since the
provincial act excluded Japanese on grounds of ‘‘race,’’ it meant that it
really had nothing to do with alienage or naturalization. ‘‘A child of
Japanese parentage born in Vancouver City is a natural-born subject of
the King, and would be equally excluded from the possession of the fran-
chise.’’
122
And finally, the BNA Act gave the federal government author-
ity to determine what shall constitute alienage or naturalization, ‘‘but the
question as to what consequences shall follow from either is not
touched.’’ A province, therefore, could legitimately decide what privi-
leges should or should not be attached to naturalization.
123
Tomey
Homma lost. A full elaboration of the meaning of Tomey Homma and Bry-
den, and of any contradictions between them, would await Quong Wing.
Quong Wing v. The King 77
5. DEFENDINGTHE FAMILY
There was a pervasive sense of threat in turn-of-the-century Canada. The
increasing movement from farm to city, from agriculture to industry, had
an impact on work and family patterns that seemed to indicate an
impending collapse of traditional roles and relationships. Moral decline
was apparent in a rising divorce rate, family desertion and prostitution.
Unfamiliar values and lifestyles brought by an unprecedented wave of
immigration shook the confidence of Victorian Canada and introduced
household practices that could prove to be as infectious as the diseases
that often accompanied them. Civilization rested on the strength of the
family, its bedrock institution; an undermining of family life presaged
the collapse of the entire social structure.
124
The challenge inspired a response. To defend civilization the family
must be defended, and the key to a healthy family was its mother.
Woman’s biological function made her the physical vessel of future civi-
lization, and biology equipped her for this role by making her the natural
repository of civilized standards. Female virtue, acknowledged as bio-
logically appropriate, became sound public policy as well: for the sake of
the community and its succeeding generations, the position of wife and
mother must be preserved and enhanced. According to Emily Murphy, a
leading articulator of the female sphere, ‘‘a good man must perforce be a
father to his wife as well as a husband’’; it was his responsibility to
ensure the effective functioning of her maternal destiny.
125
Female
reformers did not want to change woman’s nurturing role but to extend
it, beyond the confines of a single household, so that her maternal
instincts would benefit the community at large.
126
The National Council
of Women of Canada, founded in 1893, declared in its constitution:
We, Women of Canada, sincerely believing that the best good of our homes and
nation will be advanced by our own greater unity of thought, sympathy, and
purpose, and that an organization of women will best conserve the greatest good
of the Family and the State, do hereby band ourselves together to further the
application of the Golden Rule to society, custom and law.
127
Local Councils of Women were established across Canada, formed by an
affiliation among existing women’s organizations, to implement ‘‘femi-
nine influence over all the operations of society.’’
128
Many items on the agenda of the new women’s movement were long-
standing concerns applied to a national scale: childcare, health and sani-
tation, domestic training for young women.
129
Others were products of
78 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
more recent anxieties. Prostitution, for example, had been accepted in
frontier Canada as a ‘‘necessary social evil’’ whose chief danger had been
to the health and hygiene of the customers. In the context of the late 19th
century, however, prostitution was redefined as a threat to the family,
through the moral corruption of men and above all for the degradation
of the prostitutes themselves. As women, prostitutes were inherently
innocent and asexual, potential mothers seduced from their maternal
path by evil men. Women did not choose to become prostitutes but were
entrapped into ‘‘white slavery’’ and exploited by vicious pimps.
130
Women’s missionary societies, the National Council of Women of
Canada, the Women’s Christian Temperance Union, the Young Women’s
Christian Association, all indicated the ‘‘traffic in white slavery’’ as a tar-
get for urgent reform. Immigration, similarly, was an issue generated in
the context of the times. Unassimilated and unassimilable newcomers
threatened the public standards of behaviour demanded by the maternal
reformers. More significantly, the reproduction of the Anglo-Saxon
‘‘race’’ could be thwarted by the indiscriminate mixture of white Cana-
dian women with foreigners.
131
Although the home was ‘‘our divinely appointed place,’’ according to
the WCTU, the challenge of mothering an entire nation required consid-
erable engagement in public affairs, for ‘‘It is only by legislation that the
roots of great evils can be touched.’’
132
Where ‘‘moral suasion’’ failed,
‘‘legal suasion’’ would have to rule.
133
The issues selected for maternalis-
tic intervention generally had a connection to family protection. Prohibi-
tion, the most outstanding example, would obviate masculine weakness
for alcohol, redirect men’s efforts to the economic support of their fami-
lies, and preserve victimized wives and children from alcohol-induced
violence or neglect.
134
The WCTU and the NCWC were among the orga-
nizations calling upon the government to exclude Asian immigrants
because of their alleged moral deficiencies.
135
Increasingly stringent
penalties were demanded for male customers, procurers or economic
beneficiaries of female prostitution.
136
Despite ‘‘a virtual explosion’’ of
criminal sanctions against the ‘‘debauching of innocent women’’ at the
end of the 19th century,
137
the state’s reluctance to impose the full agenda
encouraged women’s organizations, hesitantly at first, to espouse the
suffragist crusade for female enfranchisement. The NCWC declared that
it was the disintegration of the traditional family that led women to seek
participation in public life.
138
As Nellie McClung put it: ‘‘Women have
cleaned up things since time began; and if ever women get into politics
there will be a cleaning-out of pigeon-holes and forgotten corners, on
Quong Wing v. The King 79
which the dust of years has fallen, and the sound of the political carpet-
beater will be heard in the land.’’
139
To preserve the maternal influence,
to defeat the threat to civilization, women’s issues would have to become
national issues.
The maternal reformers were generally middle class, with no economic
reason to enter the workforce themselves. They proposed no programs
that would have encouraged women’s economic independence from
men, sharing the prevailing ideology that biological differences deter-
mined ‘‘separate spheres’’ for men and women. By strengthening the
family unit, they hoped, the providing male would fulfil his economic
function to the benefit of his dependent wife and children, and rather
than economic opportunity they sought aid for widows or deserted
mothers left without a male provider. It was acknowledged that some
women had to work, but this would be temporary, pre-marital or at least
pre-maternal, and should not normally become a ‘‘career.’’ Woman’s only
worthy career was as a mother, and ‘‘Where the mother works, the baby
dies,’’ affirmed Dr. Helen MacMurchy in her 1910 ‘‘Report on Infant Mor-
tality in Toronto.’’
140
Yet the number of single women working for wages
was increasing with urbanization, arousing concerns for their physical
and moral safety against threats that might affect their later careers as
mothers. Even white-collar work, it was feared, could provoke nervous
disorders that might be passed along to future offspring and lead ulti-
mately to ‘‘race degeneration.’’
141
The maternal reformers therefore
added protective legislation for female workers to their national
agenda.
142
Organized labour and the middle-class women’s movement shared a
fundamental concept: the Canadian working man must be paid a ‘‘family
wage.’’ If a man was paid adequately, his wife would not need to work
and possibly bring her motherhood into danger. On the other hand if
women did work they would contradict the argument for a family wage
and their workplace competition could drive down wages for male
providers. As the factory system became prevalent in Canadian industry,
employers often found that they could replace skilled workers with mass
production techniques employing the unskilled at lower rates of pay.
Organized labour’s early campaigns were to ensure that these develop-
ments should not destroy the family wage, and one part of the strategy
was to restrict the employment of ‘‘cheap labour’’ who were often
recruited among the groups least concerned for, or strong enough to
demand, a family wage: temporarily employed single women, children,
alien sojourners. At first the TLC platform called bluntly for ‘‘abolition
80 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
of . . . female labour in all branches of industrial life, such as mines,
workshops, factories, etc.’’ This was amended, following the example of
the American Knights of Labor, to demand ‘‘equal pay for equal work’’
on the assumption that an employer would not hire inferior labour if
there was no economic advantage in doing so. A third tactical develop-
ment was the insistence upon ‘‘the protection of women who enter
industries . . . (with the view of their responsibility towards the nation, as
the mothers of our future citizens). . . .’’ Female employment, the TLC
advised the federal government, must be contingent upon an investiga-
tion to determine the working conditions, and if they were inappropriate
either women should not be hired or special facilities for female workers
must be provided.
143
Economic concern for a family wage and moral concern for women’s
safety coincided completely, and both reinforced the notion of female
dependency and vulnerability. Workplace renovations and restrictions
would raise the effective cost of female workers so that employers would
be disinclined to hire them and the separate spheres could be preserved.
It would be impossible for later generations to segregate motives or iso-
late self-interest in the demand for female protection. Helena Gutteridge,
leading BC female activist and women’s labour organizer, sought to
encourage women’s employment opportunities, yet she insisted in 1914:
‘‘Short hours are far more essential to women than they are to men. . . .
The injurious physical and mental effects of such work are plainly visi-
ble . . . and the rapid aging of the working women has its injurious
effects on the next generation.’’
144
Biology was at the basis of the distinc-
tions, and all women required protection. The minister of Labour made
no qualifications for class or background, though his imagery was decid-
edly middle class, when he told a Montreal audience in 1914: ‘‘The great
aim of labour legislation is the establishment of the home on a solid
basis. Every effort must be made to keep the mother in the home, she
being the natural and primary factor in education and in the develop-
ment of good citizenship.’’
145
This is not to suggest that class barriers
were being eliminated, for the maternal reformers left their own domes-
tic servants outside the protective ring on the grounds that domestic
work, even on behalf of others, was natural for women. When male
labour representatives wanted to establish a minimum weekly wage of
$16.50 for female workers, the Vancouver Local Council of Women rec-
ommended it be set at $5 ‘‘to be fair to employers as well as the employ-
ee.’’
146
But because their vulnerability was an aspect of their biological
condition, and they had the same responsibility toward future genera-
Quong Wing v. The King 81
tions, working-class women had to be covered by the middle-class pro-
tective net. Few middle-class daughters would have sought employment
in the industrial occupations subject to the most stringent restrictions.
Class and gender interests were indistinguishable in an ideology of bio-
logical determinism. Gender defined the type of work available, the con-
ditions of labour, the rate of pay, the acquisition of skills, just as did class,
age and ‘‘race.’’
As female participation in the workforce grew, factory acts were
passed in the various provinces protecting women from hazardous tasks
and providing for their special needs as workers.
147
Hours of labour were
limited and night work was banned, proper dining and dressing rooms
were required, leaves for pregnant and nursing mothers were estab-
lished. Women were not permitted to serve alcohol in many provinces, or
to work in labour camps.
148
Even shops were required to have seats for
female employees, lest a day spent waiting on the public have a detri-
mental physical effect, and female clerks could not be employed after 6
pm.
149
Pensions were granted to widows, deserted wives or any woman
whose husband was ‘‘so physically disabled that he is unable to support
his family,’’ and minimum wages were introduced for female employ-
ees.
150
Moral protection followed a parallel path. The Criminal Code in
1892 created a special offence to punish an employer or manager who
seduced a female employee under his direction. At first specifying only
factories, mills and workshops, the offence category was extended to
shops and stores in 1900 and to all places of work in 1920.
151
This legislative direction was launched and sustained without any spe-
cific reference to ‘‘race,’’ but racial assumptions lent certain implications
to its application. Most fundamentally, women were the bearers of the
‘‘white race’’ and the preservation of the latter required the protection of
white women from, inter alia, racial impurities. There were no Canadian
laws against intermarriage, but there were occasional proposals to make
it illegal, and gender-specific legislation against inter-racial mixing was
certainly compatible with prevailing ideology. Saturday Night magazine
published a front-page editorial entitled ‘‘Girls Be Careful Whom You
Marry’’ which warned Canadian (white) women against marriage to ‘‘a
Chinaman, Hindu, Moslem or African Negro.’’ American state laws pro-
hibiting intermarriage were praised and Canadians were urged to emu-
late their fine example, for ‘‘nothing short of a legal embargo can
possibly accomplish the desired end, which is, of course, the total elimi-
nation of such unions in this country.... [Since] such marriages place
their white participants and the offspring under various social disadvan-
82 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tages, as well as being distinctly undesirable from the point of view of
the State, the Federal Government would do well to prohibit them alto-
gether.’’
152
Contemporary stereotypes made Chinese particularly liable to dis-
favour in this regard. Among the images brought back by Western mis-
sionaries and travellers in China was one of a wretchedly low condition
of women in that civilization. Female infanticide, concubinage and
polygamy, the apparent enslavement and sale of young women,
attracted the particular distaste of the Canadian maternal reformers who
expressed concern that the Chinese example could seduce Canadian
males ‘‘away from higher Anglo-Saxon standards.’’
153
In Canada, too,
Chinese men were alleged to be buying and selling Chinese women, and
Chinese house-servants in Chinese homes were regularly referred to as
‘‘slave girls’’ by the white women reformers.
154
These manifestations
were confirmation of the society-wide belief in Chinese moral inferiority,
and aroused an interventionist response from Canadian women. For
example in 1909, when Chinese merchants in Victoria hired some white
female students as English-language instructors for their children, the
Local Council of Women asked city council to pass an emergency by-law
to prevent it.
155
The idea of using the state to legislate morality in general, and the pro-
tection of white women in particular, was an established component of
‘‘common sense’’ by the first decade of the 20th century. Carried by a
women’s movement awakened to the threat against the Anglo-Saxon
family and the special role of women in defending it, the protective
impulse meshed with the economic interests of organized labour, the
chivalric ideals of white manhood, and biological orthodoxy as applied
to both ‘‘race’’ and gender characteristics.
6. THEMORAL CRUSADE
Organized reformism had already identified the Chinese opium den as a
moral problem when deputy labour minister William Lyon Mackenzie
King went to Vancouver in 1908 to investigate Chinese losses from the
previous year’s riot. Two Chinese opium merchants submitted claims of
$600 for damaged stocks and loss of business, alerting King to the extent
of their traffic. On questioning the merchants further, King was as-
tounded to learn that the majority of their customers were white people.
Historically opium use had not been a concern in Canada. Babies were
put to sleep on syrups containing opium, doctors prescribed opiates for
asthma and appendicitis, coughs and nerves, epilepsy and diarrhoea. In
Quong Wing v. The King 83
1907, 44 tons of opium were imported into Canada, mostly for accepted
medical purposes. The ‘‘indiscriminate use of opium’’ had long been
associated with Chinatown in the public eye, but King’s revelation pro-
vided documentary evidence that the practice was seeping into the white
population. Supported by the ‘‘better class’’ of Chinese merchants in
Vancouver, who publicly regretted the damage opium abuse was causing
to ‘‘the social, physical and moral condition of both Chinese and Euro-
peans,’’ King announced that ‘‘We will get some good out of this riot
yet’’ and launched a special inquiry into the West Coast opium industry.
His report, The Need for the Suppression of the Opium Traffic in Canada, was
submitted in July 1908, recommending that the importation or manufac-
ture of opium be outlawed ‘‘save in so far as may be necessary for medic-
inal purposes.’’ Three weeks later Canada became the first Western
nation to prohibit the production or sale of opium for recreational use.
Raids were thereupon conducted on opium dens across British Columbia
and in Calgary, Saskatoon, Winnipeg and Toronto.
156
As Canada’s resident expert on opium, and a Member of Parliament
since 1908, Mackenzie King was selected as Canadian representative to
an international convention on opium in Shanghai in 1909. Awakened to
the international dimensions of moral degeneracy, and prompted by
cries from the Canadian West for stricter enforcement, King urged the
federal government in 1910 to appoint a Royal Commission to examine
the opium phenomenon more fully. With that report in hand, King intro-
duced a new Act in 1911 to make opium possession a criminal offense
and to increase police powers of search and seizure. Included in the leg-
islation was a ‘‘reverse onus’’ provision, to relieve the state of the neces-
sity of proving that an accused was knowingly in possession of the
narcotic. This provision allegedly tempted police into planting evidence
during Chinatown raids. That Chinese were the intended objects of pun-
ishment was explicitly mentioned in the House of Commons, and the
form for reporting convictions was divided into columns for ‘‘Chinese’’
and ‘‘Others.’’ Hundreds of convictions showed that the riot was begin-
ning to render its benefits.
157
The Trades and Labour Congress took some satisfaction from the
opium measures, having since its 1890 Convention drawn attention to
the corruptions wreaked upon society by Chinese drug-peddlers, includ-
ing the enticement of white women into prostitution through the use of
drugs. The TLC was Canada’s most consistent lobby urging state inter-
vention to control the Chinese. Its Platform of Principles listed ‘‘Exclusion
of all Orientals’’ as an organizational goal, and it was instrumental in
84 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
having the head tax imposed as a discouragement to immigration
(though its recommendation of a $l,000 tax was never accepted). The
TLC passed various resolutions opposing the employment of Chinese in
competition with whites and proposing enforcement of stricter health
regulations on Chinese laundries.
158
Then at the 1911 annual convention
in Guelph, Ontario, a new issue appeared on the agenda:
Whereas it has come to light from time to time, especially in our coast cities, that
Orientals employing white girls have used their positions as employers to seduce
and destroy all sense of morality by the use of drugs and other means, bringing
them down to the lowest depths of humanity; therefore, be it resolved, that this
Congress impress on the Federal Government the necessity of passing legislation
making it a criminal offence for Orientals to employ white girls in any capacity.
159
This was the first time such a proposal was made publicly, though it did
represent a logical extension from, or combination of, the movements for
economic restriction and moral protection.
The TLC in Saskatchewan was in a militant mood, especially during a
major organizing drive between 1908 and 1911. In an agricultural
province with little secondary industry, only 5,008 out of a total work
force of 208,600 were unionized by 1912, but they tended to be the skilled
craftsmen whose cooperation was most essential to the construction
boom accompanying Saskatchewan’s phenomenal population growth. A
wave of strikes in 1910 demonstrated the power of worker solidarity to
the workers themselves and to their employers. With the assistance of
the Regina Board of Trade, employers promoted the immigration of
unskilled workers from Britain to undermine the unions, contributing to
a further outburst of labour militancy in 1912.
160
In the midst of this tur-
moil, on 6 February 1912, the TLC provincial Executive Committee had
its annual meeting with the Saskatchewan government. Present were
James Somerville, William McAllister, G. H. Merlin and John McGrath
for the TLC, and for the government Acting Premier J. A. Calder, Munici-
pal Affairs Minister A. P. McNab and Labour Bureau Superintendent
Molloy. Inter alia, the TLC delegation requested ‘‘An Act prohibiting the
employment of white girls or females by Orientals in restaurants, laun-
dries, etc.,’’ further to the 1911 Convention resolution.
161
Within just three weeks An Act to Prevent the Employment of Female
Labour in Certain Capacities was introduced in the Saskatchewan legisla-
ture. Although the TLC delegation was the immediate occasion for this
development, organized labour was not the only constituency demand-
Quong Wing v. The King 85
ing restraints on the Chinese community. The Saskatchewan Social and
Moral Reform Council, established in 1907 primarily as a temperance
organization, was also expressing concern about the potential dangers to
white women from Chinese employers. The Reformers were advised by
a ‘‘prominent citizen’’ that
Through the three prairie Provinces and British Columbia these Oriental almond-
eyed anthropoids own a large proportion of our eating houses, and are found
working side by side with white women in almost all of our hotels and restau-
rants. In Western Canada our sisters, even our mothers, are working under these
harpies and with them for sixteen and sometimes as many as eighteen hours a
day. To my certain knowledge many of them afterwards go down into the under-
world to suffer a fate worse than death. You who make a business of combatting
social evils must take this one into consideration speedily. Each day’s delay
means scores of Canadian women lost to decency, and shames our country in the
eyes of all moral nations.
162
Besides all the major churches, temperance societies and women’s orga-
nizations, the Council included representatives from the Retail Mer-
chants’ Association, which had its own campaign to impose restrictions –
for example, early closing regulations – upon Chinese businesses whose
lack of Sunday observance and family responsibility allegedly gave them
an unfair competitive advantage over white Christian businessmen.
Owners of steam laundries added the complaint that they had to abide
by a set of stringent sanitary regulations while Chinese hand laundries
were left unregulated. Labour, business, religion and women reformers
combined to convince the Saskatchewan government of the necessity for
the Female Labour Act.
163
The Saskatchewan delegates received the wholehearted congratula-
tions of their brothers at the next Convention in September 1912. The
only other provincial executive to raise the issue with its government
that year was Manitoba’s, and they received a polite rejection. Encour-
aged by the Saskatchewan example, the 1912 Convention resolved ‘‘that
our executives be instructed to again call for Legislation on this matter in
all unprotected Provinces.’’
164
Subsequent annual meetings learned that
Manitoba, Ontario and British Columbia had seen fit to accept the TLC’s
recommendations and to introduce legislation modelled after Saskatche-
wan’s.
165
86 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
7. CHINESERESPONSE
One recent article on Chinese in Canada lists ‘‘avoidance,’’ ‘‘fatalism,’’
‘‘acceptance,’’ ‘‘sojourner attitude’’ and ‘‘social segregation’’ as examples
of the ‘‘coping behavior of Chinese in Canada,’’ characteristics that
explain their ‘‘failure to mobilize collectively’’ in opposition to discrimi-
nation. Another recent account has a section entitled ‘‘Avoidance and
Self-withdrawal as Coping.’’ These and similar themes seem to dominate
much of the literature on the Chinese response to white Canadian atti-
tudes and actions.
166
There is certainly ample evidence to suggest that
Chinese did tend to seek each other’s company both organizationally
and residentially, and to establish ‘‘ethnic’’ businesses in a narrow occu-
pational range, but the accompanying image of retreat and passivity is
not justified.
The Chinese consistently had the lowest percentage of naturalized
subjects for any ethnic group in Canada. In 1911 fewer than 10 percent of
Chinese in Canada were naturalized, and this declined to less than 5 per-
cent in the 1921 census, indicating that the attractions of a Canadian
identity were not great.
167
Commissioner Gray included an explanation
for this phenomenon in the 1885 Report: ‘‘By provincial legislation in
British Columbia and the general hostility towards them, the Chinese are
practically prohibited from becoming attached to the country. They are
made, so far as provincial legislation can go, perpetual aliens.’’
168
The dif-
ficulties recognized by Justice Gray were not limited to British Columbia,
especially as numbers of Chinese moved east of the Rockies following
completion of the railway. No doubt the absence of citizenship rights and
other exclusionary practices did discourage naturalization, but for
Japanese the corresponding naturalization figures were almost 25 per-
cent in 1911 and over 33 percent in 1921. Since the Japanese suffered
equivalent hostility and legal disabilities in Canada, with the exception
of the entry tax, the Chinese rejection of naturalization must have
reflected some additional aspect of the Chinese experience in Canada.
The Chinese-Canadian community was not ‘‘normal’’ in the sense of
containing a distribution by age and sex. In the 1911 census there were
279 Chinese males for every Chinese female, by far the greatest imbal-
ance in Canada at that time and a decided contrast to the Japanese.
169
This was not entirely a matter of choice. The escalating head tax made it
unlikely that a poorly paid Chinese worker could afford to bring his fam-
ily to Canada. On the other hand it might be noted that Chinese owners
of small businesses in Canada did bring sons, nephews and cousins to
work in their laundries and restaurants, all of whom were liable to head
Quong Wing v. The King 87
taxes, and wives could have been brought under similar circumstances
since, presumably, a wife could be sufficiently productive in a restaurant
or market gardening operation to justify payment of the tax. Clues to a
non-economic reason behind the absence of Chinese women surfaced in
the 1902 Royal Commission Report. A Vancouver merchant explained
the attitude of the majority of his compatriots: ‘‘A large proportion of
them would bring their families here, were it not for the unfriendly
reception they got here during recent years, which creates an unsettled
feeling.’’
170
A market gardener spoke on his own behalf: ‘‘I have been
here 12 years. . . . My wife and two children are in China. . . . I would
like to bring my children here. . . . The people in this country talk so
much against the Chinese that I do not care to bring them here.’’
171
The
head tax was merely symptomatic of Canadian discrimination, and it
was partly to protect their families that Chinese men decided not to
expose them to life in Canada.
It is suggested that the dynamics of the Chinese community were
strongly influenced by the fact that it was populated, by and large, by
adult males who retained their political and citizenship links with China.
Being without a family, they gathered together in their non-working
hours for company and comfort, forming an array of fraternal, clan and
locality-of-origin associations which sustained Chinese language, iden-
tity and the observance of traditional customs. Being without Canadian
citizenship, the politics of the homeland or the local affairs of Chinatown
dominated discussion. Gambling and opium use were part of the culture
they brought with them, no doubt enhanced by the absence of immediate
family involvements, further distinguishing them from other ethnic
groups. Their associations took on many of the functions of the extended
family back home, providing lodgings, recreational facilties, employment
assistance, emergency relief, funerals.
172
Chinese isolation cannot be
understood simply as ‘‘coping’’ with discrimination, but also as a conse-
quence of transplanting a particular demographic slice from an intricate
and integrated homeland civilization.
The Chinese movement into ‘‘ethnic’’ businesses has also been
described as a ‘‘retreat’’ from competition with whites.
173
The centrifugal
force of white hostility was undoubtedly the fundamental factor, but it
must be remembered that most Chinese arrived in Canada with the skills
and work experience of a rural village in China’s southern rice-produc-
ing region. There was no obvious Canadian employment sector for
which they were prepared, though many brought local market-trading
experience and a tradition of launching small enterprises on borrowed or
88 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
pooled capital.
174
They moved into areas where they perceived a need,
for example in laundries and restaurants, and for which very little capital
investment was required. Partnerships of kin- or locality-related men
could consolidate their meagre savings, share in the labour, live in a
room behind the business space: they were, in effect, making their own
jobs and providing their own homes, and the kind of work they per-
formed – cooking and cleaning – was similar to the domestic service of
many of their colleagues directly employed by whites. While census
statistics show that industrial occupations declined while service occupa-
tions increased over time, the vast majority was always engaged in
unskilled labour even in such ‘‘industrial’’ categories as railway con-
struction or mining. But the ‘‘escape’’ into ‘‘ethnic’’ business never
enabled them to avoid conflict with whites, and if that were the chief
motivation they would soon have learned that it was ineffective. The
Canada-wide movement to restrict Chinese laundries, already described,
meant that the laundry business provided no safe haven from white dis-
crimination. Nor, beginning with the TLC resolution of 1911, did restau-
rants provide such a haven.
Obviously the life of the Chinese in Canada was one of struggle. Their
concentration in ethnically defined associations and ethnically stereo-
typed businesses need not, however, be interpreted exclusively as a lia-
bility, for the resulting social bonds also offered some strengths. The
manner in which those strengths were employed should dispel any
notions of Chinese passivity, and help put Quong Wing in a more realis-
tic context. The first community-wide Chinese organization to be formed
in Canada was the Chinese Consolidated Benevolent Association,
founded in Victoria in 1884. Its immediate inspiration was the set of dis-
criminatory laws and taxes enacted in BC that year, and the Association’s
first object was to mobilize the Chinese in a united protest movement.
The CBA also established a set of rules and enforcement procedures to
control the crime, prostitution and extortion which were increasing in
Victoria’s Chinatown, and to provide for the settlement of disputes
within the community. It served as a quasi-government for the Chinese
membership and represented Chinese interests to the mainstream soci-
ety. Until the establishment of an official Chinese consulate in 1908, it
was the CBA and its branches that served in an equivalent capacity.
175
With or without CBA coordination, there was a pattern of refusing to
acquiesce in oppression and restriction. Discrimination was often con-
fronted through boycotts and strikes. When British Columbia introduced
its licensing enactment in 1878, Chinese refused to pay the tax and went
Quong Wing v. The King 89
on a five-day strike as well as hiring a lawyer to help petition the provin-
cial legislature. Similarly there were frequent work stoppages during the
construction of the CPR to protest pay delays or aggressive foremen, and
Chinese laundrymen declined to pay Victoria’s $75 semi-annual laundry
licensing fee in 1886. Another Victoria move in 1893, to regulate Chinese
residential densities, was met with Gandhi-like resistance: a refusal to
pay the fines and the acceptance, instead, of a jail sentence in the hope of
clogging the system. To enforce the campaign, the CBA paid each person
jailed a $10 reward, while those who paid the city’s fine were punished
with an additional $10 fine to the CBA. When Victoria tried to establish a
separate school for Chinese children, they boycotted the school until they
were readmitted to the regular system. Following the 1907 Vancouver
riot Chinese withdrew their services as domestics in homes and hotels
and closed their shops to reinforce a claim for compensation. Proposed
by-laws against Chinese laundries in Calgary and Montreal were suc-
cessfully opposed by CBA delegations. Most effective, of course, were
appeals to the courts. Though by no means an unbroken string of suc-
cess, the tactic of challenging discriminatory laws had established an
encouraging record long before 1912.
176
8. QUONG WING AND QUONG SING
The appearance of the Female Labour Act provoked a defiant response
from the Chinese community in Saskatchewan. A mass meeting was held
in Moose Jaw, home to the province’s largest Chinese population, where
the Act’s implications were discussed and a decision was made to con-
tinue the employment of white women and to fight a test case pending
diplomatic action by the Chinese government.
177
They did not have long
to wait. On 20 May 1912 Moose Jaw police chief Walter P. Johnson sent
constable W. W. De Rossiter to visit two Chinese-owned establishments
where he confidently expected to find white female employees, the CER
Restaurant and the Royal Restaurant and Rooming House.
178
The CER Restaurant at the corner of Main and Manitoba Streets in
Moose Jaw had been owned since about 1904 by Quong Wing, formerly
of the ‘‘Empire of China’’ and a British subject since 1905.
179
For more
than a year before the new Act came into effect, Quong Wing (or ‘‘Char-
lie’’ as he was known locally) employed Nellie Lane and Mabel Hopham
as waitresses. This was a reasonably typical prairie operation in 1912,
except that Quong Wing was a naturalized British subject at a time when
only about 5 percent of Saskatchewan’s Chinese had taken out natural-
ization. Quong Wing also seems to have been a Christian.
180
Quong
90 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Wing’s neighbour on River Street West and proprietor of the Royal,
Quong Sing, was also a naturalized British subject and even more unusu-
ally had brought his wife and three children to live with him in Moose
Jaw. At the Royal Rooming House, upstairs from the restaurant, Quong
Sing employed Annie Hartman as a chambermaid.
181
On receiving De
Rossiter ’s eyewitness report that three white women were being em-
ployed by ‘‘Chinamen’’ contrary to law, Chief Johnson swore a complaint
against Quong Wing and Quong Sing before Magistrate W. F. Dunn the
very next day, 21 May 1912.
A week later, on 27 May, Quong Wing and Quong Sing appeared in
Magistrate Dunn’s court to answer the charge. Because of the approach
taken by defence attorney Netson R. Craig, the court hearing turned into
a discussion on the criteria for ‘‘race’’ categorization acceptable in
Canada at that time. Mr. Craig, who often appeared on behalf of Moose
Jaw’s Chinese community, challenged the very concept of ‘‘race,’’ forcing
witnesses to explain what they meant by the term ‘‘Chinaman’’ and how
a Chinese person was different from any other person. If ‘‘Chinese’’ did
not signify citizenship or allegiance, Craig wanted to know, just what
significance did it have? The responses he evoked displayed the conven-
tional wisdom that racial categories were both real and obvious. ‘‘China-
men’’ could be identified by their appearance, their language and above
all, by the ‘‘common sense’’ of the observer. Secondarily, Netson Craig
challenged the vulnerability and dependency of white women and their
need for protection against Chinese, and in this he had the apparent
agreement of the three female employees who were called as witnesses.
The defence case was therefore a sophisticated attack upon the principles
underlying the Female Labour Act. Other parties in the court, and the
Moose Jaw Evening Times, regarded it rather as a source of amusement. It
was funny because it did not make ‘‘sense’’ to them.
Acting for the Crown that day was William Grayson, and he pro-
ceeded first against Quong Wing. S. R. McClure was appointed stenogra-
pher, to take a shorthand account of everything said in court. Grayson’s
first witness, Chief Walter Johnson, established that Quong Wing was the
owner of the CER Restaurant.
Q. What nationality is he?
A. AChinaman.
Q. He is of the Oriental Race?
A. Yes sir.
Quong Wing v. The King 91
To Grayson’s question ‘‘Have you seen any White women in the Restau-
rant kept by him?’’ Chief Johnson identified two persons sitting in the
court, ‘‘The lady with the blue sweater and the one with roses in her
hat.’’ Netson Craig then cross-examined:
Q. I suppose you have never been in the Orient, Chief?
A. No....
Q. Your knowledge of Chinamen you have gained in Moose Jaw?
A. I have seen them before that I think.
Q. But your knowledge of whether a man is a Chinaman or not is simply that
you have heard someone else call him a Chinaman. You never saw a man
standing on Chinese soil in your life, or a man you could swear of your own
knowledge was born there?
A. No.
Q. Or a man you could swear of your own knowledge was an Oriental?
A. I will swear that Quong Wing is a Chinaman.
Q. That they call him a Chinaman?
A. That will do. . . .
Q. You are not a professional Ethnologist.
A. No....
Q. Do you know the difference between a Chinaman and any other man. Is
there any difference between a Chinaman and any other man?
A. I know the difference when I see them.
Q. You think you could swear to the difference between a Chinaman and a
Japanese, for instance, if you had not seen them before and did not know
which was which.
A. I HAVE seen this man before Mr. Craig.
Q. Yes, you have. To cut the matter short, you won’t pledge yourself though
that that man is a Chinaman absolutely. You think he is a Chinaman, because
he has always been known as such to you.
A. There is no doubt in my mind Mr. Craig; I don’t wish to evade your ques-
tion, there is no doubt that he is a Chinaman.... He has always been known
here, I have known him for six years, known him as a Chinaman. . . .
Alerted to Craig’s line of questioning, Grayson pressed his next wit-
ness, Constable De Rossiter, ‘‘Of what nationality is Quong Wing?’’ ‘‘To
the best of my knowledge and belief he is a Chinaman.’’ ‘‘You have no
doubt about that have you?’’ ‘‘No sir.’’ Again Netson Craig challenged
the witness’s ability to identify a ‘‘Chinaman:’’
92 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Q. Your grounds for swearing that Quong Wing is a Chinaman are the same as
the Chief’s?
A. I am swearing on my own knowledge based on my own knowledge and
belief.
Q. You cannot swear where he was born, nor where he came from to this coun-
try?
A. No.
Q. Nor what country he owes allegiance to?
A. He didn’t come from the same country as I did.
Q. I don’t know about that, and I don’t know who is to be congratulated. You
don’t know what authority he owes allegiance to?
Mr. Grayson: Perhaps he is Scotch.
Q. You don’t know that country he came from nor what country he owes alle-
giance to?
A. No Mr. Craig I do not.
Apparently to add scientific authority to Quong Wing’s identification
as Chinese, Grayson called Frank Cartledge, Moose Jaw’s official Health
Inspector, who swore that the accused was Chinese on the grounds that
‘‘He is similar to other Chinamen that I have seen in appearance’’ and he
spoke the Chinese language. Craig tried to evoke more precision from
the witness:
Q. What is a Chinaman, Mr. Cartledge?
A. I should say a native of China.
Q. What is a native of China?
A. A man born there, his parents being Chinese.
Q. Say a British Subject or Consul at Hong Kong has a White wife, who has a
child that child would be a Chinese. . . .
A. It could not be Chinese. . . .
Q. You don’t know Quong Wing’s parents?
A. No.
Q. You don’t know where he was born in China?
A. No.
A prominent member of the Chinese community and pillar of the Chi-
nese Methodist congregation, Yip Foo, was in court that day, as a friend
of the accused and, as a restaurant owner himself, one materially inter-
ested in the outcome. To his surprise Yip Foo was called as a witness for
the prosecution to establish Quong Wing’s ‘‘race.’’ Yip Foo admitted that
Quong Wing v. The King 93
he was himself Chinese. Grayson then asked ‘‘What is Quong Wing?’’
and Yip Foo answered ‘‘He Chinese too.’’ Craig remained persistent,
however, and extracted from Yip Foo an admission that he had not
known Quong Wing in China and could not swear from personal knowl-
edge that he was born there or that his parents were Chinese, leading
Craig to conclude that Yip Foo could not ‘‘really swear whether he is
Chinese or not.’’ Yip Foo concurred.
Grayson’s next witness, the employee Nellie Lane, was decidedly
reluctant to implicate her employer. Grayson asked:
Q. WhatNationality areyou.
A. Iam English.
Q. No Chinese about you?
A. Cheshire.
Q. Ithought so.
A. You bet. . . .
Confirming that she had worked in the CER Restaurant for the past
twelve months, Mrs. Lane was asked:
Q. Who paid your wages?
A. Charlie – Quong Wing, and he always paid me to the day too.
Mr. Grayson: I am not disputing that, I know he is a very fine gentleman who
pays his way....
Q. What Nationality is Quong Wing?
A. Well I treat him as myself.
Q. I know, but what is he?
A. I don’t know what he was only what people have told me.
Q. What is he Mrs. Lane.
A. I could not tell you.
Q. What language does he speak?
A. He can speak two, he can speak English and he can speak Chinese.
Q. Ishe English?
A. No, he is not English, but I could not tell you where he came from, it would
be hard for me to say, but he is as good as me and all.
Under cross-examination by Netson Craig, Nellie Lane admitted that she
could not distinguish the Chinese language from German ‘‘or any for-
eign language,’’ and she continued to insert positive comments about her
working life with Quong Wing.
94 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Q. You have been working for him for twelve months.
A. Yes, and never worked for a better master, he pays me to the day and has an
honest living.
Q. Respectable?
A. Yes, they call him Chinese, he is as good as me.
Q. You have no fault to find with him at all?
A. Nofault whatever.
The second employee, Mabel Hopham, confessed to Mr. Grayson that
Quong Wing was ‘‘Chinese I guess,’’ but to Mr. Craig that she could not
recognize the Chinese language and had no idea of his birthplace or
parentage.
The case for the prosecution was now closed. Craig produced Quong
Wing’s Naturalization Certificate which declared that its bearer, Quong
Wing, ‘‘has become naturalized as a British subject, and is, within
Canada, entitled to all political and other rights, powers and privileges,
and is subject to all obligations to which a natural born British subject is
entitled or subject within Canada.’’
On this Netson Craig rested the case for the defence. Magistrate Dunn,
however, was unimpressed with the statement on the Certificate, and
unconvinced by Craig’s attempt to cast doubt on Quong Wing’s racial
identity. He concluded ‘‘on the evidence’’
1. That the accused Quong Wing was born in China and of Chinese parents. . . .
4. That on the said 20th day of May 1912 the said accused had in his employ as
waitresses in the said restaurant one Mabel Hopham and one Nellie Lane, and
that the said Mabel Hopham and Nellie Lane are white women.
He thereupon determined that Quong Wing was in violation of the
Female Labour Act and fined him $5, though he specified that the accused
would not be held responsible for costs.
182
The Moose Jaw Evening Times
confirmed the magistrate’s conclusion in an amused report of the trial.
‘‘Is anyone in Moose Jaw really certain that the many Chinese in the city
are really Chinamen?... For a time Hong’s [sic] nationality was uncer-
tain, some venturing he was Scotch. At last the court decided after much
legal sparring that Hong was a ‘Chink’ absolutely.’’
183
The trial of Quong Sing, which followed immediately, continued in an
identical manner. Prosecution witnesses stated their belief that the
accused was Chinese, but did not know where he was born or to which
country he owed his allegiance. The chambermaid Annie Hartman
Quong Wing v. The King 95
added that she had no complaints against her employer. ‘‘He has used
you all right.’’ ‘‘Yes sir.’’ When Craig introduced Quong Sing’s Natural-
ization Certificate, however, it was discovered that it was made out in
the name of ‘‘Quon Sing,’’ and Quong Sing had to be sworn as a witness
to identify it as belonging to him. Given the opportunity, Grayson asked:
Q. Wherewereyou born?
A. HongKong.
Q. You areaChinaman.
A. Yes.
Craig leapt in:
Q. By being a Chinaman, what do you mean?
A. I was born in China.
Q. That is what you mean.
A. Yes.
Q. Under that certificate what are you to that country.
A. Iam English.
Q. ABritish Subject.
A. Yes.
The racial strategy seemed lost, but the resourceful Craig found another
target for his attack on the conceptual validity of ‘‘race’’: he moved ‘‘For
dismissal on the grounds that there is no proof that the woman
employed is a white woman or girl.’’ This won him even less attention
than his challenge to the identity of Quong Wing and Quong Sing.
Stenographer McClure noted simply that Craig’s motion was ‘‘Over-
ruled,’’ with no further comment or discussion. The ‘‘race’’ of Annie
Hartman was beyond dispute.
184
Quong Sing was found guilty and fined
$5, without costs.
Given that the fine could have been $100 each, that a refusal to pay
meant two months in jail, and that costs were normally assigned against
those convicted in magistrate’s court, the Messrs Quong might have been
expected to express their gratitude to Magistrate Dunn and humbly pay
their $5. This would have accorded with the enduring stereotype of the
retiring Chinese avoiding conflict. But they did not pay. Instead they
engaged Wellington B. Willoughby, Netson Craig’s senior partner, estab-
lishment figure and leader of the Conservative Opposition in the
Saskatchewan legislature, to appeal their conviction to the Saskatchewan
96 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Supreme Court.
185
On 30 May they announced their intention to appeal,
and on 12 June they each posted a bond of $200 and registered their
desire ‘‘to question the said conviction on the ground that it is erroneous
in point of Law and in excess of jurisdiction.’’
186
Responding on behalf of
the attorney general, barrister Jasper Fish stated ‘‘that important, intri-
cate and difficult questions affecting the validity of a statute of the
province of Saskatchewan will be raised and will be decided on or after
the hearing of this matter,’’ and so requested a delay while more details
could be sought from the convicting magistrate. Dunn’s reply was imme-
diate. After setting out the facts in the case and Mr. Willoughby’s objec-
tions, Dunn respectfully ‘‘submitted for the judgment of this honourable
Court’’ the following questions:
1. Whether the premises described as being the place in which the alleged white
women worked is included in the Act under which the information was laid.
2. Whether any offence under the said Act is disclosed.
3. Whether the accused, being a naturalized British subject, is one of the persons
prohibited by the Act from employing female labour.
4. Whether the said Act under which the said information was laid is ultra vires.
5. Whether the conviction was in excess of the jurisdiction of the [Magistrate’s]
Court.
187
The issue of ‘‘race’’ and the validity of racial classification raised by Net-
son Craig was replaced by the question of jurisdiction. ‘‘Race’’ had been
assumed: Quong Wing and Quong Sing were Chinese, Annie Hartman,
Mabel Hopham and Nellie Lane were white; the difference was both
obvious and sufficiently significant to justify legal distinctions, but who
should make those distinctions had to be decided.
The Supreme Court of Saskatchewan sitting en banc heard the joint
appeal on 1 March 1913, and delivered judgment on 9 July.
188
Present
were Chief Justice Haultain and Justices Newlands, Lamont and Brown,
with Willoughby and Fish for the appellants and Crown respectively.
189
Reviewing the questions submitted by Magistrate Dunn, the Chief Jus-
tice set out that the only real question for the court was whether the
Female Labour Act was within the competency of the Saskatchewan legis-
lature, and that would depend upon the construction of the BNA Act Sec-
tions 91 and 92. The provincial Act, he observed,
Quong Wing v. The King 97
imposes upon Chinese owners and keepers of hotel, restaurant and other busi-
ness property special disabilities and restrictions, not only with regard to the
labour they employ but also with regard to the public they serve. It also puts a
practical prohibition on the employment of any Chinaman as the manager of any
business in which female employees are required. A Chinaman who wishes to
invest in business property must do so with the full knowledge that his only pos-
sible tenant will be persons who are willing to carry on a business which can
only employ coloured female labour, and, in the case – say – of a hotel, can only
accommodate coloured female guests.
190
Weighing Bryden and Tomey Homma, Haultain concluded that
Both the reasoning and the decision in Union Collieries v. Bryden, in my opinion,
apply to the enactment now under consideration. The regulations which are here
impeached are not really aimed at the regulation of restaurants, laundries, and
other places of business and amusement or of the employment of female labour,
but were devised to deprive the Chinese, whether naturalized or not, of the ordi-
nary rights of the inhabitants of Saskatchewan. The right to employ, the right to
be employed, the right to own property and to own, manage or conduct any
business without being subjected to unequal and discriminatory restrictions, are
just as truly ordinary rights of the inhabitants of Saskatchewan as the right to
work.
The act, therefore, was ultra vires of the legislature and the conviction
must be reversed.
191
Justice Lamont differed, at great length. ‘‘The wisdom or unwisdom,
the justice or injustice, of provincial legislation, or the fact that it discrim-
inates against one person or set of persons and in favour of another per-
son or set of persons is excluded from our consideration,’’ he reasoned.
‘‘The only matter for inquiry is as to the legislative competence of the
Provincial Legislature to pass the Act impeached.’’
192
Admitting that cer-
tain restrictions were imposed on Chinese, Justice Lamont found that
they fell within ‘‘property and civil rights’’ or ‘‘local works and under-
takings’’ which belonged to the province under BNA Act S92 ss13 and
ss10 respectively. Bryden could be distinguished because the employment
of white women was not necessary for a Chinese to carry on his business.
Tomey Homma showed that once an alien became naturalized he passed
out of the jurisdiction of the Dominion parliament. The Saskatchewan
Act would be invalidated, therefore, only if it interfered with the alien’s
right to become naturalized, not merely the consequences of naturaliza-
98 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tion once effected. Applying the ‘‘pith and substance’’ rule, or what he
called ‘‘the predominating aspect,’’ Lamont concluded that
the Act was passed in the interests of morality and for the protection of white
women, and not for the exclusion of Chinese or preventing those who are still
aliens from becoming naturalized subjects.... In this aspect the legislation
impeached amounts to no more than police regulations and as such is within the
legislative competence of the provincial legislature.
193
The conviction, obviously, should be affirmed.
Justice Brown, with Justice Newlands concurring, was also prepared to
acknowledge that ‘‘the legislation prevents a Chinaman as such from
being employed in many positions of trust and responsibility, it handi-
caps him in carrying on legitimate business, and it greatly limits the uses
to which he may put his property.’’ But examining the ‘‘pith and sub-
stance’’ he found that the act could not be considered a ‘‘statutory prohi-
bition against Chinamen’’ as defined by Bryden, for ‘‘the sum and object
of this legislation is to prevent white women from coming, through
employment, lodging, work, or otherwise, under the control or influence
of any Chinaman.’’
194
Advising that the appeal should be dismissed, Jus-
tice Brown added
It is surely competent for the province to legislate for the protection of any class
of its citizens – in this case white women and girls – such legislation being in the
nature of police regulations and if in so doing the ordinary rights of another
class – in this case Chinamen – are aff e c t e d , even seriously affected, that will
not, in my judgment, in view of what has been laid down by the Privy Council,
make the legislation ultra vires of the province. We, of course, have nothing to do
with the policy or impolicy of the legislation; that is a matter entirely for the leg-
islature.
195
Chief Justice Haultain was a minority of one.
196
Quong Wing and Quong
Sing lost. The assumption that Chinese were a threat to white woman-
hood (a point not even argued by Jasper Fish, who relied on Tomey
Homma to make his case), was implicit in the decision, for otherwise the
‘‘pith and substance’’ to that effect could not have been taken seriously.
Only the chief justice saw this as a ruse, though even its euphemistic
value would reveal its credibility at that time. Fifty years of associating
Chinese with drugs, disease and immorality had reached a point of
fruition.
Quong Wing v. The King 99
9. QUONG WING v. THE KING
But if one set of Chinese stereotypes had been confirmed, Quong Wing
continued to challenge another. He immediately announced his intention
to appeal to the Supreme Court of Canada. Exactly why his case was
selected rather than Quong Sing’s is not recorded,
197
but it is evident that
this was a deliberate test of the law and Quong Wing had the support of
the Chinese community. The $500 bond, required of all Supreme Court
appellants, was posted on 12 August 1913 by Quong Wing himself with
Yip Foo and another Moose Jaw restaurant owner, Chan Dou. Mean-
while the Chinese Benevolent Association headquarters in Victoria was
conducting a fundraising campaign amongst Chinese across Canada,
eventually sending a total of $1,175 to Regina to help finance the attack
on the female labour law.
198
The Trades and Labour Congress traced the
challenge to ‘‘certain property interests’’ who were encouraging Chinese
to violate the act, but they were left unidentified.
199
Presumably the
‘‘property interests’’ would have been the wealthier class of Chinese mer-
chants since, unlike the Union Colliery case, there was no group of white
employers whose interests would have been at stake. Later the TLC re-
ported that ‘‘Chinese representatives’’ had taken the matter through the
courts.
200
This probably referred to the CBA, though the TLC may have
suspected that the Chinese government’s representative in Ottawa, Yang
Shu-Wen, took a hand in the case.
And so Quong Wing, thousands of miles from his Canton birthplace,
proprietor of a tiny cafe, a man whose personal resources must have
been extremely limited, found himself confronting the government of
Saskatchewan on behalf of Chinese rights in Canada. The day after bond
was posted, attorney Wellington B. Willoughby launched the appeal with
an affadavit swearing ‘‘That the Appellant is dissatisfied ... and wishes
to have the decision of the Court of Saskatchewan, En Banc, reversed.’’
201
The appellant’s factum was prepared by G. F. Henderson of MacCracken,
Henderson, Greene and Herridge. Jasper Fish continued to represent the
attorney general of Saskatchewan. Grounds for the appeal were that ‘‘the
learned Judges erred in finding that the aim of the said Act was not to
deprive the Chinese, whether naturalized or not, of the ordinary rights of
the inhabitants of Saskatchewan,’’ and they erred further
in finding that the subject matter of the said Act fell exclusively in the classes of
subjects assigned by Section 92 of the BNA Act to the province and did not inter-
fere with the authority of the Parliament of Canada to legislate on ‘‘trade and
100 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
commerce’’ or ‘‘aliens and naturalization’’ or other subjects reserved exclusively
by the BNA Act to the Parliament of Canada.
202
The battle waged in each factum was the battle between the Bryden and
Tomey Homma precedents. At issue was not simply the position of Chi-
nese in Canada, but the apparent constitutional conflict between those
two Privy Council decisions.
‘‘The outstanding question on appeal is as to the constitutionality of
the Statute in question,’’ Henderson began. His argument was that
Quong Wing’s case fell entirely within the Bryden precedent: by estab-
lishing regulations applicable to operating a business, the Saskatchewan
Act trespassed on federal authority over trade and commerce; by apply-
ing those regulations only to Chinese, it trespassed upon federal author-
ity over aliens and naturalization. The coal mine regulations invalidated
in Bryden were determined to be truly aimed at prohibiting Chinese from
earning a living. The Saskatchewan law, Henderson submitted, more
severely restricted Chinese from earning a living than had BC’s coal
mines law. Agreeing that, following Tomey Homma, a naturalized alien
could not claim the franchise as a right, Henderson contended that ‘‘The
right to engage in business, on the other hand, is a right which is clearly
included in the wide terms of the Naturalization Act.’’ The handicap
imposed by the Saskatchewan Act would ‘‘neutralize’’ every advantage
of naturalization and this, surely, was an infringement upon federal juris-
diction. Henderson concluded by proposing that the term ‘‘Chinaman’’
used in the Act could not have been intended to include naturalized sub-
jects, and so ‘‘the present appeal should be allowed upon the short
ground that the Appellant is not within the purview of the Act.’’
203
In writing the respondent’s factum Jasper Fish quite naturally relied on
Tomey Homma. In order to fall within the federal authority over aliens
and naturalization, a statute ‘‘must deal with aliens as such’’ and not
simply have an effect upon aliens. Innumerable provincial laws, dealing
with everything from mortgages to factory conditions, have an effect
upon aliens, but no one would seriously challenge their validity. The
female labour law came legitimately under the BNA Act S92 ss13, giving
property and civil rights to the province, and ss8, dealing with municipal
institutions, as ‘‘a necessary incident of the police power.’’ Submitting,
finally, that ‘‘the regulation of places of business and resorts kept, owned
or managed by Chinese independent of nationality may very properly be
considered necessary to the welfare of women and girls in Saskatche-
wan,’’ Fish pointed out that the regulation was similar to any existing
Quong Wing v. The King 101
provincial factory act which insisted upon ‘‘proper accommodation and
conveniences for the sexes, and upon supervision in the same interest
and the keeping of proper hours.’’
204
The Supreme Court of Canada, consisting of Chief Justice Sir Charles
Fitzpatrick and Justices F. A. Anglin, L. H. Davies, Lyman Duff and John
Idington, heard the case on 12 February 1914 and issued their decision
just 11 days later, less time than usual in that period. The chief justice, a
former solicitor general and Justice minister in the Laurier government,
was most impressed with Jasper Fish’s closing argument. In a brief writ-
ten decision, Sir Charles found that the act was passed ‘‘in the interest of
the morals of women and girls in Saskatchewan.’’
There are many factory Acts passed by provincial legislatures to fix the age of
employment and to provide for proper accommodation for workmen and the
conveniences of the sexes which are intended not only to safeguard the bodily
health, but also the morals of Canadian workers, and I fail to understand the dif-
ference in principle between that legislation and this.
205
Provinces, he wrote, were empowered to authorize disciplinary regula-
tions over the opening hours of taverns and to prevent disorder on Sun-
days, and they were equally empowered to restrict the employment of
women and girls under certain conditions. ‘‘The difference between the
restrictions imposed on all Canadians by such legislation and those
resulting from the Act in question is one of degree, not of kind.’’
206
He
recommended against the appeal.
Justice Davies, with Justice Anglin concurring, treated the violation of
Chinese rights more seriously than did his senior colleague, but he main-
tained that ‘‘The question on this appeal is not one as to the policy or jus-
tice of the Act in question, but solely as to the power of the provincial
legislature to pass it.’’
207
Reviewing both Bryden and Tomey Homma,as
the chief justice had not done, Davies found that the ‘‘pith and sub-
stance’’ of the act was ‘‘the protection of white women and girls,’’ and
this put it squarely within provincial jurisdiction.
208
‘‘There is no inherent
right in any class of the community to employ women and children
which the legislature may not modify or take away altogether.’’
209
Since
‘‘the prohibition is a racial one’’ it dealt with property and civil rights,
not alienage or naturalization. The Act ‘‘was not aimed at any class of
Chinamen, or at the political status of Chinamen, but at Chinamen as
men of a particular race or blood,’’
210
and this made Quong Wing’s natu-
102 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
ralized status irrelevant to the question. Davies and Anglin recom-
mended against the appellant.
Lyman Duff, though born in Ontario, had made his career in British
Columbia and was a BC Supreme Court judge before his appointment to
Ottawa. Of all the judges he was therefore most sensitive to Western feel-
ings about the Chinese, and he explained:
In the sparsely inhabited Western provinces of this country the presence of Ori-
entals in comparatively considerable numbers not infrequently raises questions
for public discussion and treatment, and, sometimes in an acute degree, which in
more populated countries would excite little nor no general interest.
In such circumstances, he suggested, the ‘‘pith and substance’’ of the Sas-
katchewan legislature’s intentions must be understood as the best interests
of white women and of local relations between Europeans and Orientals.
It was not, simply , a p r o h i b i t i o n against Chinese as was consider ed in Bry-
den. The act did not prevent Chinese from engaging in business, for the
employment of white women was not ‘‘a necessary condition’’ for operat-
ing a laundry or restaurant.
211
But the ‘‘decisive point,’’ as far as Justice
Duff was concerned, was that the act ‘‘applies to persons of the races men-
tioned without regard to nationality.’’ Duff came the closest among his col-
leagues to offering a legal definition of ‘‘race,’’ and for this he had recourse
to ‘‘the common understanding of the words,’’ entirely denying the line of
argument pursued by Netson Craig in Moose Jaw:
The terms Chinaman and Chinese, as generally used in Canadian legislation,
point to a classification based upon origin, upon racial or personal characteristics
and habits, rather than upon nationality or allegiance.... Indeed, the presence of
the phrase ‘‘other Oriental person’’ seems to make it clear, even if there could
otherwise have been any doubt upon the point, that the legislature is not dealing
with these classes of persons according to nationality, but as persons of a certain
origin or persons having certain common characteristics and habits sufficiently indi-
cated by the language used.
Lord Watson, in the Bryden decision, had maintained that the mining reg-
ulations had ‘‘no application except to Chinamen who are aliens or natu-
ralized subjects.’’ As had Justice Davies, Duff noted that since the female
labour law applied to all Chinese, Lord Watson’s stricture could not be
applied.
212
Duff could not therefore find any parallel between Quong
Wing and Bryden. Instead, the interpretation of provincial powers must
Quong Wing v. The King 103
follow the definition laid down by Lord Halsbury in Tomey Homma.He
sided with Fitzpatrick, Davies and Anglin in rejecting the appeal.
Justice John Idington, at 74 the oldest member of the Court, was the
only one to discern a different pith and substance in the Saskatchewan
law: ‘‘The Act, by its title, refers to female labour and then proceeds to
deal only with the case of white women. In truth, its evident purpose is
to curtail or restrict the rights of Chinamen.’’
213
Placing his faith in the
Naturalization Act and the rights of a British subject, he argued
that the highly prized gifts of equal freedom and equal opportunity before the
law, are so characteristic of the tendency of all British modes of thinking and act-
ing in relation thereto, that they are not to be impaired by the whims of a legisla-
ture; and that equality taken away unless and until forfeited for causes which
civilized men recognize as valid. For example, is it competent for a legislature to
create a system of slavery and, above all, such a system as applied to naturalized
British subjects? This legislation is but a piece of the product of the mode of
thought that begot and maintained slavery; not so long ago fiercely claimed to be
a laudable system of governing those incapable of governing themselves.
214
The Dominion government could veto the Saskatchewan Act as guaran-
tor of the equality of freedom and opportunity contained in the federal
Naturalization Act, or, indeed, the courts could strike it down. Certain
‘‘political rights’’ may be limited by a province, but ‘‘the other rights’’ of
a British subject ‘‘do not so clearly fall within the powers of the legisla-
tures to discriminate ... as between classes or sections of the commu-
nity.’’ Alluding to Bryden and Tomey Homma, Justice Idington suggested
that neither supplied a conclusive authority to be followed in this case,
but of the two he found Bryden to be more relevant.
215
Still, his decision
rested upon the concept of naturalization. Before an applicant could be
naturalized, he must have lived in Canada for three years and show him-
self to be a person of good character throughout that time. By allowing
Quong Wing to become naturalized, Canada had certified him to be a
man of good character and worthy of equal treatment with other British
subjects as assured by the Naturalization Act. Referring to the female
labour law, Idington exclaimed: ‘‘Indeed, in a piece of legislation alleged
to have been promoted in the interests of morality, it would seem a
strange thing to find it founded upon a breach of good faith which lies at
the root of nearly all morality worth bothering one’s head about.’’
216
The
Act, then, could not possibly apply to a naturalized person. Whether it
were judged to be ultra or intra vires in general terms, Quong Wing’s sta-
104 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tus as a naturalized subject protected him from this or any other discrim-
inatory act and his appeal should be allowed.
Quong Wing had lost again, decisively this time for his application to
appeal to the Judicial Committee of the Privy Council was rejected.
217
Given the circumstances of the time the wonder is not that four justices
decided against him, but that one found in his favour. The majority was
prepared to accept a restriction on civil rights because it did not specifi-
cally trench upon federal authority. Only John Idington contended that
equality was a national issue and must be upheld by the Dominion gov-
ernment in fulfilment of its responsibilities under the Naturalization Act
and the broad powers awarded under Section 91 of the BNA Act.
218
To
the modern reader several things are remarkable. One is the frequency
with which senior jurists disclaimed any responsibility to examine the
justice of a legislative act. Another is the ironic fact that a law based upon
racial discrimination, applying to all members of a given ‘‘race’’ whether
Canadian- or foreign-born, was more acceptable than a law construed to
apply only to aliens and naturalized subjects. A third point would proba-
bly be the readiness with which the majority accepted Saskatchewan’s
moral imperative to protect white females from the undisputed dangers
posed by Chinese males. Finally, since Quong Wing dealt with an
employment issue, the lay reader might incline to find it closer to Bryden
than Tomey Homma and therefore conclude that even within its own nar-
row terms, the Supreme Court should have granted Quong Wing’s
appeal.
The confusion has been widely shared. As early as 1915 the Trades and
Labour Congress attempted to reconcile Bryden with Quong Wing, and
found that class interests explained the apparent anomaly. Under Bryden,
white employers could hire Chinese workers to compete with white
workers. Under Quong Wing the Chinese employer could not hire white
workers, which might enable him to compete with white employers. In
the TLC’s own words:
the provinces have the right to prevent the employment of certain people by cer-
tain other people and the provinces have not the right to prevent the employ-
ment of certain people by certain other people – the provinces have the right to
prevent the employment by certain Asiatics of people in certain circumstances,
but the provinces have not the right to prevent the employment by certain people
of Asiatics in certain circumstances. . . . In the one case it is the welfare and inter-
ests of the workers that are at stake, in the other the interests of the employers.
219
Quong Wing v. The King 105
The most thorough scholarly discussion of the decision came from Wal-
ter Tarnopolsky, who concluded that the pith and substance of the
Saskatchewan Act was not genuinely to protect white females but to
deprive Chinese of their livelihood. Since there were no Chinese women
available to hire, and it could not reasonably have been expected that
Chinese would employ white men in their laundries and restaurants, the
effect of the law must have been to drive Chinese out of business.
Tarnopolosky added that Tomey Homma was not an adequate precedent
for Quong Wing, as it dealt only with certain consequences of naturaliza-
tion, specifically the franchise, and was no more inclusive of all such con-
sequences than Bryden was of all the consequences of naturalization or
alienage. Though today the franchise is regarded as a right, in 1914 it was
still a privilege. Bryden, however, referred to the right of every Canadian
resident to earn a living.
220
Thus it was preferable, according to Professor
Tarnopolsky, to apply the Bryden precedent and find for Quong Wing.
10. EXPLANATIONS
Although subsequent generations of lawyers have largely treated Quong
Wing as a division of powers decision, it must also be recognized that in
1914 the Supreme Court of Canada pronounced on the legality of racial
inequality. The judges were directly confronted with the issue of discrim-
ination and invited to overrule the Saskatchewan law not just because it
fell in this or that subsection of the BNA Act but because it violated
Quong Wing’s ‘‘right’’ to freedom from discrimination. In his very first
ground for appeal submitted to the Supreme Court of Canada, Quong
Wing charged that the Female Labour Act deprived him as a Chinese of
the ‘‘ordinary rights of inhabitants of Saskatchewan.’’ Saskatchewan
Chief Justice Haultain, in his minority decision, had already recognized
that Quong Wing must be accorded those ‘‘ordinary rights’’ ‘‘without
being subjected to unequal and discriminatory conditions.’’ At the
Supreme Court of Canada, four of the five justices wrote or concurred in
opinions which acknowledged that Quong Wing’s civil rights were
affected, and three upheld it precisely because it was racially discrimina-
tory. The question of jurisdiction was of course central to the Supreme
Court of Canada (and the Saskatchewan Supreme Court) decisions, but
the judges were not unaware of the impact their ruling would have on
the rights of Chinese in Canada. This was quite apparent to contempo-
raries: the Chinese Benevolent Association perceived a threat to the
rights of Chinese Canadians and sponsored Quong Wing’s challenge; the
federal government, whose jurisdiction was supposedly being tested, did
106 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
not intervene, send money, offer advice or become involved in any way.
And, while parliamentary supremacy was understood in 1914, John
Idington was one who acknowledged that this implied certain restraints
and responsibilities when he wrote that ‘‘equal freedom and equal
opportunity before the law ... are not to be impaired by the whims of a
legislature.’’ As if in anticipation of Section 1 of the Charter of Rights and
Freedoms,
221
Justice Idington added that equality rights should not be
‘‘taken away unless and until forfeited for causes which civilized men
recognize as valid.’’ It becomes possible to recognize racial discrimina-
tion as the question, and division of powers as the means to articulate
the answer. If Idington’s implied Bill of Rights was too radical, Bryden
was available to squelch a law that was openly discriminatory. Why,
then, did the Supreme Court of Canada support this racially discrimina-
tory law, and were the Court’s reasons the same as those of the Saskatch-
ewan legislature in passing the act in 1912?
Morality featured prominently in the contemporary explanations
offered by the Saskatchewan attorney general and by the courts, and
some modern sources contend that the entire episode was prompted by a
specific sexual assault. The most comprehensive survey of Chinese his-
tory in Canada accepts that the law was a response to an incident in
which a Chinese restaurant owner had assaulted a white female employ-
ee in 1912.
222
A 1973 ‘‘Study of the Chinese Community in Moose Jaw’’
locates the alleged assault in that city, accounting for the law itself and
for its first prosecution in Moose Jaw, and this is supported by a major
history of Chinatowns in Canada published in 1988.
223
This explanation
seems unlikely, however. There was an assault case reported in the local
press, in which Alfred Essrey charged Charlie Quong for throwing him
physically out of the kitchen at the Royal restaurant. Mr. Essrey had gone
there to fetch a pork chop for his Sunday breakfast. The newspaper
account added that ‘‘bad blood’’ existed between Essrey and the Chinese
community since he ‘‘reprimanded a Chinaman for assaulting his sweet-
heart who was a waitress in the Royal restaurant’’ the previous week.
Magistrate Dunn dismissed the case.
224
An earlier charge against Charlie
Chow, alleged to have indecently assaulted a young white girl in the
CER restaurant, was similarly dismissed.
225
Even if these allegations
were true, they did not arouse enough attention to provoke a response
like the Female Labour Act. They were not even reported in the Regina or
Saskatoon newspapers. There is no published report of the criminal con-
viction of a Chinese in Saskatchewan on any sex-related charge in the
first two-and-a-half decades of the 20th century. References to Chinese
Quong Wing v. The King 107
morality during the legislative debate on the Act were extremely vague
and no specifics were cited. Quong Wing himself cannot have been
implicated in any incident. At his trial his female employees insisted that
he was ‘‘respectable,’’ and prosecutor Grayson volunteered, ‘‘I know he
is a very fine gentleman.’’
226
One cannot believe that the Moose Jaw Chi-
nese community and the national Chinese Benevolent Association would
have made a test case based on a man guilty of the very thing the law
was supposed to prevent. Nor can one suppose that the police and courts
would have overlooked a guilty example to prosecute a man whose per-
sonal record was unblemished. Supposing an assault did occur, it was
never used to support the passage of the Act or the case against Quong
Wing. Above all, the 1911 TLC resolution calling for restrictions on Chi-
nese employers was passed before the assault is even alleged to have
occurred. To the extent that morality was an issue it was tied to a much
more general perception of Chinese as a threat and white women as vul-
nerable, rather than to any actual perpetrator and victim.
More often, commentators have concluded that ‘‘economic reasons’’
were behind the Saskatchewan law, with morality providing a conve-
nient excuse.
227
Even the Trades and Labour Congress, the bill’s immedi-
ate sponsor, soon became convinced that it represented a conspiracy by
legislatures and courts to inhibit workers’ rights and to enhance the posi-
tion of employers.
228
The economic motive has often been used to explain
legislated restrictions in British Columbia: the instruments of the state, it
is contended, deliberately enforced a split labour market and under-
mined the competitive capacity of small Chinese enterprises in order to
distract white labour and to profit white business.
229
The application of
this kind of explanation to Saskatchewan, however, is far less apparent.
The government had reason to gratify organized labour in 1912, in a situ-
ation of labour tension, but the provincial TLC was agitating against
British immigration at that time for reasons of economic self-interest;
230
Chinese labour was already ‘‘ghettoized’’ and posed no perceptible
threat to white wages. On the contrary, if Chinese were driven out of
their restaurant and laundry businesses they would be more likely to
come into conflict and competition with white labour. Nor was there in
Saskatchewan a class comparable to the BC mine owners who might be
motivated by a desire to exploit any Chinese labour displaced from self-
employment by laws attacking restaurants and laundries. The only
Saskatchewan constituency that might have benefited economically from
the Act was small business, specifically the non-Chinese owners of com-
peting laundries and restaurants.
231
Such individuals did participate in
108 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
the Social and Moral Reform Council, which had supported passage of
the Act in 1912, but so did the churches, women’s organizations, dental
and medical associations, teachers and lawyers. Saskatchewan legislators
cannot have been blind to the economic impact of their Act,
232
but white
restaurant owners were hardly conspicuous in the reform campaign or,
for that matter, in the economy. If economic motives were present, they
too must have been related to a general perception rather than an imme-
diate threat.
Legally the Supreme Court did not need to decide as it did. No im-
moral incident served as a precipitating event. Economically there was
no apparent urgency to disarm Chinese competition. The situation exist-
ing about the year 1914 fails to deliver a convincing explanation for the
Saskatchewan Act or the Supreme Court decision. They must be under-
stood, first, in the context of a momentum already established, which
was producing increasing animosity towards Chinese because of dangers
they seemed to pose to the welfare of white Canadians. In addition, any
trends of which the Quong Wing decision formed a part can only be
revealed through the history of subsequent developments relating to
Chinese in Canada. The history to which Quong Wing belongs neither
began nor ended in 1914. What happened after 1914 is equally essential
to any explanation.
Judicial developments, to take one obvious example, confirmed the
movement away from Bryden and indicated that Quong Wing was a stage
rather than an end in a process. Depriving Chinese of their means of sub-
sistence, denied by Bryden and accepted by Quong Wing only in disguise,
became an admitted principle in 1923. Reference has already been made
to BC orders-in-council in 1902 permitting Crown leases only upon the
provision that Chinese and Japanese must not be employed on or in con-
nection with the lease thus granted. In 1913 the Dominion Parliament
ratified an Anglo-Japanese treaty which stated, in part, that subjects of
each contracting party ‘‘shall in all that relates to the pursuit of their
industries, callings, professions, and educational studies be placed in all
respects on the same footing as the subjects of the most favoured
nation.’’
233
Since treaty obligations are federal under the BNA Act,
Ottawa seemed bound to disallow the discriminatory provincial orders.
A referral to the BC Court of Appeal in 1920
234
produced the opinion that
the provincial orders were ultra vires, whereupon the BC legislature
passed an Oriental Orders in Council Validation Act which was, in turn,
referred to the Supreme Court of Canada.
235
Justice Idington argued that
Quong Wing must logically lead to a decision in favour of the province,
236
Quong Wing v. The King 109
and Justice Brodeur agreed that, insofar as Chinese were concerned,
Quong Wing would make the Act intra vires. But Brodeur joined the
majority in finding the exclusion of Japanese to be clearly within federal
authority and so the Act as a whole was invalidated.
The question reached the Judicial Committee of the Privy Council in
1923 via an action by Brooks-Bidlake and Whittal, Limited, whose timber
licence was cancelled by provincial authorities because the company
employed Chinese and Japanese labour on its Crown lease.
237
The Privy
Council upheld the cancellation because the province was authorized to
set conditions on its own property (timber leases), and secondly, since
the company had employed both Chinese and Japanese any conflict with
the Japanese Treaty Act was irrelevant: the anti-Chinese condition having
been broken was alone sufficient cause to rescind the lease. The right of a
province to pass a racially discriminatory act within its legislative fields
was firmly upheld, even if it threatened the livelihood of the ‘‘races’’
involved. Though Quong Wing was not cited in Brooks-Bidlake, it is appar-
ent that the Privy Council was giving its retroactive approval to the spirit
of the Supreme Court’s 1914 decision.
Legislative developments confirmed the same trend. In 1922 the House
of Commons debated the proposition that
in the opinion of this House, the immigration of oriental aliens and their rapid
multiplication is becoming a serious menace to living conditions, particularly on
the Pacific Coast, and to the future of the country in general, and the Govern-
ment should take immediate action with a view to securing the effective restric-
tion of future immigration of this type.
238
Although the $500 head tax had been immediately effective in discourag-
ing Chinese immigration, it had also made the contracting system
unprofitable since a contractor would have to advance such a large sum
to procure entry for each labourer. With the ‘‘middleman’’ removed and
labour supplies reduced, wages for Chinese in Canada began to increase,
and as they reached an average of $60 or $70 per month it became feasi-
ble for an individual already in Canada to assist the immigration of a rel-
ative and for the new immigrant to repay the tax in about two years.
From only eight individuals in 1904, Chinese immigration numbers rose
to 7,445 in 1913 and then, after a wartime interruption, reached 4,333 in
1919. The consequence was renewed pressure on Parliament to find a
new measure to exclude Chinese immigration, and ultimately to enact
the Chinese Immigration Act of 1923,
239
which abolished the head tax but
110 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
which banned all Chinese from entering Canada except students, mer-
chants, diplomats and Canadian-born returnees.
Under the new Act merchants lost the privilege of bringing in their
wives and minor children, a change which indicates that the admission
of the merchants, like the diplomats and students, was based on the as-
sumption that they would not become permanent residents of Canada.
When the government’s bill reached the Senate, Wellington B. Willough-
by, now a senator from Moose Jaw, moved an amendment to permit Chi-
nese merchants to bring their families. ‘‘[I]n the interest of the comity of
nations and for the sake of preserving the moral position of the China-
men in the country, it might be wise to grant this privilege. We all recog-
nize that among the best Chinamen the family tie is one that is regarded
sacredly.’’
240
The reaction to Senator Willoughby’s suggestion was uni-
versally hostile. In a characteristic response, Senator Robert F. Green
from Victoria commented:
The mind of the Chinaman is absolutely different from the mind of the ordinary
white man. You cannot in any possible way find out just how the Chinese mind
works. It is very true that in a way the Chinese are good citizens. They make
good domestic servants and faithful workers, but they will never help us to build
up a Canada of which we will be proud. Anyone who knows the Chinese knows
perfectly well that our race will never intermarry with them nor assimilate
them. . . . They practise polygamy, and when a Chinaman has several wives, how
are you going to single out one and say that she may come in and the others may
not? I hope, hon. gentlemen, you will protect us from this evil and let the Bill go
through as it stands.
241
In the total absence of support from his colleagues Willoughby withdrew
his amendment and the government’s Chinese Immigration Act passed
intact.
That same year parliament passed a consolidated Opium and Narcotic
Drug Act
242
incorporating recent amendments which dramatically in-
creased the penalties for possession of opium, including whipping and
deportation. Public and parliamentary opinion had been moved in this
direction by a book published in 1922 by Magistrate Emily Murphy, The
Black Candle, consisting in part of articles written for Maclean’s magazine
in 1920. Murphy’s primary target was the Chinese opium user, though
she also referred frequently to ‘‘blackamoors’’ or ‘‘gen’lemen of color,’’
and their most heinous crime was the entrapment of white women into
addiction and prostitution. The book’s photographs showed white
Quong Wing v. The King 111
women in compromising positions with Asian or African men, and Mur-
phy noted meaningfully that more than 75 percent of all drug arrests
involved Chinese suspects.
243
Warning white women in particular to
beware of association with Chinese, Murphy exclaimed ‘‘Yes! it is quite
certain we do not understand these people from the Orient, nor what
ideas are hid behind their dark inscrutable faces.’’
244
The sentiments behind these enactments were expressed more specifi-
cally in the refinement and prosecution of laws prohibiting Chinese from
employing white females. In 1919 Saskatchewan dropped its explicit ref-
erence to Chinese from the Female Labour Act, but the intention was that
municipalities should refuse licences to Chinese establishments applying
to employ white women.
245
In August 1924 Yee Clun applied to the
Regina city council for a licence to employ white women in his restau-
rant and rooming house, claiming that because of the new Chinese Immi-
gration Act there was a shortage of Chinese males available to hire.
246
Council deferred the application until its next meeting, allowing the
women’s reform movement in Regina to mobilize its opposition. The
WCTU convened a special meeting to pass a resolution that ‘‘it was not
in the best interests of the young womanhood of the city to grant the
request,’’ and representatives were assigned to attend the next council
meeting to oppose Yee Clun’s licence.
247
The Women’s Labor Council and
the Local Council of Women also voted to oppose this and any licence for
a Chinese to employ a white woman.
248
When council met two weeks
later about 20 women were present. The leader of the Women’s Labor
League delegation warned that ‘‘Employment of white women by Chi-
nese might lead to mesalliances,’’ and that Regina’s claim to be ‘‘Queen
City of the West’’ could be corrupted to ‘‘queer city of the west.’’
249
Another deferral postponed consideration until the October council
meeting, where a lawyer hired by the Local Council of Women quoted
Emily Murphy to illustrate the dangers of opium and entrapment wait-
ing for white women in Chinese restaurants. In the face of such opposi-
tion, council ignored the advice of its own solicitor and rejected Yee
Clun’s application.
250
With the support of the Regina Chinese community
Yee Clun thereupon sued the city.
251
In the Saskatchewan Court of King’s Bench, Justice Philip Mackenzie
heard council members admit that their reason for refusing Yee Clun’s
licence was that he employed ‘‘a number of Chinamen on his premises’’
and ‘‘they feared that such employees would constitute a menace to the
virtue of white women.’’
252
Justice Mackenzie found this a fallacious
argument for, he reasoned, had Yee Clun employed ‘‘an equal number of
112 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
white men’’ rather than Chinese, ‘‘the menace to the virtue of the white
women might well be greater . . . since there would exist no racial anti-
pathy to be overcome between them and the white men.’’
253
He con-
cluded ‘‘that the council really refused the licence in this case upon racial
grounds,’’ and since the 1919 amendment had explicitly eliminated
‘‘race,’’ ‘‘It would be strange if the municipalities to which has been dele-
gated authority of granting such special licences could now go on and
maintain the discriminatory principle which the Legislature had been at
such pains to abolish.’’
254
He therefore ordered that the licence be
granted to Yee Clun. But Justice Mackenzie’s impeccable logic caused
him to misread the legislature’s intent.
255
Soon after the Yee Clun deci-
sion, and to avoid its repetition, the Saskatchewan legislature amended
the Female Employment Act so that a city council could refuse a licence at
its own discretion without giving any reasons, and to remove any licence
already granted.
256
The legislature’s intent, unchanged since 1912, was
made quite clear.
British Columbia had also removed the explicit racial qualification
from its 1923 Women and Girls’ Protection Act, but to acquire a licence
owners had to satisfy the police that no threats to the morals of white (or
native Indian) women lurked on the premises. The law was indifferently
enforced until the mid-1930s, when a violent crime involving a Chinese
suspect and a white female victim prompted Vancouver city officials to
begin warning Chinese restaurants that they must dismiss their white
female employees or lose their licences. In September 1937 Vancouver
council suspended the licences of three Chinese cafes when it was dis-
covered that they continued to employ white waitresses. The owners,
one of whom was president of the Chinese Benevolent Association,
threatened to sue, but a compromise was reached whereby the Chinese
agreed to fire the waitresses and drop the court action and the city would
restore the licences. The former waitresses, whose own jobs had disap-
peared in the course of these negotiations, appeared before city council
on 12 October 1937 to plead for the restoration of their jobs. ‘‘We must
live and heaven knows if a girl is inclined to go wrong she can do it just
as readily on Granville Street as she can down here [in Chinatown],’’
they argued. Denying the validity of the threat to their morals, the wait-
resses alleged that racial discrimination underlay the city’s action. Mayor
George Miller declared, ‘‘It is ridiculous to suggest that there was racial
discrimination,’’ and the women’s plea was rejected.
257
A year later
another Chinese restaurant was discovered with a white waitress and its
licence was suspended, being restored only after the waitress was fired.
Quong Wing v. The King 113
Chief Constable W. W. Foster was asked to conduct an investigation into
whether employment by Chinese was a verifiable threat to women’s
morals. In his March 1939 report Chief Foster wrote: ‘‘In view of the con-
ditions under which the girls are expected to work it is almost impossible
for them to be so employed without falling victims to some form of im-
moral life.’’
258
Early in 1943 the League of Women Voters asked Vancou-
ver city for a by-law to prohibit Chinese from employing white women.
Mayor Cornett replied that a by-law was not necessary because ‘‘there
was a gentleman’s agreement with the proprietors of Chinese cafes not to
hire white girls.’’
259
The most bizarre developments in the same direction occurred in
Ontario. When the Act to Amend the Factory, Shop and Office Building Act,
containing the anti-Chinese clause, was given assent on 1 May 1914, its
enforcement was held in abeyance by Section 2 (2), which declared that
the law ‘‘shall not come into force until a day to be named by proclama-
tion of the Lieutenant-Governor-in-Council.’’
260
Acting Premier J. J. Foy
explained to a TLC delegation that because Saskatchewan’s Act had been
appealed to the Privy Council (as was then believed), Ontario would not
proclaim its own version until and unless a favourable decision was
received from London.
261
In the event the Privy Council refused to hear
the case, the ‘‘bring forward’’ signal was not triggered, and Ontario’s law
lay unproclaimed or at least unacknowledged for over a decade.
262
Then
in 1927 Ontario consolidated its laws in the Revised Statutes of Ontario
which were, according to custom, proclaimed as a body. Included was
RSO 1927 c. 275, The Factory, Shop and Office Building Act, Section 30 of
which outlawed the employment of white women by Chinese.
On 22 August 1928 the Toronto Star announced in a heading that
‘‘White Girls Cannot Work for Orientals.’’ The accompanying story
explained that Mayor Sam McBride had ‘‘received many letters from citi-
zens asking that the provision in the Statutes prohibiting this be en-
forced,’’ and that his worship would ‘‘set in motion the machinery of the
law.’’ Nine days later, amidst reports that Chinese were actually being
prosecuted, Consul Chow Kwo Hsien wrote to Premier Howard Fergu-
son protesting the act as ‘‘inconsistent with Anglo-Saxon sense of justice
and fairplay’’ and adding a threat that Ontario’s intransigence ‘‘might be
followed by retaliatory measures in China.’’
263
No satisfactory answer
was received, and a personal visit with the premier and attorney general
failed to produce any amendment.
264
Chow then contacted Ottawa ask-
ing for a federal disallowance since the Ontario Act was contrary to
treaties between Great Britain and China.
265
Federal mandarins were
114 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
impressed with the consul’s determination ‘‘to agitate this matter to the
fullest extent of his power.’’ The deputy minister of Justice wrote to his
Ontario counterpart: ‘‘it seems to me extraordinary that a section which
the Legislature declared should not come into force until proclaimed
should be brought into force by the mere fact that the Commissioners
included it in the revision.’’
266
The Ontario attorney general was pre-
pared only to promise ‘‘to do our best to see that prosecutions are not
instituted against Chinese for past offences if the Chinese will obey the
law in the future.’’
267
A solicitor engaged by the Chinese consulate, urg-
ing federal disallowance, wrote that in 1914 Chinese restaurants had
‘‘operated as gambling houses and opium dens,’’ but there had been no
allegations of a similar nature since that time. ‘‘No one even noticed’’ the
law until August 1928.
268
Press reaction was mixed. Labour pronounced that organized labour
‘‘has long sought this regulation and it expects the Ontario government
to enforce the law.’’
269
The Toronto Globe, in an editorial entitled ‘‘End
this Stupid Statute,’’ reiterated its longstanding position ‘‘that indiscrimi-
nate mixing of different colours and races is criminally unwise,’’ but on
the other hand ‘‘To lump all Chinese ... as a class of invariable moral
degenerates is... hideously unjust.’’ The telling point for the Globe was
that Britain was at that moment renegotiating ‘‘the miscalled unequal
treaties which were designed to secure fair play for British subjects in
China.’’ At this delicate moment Ontario’s ‘‘pinpricks’’ could upset the
Chinese; the Nationalist foreign minister had already protested, and re-
taliation must not be ruled out. Since the law was never intended, and
was only ‘‘included by oversight’’ in the 1927 revision, the Globe called
for its withdrawal.
270
Between these two positions fell an article in the December 1928 Chate-
laine. Announcing that ‘‘The old problem of the employment of white
women by Chinese establishments has come up again, brought to light
by a no less portentous occurrence than an error in the setting of the
statute books of Ontario!,’’
271
the article presented comments represent-
ing different points of view. A report from the National Council of
Women’s Committee on Trades and Professions for Women outlined the
various provincial restrictions and concluded,
The bar raised by the statute is not for the purpose of discriminating against an
Oriental race but inasmuch as Orientals have not Oriental women in this country
and as naturally an employee is more or less under the control of her or his
employer, this Act protects the white girls and is passed for their protection only.
Quong Wing v. The King 115
The NCWC committee turned up no evidence of actual harmful treat-
ment, however, and added that waitresses were more likely to be
annoyed by their white patrons than by Chinese employers. The Chate-
laine reporter commented that in circumstances where a white patron
was ‘‘intent on mischief,’’ the Chinese employer would be unable to
‘‘surround female employees with security and good influences’’ because
the white man would never ‘‘respect the authority of a Chinaman.’’ A
missionary to the Toronto Chinese community scoffed at the idea that
Chinese could be a threat since their civilization instilled profound
respect for law and order, and he mentioned that the white waitresses
whom he had interviewed in Toronto ‘‘feel no need of protection and
resent interference with their liberty of action.’’ Magistrate Helen Gre-
gory MacGill approved of the protection of women, but thought it wrong
to single out a particular ‘‘race’’ as the source of danger. The Chatelaine
article, too, accepted the premise that Canadian women required ‘‘moral
as well as industrial protection,’’ and did not so much object to the legis-
lation as complain that it did not go far enough to secure its stated pur-
pose. What was needed, according to Chatelaine, was a proper national
program addressing the ‘‘growing problem’’ of ‘‘women placed in cir-
cumstances prejudicial to their welfare.’’ ‘‘A scattered bit of provincial
legislation here and there, discriminating against one race, will do little
to remove undesirable conditions in any quarter.’’
The federal government considered its options. Because the offending
statute was part of the RSO, already proclaimed and in force, it would be
necessary to disallow the entire body of Revised Statutes and this would
leave the province of Ontario lawless. Disallowance was therefore not a
serious consideration.
272
China pressured London to lean on Ottawa to
coerce Toronto into cancelling the law.
273
External Affairs and the federal
Department of Labour did a study.
274
The Chinese consul visited the act-
ing prime minister, Ernest Lapointe, on two occasions.
275
Eventually
Ontario found a compromise: the Act would not be cancelled, but it
would be put back on the shelf. The Ontario legislature amended the
Act, reinstating the subsection which provided that the Chinese restric-
tion ‘‘shall not come into force until a day to be named by the Lieu-
tenant-Governor by his proclamation,’’ and gave it retroactive effect from
31 December 1927 when the Revised Statutes were proclaimed.
276
The
undersecretary of state for External Affairs advised the Chinese govern-
ment ‘‘according to the amendment made recently by the Ontario Legis-
lature, the prohibitive clause can only be made effective by Proclamation
and until and unless a Proclamation has been issued it is not in force.’’
277
116 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
This may have settled the international controversy, but complaints that
Toronto police continued to prosecute Chinese under the retracted law
were still being reported in October 1929.
278
It is apparent that the public, press, courts, legislatures and law-
enforcement agencies of Canada continued to perceive Chinese as a
threat, and continued to countenance discriminatory restrictions against
them. The Quong Wing decision was not an aberration, and not a product
of a particular coincidence of circumstances. The forces opposed to the
Chinese culminated not in 1914 but in 1923, the year of Brooks-Bidlake
and of the new Chinese Immigration Act which effectively ended further
Chinese immigration until its repeal in 1947. In Moose Jaw itself the sen-
timents perceptible in Quong Wing’s prosecution would climax on
7 June 1927, when Canada’s first and largest Ku Klux Klan Konclave
burned a 60-foot cross on Caribou Street and a crowd of 10,000 heard
demands that River Street be cleaned up and Moose Jaw made safe for
Anglo-Saxon Protestants. ‘‘One flag, One language, One race, One reli-
gion, Race purity and Moral rectitude’’ was the cry, and to that end an
immediate ban on marriage between white women and ‘‘Negroes, Chi-
nese or Japanese.’’ The Klan donated a ward for the Moose Jaw hospital,
and to it was affixed a plaque dedicating it to ‘‘Confederation . . . Our
Public Schools, Law and Order, Separation of Church and State, Freedom
of Speech and Press, White Supremacy.’’
279
It may be instructive to examine the impact of these restrictions and
popular attitudes upon the Chinese themselves. In the first place, the
Chinese population of Canada continued to grow as, in particular, did
that of Saskatchewan. The 1921 census showed 36,924 Chinese, 2,613 of
them in Saskatchewan (of whom only 39 were female), a provincial
increase of almost 200 percent during a period for most of which an
explicit anti-Chinese law was in force. By 1931, the rate of growth
slowed by the 1923 immigration act, Canada had 40,254 Chinese and Sas-
katchewan 3,221. Especially interesting is the continued Chinese trend
toward the hotel, restaurant and laundry industries. In 1921, 50 percent
of Saskatchewan Chinese were employed in restaurants (as owners,
cooks or waiters); in 1931 this had increased to 70 percent. Most of the
remainder were owners or employees of laundries and hotels/rooming
houses; 90 percent of Chinese men and 100 percent of Chinese women in
Saskatchewan were engaged in typical (or stereotypical) service indus-
tries in 1931.
280
This was occurring despite the existence of laws and
licensing restrictions that prevented Chinese from hiring white women.
The restrictions obviously were not sufficient to discourage Chinese from
Quong Wing v. The King 117
entering the targeted industries or to drive them out of the province.
Even Quong Wing, whose personal discouragement must have been con-
siderable, remained in Moose Jaw in his restaurant. In 1915 both he and
Quong Sing were among the 25 board members of the newly incorpo-
rated ‘‘Eastern Club.’’
281
In May 1916 Jasper Fish was still trying to collect
for costs incurred by the Crown in the Saskatchewan Supreme Court:
Justice Brown, with Justice Newlands concurring, had recommended
‘‘The appeal in each case should, therefore, be dismissed, with costs,’’
Chief Justice Haultain wished the magistrate’s conviction to be reversed,
and Justice Lamont affirmed the conviction without mentioning costs.
The formal judgment did not provide for costs, and Mr. Fish sought ‘‘to
have the said omission corrected.’’ There is no record that Quong Wing
ever paid.
282
The question remains whether this subsequent history can help to in-
terpret the 1914 decision, or perhaps vice versa. One thing that seems to
emerge is that the ‘‘economic or moral’’ distinction is too simple. If the
motivation were purely economic, then surely the failure of the ‘‘white
female’’ tactic to limit Chinese restaurants and laundries must have
prompted a more effective method; yet none was attempted. Instead,
laws which clearly did not impede the spread of Chinese laundries and
restaurants were more urgently enforced, often at the insistence of white
women’s organizations with no possible economic benefits to them-
selves. Brooks-Bidlake had an openly economic purpose: the restrictions
on BC Crown leases, upheld by the Privy Council, pretended no other
goal than the exclusion of Chinese and Japanese from certain fields of
employment. But the employment, and the fear, of Chinese labour did
not occur in isolation; they were connected to a conceptual climate that
allowed Chinese workers to be rendered a separate category at all,
‘‘cheap’’ or otherwise. Quong Wing and Brooks-Bidlake, Bryden and Tomey
Homma were not contradictions or coincidences but glimpses of a com-
mon phenomenon. White females, too, constituted a distinct category,
whose unique characteristics required special consideration. The moral
issue was dependent on a ‘‘natural’’ female condition of vulnerability,
and a specific Chinese threat could not have survived, in the absence of
any real incidents, without a belief in that general condition.
There were many identifiable historical circumstances contributing to
the Quong Wing episode: imported prejudices, economic interests, cul-
tural differences, geographical isolation, social movements. By overlap-
ping the histories of two of the human categories, ‘‘race’’ and gender,
Quong Wing revealed that there was something connecting those ingredi-
118 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
ents, making them meaningful and consistent, making ‘‘sense.’’ That was
an underlying understanding of human behaviour as biologically driven,
a world view receptive to interpreting differences as permanent and to
accommodating differential legal treatment for the allegedly discrete
units of humanity. A person’s ‘‘race’’ could account for simpler wants
and for a ‘‘servile’’ personality, which in turn caused that person to ac-
cept lower wages and hence present a threat to members of more ‘‘civi-
lized races.’’ A person’s ‘‘race’’ accounted for the ‘‘instinct’’ for
democratic institutions or for despotisms of the Oriental type, and hence
could present a threat to Canadian democracy. A person’s ‘‘race’’ was
indelible, and if lower ‘‘races’’ were allowed to pollute the higher,
through intermarriage or seduction, the result would be the weakening
of the superior strain. Male and female gender characteristics were simi-
larly perceived to be fixed and natural, and to require distinctive treat-
ment. Companies like Union Colliery and Brooks-Bidlake did not deny
the conventional belief in ‘‘race’’ by seeking to hire Chinese and
Japanese; on the contrary, they affirmed it and merely sought to profit by
it. Note that even Justice Philip Mackenzie, who decided in favour of Yee
Clun’s licence to employ white women, assumed that a ‘‘racial antipa-
thy’’ would protect white women from succumbing to the seduction of
Orientals. BC attorney general Alex Manson encapsulated this world
view when he told the provincial legislature in 1922:
the real objection to [the Oriental] and the one that is permanent and incurable is
that there is an ethnological difference which cannot be overcome. The two races
cannot mix and I believe our first duty is to our own people.... It is a matter of
our own domestic affairs that we should endeavour to protect the white race
from the necessity of intermingling with Oriental blood, and I think we have
every warrant for fighting to prevent a situation that will inevitably result in race
deterioration.
283
Scholars of ‘‘race’’ who concentrate on British Columbia may conclude
that the ‘‘Oriental menace’’ was the combination of locally explicable cir-
cumstances and events. Because Quong Wing was launched in Saskatch-
ewan and confirmed in Ottawa, where those or similar events had far
less purchase, the decision requires a confrontation with forces at work
across Canada which cannot be explained in terms of self-interest, fear of
being overwhelmed numerically, industrial relations or site-specific
stereotypes. When placed in a longer-term and a national context, Quong
Wing reveals the existence of a broad sensibility that to admit Chinese
Quong Wing v. The King 119
and similar minorities was to risk Canada’s future as a free British
democracy where equality of opportunity and an honest reward for hard
work could be the guarantee of every citizen. The Supreme Court in
1914, sharing that vision of Canada and victim to that ideology of ‘‘race,’’
could justify its decision according to the moral standards then intact.
John Idington had the same vision for Canada, but he recognized, in
terms readily acceptable to the modern reader, that racial inequality
would in itself undermine the democratic future of Canada. In 1914, he
was in the minority.
Fifteen years after Quong Wing, the Saskatchewan government estab-
lished a Royal Commission on Immigration and Settlement to set priori-
ties for the future population of the province. In its 1930 Report the
Commission revealed that a biological world view continued to shape
public policy: ‘‘We desire only those racial elements that can make a con-
tribution to our common citizenship, and keep alive the proud traditions
and high respect for law which have characterized at all times the British
race.’’
284
11. QUONG WING AS PRECEDENT
For the social historian, Quong Wing is most significant for the insight it
provides into the history of racial attitudes in Canada, and the support
lent to those attitudes by Canadian public institutions. Yet as a legal
precedent Quong Wing has not featured in ‘‘race-related’’ cases. After the
Japanese Treaty Act decisions early in the 1920s,
285
it has been used virtu-
ally exclusively in cases with a constitutional implication, and used in
ways remote from anything contemplated by the Moose Jaw restaurant
keeper when he resisted a discriminatory law by challenging its constitu-
tionality. Quong Wing has helped to convict a Winnipeg dance hall owner
on a gambling charge,
286
keep non-resident Americans from buying cer-
tain properties in Prince Edward Island,
287
confirm the legality of Nova
Scotia’s film censorship board,
288
uphold British Columbia’s Holiday
Shopping Regulation Act,
289
close a ‘‘biotherapy clinic’’ in Montreal
290
and
allow a PEI couple convicted of welfare fraud to stay out of jail.
291
In
every instance Quong Wing was enlisted to determine whether a particu-
lar law was within the jurisdiction of the body that passed it. This subse-
quent legal career lends credibility to the interpretation of Quong Wing as
a division of powers case, and perhaps has helped to obscure its original
role in racializing Canadian law. One of those later cases elicited an inter-
esting comment from Chief Justice Bora Laskin, in which he seemed to
declare that the Privy Council’s Bryden decision was wrong:
120 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
I would not myself have thought that the mere prohibition against employment
of Chinese persons in underground mining could be taken to be a general prohi-
bition against their earning a living in British Columbia and, however distasteful
such legislation was, that it was beyond provincial jurisdiction.
292
Although he refrained from approving Quong Wing explicitly, still the
chief justice’s comment suggested that his predecessors in 1914 were cor-
rect to sustain a provincial law, however distasteful, that fell within
provincial jurisdiction. The implications Justice Idington had found in
the ‘‘ordinary rights’’ of a British subject had not prevailed.
The provincial laws restraining Chinese men and white women from
working together have all been repealed.
293
For the Canadian courts
Quong Wing has ceased to have any relationship to ‘‘race’’ or even to
morality; rather, it helps to define a specific corner of provincial jurisdic-
tion and this gives it a continuing utility. To the lay person it may be
interesting to find that a decision which had the effect of upholding
racial inequality should still be employable in constitutional cases. The
explanation lies exactly in the fact that Quong Wing has been divorced
from the ‘‘race’’ issue; it has laid divergent trails for jurists and histori-
ans. But while Quong Wing has long since lost its racial implications, this
does not mean that racial discrimination disappeared from Canadian
society or the courts. Another and even more overtly racial question
would be brought before the Supreme Court of Canada in 1939, in
Christie v. York Corporation.
Quong Wing v. The King 121
3
Christie v. York Corporation
1. THEINCIDENT
The characteristics that Canadians often associated with Chinese, and
that were used to justify discriminatory treatment, could not be applied
to African Canadians. Black people were not ‘‘aliens,’’ either legally or
culturally. They did not live in male enclaves or indulge in suspicious
pastimes. They did not speak a foreign language or owe allegiance to a
foreign state. They were not exotic or inscrutible in their dress, diet or
religion. On the contrary, people of African descent had been in Canada
for generations, lived in family units, attended Christian churches, spoke
English and/or French, fought on behalf of king and empire in every
war since the American Revolution and publicly comported themselves
according to the norms established by the majority society. The only sig-
nificant distinguishing characteristic was colour. And yet African Cana-
dians were subjected to restrictions in employment, housing, education,
services and recreation. Chiefly they were set apart and kept down,
marginalized as neighbours, as employees and as citizens. With only a
few exceptions the law did not impose segregation and inequality on
African Canadians; rather, the law upheld the right of Canadian individ-
uals, organizations and institutions to discriminate on grounds of ‘‘race.’’
The most significant statement in support of this situation came from the
Supreme Court of Canada in the case of Christie v. York.
1
The notes for this chapter are on pages 378-94.
Fred Christie was a black man, a chauffeur by occupation, a member of
the Union (United) Church, a resident of Montreal for over 20 years
when the incident in question occurred. A tall man with a fit and healthy
demeanour, impeccably clean and well-dressed, Mr. Christie is described
as having the deportment of a gentleman and an impressive manner in
his carriage and speech. In complexion he was pale brown.
2
Born in
Jamaica in 1902, he migrated to Montreal as a teenager at the end of
World War I. His Jamaican accent had long since been modified, but its
legacy was a precise way of speaking which added to his courtly and
dignified air. Among his Canadian acquisitions was a passion for the
sport of ice hockey. He had a season ticket to a box seat at the Montreal
Forum, and he rarely missed a game.
3
In the spring of 1936 the York Tavern moved from its previous location
into the ground floor of the Montreal Forum. To announce its move the
tavern took out newspaper advertisements and displayed a large sign
inviting the public to visit its new premises and taste its wares. Fred
Christie and his friends had often enjoyed a glass of beer in the old York
Tavern, which had been located just to the north of the largest concentra-
tion of black population in Montreal. The new location, however,
brought with it a new policy: management instructed the staff that under
no circumstances were ‘‘Negroes’’ to be served.
4
On the evening of Saturday July 11, 1936, Mr. Christie and two friends,
Emile King and Steven St. Jean, entered the Forum to attend a hockey
game. Mr. King was a Texas-born African American who had lived in
Montreal for 19 years and was employed as a butler. Mr. St. Jean was a
French-Canadian salesman. They often attended athletic events together.
At Christie’s invitation the three friends decided to stop for a beer before
the game. He had no reason to suspect that they might be unwelcome. A
waiter approached and Fred Christie placed a 50-cent piece on the table,
politely ordering ‘‘three steins of beer.’’ The waiter responded, ‘‘Gentle-
men, I am very sorry I cannot serve colored people.’’ Mr. Christie asked,
‘‘Why? Since when?’’ ‘‘It is an order from the manager,’’ he was told.
Incredulous, Christie demanded an interview with the manager. First to
arrive was bartender George Gressie, who confirmed that ever since the
tavern opened in the Forum its policy had been to refuse service to black
people. Christie insisted on seeing someone more senior, and eventually
assistant manager Roméo Lajoie was brought to the table. Quietly and
politely, so that neighbouring tables could not overhear, Mr. Lajoie
explained to the party that even had he wanted to, he was not permitted
by the York Corporation’s regulations to accommodate ‘‘colored’’ men in
Christie v. York Corporation 123
the tavern. ‘‘Is that the only reason?’’ Christie asked. ‘‘Yes,’’ said Lajoie.
His demeanour slipping, Christie stalked to a pay telephone just outside
the tavern and called the police. Apparently anticipating some disorder,
the two constables who responded were less than tactful, alerting the
crowd of 70 patrons to the dispute at the Christie table. In the presence of
the police witnesses Mr. Christie again insisted on being served. Mr.
Lajoie repeated his polite refusal one last time. The policemen, whose
impatience was directed more at Christie than Lajoie, said there was
absolutely nothing they could do. They left, followed by Fred Christie
and his two friends.
5
Fred Christie and Emile King were no strangers to racial discrimina-
tion, but they were outraged by this incident. Like most other African
Canadians in Montreal, they had learned which shops and theatres to
avoid, which jobs were unavailable, which residential districts would
exclude them. But when they expected service, in an establishment so
publicly located, they felt betrayed and humiliated. The ‘‘colour line’’
had advanced toward them, or so it seemed, and they decided it was
time to fight back.
6
Confident that they had an absolute right to equality
and insulted at the inferiority implied by their rejection, Christie and
King decided to sue the York Tavern for the humiliation they had suf-
fered.
7
2. ‘‘JIM CROW’’INCANADA
An 1891 magazine article predicted that ‘‘to the end of time Africa will
bless Canada for the refuge and home given to her children in that
period of their trouble and trial.’’
8
New World slavery was undoubtedly
a period of trouble for the children of Africa, but Canada’s innocence
was less obvious than the quotation might suggest. Between 1628 and
the first decade of the 19th century, approximately 3,000 people of
African origin were held as slaves in what is now Canada, their status
duly noted in the legal documents of the times.
9
As late as 1808 the Nova
Scotia Assembly debated a ‘‘Bill for regulating Negro Servitude,’’
prompted by a petition from slave owners seeking to confirm the legality
of slavery.
10
Nor did the extinction of slavery bring equality to Canada’s
black population. In his classic description of American racial segrega-
tion, The Strange Career of Jim Crow, C. Vann Woodward identified the
areas of life where legalized segregation tended to apply following the
end of slavery in the United States. He listed ‘‘churches and schools,’’
‘‘housing and jobs,’’ ‘‘eating and drinking,’’ ‘‘public transportation,’’
‘‘sports and recreations,’’ ‘‘hospitals, orphanages, prisons and asylums’’
124 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
and, in death, ‘‘funeral homes, morgues and cemeteries.’’
11
In virtually
every one of these areas of life and death, African Canadians too experi-
enced exclusion and separation from mainstream institutions, amounting
to a Canadian version of ‘‘Jim Crow.’’
Canada’s free black community dates from the American Revolution,
when British officials promised freedom and equality to rebel-owned
slaves who joined the Loyalist cause. Over 3,500 black Loyalists were
transported to the Maritimes during the British evacuation from the new
republic in 1783. They were settled on the fringes of larger white towns,
close enough to offer their daily labour yet far enough to maintain social
distinctions. The legacy of slavery consigned them to a labouring and
service role, and they would never receive the recognition and rewards
as Loyalists that their service during the war had earned them.
12
They
were joined during the War of 1812 by more than 2,000 other former
American slaves, known as the black Refugees, who similarly had fled to
the British upon a wartime promise of land and freedom.
13
In their segre-
gated settlements the free African Canadians continued to experience a
barrier defined by their colour, doomed to menial employment, denied
access to public institutions, locked in poverty. Discrimination and disad-
vantage were mutually reinforcing, as the consequences of restricted
opportunity were attributed to racial inferiority.
Elsewhere in Canada the patterns of black settlement were less abrupt
than in the Maritimes, but the ‘‘refuge and home’’ eulogized in 1891 were
never untarnished. Tens of thousands of fugitive American slaves mi-
grated to Ontario in the decades leading up to the American Civil War;
almost 1,000 others moved from California to Vancouver Island. Social
separation and economic deprivation destroyed the dreams of the Amer-
ican runaways who crossed the border expecting a sanctuary not just
from slavery but from the inequalities imposed by racism. Approxi-
mately three quarters of them returned to the American South after
Emancipation.
14
It was not until the new century that black migration to
Canada was resumed. Between 1900 and 1912 about 1,300 blacks from
Oklahoma settled in Alberta and Saskatchewan, but rejection and harass-
ment ensured that the renewed movement was brief.
15
Throughout the period when white Canadians prided themselves for
offering a haven to African Americans, negative stereotypes rendered a
positive reception virtually impossible. In 1815 the Nova Scotian Assem-
bly observed the arrival of the black Refugees ‘‘with concern, and alarm,’’
and passed a resolution ‘‘to prohibit the bringing any more of these peo-
ple, into this Colony.’’ Their reason, the resolution explained, was
Christie v. York Corporation 125
that the proportion of Africans already in this country is productive of many
inconveniences; and that the introduction of more must tend to the discourage-
ment of white labourers and servants, as well as the establishment of a separate
and marked class of people, unsuited by nature to this climate, or to an associa-
tion with the rest of his Majesty’s Colonists.
16
Apart from the implication that African people must be labourers and
servants, a direct product of black slavery, the resolution reveals an
acceptance of the notion that blacks and whites were separate classes
who could not suitably associate with one another. Such ideas prevailed
throughout British North America. The Upper Canadian Assembly
received petitions as early as 1830, when the ‘‘Underground Railroad’’
was just beginning, calling for restrictions on black settlement in the
province because of the African Americans’ alleged degradation and
defects of character.
17
During American Reconstruction, between 1865
and 1877, Canadian newspapers regarded the Southern experiment in
racial equality with an interest, and often a horror, that directly reflected
the conventional wisdom. Reconstruction was doomed to failure because
of the former slaves’ inherent laziness. ‘‘If they work at all, they will do
just enough to secure themselves from starvation,’’ proclaimed a typical
editorial. As natural servants, black people could not operate without
white direction. Careful supervision was required as well to curb the
‘‘animal passions’’ of African sexuality which could burst forth in
‘‘demoniacal rage and lust.’’ Above all, the ‘‘instinctive feelings of repug-
nance’’ that whites naturally held toward blacks made ‘‘mixing and even
association’’ of whites and blacks unthinkable.
18
What was true in the United States must be true in Canada. Writing in
the popular Canada and Its Provinces series, Superintendent of Immigra-
tion W. D. Scott maintained that ‘‘The negro problem, which faces the
United States and which Abraham Lincoln said could be settled only by
shipping one and all back to a tract of land in Africa, is one in which
Canadians have no desire to share.’’
19
Or as the Toronto Mail and Empire
bluntly asserted, ‘‘If negroes and white people cannot live in accord in
the South, they cannot live in accord in the North.’’
20
These and similar
attitudes existed quite independently of personal experience. When 16
black men arrived in Virden, Manitoba, in the summer of 1908 they
found ‘‘the farmers in the neighbourhood have a strong objection to the
employment of coloured labour.’’
21
Despite the fact that no black people
had ever been through Virden before, the mayor explained that ‘‘farmers’
wives are afraid of them.’’
22
The most dramatic expression of similar sen-
126 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
timents came from the Edmonton chapter of the Imperial Order of the
Daughters of the Empire. In March 1911 the chapter met in emergency
session to consider ‘‘the influx of Negroes’’ from Oklahoma then in
progress. They sent a petition to Immigration Minister Frank Oliver:
We view with alarm the continuous and rapid influx of Negro settlers into
Northern Alberta and believe that their coming will bring about serious social
and political conditions.
This immigration will have the immediate effect of discouraging white settle-
ment in the vicinity of the Negro farms and will depreciate the value of all hold-
ings in such areas.
We fear that the welcome extended to those now coming will induce a very large
black population to follow them.
The problems likely to arise with the establishment of these people in our thinly
populated province must be plain to all, and the experience of the United States
should warn us to take action before the situation becomes complicated and
before the inevitable racial antipathies shall have sprung up.
We do not wish that the fair fame of Western Canada would be sullied with the
shadow of Lynch Law but we have no guarantee that our women will be safer in
their scattered homesteads than white women in other countries with a Negro
population.
We would therefore urge upon the Government the need for immediate action
and the taking of all possible steps to stop Negro immigration into Alberta.
23
In line with the same sexual mythology, Mrs. Isobel Graham, described
as a ‘‘Manitoba suffragist,’’ wrote in the Grain Growers’ Guide of 3 May
1911 that atrocities would inevitably be committed by African-American
immigrants against white Canadian women, and warned that lynching
and even burning at the stake would become necessary.
24
Dr. Ella Synge,
speaking on behalf of prairie women, pointed to ‘‘the enormous increase
in outrages on white women that has occurred’’ in South Africa as a
result of liberal British policies, and predicted that ‘‘the finger of fate is
pointing to lynch law which will be the ultimate result, as sure as we
allow such people to settle among us.’’
25
When members of parliament raised the concerns of their African-
Canadian constituents that black immigrants were being excluded on
grounds of colour, the federal government denied that any policy existed
Christie v. York Corporation 127
to refuse entrance on grounds of ‘‘race, colour, or previous condition of
servitude,’’ but Minister Frank Oliver admitted that
there are many cases where the admission or exclusion of an immigrant depends
on a strict or a lax interpretation of the law, so that if the immigrant is of what we
would call the desirable class it may be that they are administered laxly, and if he is
of the presumably less desirable class then they are administered more restrictedly .
26
When the minister rejected the suggestion, being proposed in the popu-
lar press, that a restrictive head tax be imposed to discourage black
immigration, MP William Thoburn from the Ontario riding of Lanark
cried out in the House of Commons: ‘‘I would like to ask the government
if they think it in the interests of Canada that we should have negro colo-
nization in our Canadian Northwest? Would it not be preferable to pre-
serve for the sons of Canada the lands they propose to give to niggers?’’
27
Sentiments such as these readily explain the substantial extent of racial
segregation in Canada. The most significant area of separation, at least in
legislative terms, was in education.
28
In Nova Scotia the Education Act of
1836 permitted local commissioners to establish separate schools for
‘‘Blacks or People of Colour.’’
29
Since the black schools were irregularly
funded by special legislative grants and charitable donations, teachers
and equipment were inevitably inferior and educational quality suffered.
Black parents organized protests against the limitations placed upon
their children, culminating in an 1883 petition campaign demanding the
full integration of provincial schools. This precipitated a debate in the
legislature, resulting in amendments to the School Act in 1884 and a par-
tial but significant victory for African Canadians. The revised Act contin-
ued to permit school commissioners to establish segregated facilities, but
added that ‘‘colored pupils shall not be excluded from instruction in the
public school in the section or ward where they reside.’’
30
In the city of
Halifax this provision gained African-Canadian youths access to sec-
ondary education for the first time. A later section of the 1884 Act was
less helpful, stipulating that no school receiving special aid could hire a
teacher with anything higher than a fourth-class certificate.
31
Since every
all-black school in the province at that time received provincial aid, this
ensured that they would be served by the most poorly qualified teachers.
Separate must also be inferior, according to Nova Scotian law.
Ontario’s Common School Act of 1850 allowed 12 or more heads of fam-
ily to request a separate black school.
32
The intention of the Act may have
been to permit black families to opt for their own school, but in practice
128 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
12 white family heads could request separate schools for black children.
Under this legislation segregated education was imposed in most
Ontario districts with a sizeable African-Canadian population. Several
court cases refined the administration of the segregated schools. In Wash-
ington v. The Trustees of Charlotteville Chief Justice John Beverley Robinson
ruled that where no separate school existed, black children must be
admitted to the common school with white children.
33
In a second case
immediately afterwards, however, Robinson decided that if a black
school had been established in the school district, even if it was as far as
four miles away from their homes, black children could be forced to
attend the segregated facility.
34
The trustees in Chatham exploited this
ruling to create a separate school district comprising every black family
wherever they lived in the town, but this practice was rendered illegal in
Simmons v. Chatham in 1861 when the chief justice concluded that such
subjective school section boundaries were too uncertain to be adminis-
tered effectively.
35
In 1864 the courts found that when a separate school
fell into disuse the black children thus displaced should be accepted in
the nearest common school.
36
Under this principle, parental actions,
including the withholding of school taxes, led gradually to the closing of
most separate black schools and the integration of the children, though
the segregation provision remained in the Ontario legislation until
repealed in 1964.
37
In New Brunswick, where de facto separate schools
served all-black communities, the law recognized but did not require the
separate education of black children;
38
on the prairies, though the law
was silent on the question, African-Canadian children were frequently
rejected from public schools because of their colour.
39
The separation accepted in education was acceptable too in many
other areas of life, though not with the support of positive legislation.
Early African-Canadian settlers in Ontario were moved to declare ‘‘our
perfect contentment with our political condition, living, as we do, under
the influence of free and equal laws, which recognize no distinction of
colour in the protection which they afford and the privileges which they
confer.’’
40
But ‘‘legal equality’’ would not mean freedom from racial
restriction and exclusion in Canada. Ida Greaves was not far from the
mark when she wrote in 1929, ‘‘the Negro has exactly the same rights as
anybody else until he tries to use them, then he can be quite legally
restrained.’’
41
Legally acceptable racial segregation had a long and full
history in Canada before Fred Christie ever set foot in the York Tavern.
The barriers were by no means absolute, but across Canada from Halifax
to Victoria there were establishments normally open to the public where
Christie v. York Corporation 129
African Canadians were refused admission. Segregation in housing,
employment, restaurants and bars, transportation, recreation, hospitals,
orphanages and cemeteries – every one of Vann Woodward’s ‘‘Jim
Crow’’ categories – had its Canadian example.
42
Most Canadian cities had a district where the majority of black resi-
dents lived, with boundaries enforced by racially restrictive covenants or
more usually by consent among white homeowners and real estate
agents. As the Windsor Herald explained to black citizens in that city:
If a certain locality is prohibited, let them avoid it, as they will experience no dif-
ficulty in finding places for settlement; but if they endeavor to force themselves
into positions where they are not wanted, under the idea that the British constitu-
tion warrants them in so doing, they may discover in the end that the privileges
which they now enjoy will become forfeited.
43
In 1920 four black families moved into the Victoria Park district of Cal-
gary, where no black people had lived before. A petition was organized
and signed by 472 of the district’s 670 households, asking city council to
relocate the black families and to restrain any further purchases. Calgary
council had little experience with this kind of issue – there were only 70
African Canadians in the city and none had caused any ‘‘trouble’’ before –
and so after a brief debate the city clerk was instructed to write to 16 other
Canadian cities for guidance from those more experienced:
Would you be so kind as to inform me by return mail as to any legislation that
might be in effect in your municipality segregating the residences of negroes to
any particular district or districts. Further, if there is any legislation preventing
negroes from locating in your City at all.
This last request is prompted by a statement which has been made to the effect
that such legislation does exist in certain municipalities in Canada.
44
There were no such by-laws in Canada in 1920,
45
though several respon-
dents (including Windsor ’s city clerk) volunteered that black people
tended to live in concentrated areas anyway. Nevertheless it is surely sig-
nificant that Calgarians assumed examples must exist, and were ready to
implement legal segregation in their city. In fact Calgary solved its prob-
lem in the typical Canadian fashion: whites resident in Victoria Park
agreed to sell no more homes to blacks, and the blacks there agreed to
sell their homes only to white purchasers.
46
130 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Employment discrimination was widespread, encompassing the civil
service as well as the private sector.
47
African Canadians complained that
public transportation and accommodations were denied to them without
legal recourse. When a black man was physically ejected from the Man-
sion House hotel in London, Ontario, and sought a warrant against the
owner from a local magistrate, it was the black man who found himself
convicted of assault.
48
Saturday Night magazine expressed no sympathy
when Toronto’s Queen’s Hotel barred the Rev. C. O. Johnson, declaring
that ‘‘In Canada there is no active prejudice against the colored race’’ and
black people were never affronted ‘‘except when they forget that no well-
bred person will endeavour to force himself into a place where he is not
wanted.’’
49
An Edmonton newspaper reported in 1912:
Irate Negroes were turned down services in two hotels. They ask, ‘‘Have Edmon-
ton bartenders the right to draw the colour line?’’ The attorney general’s depart-
ment said while it gives the hotel keeper the right to sell liquor, ‘‘it cannot compel
him to sell to anyone if he does not wish to do so.’’
50
Only a few days after Fred Christie’s ordeal in Montreal, Saturday Night
took editorial note of a black singer denied access to the dining room in
the Toronto hotel where she was a guest. ‘‘[T]he situation in Canada,
with regard to discrimination against colored persons in public hostel-
ries, is little if at all better that it is in [the United States],’’ the magazine
admitted, though blame was placed on Americans who ‘‘dictate their
policies’’ when they patronized Canadian hotels. While this was ac-
knowledged to be ‘‘an intolerable anomaly in a free, liberal and suppos-
edly Christian country,’’ no legal solution was offered.
The only feasible way of dealing with the situation appears to be the establish-
ment of international clubhouses in the larger urban centres in which foreigners
of any race, color, religion or political philosophy, provided that they are person-
ally acceptable, will be admitted to the full enjoyment of all privileges.
51
Canadian theatres frequently had separate seating for black patrons,
and this could be enforced by mob violence on occasion: a riot erupted in
the Empress Theatre in Victoria when a group of prominent African-
Canadian citizens took seats in the dress circle, contrary to local conven-
tion.
52
In Windsor, Ontario, the Palace Theatre maintained a ‘‘Crow’s
nest’’ for black customers; Loew’s (later the Capital) had its ‘‘Monkey
cage.’’ These practices were still in existence when the York Tavern inci-
Christie v. York Corporation 131
dent occurred.
53
Ontario’s deputy attorney general explained in a letter
to Stephen Leacock in 1929 that
Coloured people have exactly the same rights as others in the matter of public
places of entertainment, but as the obligation of a proprietor to sell seats in his
theatre or meals in his restaurant does not ordinarily exist, he can refuse to sell to
Negroes if he pleases, just as he could refuse to sell to any other person or class of
people, as long as the refusal is not accompanied by insult or violence.
54
Across Canada hospitals typically would not accept African Canadians
as nurses, black doctors were denied hospital privileges in several cities,
and in at least one Edmonton hospital blacks were not even received as
patients in the 1920s and 1930s.
55
A separate orphanage was established
in Nova Scotia for African-Canadian children in 1921.
56
Black veterans of
World War I were buried in a segregated section of Camp Hill cemetery
in Halifax,
57
and the Nova Scotia municipality of St. Croix had a by-law
passed in 1907, still enforced as late as 1968, excluding African Canadi-
ans from burial in the local cemetery.
58
White reluctance to associate intimately with African Canadians
extended even into the emergency conditions of World War I. The appeal
to save the Empire and democracy in the fall of 1914 did not carry any
colour implications, but black volunteers were systematically rejected by
recruiting officers. Many protested, convinced that a contribution to the
war effort would earn the gratitude and respect of the white majority.
From Saint John came a letter to the governor general: ‘‘I beg to call your
attention to the fact that Colored men of good repute have been denied
the chance of enlistment in the Forces for overseas service etc. on the
ground of Color.’’
59
The Hamilton black community advised the minister
of militia that virtually every eligible young man had sought to enlist,
but had been
turned down and refused solely on the ground of color or complexional distinc-
tion; this being the reason given on the rejection or refusal card issued by the
recruiting officer.
As humble, but as loyal subjects of the King, trying to work out their own des-
tiny, they think they should be permitted in common with other peoples to per-
form their part, and do their share in this great conflict.
60
Similar letters were received from every part of Canada in 1914, 1915 and
1916. ‘‘It is certainly shameful and insulting to the Race,’’ one such letter
132 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
concluded.
61
Vancouver ’s chief recruiting officer complained that
‘‘Coloured candidates are becoming insistent, and I should like to know
what course I am to pursue.’’
62
Militia headquarters had an issue on its hands, and several queries
were sent to regional and unit commanders to determine their attitudes.
In typical replies, the Victoria district commander reported that black
enlistment ‘‘would do much harm, as white men here will not serve in
the same ranks with negros [sic] or coloured persons,’’
63
and from the
East Coast that whites would withdraw if blacks were accepted, as ‘‘nei-
ther my men nor myself, would care to sleep alongside them, or eat with
them, especially in warm weather.’’
64
The issue became especially insis-
tent after a group of Toronto blacks formed a platoon of their own and
offered it to Militia Minister Sam Hughes. Every commanding officer in
the military district administered from Toronto was canvassed to find a
battalion willing to accept the African-Canadian platoon in the spring of
1916. Some replies were simple: ‘‘I have no desire to have a coloured pla-
toon in my Battalion’’; ‘‘I would object very strongly to accepting the Pla-
toon mentioned.’’ Some sought to blame their reluctance on the
prejudices of the common soldiers: ‘‘it would seriously affect our recruit-
ing’’; ‘‘it would cause great dissatisfaction among the men now enlisted.’’
Some even attempted humour: ‘‘Thank goodness, this battalion is over
strength and does not need a ‘colored’ platoon, nor even a colored
‘drum-major ’!’’; the Canadian Highlanders suggested coyly that ‘‘these
men would not look good in kilts.’’ At a time when Prime Minister Bor-
den had committed Canada to the daunting task of keeping 500,000 men
in the battlefields, not a single battalion would take a black platoon.
65
The policy set by the militia council was that ‘‘coloured men can be
enlisted in any Overseas Unit provided that the Commanding Officer is
willing to accept them, but it is not thought desirable, either in the inter-
ests of such men themselves or of the Canadian Forces, that Command-
ing Officers should be forced to take them.’’
66
But when black Nova
Scotians gained the ear of several prominent Nova Scotian politicians,
including Fleming McCurdy, John Stanfield and Robert Borden, Chief of
General Staff Willoughby Gwatkin was ordered to conduct a study and
report on the feasibility of African-Canadian enlistment. His reply encap-
sulates the feelings prevalent in 1916:
Memorandum on the enlistment of negroes in Canadian Expeditionary Force.
1. Nothing is to be gained by blinking facts. The civilized negro is vain and imi-
tative; in Canada he is not being impelled to enlist by a high sense of duty; in
Christie v. York Corporation 133
the trenches he is not likely to make a good fighter; and the average white
man will not associate with him on terms of equality. Not a single command-
ing officer in Military District No. 2 is willing to accept a coloured platoon as
part of his battalion; and it would be humiliating to the coloured men them-
selves to serve in a battalion where they were not wanted.
2. In France, in the firing line, there would be no place for a black battalion,
C.E.F. It would be eyed askance; it would crowd out a white battalion; it
would be difficult to reinforce.
3. Nor could it be left in England and used as a draft-giving depot; for there
would be trouble if negroes were sent to the front line for the purpose of rein-
forcing white battalions; and, if they are good men at all, they would resent
being kept in Canada for the purpose of finding guards, etc.
4. It seems, therefore, that three courses are practicable:
(a) As at present, to allow negroes to enlist, individually, into white battalions
at the discretion of commanding officers.
(b) To allow them to form one or more labour battalions. Negroes from Nova
Scotia, for example, would not be unsuitable for the purpose.
(c) To ask the British Government if it can make use of a black battalion,
C.E.F., on special duty overseas (e.g. in Egypt): but the battalion will not
be ready before the fall, and, if only on account of its relatively extrava-
gant rates of pay, it will not mix well with other troops.
5. I recommend courses (a) and (b).
67
Convinced by Gwatkins’ option (b), the militia council voted just three
days later to establish a black labour unit, the Nova Scotia No. 2 Con-
struction Battalion, with authority to recruit black men from all across
Canada.
68
But while African Canadians were at last acceptable into the
Canadian Expeditionary Force, if only in the traditional and stereotypical
role of labourers, social distance had still to be maintained. Most aston-
ishingly, the black battalion was transported overseas in 1917 in a sepa-
rate troop ship to avoid ‘‘offending the susceptibility of other troops,’’
and it was actually recommended, though not accepted, that their ship
should not join a regular convoy but should cross the submarine-infested
Atlantic on its own.
69
Once overseas and engaged in their duties, the
men of the No. 2 were segregated in the camp cinema, were provided
with their own ‘‘coloured chaplain,’’ were treated in a separate hospital
wing when ill or wounded, and were incarcerated in a separate punish-
ment compound when they misbehaved.
70
Back in England after the
134 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Armistice and awaiting return transport to Canada, a sergeant from the
No. 2 arrested a white man and placed him ‘‘in charge of a colored
escort’’ en route to the camp jail. White soldiers unwilling to contemplate
such an insult attacked the black party, provoking a riot between white
and black soldiers throughout the camp.
71
Their efforts during the War
had not won respect for black Canadians.
Separation and subordination were to be maintained, by violence and
intimidation where necessary. Probably the most dramatic example of
community action to enforce ‘‘Jim Crow’’ occurred in Oakville, Ontario,
on 28 February 1930. Ira Johnston, described in the press as a ‘‘coloured
man’’ or a ‘‘Negro’’ aged 30, became engaged to marry 20-year-old
Isabella Jones who bore the description ‘‘white girl’’ (‘‘Johnston,’’ the
Toronto Daily Star reported, ‘‘is a fine-looking man and nearly white’’).
The pending marriage caused much talk among the neighbours, since it
was widely considered improper to mix ‘‘races’’ in this way. Miss Jones’
mother tried to prevent the match, applying to the police and an Oakville
magistrate for legal intervention and then, when she learned that no law
prevented her daughter from marrying a black man, she wrote to the Ku
Klux Klan for assistance. Meanwhile Mr. Johnston had difficulty finding
a minister who would perform the marriage, though he had received a
valid marriage licence, and so late in February Miss Jones moved in with
Mr. Johnston, still unmarried. The Klan kept watch, and on Friday
27 February learned that Mr. Johnston had arranged with the pastor of
the African Methodist Episcopal Church to conduct the marriage on
2 March. This precipitated what the Klan called its first ‘‘direct action’’ in
Canada on the night of 28 February. About 75 Klansmen, most of them
from Hamilton, Ontario, travelled by car to Oakville where they
marched through the streets in their hooded uniforms, burned a large
cross at Main and Third Streets in downtown Oakville in the presence of
hundreds of spectators, and then went in pursuit of the offending couple.
They were found at the home of Ira’s aunt, where they were playing
cards at about 11 pm. Isabella was told to get in a Klansman’s car, and
when Ira ‘‘asked what authority they had for taking her away’’ they
made no reply ‘‘but closed the door and drove off.’’ Isabella was taken to
her mother’s home, where before witnesses she swore to have nothing to
do with Ira Johnston again. At Mrs. Jones’ request, the Klan took Isabella
to a Salvation Army hostel for safekeeping. Returning to ‘‘interview’’ Ira
further on his transgression, the Klansmen surrounded the house and
burned another cross on the front lawn. Ira’s mother explained that he
had gone out in search of his fiancée, whereupon ‘‘the spokesman told
Christie v. York Corporation 135
me that if Ira, my son, was ever seen walking down the street with a
white girl again the Klan would attend to him.’’ As they were leaving
town the Klan cavalcade was intercepted by Police Chief David Kerr. He
recognized many of them, for they had removed their masks, and he
appeared to approve when they told him everything that had
happened.
72
The following day Oakville Mayor A. B. Moat told the press: ‘‘Person-
ally I think the Ku Klux Klan acted quite properly in the matter. The
feeling in the town is generally against such a marriage. Everything was
done in an orderly manner. It will be quite an object lesson.’’ Chief Kerr,
explaining why he did not arrest anyone, said, ‘‘They used no force nor
did they create a disturbance of any kind. ... The conduct of the visitors
was all that could be desired.’’ But the Ontario black community was
outraged. An ‘‘indignation meeting’’ was held in Toronto, and black
leaders called upon the attorney general to investigate the incident and
prosecute the guilty. Their rights as British subjects were being violated,
they claimed; in the recent War they had served their king and empire
for the sake of upholding rule of law, and now a disorderly mob was tak-
ing the law into its own hands. A black Baptist minister said, ‘‘I hold no
brief for the promiscuous intermingling of the races. But I am unalter-
ably opposed to the substitution of the purely authorized law enforce-
ment agencies by such an intolerant organization as the Ku Klux Klan.’’
Rabbi Maurice Eisendrath of Holy Blossom Synagogue joined the
protest, claiming that the official apathy served as condonement for the
Klan’s illegal act. The attorney general agreed. Charges were laid against
four of the Klansmen for having their faces ‘‘masked or blackened, or
being otherwise disguised, by night, without lawful excuse.’’ Only one of
the four, Hamilton chiropractor William A. Phillips, was found guilty
and fined $50. Phillips appealed his sentence and the Crown cross-
appealed. Klan spokesman Dr. Harold Orme insisted that ‘‘Our only
interest in race matters is that we want our country kept pure from con-
tamination by mixed marriages.’’ The ‘‘mixture of blood,’’ according to
the Klan, created ‘‘fiery, subnormal people to whom most of the violent
crimes could be traced.’’ Chief Justice Mulock decided, however, that
‘‘The motive of the accused and his companions is immaterial.’’ They
had taken ‘‘illegal interference’’ with the liberty of the young woman.
‘‘ T h e i r action was unlawful and it is the duty of this Court to pronounce
the appropriate punishment.’’ The court upheld Phillips’ conviction and
increased his penalty to three months in jail. Unrepentant, Phillips
declared that he was ‘‘happy to serve a term in prison for such a cause as
136 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
this,’’ and the Klan issued a statement that all its members were ready and
willing to sacrifice themselves for Christianity and the flag. Even Isabella
said she felt sorry for Phillips. ‘‘He thought he was doing me a kindness. I
have a letter that he sent me containing good advice. I don’t like to think
of him having to go to jail.’’ In an editorial the Toronto Globe expressed
what may have been majority opinion on the subject. The Klan was
denounced for taking the law into its own hands, for intimidation of a fel-
low-subject, for its un-British conduct committed in secrecy. But the edito-
rial concluded: ‘‘The work the nocturnal visitors did at Oakville in
separating a white girl from a colored man may be commendable in itself,
and prove of benefit, but it is certain that the methods were wro n g . ’’
73
3. THEMONTREAL COMMUNITY
The historical pattern in Montreal reflected the national experience for
African Canadians. There were black slaves in Montreal at its foundation
in 1641, and from then until the Conquest more than 600 slaves resided
in the city and its environs. Slavery was an acceptable and respectable
institution in the ancien régime: Mother Marie-Marguerite d’Youville,
founder of the Sisters of Charity, was one of Montreal’s more prominent
slaveholders, a fact that did not interfere with her canonization in 1990.
74
Undoubtedly the slave who left her mark most emphatically on Montreal
history was Marie-Joseph-Angélique, who in April 1734 set fire to her
mistress’ home to distract attention from an attempt to escape. The fire
spread, destroying 46 houses and the Hôtel-Dieu. Following a highly
publicized trial and unsuccessful appeal, the 25-year-old slave was
hanged in Montreal’s public square, her body burned and her ashes
thrown to the winds.
75
The legal status of slavery was confirmed by an order signed by Inten-
dant Jacques Raudot on 13 April 1709 clarifying title to Panis (native
Indian) and African slaves held in the colony. Apparently some habitants
were encouraging slaves to leave their masters on the pretext that slavery
was illegal. Raudot declared slaves to be the property of the persons
who bought them, and announced a fine of 50 livres for anyone assisting
a runaway.
76
In 1734 Intendant Gilles Hocquart ordered the militia to
arrest runaway slaves, and two years later introduced a complicated pro-
cedure to register manumissions in an effort to discourage masters from
freeing their own slaves. Voluntary manumissions, Hocquart noted,
were causing confusion, making it ‘‘necéssaire de fixer d’une manière
invariable l’état des esclaves.’’
77
When Montreal fell to the British in 1760,
Christie v. York Corporation 137
Article 47 of the Capitulation provided that slaves should remain the
property of their masters, as before:
[L]es nègres et panis des deux sexes resteront en leur qualité d’esclaves en la pos-
session des français et canadiens à qui ils appartiennent; il leur sera libre de les
garder à leur service dans la colonie ou de les vendre; ils pourront aussi contin-
uer à les fair lever dans la réligion catholique.
78
The day after the capitulation the governor of Montreal wrote to the
commandant at Detroit, explaining that although he had been required
to surrender to General Amherst he had managed to do so ‘‘à des condi-
tions très avantageuses pour les colons. ... En effet ils conservent le libre
exercise de leur réligion, et sont maintenus en leur possessions de leurs
biens . . . ; ils conservent leurs Nègres et Panis.’’
79
As a Missouri judge
would point out a century later,
the 47th article is not only a clear recognition of the existence of slavery [in Mon-
treal], but of the value of the interests connected with it. Only the most promi-
nent objects seem to have engaged the attention of the retiring governor, for he
secures nothing for his master’s subjects but their religion and their slaves.
80
The new British rulers had, in any case, no intention of challenging slav-
ery. General James Murray, the first English governor, wrote to a friend
in New York in November 1763:
I must most earnestly entreat your assistance, without servants nothing can be
done. Had I the inclination to employ soldiers, which is not the case, they would
disappoint me, and Canadians will work for nobody but themselves. Black slaves
are certainly the only people to be depended upon.
Murray went on to ask his friend to buy him some slaves in New York,
and added: ‘‘You may buy for each a clean young wife, who can work
and do the female offices about a farm. I shall begrudge no
price. . . .’’
81
A few free black Loyalists landed in Lower Canada, but
they were far outnumbered by the approximately 300 slaves brought
by white Loyalist masters. In 1783 the Montreal press carried an
advertisement announcing
138 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
TO BE SOLD
A Negro Wench about 18 years of age, who came lately from New York with the
Loyalists. She has had the Small Pox – The Wench has a good character and is
exposed to sale only from the owner having no use for her at present. Likewise to
be disposed of a handsome Bay Mare.
82
A Bill introduced in the Lower Canada legislature in 1793 ‘‘tendant à
l’abolition de l’esclavage’’ was tabled by a decisive vote of 28 to 3.
83
Advertisements for the sale of slaves were published in Montreal at least
until 1805, at which time there were about 150 slaves in the city.
84
As slavery died out in Lower Canada in the 19th century, former
slaves and their descendants either moved away or lost their identity. In
the 1871 census there were only 72 persons of African descent dispersed
throughout Montreal, and there was no identifiable ‘‘black community’’
when the city again became a destination for black migrants in the 1880s.
The American Pullman Company already used black porters and waiters
on its continental service, and when Montreal was connected with New
Yo r k and Boston in 1886, and became the eastern Canadian headquarters
for both the CPR and the Grand Tru n k , the practice spread across Canada.
Canadian railway agents were sent to the major American urban centres
and to campuses of black colleges in the South to recruit African Ameri-
cans as porters and waiters. They were housed in Montreal and travelled
from coast to coast serving white passengers. Initially a community of tem-
porary male sojourners, by the 1890s many railway workers were begin-
ning to settle in Montreal and to bring their families. Their commitment to
Montreal was later enhanced by the establishment of the headquarters
there for the Order of Sleeping Car Porters, for CNR employees, and the
Porters’ Mutual Benefit Association for those working on the CPR.
85
To this initial core of American railway workers there was added a
small but increasing flow of young black men from rural Ontario and
Nova Scotia seeking work on the Pullman cars. Most were not consid-
ered sophisticated enough for this kind of service, but they could become
red caps in Windsor Station or shoeshiners or elevator operators. Those
who found jobs brought their families and settled permanently in Mon-
treal. West Indians, too, were attracted to the opportunities of Montreal.
Though white passengers might regard their porters and waiters as
menial servants, for African Canadians in the early 20th century railway
work was stable, reasonably well-paid and generally the most satisfac-
tory kind of employment available. The Montreal black community grew
from 293 persons in the 1911 census to 928 in 1921 and 1,202 in 1931, with
Christie v. York Corporation 139
men and women gradually coming into balance.
86
Because of rampant
housing discrimination in most districts of Montreal,
87
the blacks inhab-
ited a fairly defined area close to the Canadian National and Canadian
Pacific railway yards. Although African Canadians were not a majority in
this area, and some resided outside it (including Fred Christie, who partici-
pated in a small black movement to Verdun in the mid-1920s), this neigh-
bourhood constituted the physical community of black Montreal with St.
Antoine Street as its main thoroughfare. The area was characterized by
poor quality housing and low rents, but physical proximity fostered the
development of black community institutions and a sense of identity. The
African Canadians of Montreal tended to stay in their own neighbourhood
for shopping and recreational purposes as well. In most other parts of the
city, hotels, restaurants and stores regularly refused service to black cus-
tomers, and even some churches rejected black members.
88
The most significant discrimination experienced by black people in
Montreal was in employment. Even those Americans and West Indians
who arrived with skills discovered that they could not find appropriate
jobs, either because employers preferred to hire whites or because the
American-affiliated unions would not admit them to membership.
89
Apart
from the railroads, their chief employer, African-Canadian men could get
work as dishwashers, janitors and, occasionally, as unskilled or semiskilled
factory and construction hands.
90
Because wages were low, both adult part-
ners were required to work in order to support a family, with almost all the
women working as domestic servants in white homes.
91
Montreal hospitals
would not train or employ black nurses for, as one priest explained, ‘‘les
malades ne voudront certainement pas recevoir les soins d’une noire.’’
92
Even the railways were no safe place for black men. In the 1920s black
waiters in the dining cars were replaced by whites, first on the CPR and
then on the CN.
93
The sleeping-car porter’s position remained black, but
re g a rd l e s s of qualifications or length of service a black porter could not be
promoted to sleeping-car conductor, a post reserved for whites.
94
The situation in Montreal was perceived by many African Canadians
to be worsening in the years following World War I.
95
Quebec as a society
was experiencing disruption from an economic recession beginning in
1920, and social dislocation caused by rapid industrialization and urban-
ization. The sense that the French Canadian equilibrium was being upset
by alien forces, coming from outside the francophone community, pro-
voked a resurgence of nationalism and an articulated resentment against
‘‘foreigners.’’
96
In this respect Quebec was not unique: nativist move-
ments swept across Canada in the 1920s, and south of the border the
140 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Americans shared the experience of ‘‘the tribal twenties.’’
97
Still the na-
tivist phenomenon in Quebec had its own special features. One was the
intimate link, indeed the identification, between the Roman Catholic
Church and Quebec nationalism, which rendered any non-Catholic vir-
tually ineligible for inclusion. Another was the appeal to history, the glo-
rification of the struggle against a hostile nature and overwhelming
enemies which had produced a singular people, specially adapted to
conditions in Quebec. Combined, these features created a sense of divine
mission, a ‘‘social priesthood,’’ to which the French-Canadian nation had
to be faithful.
98
This nationalist spirit was epitomized in the teachings of
the priest and historian Lionel Groulx. The first professor of Canadian
history at the University of Montreal, Groulx presented Canadian history
as a contest between ‘‘races’’: on the one side ‘‘a stock that is more
princely than any on earth. We are of a divine race, we are the sons of
God’’; on the other ‘‘barbarians,’’ aliens, the forces of cosmopolitanism
and ‘‘hermaphroditism.’’
99
Above all, Groulx exhorted the French-
Canadian people, ‘‘rester d’abord nous-mêmes.’’ As editor of the nation-
alist journal L’Action Française, he wrote in 1921:
it is this rigorously characterized French type, dependent upon history and geog-
raphy, having ethnical and psychological hereditary traits, which we wish to con-
tinue, on which we base the hope of our future; because a people, like all
growing things, can develop only what is in itself, only the forces whose living
germ it contains.
100
To protect the French-Canadian nation, Groulx warned against foreign
corruptions, from intermarriage to American movies and magazines.
101
An economic element was present in French-Canadian nationalism
throughout the 1920s, but it was accentuated in the 1930s as a result of
the Great Depression, when the ethnic conflict became identified in eco-
nomic terms. L’Action Française, which had ceased publication in 1928,
was succeeded in 1933 by L’Action Nationale and a program of economic
nationalism symbolized by the slogan ‘‘Achat Chez Nous.’’ This ‘‘cam-
paign of commercial chauvinism’’
102
was most obviously directed against
Jewish shopkeepers, but a participant explained to the sociologist
Everett C. Hughes that it targeted anyone who was not French and
Catholic: ‘‘he could be a Chinaman or a Negro.’’
103
The cultural homo-
geneity demanded by Groulx had produced ‘‘un courant de pensée hos-
tile à la présence de non-francophones, et notablement de Juifs, au sein
des institutions et services de la majorité.’’
104
Jews were included within
Christie v. York Corporation 141
a generalized xenophobia, as revealed in André Laurendeau’s explana-
tion of 1930s Quebec antisemitism as ‘‘revulsion directed against foreign-
ers.’’
105
Black people, mostly migrants from the United States, West Indies
or Nova Scotia, were outsiders by virtue of their origin, their language
and their religion. Some French-Canadian shopkeepers even grew reluc-
tant to serve black customers and personal association, always remote,
became less likely than ever.
106
It was during the 1930s that Montreal
hospitals began refusing black medical students as interns, leading the
McGill University Faculty of Medicine to make an arrangement with
Howard University for African Canadians to serve their internships in
Washington, D.C.
107
In 1936, the year Fred Christie tried to enter the York
Tavern, Maurice Duplessis led his Union Nationale party to electoral vic-
tory on a platform of nationalism. These developments did not produce a
Montreal that was more discriminatory than British Columbia or south-
western Ontario, for example, but they did serve notice to African Cana-
dians that the situation in Montreal was worsening and it was time to
take a stand.
This was the context of open suspicion and occasional hostility within
which Montreal’s African-Canadian population sought to survive as a
community. In the early decades of the century the community produced
institutions and societies to serve the needs of its own members. Most
important was Union Church, founded in 1907 and affiliated to the Con-
gregational Church until 1925 when it joined the United Church of
Canada. Other black churches existed, introduced by American immi-
grants, but Union Church on Delisle Street would become the mother
institution for the entire community.
108
The two porters’ organizations
provided recreational facilities at their headquarters, and there was a
host of smaller social or mutual benefit associations and athletic clubs.
109
The largest secular organization was the Universal Negro Improvement
Association. Marcus Garvey, its Jamaican founder, visited Montreal in
1917, and a formal UNIA branch was organized in 1919. Openly political
and directed at instilling pride in black hearts and dignity in black lives,
the UNIA enlisted hundreds of African Canadians in Montreal in the
1920s. Sunday morning was devoted to church; Sunday afternoon
belonged to the UNIA with meetings at Liberty Hall, speeches extolling
the virtues of black independence, debates, dances and picnics.
110
Despite poverty and rejection it was a vital, vibrant community, and
never more so than during the tenure of the Rev. Charles Este as pastor
of Union Church. Este arrived in Montreal from Antigua in 1913, hoping
to find work on the railroad, but was forced instead to become a shoe-
142 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
shiner at a hotel. Night school courses over many years prepared him to
enter the Congregational seminary, and in 1925 he became the minister at
Union Church. Charles Este was the unrivalled spiritual leader of black
Montreal, and he also had considerable influence in secular affairs. He
campaigned vigorously for African-Canadian employment opportunities
and admission to training programs. In 1927 Este founded the Negro
Community Centre, located at first in the basement of Union Church, as
a focal point for black social life and community consciousness. During
the Depression, when many other organizations drifted or declined and
even the UNIA went into hibernation, the Centre and its parent church
provided the energy and the confidence to enable the community to sur-
vive.
111
It was to this community that Fred Christie turned for support. Many of
its members had grown to believe that nothing could be done about dis-
crimination; Christie’s defiance was regarded as unusual, curious and
thrilling, and attracted widespread attention among African Canadians.
11 2
A gro u p of men responded to Christie’s challenge by forming ‘‘The Fred
Christie Defence Committee.’’ The Committee was chaired by Dr. Kenneth
Melville, professor of biology at McGill, and the vice-chair was Alfred Pot-
ter, a red cap. Tre a s u re r was A. E. Smith, chief red cap for the CPR, and as
publicity director they recruited E. M. Packwood, publisher of Montreal’s
only black newspaper, The Free Lance: Afro-Canadian Weekly. They opened
a campaign office at 1314 St. Antoine Street, and organized a mass meeting
at the UNIA Hall. Money flowed in, literally in nickels, dimes and quar-
ters, collected in the black barbershops and newsstands, at Union Church
and the campaign office. African-Canadian women organized a social
evening at the Coloured War Veterans’ Hall, with the proceeds going to
the Christie fund. Through circular letters and ‘‘authorized collectors’’
almost every black family in Montreal learned of the campaign and made
some small contribution. The red caps’, CN and CP porters’ associations
pledged their formal support. Fred Christie had sparked a mass commu-
nity crusade to confront the humiliations of racial discrimination. As the
Free Lance editorialized: ‘ ‘Unless we ar e p r e p a r e d to fight for equal tr eat-
ment under the law of the land, we ought not and will not be regarded or
treated as responsible citizens.’’
11 3
4. ISSUESAND INITIATIVES
When a group of African Canadians asked the federal government in
1916 whether racially discriminatory practices were legal, the deputy
minister of Justice had replied that legislation was silent on this issue.
Christie v. York Corporation 143
‘‘The remedy is in the courts.’’
114
It was therefore to the courts and the
common law that the Christie Defence Committee had resort. As far as
the Committee was concerned, the issue involved was simple: racial dis-
crimination should not be permitted in a democratic society. For the
courts, however, there were complications.
Since medieval times the common law of England had required an
innkeeper to serve any traveller who applied for lodging and refresh-
ment, subject only to limitations of space or some other reasonable
excuse. Over the years certain kinds of behaviour on the part of the cus-
tomer were deemed to constitute a reasonable ground for refusal, pri-
marily drunkenness or other disorderly conduct. The particular tastes
and preferences of the innkeeper could not be exercised.
115
The original
principle was that a traveller was at the mercy of the innkeeper, perhaps
literally for life or death in medieval conditions, and so in exchange for
the right to engage in public business the innkeeper accepted the obliga-
tion to receive the public without discrimination. This same principle
had been extended to other services, in particular to common carriers
who could not refuse to carry a customer’s goods without a lawful
excuse. Both the innkeeper and the carrier were ‘‘common’’ in that they
offered their services to anyone, without an explicit contract being
required. Similarly, any business granted a state monopoly or position of
privilege, by analogy, could not arbitrarily refuse service to a bona fide
customer. This was articulated in Lord Hale’s doctrine, which set out that
enterprises (in this particular case a public wharf) which held an exclu-
sive licence to provide a certain service must receive everyone, for they
‘‘are affected with a public interest, and they cease to be juris privati
only.’’
116
Elaborating this principle, Chief Justice Holt ruled in 1701:
Where-ever any subject takes upon himself a public trust for the benefit of the
rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things
that are within the reach and comprehension of such an office, under pain of an
action against him.... [O]ne that has made profession of a public employment, is
bound to the utmost extent of that employment to serve the public.
117
The issue before the court in Christie’s case was therefore not the legality
of discrimination per se, but the right of the York Tavern, as a licensed
business offering to serve the public, to refuse service arbitrarily. Would
Lord Hale’s doctrine extend to a tavern in the province of Quebec?
The question was not without its Canadian precedents. On 11 March
1898 a black man named Frederick Johnson, who worked at Montreal’s
144 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Queen’s Hotel as a bellhop, presented a coupon at the box office of the
Academy of Music in exchange for two tickets for a theatrical perform-
ance the following evening. The clerk, believing Mr. Johnson must be on
an errand for a white customer, gave over the tickets for seats 1 and 3 in
row K of the orchestra. In fact, Johnson had received the coupon as a tip
from a Mr. Swizzell, the manager of the touring theatrical group, who
was staying at the Queen’s Hotel. When Mr. Johnson and a black woman
attended the theatre the next night, the usher refused to seat them in the
orchestra section because of a house regulation restricting blacks to the
dress circle only. Some commotion occurred as Johnson declined the offer
of alternate seats in the dress circle, and he and his woman friend had
finally to be ejected forcibly from the theatre. They took a cab to the
Théâtre Français, where they were admitted to a performance. Then Mr.
Johnson sued the Academy of Music for damages.
Justice John Sprott Archibald of the Quebec Superior Court agreed
with Johnson and awarded him $50 damages for the humiliation, trouble
and expense to which the Academy’s action had subjected him.
118
Dis-
missing the theatre’s claim that as a ‘‘high class’’ establishment its exclu-
sive seating arrangement was reasonable, Justice Archibald articulated
two fundamental questions raised by this case. First, could a theatre
legally make ‘‘invidious regulations’’ restricting coloured persons to cer-
tain sections and, secondly, having exchanged the patron’s pass for tick-
ets to two actual seats, could the theatre refuse to admit him to those
seats?
119
In responding to his first question Justice Archibald gave a ringing
denunciation of racial discrimination. The theatre’s seating regulation, he
maintained,
is undoubtedly a survival of prejudices created by the system of negro slav-
ery.... Our constitution is and always has been essentially democratic, and it
does not admit of distinctions of races or classes. All men are equal before the
law and each has equal rights as a member of the community .... I should cer-
tainly hold any regulation which deprived negroes as a class of privileges which
all other members of the community had a right to demand, was not only unrea-
sonable but entirely incompatible with our free democratic institutions.
120
On the second and more technical question Justice Archibald held that a
theatre is essentially similar to a hotel, and just as a hotel is obliged to
receive every traveller, so a theatre must accept every paying guest. The
analogy was supported by the fact that both hotels and theatres require
Christie v. York Corporation 145
public licences and operate under municipal regulations; they are not
therefore strictly private enterprises and are not free to discriminate
among their customers. Furthermore, the theatre’s advertising consti-
tuted an offer to the public to attend performances without distinction.
Finally, since the theatre issued Mr. Johnson with tickets to seats K1
and K3 for 12 March 1898, refusal to grant those seats constituted a
breach of contract.
121
The Academy of Music immediately launched an
appeal.
The appeal decision was written by Justice Bossé of the Quebec Court
of Queen’s Bench.
122
The original award of $50 to Mr. Johnson was up-
held, but the grounds were more limited than those assigned by Justice
Archibald. On the point that as a publicly licensed enterprise the theatre
could not discriminate in admitting members of the public to perform-
ances, Justice Bossé wrote on behalf of his colleagues that theatres did
not bear the same obligations as hotels:
Nous n’adoptons pas ces raisons, non pas l’assimilation, pour la décision de la
question, d’un théâtre à une auberge ou un hôtel.
L’hôtelier ou aubergiste est, par nos lois, soumis à des obligations spéciales
nécessaires pour la securité et la santé des voyageurs.
Un théâtre est placé dans des conditions essentiellement différentes. Il n’y a
plus la nécessité, mais simple question d’amusement. C’est une entreprise de
commerce dans un but d’intérêt privé. . . .
123
On the other hand, Mr. Johnson did have tickets for specific seats and
therefore a contract existed between him and the Academy of Music. By
refusing him admission to those seats the theatre had broken the contract
and was liable for the damages.
124
The broader question – ‘‘si les noirs
ont, en cette province, le même droit d’admission que les blancs’’ – was
irrelevant to the case,
125
the court decided, but in dismissing Justice
Archibald’s reasoning the appeal decision undermined any general
application of the non-discriminatory principle. That principle was sus-
tainable only when an explicit contract existed.
‘‘A few years later,’’ Ida Greaves reports, a similar case occurred in
Toronto. An African-Canadian mother ‘‘who looked white under the
electric light’’ purchased a ticket for her darker-skinned son at a roller
skating rink. The management refused to admit the son when he pre-
sented his ticket, so the mother sued for damages. In Divisional Court
‘‘the Judge held that the woman was damaged the price of the ticket,’’
and the company owning the rink had to refund her 25 cents. No other
146 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
damages were sustained ‘‘since they had a perfect right to refuse to sell
the ticket.’’
126
A decision closer in principle to Johnson came in a British
Columbia case in 1914, Barnswell v. National Amusement Company.Mr.
Barnswell, a long-time resident of Victoria, purchased a ticket to the Em-
press Theatre in that city. He entered the lobby but was refused admis-
sion at the door of the auditorium because ‘‘there was a rule of the house
that coloured people should not be admitted.’’ Mr. Barnswell called the
police, and a constable witnessed the theatre’s insistence not to admit a
black patron. When Mr. Barnswell continued to protest, the manager
asked the policeman to remove him from the premises. Barnswell sued
the theatre for damages for breach of contract and for assault.
127
In County Court the theatre admitted to damages only for the amount
paid for the ticket, 10 cents, but Justice Peter S. Lampman decided that
‘‘the defendant broke its contract, and I have no doubt the plaintiff was
humiliated.’’
128
Damages were fixed at $50, the same as in Johnson,
though the Montreal case was not raised in argument. The Empress
Theatre’s appeal was heard in Vancouver in April 1915. Justice A. E.
McPhillips declared in favour of the theatre, on the grounds that ‘‘it is in
the public interest and in the interest of society that there should be law
which will admit of the management of places of public entertainment
having complete control over those who are permitted to attend all such
entertainments.’’
129
His four colleagues on the appeal bench, however,
dismissed the appeal because Mr. Barnswell’s money had been accepted
and he was already on the premises before being ejected. No reference
was made in Barnswell to the issue of racial discrimination: the damages
arose exclusively from breach of an established contract.
The limitations of the ‘‘contract’’ principle were made apparent in
another Montreal theatre case in 1919. Loew’s theatre was one of those
known for its practice of seating black people only in the balcony. In 1917
Montreal blacks had formed the Coloured Political and Protective Asso-
ciation, intended to promote ‘‘racial advancement’’ through coordinated
action, particularly at election times.
130
On 26 January 1919 the Associa-
tion sent Messrs. Sol Reynolds and Norris Augustus Dobson and their
wives to test Loew’s theatre’s seating policy. Mr. Reynolds purchased
four general admission tickets at the box office, and proceeded with his
companions to sit in the main orchestra section where there were many
empty seats. When theatre staff insisted that they move to the balcony,
Mr. Dobson protested loudly. All four African Canadians were then
ejected from the theatre. Reynolds and Dobson entered suits for damages
on the strength of Johnson.
131
Christie v. York Corporation 147
In Mr. Reynold’s case Justice Thomas Fortin of the Superior Court
awarded the plaintiff $10 damages, declaring
In this country the colored people and the white people are governed by the
same laws, and enjoy the same rights without any distinction whatever, and the
fact that Sol Reynolds was a colored man offers no justification for Loew’s Mont-
real Theatre Limited, refusing him admission to the orchestra chairs in its theatre
after issuing to him a ticket for such seat and after acceptance of the same by its
collector.
132
The theatre argued that an admission ticket did not entitle Mr. Reynolds
to a reserved seat but only to a seat on either the ground floor or mezza-
nine ‘‘as the management might desire and as the comfort and conve-
nience of other patrons might demand.’’ Furthermore there appeared on
each ticket a printed condition: ‘‘The management reserves the right to
refund the amount paid for this ticket and to revoke all privileges origi-
nally granted purchaser.’’ But Justice Fortin ruled that the purchaser
‘‘had the option of choosing his own seat’’ and that the printed condition
‘‘can only justify such revocation before the contract is executed or in the
course of execution. It cannot justify the revocation after the acceptance
by the theatre’s ticket collector.’’ However in the companion suit brought
by Mr. Dobson, Justice Fortin found rather ingenuously that Mr. and
Mrs. Dobson were removed from the theatre not on grounds of colour
but because they raised their protest ‘‘in such a tone of voice that
attracted quite a large number of people and blocked the entrance way.’’
This behaviour, according to the judge, was ‘‘unjustified,’’ and overlook-
ing the house rule on segregated seating which he had castigated in
Reynolds he found the theatre had not violated the Dobsons’ contract
when it ejected them.
133
Loew’s theatre appealed the Reynolds decision to the Court of King’s
Bench. In a dissenting judgment Justice Henry-George Carroll held that a
contract did exist between Reynolds and Loew’s, giving the customer the
right to sit where he chose. There was nothing distinctive about his ticket
to indicate a limitation on the usual right to any seat in the house. He
could only be denied a seat for a reasonable cause, such as drunkenness
or disturbing behaviour; colour was not a valid reason for cancelling the
contract. Reiterating Justice Archibald’s 1899 denunciation of racial dis-
crimination, Justice Carroll insisted that ‘‘Tous les citoyens de ce pays,
blancs et noirs, sont soumis à la même loi et tenus aux mêmes obliga-
tions.’’
134
American cases brought by Loew’s as precedents could not be
148 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
applied, since American social conditions and consequent legislation
authorizing discrimination did not exist in Canada. French legal prece-
dents restricting access of certain classes of people had been obviated by
the French Revolution. Reynolds, Carroll concluded, ‘‘a été gravement
blessé’’ and must be awarded damages.
135
The other four members of the appeal court decided in favour of the
theatre, reversing Justice Fortin’s decision. Reynolds’ ticket was not for a
specific seat; the theatre’s discriminatory regulations were legal; it was
Reynolds who rejected the seat offered him in the balcony and insisted
on sitting in the orchestra section where he knew he was not allowed.
Conditions were therefore quite different from the Johnson case, and
Reynolds had no claim for damages.
136
Chief Justice Lamothe was most
eloquent on behalf of the majority: since no explicit law stated otherwise,
managers were authorized to set any rules for their own establishments,
however arbitrary or discriminatory, provided they did not contravene
good morals and public order.
En achetant un billet, Reynolds savait que ce billet lui donnait droit de prendre
un siège aux endroits designés et non ailleurs. C’est donc délibérément qu’il s’est
exposé au refus dont il se plaint dans son action. Il a voulu, malgré la règle, pren-
dre place dans les fauteuils d’orchestre, endroit prohibé.
Aucune loi, dans notre province, n’interdit aux propriétaires de théâtres de
faire une règle semblable. Aucun règlement municipal ne porte sur ce sujet.
Alors, chaque propriétaire est maître chez lui; il peut, a son gré, établir toutes
règles non contraires aux bonnes moeurs et à l’ordre public. Ainsi, un gérant de
théâtre pourrait ne recevoir que les personnes revêtues d’un habit de soirée. La
règle pourrait paraître arbitraire, mais elle ne serait ni illégal ni prohibée. Il
faudrait s’y soumettre, ou ne pas aller à ce théâtre. Tenter de violer cette règle à
l’aide d’un billet, serait s’exposer à l’expulsion, ce serait s’y exposer voluntaire-
ment.
137
In 1916 the Ministry of Justice had advised African Canadians to seek
redress in the courts, in the absence of positive law relating to discrimi-
nation. The Court of King’s Bench was now declaring that in the absence
of positive law, discrimination was legal. It was up to the proprietor to
decide, on any basis he chose. As Justice Pelletier elaborated, the theatre
could lose white patrons if blacks were admitted: ‘‘Il est prouvé que la
présence des noirs dans les sièges d’orchestre empêche d’autres citoyens
d’aller au théâtre et l’appelante n’est pas obligée de subir une perte de
revenus qui résulte de ce fait.’’
138
Discrimination justified discrimination.
Christie v. York Corporation 149
Another case to test the issue occurred in Ontario, where the distance
from a proprietor ’s ‘‘duty to serve’’ was broadened by another signifi-
cant step. On 20 July 1923 Mr. W. V. Franklin, a watchmaker and dia-
mond specialist from the city of Kitchener, was visiting London, Ontario,
and stopped at The Cave restaurant for lunch. When the waitress told
him that ‘‘they did not serve coloured people,’’ Mr. Franklin complained
to the police and then returned to speak to the restaurant owner, Alfred
Evans. Mr. Evans and his wife both repeated, in terms the court would
later call ‘‘unnecessarily offensive,’’ their absolute refusal to serve a black
person on their premises. With the support of London’s African-Canadian
community and ‘‘some of London’s foremost [white] citizens,’’ and a
fundraising campaign organized by the black newspaper The Dawn of
Tomorrow, Mr. Franklin sued the Evanses ‘‘for the establishment of what
he believes to be a right as a Canadian citizen.’’ ‘‘I am not fighting,’’ he
insisted, ‘‘to soothe my own injured feelings. I am taking this stand for the
benefit of all peoples of color, for generations of colored children yet
unborn. Again, I want to prove to Mr. Evans and to all the world that the
majesty of the British law will b[r]ook no prejudice.’’
139
In 1899 Justice Archibald had found that a theatre, or any publicly
licensed and regulated enterprise, had the same obligation to serve the
public as a common innkeeper. The appeal court had narrowed this obli-
gation to those occasions when a contract existed, at least in a theatre
which offered amusement rather than an essential of life. In 1919 the def-
inition of contract was made more specific, as was the right of a propri-
etor to set conditions, upon the terms of the service offered. Franklin’s
case seemed clearly distinct from Reynolds: a restaurant does provide an
essential, and is far more analogous to the innkeeper’s situation than is a
theatre. Restaurants and inns are subject to similar licences and regula-
tions. Mr. Franklin was indisputably a traveller and had been previously
unaware of the restaurant’s regulations. The Evanses had not simply set
conditions but had refused to serve him any refreshment at all.
Justice Haughton Lennox sympathized with Mr. Franklin, whom he
regarded as ‘‘a thoroughly respectable man,’’ and he admitted to being
‘‘touched by the pathetic eloquence of his appeal for recognition as a
human being, of common origin with ourselves.’’
140
Asked whether he
had any ground for damages, Mr. Franklin told the court
Not in dollars and cents, but in humiliation and inhuman treatment at the hands
of this fellow man, yes. Because I am a dark man, a condition over which I have
no control, I did not receive the treatment I was entitled to as a fellow human
150 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
being. God chose to bring me into the world a colored man, and on this account,
defendent placed me on a lower level than he is.
141
Yet Justice Lennox found himself required to decide in favour of the
restaurant. There was, he explained, an ‘‘obvious dividing line’’ between
a restaurant and an inn or hotel. That line, apparently, was the monopo-
listic nature of the innkeeper’s licence:
[the] restaurant-keeper is not at all in the same position as persons who, in con-
sideration of the grant of a monopoly or quasi-monopoly, take upon themselves
definite obligations, such as supplying accommodation of a certain character,
within certain limits, and subject to recognized qualifications, to all who apply.
142
The fact that an enterprise was publicly licensed did not in itself carry any
‘‘ d u t y to serve.’’ Municipalities grant licences ‘‘partly for the purpose of
re g u l a t i n g trade, but mainly for the purpose of producing a revenue. . . .
[N]o limit is placed upon the number of licences issued.’’ Butcher shops
and department stores in London were also licensed, Justice Lennox rea-
soned, yet no one could deny the department store pro p r i e t o r’s right to
re f u s e to sell his goods to any particular customer. The Canadian theatre
cases – Johnson, Barnswell and Reynolds – might have suggested another
analogy, but they were not considered by the court. Citing a series of
British precedents, the judge concluded that a common innkeeper’s duty
could not be applied to other commercial enterprises.
143
Franklin’s only
consolation was that because of ‘‘the unnecessarily harsh, humiliating, and
offensive attitude of the defendant and his wife toward the plaintiff,’’ the
action was dismissed without costs.
144
Had the refusal been expressed
mor e politely , p r e s u m a b l y , the costs would have been assigned against Mr .
Franklin. Racial discrimination per se was legally acceptable.
5. LA QUESTION DE LA LIBERTÉ
In September 1936 the Christie Defence Committee engaged Lowell
C. Carroll, an independent attorney and a scholar with publications in
landlord and tenant law.
145
The York Tavern hired Brown, Montgomery
and McMichael, a firm of 22 members including 12 KCs, with experience
representing Loew’s Theatre in its successful appeal against Reynolds.
146
They met before Mr. Justice Philippe Demers in the Quebec Superior
Court in February 1937. Carroll argued that the tavern had a public
licence and should therefore serve the public, and besides, by its general
publicity advertising the sale of beer, it had offered an implicit contract
Christie v. York Corporation 151
which was broken when Christie’s order was refused. Fred Christie was
asked:
Q. Did you notice a large sign outside bearing the words York Tavern?
A. Yes.
Q. Was there anybody at the door to refuse your entrance?
A. No....
Mr. Carroll pursued the same line when examining assistant manager
Roméo Lajoie:
Q. Did you put any notice up that negroes were not to be sold beer?
A. No.
Q. Did you ever put a notice in the papers?
A. No.
Q. Did you ever advertise that in the newspapers generally or in the publicity
for the tavern?
A. No.
Q. When the tavern was opened, was there any publicity in the newspapers?
A. Yes.
By the Court: Publicity to the effect that negroes were not admitted?
By Plaintiff’s Counsel: No.
Q. That publicity, did it say negroes were not to be allowed to get beer?
A. No.
Q. It was unconditional.
By the Court: Do you hold a license by the Government to sell beer?
A. Yes.
Carroll argued further that Fred Christie and Emile King had been
insulted and humiliated by the Tavern’s refusal to serve them, and asked
for $200 each in damages. Defendant’s counsel Hazen Hansard picked at
this contention in his cross-examination of Christie:
Q. [Y]ou complain of being exposed to ridicule and contempt, humiliation, pain
and suffering, injury to reputation, damage to honour and sensibility and depri-
val of the pleasure of consuming beer with your friends at the time mentioned,
and you say that is a value to you of at least a sum of two hundred dollars. Are
you in a position to divide the two hundred dollars into those various allega-
tions, or can we take it the real thing you are complaining about is the refusal to
serve you with beer, and you want to find out what your rights are?
152 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
A. It is a very funny question.
Q. There is no catch in it, Mr. Christie. . . .
By Plaintiff’s Counsel: All Mr. Hansard wants to know is, are those real damages
or not?
A. Yes.
In response Hansard maintained that no humiliation had occurred
because the tavern staff had behaved quietly and politely. He asked the
waiter, René St. Jean:
Q. You heard the evidence given by Mr. Christie and Mr. King of your refusal to
serve them was on the grounds that they were colored people, is that correct?
A. Yes. . . .
Q. Did any of the people there hear you say that?
A. No....
By the Court: Didn’t you think it was humiliating?
A. Well, if it is humiliating to them, then it is humiliating.
By the Court: You did it as quietly as possible?
A. Yes.
By the Court: You had your orders, and gave them politely?
A. Yes.
Hansard insisted that as ‘‘a private enterprise operated for gain’’ the tav-
ern had the right to make any rules it deemed necessary to protect its
business interests. Since it was not a restaurant or an inn, it was under no
obligation to serve any member of the public. He asked Mr. Lajoie
whether the tavern served any meals.
A. Justsandwiches.
Q. Are those sandwiches hot?
A. They are not made at the tavern, they are made at a restaurant, and we call
for them when needed.
Finally, Hazen Hansard sought to prove that the discrimination practised
by the York Tavern was commonplace among similar establishments.
Since waiter René St. Jean had worked ‘‘in taverns and similar places’’
since 1907, with experience at the Russell House in Ottawa, the Senate
restaurant and the Chateau Laurier, and at the CPR’s Royal Alexandra
Hotel in Winnipeg, Hansard claimed that he could properly be consid-
ered ‘‘an expert in tavern practice.’’ St. Jean was asked:
Christie v. York Corporation 153
Q. Are you able to say from your experience whether or not there is a prejudice
amongst white people to be thrown amongst colored people?
A. In the places where I have worked, they did not care to receive colored peo-
ple.
By the Court: They did not care?
A. No, they had a special place for them.
By the Court: Was it a bar?
A. Yes.
By the Court: Did you not admit them at the bar in any of those places?
A. No, Sir, we never saw one or served one either.
By Defendant’s Counsel: Did you have any rule about admitting them?
A. If I remember rightly, at the Chateau Laurier we were told not to serve col-
ored people. They had a special place for them, where the porters would go
over to them and go right to that service bar.
By Plaintiff’s Counsel: Was that rule well known to the porters?
A. Yes, because they all went there. . . .
By the Court: Did you refuse them at the Chateau Laurier?
A. I never had a chance to refuse them because they never came in there.
By Defendant’s Counsel: Wo u l d the serving of negroes, in any numbers, in the York
tavern, have any effect on the business of the tavern, are you able to say? . . .
By the Court: He never served them and cannot say what effect it would
have. . . .
By Defendant’s Counsel: Do you know whether or not there are taverns down
on St. Antoine St., what might be said to be the negro quarter?
A. Yes, there is a tavern and a restaurant licensed there.
Q. And negroes may be served down there?
A. Yes, that is what I was told.
By the Court: That is not the question. It is a question of rights, that is if you
have the right to refuse a man on account of his color. It is a question of law,
not of evidence.
By Defendant’s Counsel: The circumstances vary for different places.
By the Court: No, no circumstances, it is a question of law whether you have the
right or not.
By Defendant’s Counsel: I have another witness.
By the Court: I do not require to hear him.
By Defendant’s Counsel: Y o u r Lordship rules I cannot examine any more witnesses.
By the Court: It is not necessary.
147
Philippe Demers’ frequent interventions indicated that he was not
impressed by the waiter’s testimony, nor was he convinced by the legal
154 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
precedents brought by the tavern, including Loew’s v. Reynolds and
Franklin v. Evans. Unfortunately for the tavern, Justice Demers stated, the
previous cases occurred in circumstances where there was no law
restraining the proprietor ’s liberty, but the Quebec Licence Act had a spe-
cific provision protecting the customer. According to Section 33 of that
Act ‘‘no licensee for a restaurant may refuse, without reasonable cause, to
give food to travellers.’’ Section 19 defined a ‘‘restaurant’’ as ‘‘an estab-
lishment, provided with special space and accommodation, where, in
consideration of payment, food (without lodging) is habitually furnished
to travellers’’; and a ‘‘traveller ’’ was ‘‘a person who, in consideration of a
given price ... is furnished by another person with food or lodging or
both.’’
148
In Justice Demers’ view, beer is nourishment and should fall
within the definition of food. ‘‘Quand je prends une verre de lait, une
tasse de café, une verre de bière, je mange tout autant que lorsque je
mâche du pain.’’ Furthermore, sandwiches were available for purchase
in the tavern. On both counts, then, the York Tavern must be considered
a ‘‘restaurant.’’ As persons seeking ‘‘food,’’ Christie and King were defin-
able as ‘‘travellers’’ under the Licence Act. This meant that the tavern’s
regulation was illegal, and the humiliation caused by the refusal of ser-
vice must be compensated. Since Emile King had not actually placed an
order or offered money, only Fred Christie was awarded damages: $25
plus costs.
149
The Montreal Gazette announced on its front page that
‘‘Court Bars Color Line’’: ‘‘Hotels and restaurants in the Province of Que-
bec have no right to discriminate between their guests and must serve
anyone who pays.... The case established jurisprudence in the
province.’’
150
But the Gazette’s excitement was premature, for the York
Tavern appealed the Demers decision to the Court of King’s Bench.
In presenting Christie’s case this second time, Lowell C. Carroll reiter-
ated his contention that when the patron accepted the tavern’s offer to
sell beer, a contract was completed and could only be broken for reason-
able cause. He added that a tavern, like a restaurant or inn, was obliged
to serve the public, and that discrimination was contrary to the Criminal
Code. Four of the five King’s Bench judges disagreed.
151
In the first place,
the majority concluded, there was no contract. Justice Bond found that
because Christie was immediately and politely informed that he could
not be served, there was ‘‘no contract ever completed – no bargain
struck.’’
152
Justice Barclay decided that the tavern’s general advertise-
ment announcing the sale of beer ‘‘does not constitute an offer to sell but
is merely an invitation to buy.’’
153
There was therefore ‘‘no foundation for
an action ex contractu.’’
154
Christie v. York Corporation 155
Turning more specifically to Justice Demers’ Superior Court decision,
the majority decided that a tavern was not governed by the same law as
a restaurant. The Quebec statutes themselves made a distinction: in the
Alcoholic Liquor Act,
155
under which taverns were licensed, ‘‘tavern,’’
‘‘restaurant’’ and ‘‘hotel’’ were all defined differently; the requirement in
the Licence Act that restaurants and hotels must serve all travellers was
significantly silent on taverns.
156
In any case, according to Justice St. Ger-
main, no evidence had ever been offered to suggest that Christie was a
genuine traveller and thereby entitled to service.
157
Just because food was
available in the York Tavern did not in itself make it a restaurant; sand-
wiches were sent from a neighbouring establishment when a York cus-
tomer placed an order, and even if beer had nutritive value Christie
sought it only as a beverage.
158
British and French cases were cited to indicate that no obligation
required taverns to serve the public without discrimination. In British
courts an ‘‘inn’’ had been defined concisely, excluding taverns from the
duty to serve.
159
Franklin v. Evans was added to illustrate that British
common law did not impose the innkeeper’s responsibility on restau-
rants either.
160
In France the principle was that a proprietor ’s choice was
only limited if public order required it or if the business enjoyed a
monopoly or privilege, and neither of these conditions could be applied
to the situation before the court.
161
Article 13 of the Quebec Civil Code
invalidated any action which might contravene ‘‘the laws of public order
and good morals,’’ but the terms were left undefined.
162
In the opinion of
the King’s Bench majority, the York Tavern’s action did not fall into this
category. Nor did the court find that licensing restrictions constituted any
infringement on the status of a tavern as a private enterprise: licences
had as their object the raising of revenue; they did not create a condition
of monopoly or privilege.
163
The public interest was not involved. ‘‘The
fact that a tavern-keeper decides in his own business interests that it
would harm his establishment if he catered to people of colour cannot be
said to be an action which is against good morals or public order.’’
164
For these various reasons, the Court concluded, no restraints existed
on the right of the York Tavern to choose its own customers. Since there
was no fault, there could be no liability for damages.
165
The fundamental
issue in this case was ‘‘la question de la liberté’’: the freedom of a propri-
etor, in the absence of positive law, ‘‘d’entrer ou de ne pas entrer en rela-
tions d’affaires avec les personnes qu’il lui plaît.’’
166
The Court was ‘‘not
called upon to express any opinion upon the abstract philosophical con-
156 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
cept that all men are born equal,’’ Justice Bond insisted, quoting Sir
William Scott that ‘‘to vindicate the policy of the law is no necessary part
of the office of a Judge.’’
167
‘‘The function of this Court or of any court is
to interpret the law as it is passed by the Legislature – not to change it or
alter it or add to it,’’ Justice Barclay added. ‘‘When a situation arises
which is of public concern, then it is the Legislature and not the courts
which should be called upon to remedy the situation.’’
168
One judge saw the issue differently. In a thoroughly dissenting opin-
ion, Justice Antonin Galipeault shifted the question of liberty from the
proprietor to the patron. Christie was a British subject, a respectable citi-
zen and personally well-behaved; he had a right to purchase a glass of
beer in a public establishment such as a tavern.
169
Point by point Justice
Galipeault found that the precedents argued in favour of Fred Christie.
Contradicting his colleagues, he maintained that a contract did exist. In
Sparrow v. Johnson, when the Court of King’s Bench defined the sale of a
theatre ticket as a contract, the judgment had been supported in part by
the fact that ‘‘no notice of the existence or public announcement’’ of any
racially restrictive policy had ever been made.
170
In Loew’s v. Reynolds, the
judgment had stressed that Reynolds did know of the theatre’s restric-
tions before attempting to occupy a certain seat, and this exempted the
theatre from the Sparrow v. Johnson precedent.
171
The Loew’s decision, Jus-
tice Galipeault emphasized, had only permitted the theatre to seat black
people in a designated section, not to exclude them entirely.
172
Much less
so could a tavern exclude them. The numerous regulations imposed on a
tavern made it effectively a monopoly or quasi-monopoly; licences were
not for the unique purpose of revenue, but to control the numbers, loca-
tions and operating conditions of liquor outlets.
173
The Alcoholic Liquor
Act repeatedly used the word ‘‘privilege’’ with reference to the sale of
alcohol by licence, thus explicitly defining a tavern as a privileged enter-
prise.
174
The difference between a tavern, a hotel or a restaurant was one
of degree; all three shared the same fundamental purpose and nature,
and should all be subjected to the same responsibility to serve the
public.
175
According to the wording in the Licencing Act, Christie quali-
fied as a ‘‘traveller ’’ and could legitimately expect to be served.
176
Justice
Galipeault even agreed with Justice Demers that beer is a food.
177
If a
hotel could not refuse lodging to a black man, and a restaurant could not
refuse food, by what logic could a tavern refuse a glass of beer? ‘‘Est-il
besoin d’un texte pour le tavernier? Était-il besoin d’un texte pour
l’hôtelier et le restauranteur? J’estime que non.’’
178
As for the tavern’s
claim that it would lose business if black customers were served, Justice
Christie v. York Corporation 157
Galipeault found that ‘‘un peu enfantin ou ridicule.’’ A tavern is after all
only a tavern, not a congregation or a club; clients come and go, and are
not required to socialize with one another.
179
Franklin v. Evans had no rel-
evance to Quebec, for it dealt with a restaurant and in Quebec a restau-
rant was required by legislation to be non-discriminatory. Had Justice
Lennox heard that same case in Quebec he would certainly have decided
that hotels, restaurants and taverns exercised a quasi-monopoly, ren-
dered a public service, and were obliged not to discriminate.
180
It was
necessary to push the proposition to the extreme: if a publicly licensed
establishment could exclude African Canadians, why not Jews or Chi-
nese or any other ‘‘race’’? Why not members of certain religions, or per-
sons who spoke certain languages? To support the York Tavern in its
discriminatory policy would be tantamount to deciding ‘‘contre les
bonnes moeurs, contre l’ordre public, contre le droit et la loi.’’
181
Justice Galipeault’s detailed arguments notwithstanding, the question
of liberty was resolved in favour of the proprietor. The principle was
reaffirmed that ‘‘in the absence of any specific law, a merchant or trader
is free to carry on his business in the manner that he conceived to be best
for that business.’’
182
6. IN THE SUPREME COURT OF CANADA
The King’s Bench decision was announced on 31 May 1938, and the Christie
Defence Committee immediately launched a campaign to raise the $1,000
bond needed to carry an appeal to the Supreme Court of Canada. Commit-
tee chair Kenneth Melville wrote to the Montreal black community:
The recent decision rendered against Mr. Fred Christie of Montreal, in the case of
the York Corporation versus Christie, makes it highly imperative that citizens of
the Negro race unite solidly to protect themselves against this glaring support of
the principle of racial discrimination in public places in Montreal.
To allow this case to be closed without any attempt to appeal this decision to
the Supreme Court of Canada, would only tend to encourage further and more
open discrimination against members of the Negro race, to encourage the disre-
gard of public order, and indeed, to foster inter-racial discord.
The Appeal Requires Money. Accordingly, a committee of Negro citizens work-
ing at their request in conjunction with Mr. Christie, have decided to make an
appeal to raise sufficient funds by voluntary contributions for this purpose. This
committee feels firmly convinced that the Supreme Court of Canada will not
uphold this malicious principle of racial discrimination, which is certainly con-
trary to British principles and traditions.
183
158 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The response was gratifying. ‘‘In the most enthusiastic demonstration of
racial solidarity,’’ the Free Lance r e p o r t e d , ‘ ‘ l o c a l public opinion continues
to crystalize in united support of the Christie Defence Committee.’’
184
By
September, the impoverished community had scraped together the
re q u i re d bond money, only to learn that the Quebec Court of King’s Bench
dismissed Mr. Carroll’s motion for leave to appeal to the Supreme Court.
Carroll thereupon enlisted Section 41 of the Supreme Court Act,
185
which
permitted direct appeal if the matter in controversy was deemed to be of
sufficient general importance and if the future rights of the contesting par-
ties might be affected. Leave to appeal was granted on 7 February 1939.
186
Attorney Carroll prepared the Appellant’s Factum around one central
issue: racial discrimination was contrary to public order and good
morals. Though the Code itself left these terms undefined, Carroll
insisted that the Tavern’s policy was a clear violation of the rule and
must not be sanctioned by a court of law.
Quebec law is against any discrimination against a citizen on the ground of reli-
gion, language or colour. Bilingualism exists by law in Canada. All religions are
free to practice their faiths, without control. All citizens are subject to taxation,
without discrimination as to colour. The common law of Quebec is the free enjoy-
ment by all its citizens of the facilities for education, nourishment and happiness
which are available. It cannot be assumed from the fact that the legislature has, in
the case of hotels and restaurants, taken care in dealing with their licences, to lay
down a statutory obligation to receive, that this was expressly omitted in the case
of a tavern. It was omitted because it was not thought necessary, in view of the
monopolistic nature of a Quebec tavern, and its privileges under the law, that
there would be any question of refusing its facilities to any citizen.
The York Tavern had put out advertisments in the press and in the streets
inviting the general public. Nowhere was it stated or implied that black
patrons were not welcome. Mr. Christie had frequently visited the tavern
before, in its original location. Suddenly and without notice the policy
had changed, excluding certain customers on grounds of colour alone.
If this ridiculous exclusion is sanctioned by law, it could be extended without
limitation . . . until this country bristled with racial, religious and colour discrimi-
nations like certain European countries. A right to do so, particularly in the case
of a Governmentally controlled monopoly, like a Quebec tavern, would certainly
be against public order and good morals. Even in the southern United States the
right to discriminate must be granted by statute.
Christie v. York Corporation 159
The tavern’s refusal to serve Christie ‘‘was a direct insult and slander,
implying inferiority.’’ For the suffering caused by this humiliation he
deserved to be awarded damages. Although a group could not sue a
slanderer for a racial insult, an individual could do so if the insult was
directly applied to him. Mr. Christie’s ‘‘gentlemanliness and conduct has
not been impeached’’; he was deemed ‘‘undesirable’’ only because of
colour. According to Loew’s v. Reynolds and other precedents, manage-
ment could exclude the unruly and could make certain rules concerning
dress requirements and seating arrangements,
But it could not make rules against public order and good morals, and it is
respectfully urged that the respondent’s rule, refusing negroes, even if it had
been made public, which had not been done, was against public order and good
morals, particularly in Canada and Quebec, part of an Empire teeming with vari-
ous races, religions and colours.
187
The Respondent’s Factum was prepared by Montgomery, McMichael,
Common and Howard, and argued before the Court by Hazen Hansard.
There was no dispute over the facts; the tavern’s case was that its action
was permissible and reasonable, that
the refusal in question was made for purely business reasons on account of the
prejudice generally held by white persons to drinking in company with negroes,
and that refusal to serve negroes was common in the better class of establish-
ments such as that operated by the Respondent.
The underlying principle was not racial discrimination but the freedom
of a private business to choose its customers. ‘‘It is essentially a question
of contract, and the merchant or trader, in the absence of special statutory
provisions, is not under any duty to enter into a contractual relationship
with anyone.’’ In the case of Mr. Christie, no contract ever existed. ‘‘The
Respondent refused to enter into a contract for the sale of the beer with
the Appellant and, upon being pressed for a reason, gave as its reason
the rule it had against serving negroes. The Appellant therefore was told
the rule, and knew of it at all material times.’’ The Respondent was not
an innkeeper, obliged to supply the wants of travellers, but a merchant
‘‘free to deal or not as he may choose.’’ The Alcoholic Liquor Act specified
that ‘‘Any person in charge of a tavern . . . may sell therein beer by the
glass’’; the language was not compulsory but ‘‘purely permissive.’’ The
refusal was made ‘‘in the exercise of a right – damnum absque injuria.’’ The
160 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
York did not enjoy a monopoly on the sale of beer, for there were taverns
on St. Antoine Street where Christie could have been served. Numerous
functions and enterprises required licences – the operation of a motor
car, for example – and they did not thereby become monopolies.
Throughout the incident tavern employees had behaved politely, quietly
and inoffensively. No embarrassment or humiliation had occurred until
the Appellant brought it upon himself by calling the police. ‘‘On the evi-
dence of record therefore and apart from any question of right, the
Appellant suffered no damages at the hands of the Respondent.’’
188
The Supreme Court of Canada considered these arguments on 10 May
1939. It was a strong court, chaired by Chief Justice Sir Lyman Duff, who
has been regarded as ‘‘the most influential member in the history of the
Supreme Court of Canada’’
189
and who was the only person on the bench
to have heard the Quong Wing case 25 years previously. Also present
were Justices Thibaudeau Rinfret and Patrick Kerwin, both of whom
would later become chief justice (1944-54 and 1954-63, respectively),
Oswald Crocket and Henry Davis. Their judgment was published on
9`December 1939.
190
Justice Rinfret, appropriately a native of Montreal, delivered the deci-
sion for the majority. He accepted the evidence that York employees had
behaved
quietly, politely, and without causing any scene or commotion whatever. If any
notice was attracted to the appellant on the occasion in question, it arose out of
the fact that the appellant persisted in demanding beer after he had been so
refused and went to the length of calling the police, which was entirely unwar-
ranted by the circumstances.
191
‘‘In considering this case,’’ Justice Rinfret continued,
we ought to start from the proposition that the general principle of the law of
Quebec is that of complete freedom of commerce. Any merchant is free to deal as
he may choose with any individual member of the public. It is not a question of
motives or reasons for deciding to deal or not to deal; he is free to do either. The
only restriction to this general principle would be the existence of a specific law,
or, in the carrying out of the principle, the adoption of a rule contrary to good
morals or public order.
192
The French principle of ‘‘la liberté du commerce’’ articulated this right
explicitly, except in cases of privilege or monopoly, and it had been fol-
Christie v. York Corporation 161
lowed in Loew’s v. Reynolds ‘‘where the facts presented a great deal of
similarity with those of the present case.’’ Another case ‘‘practically iden-
tical with the present one’’ was Franklin v. Evans, where Justice Lennox
found that the English cases led to the same conclusion.
193
Reviewing the
Demers decision, Justice Rinfret felt that it could only be supported if the
Quebec Licence Act explicitly made it illegal for a tavern to refuse service
without reasonable cause. No conditions existed justifying an exception
on principle to ‘‘la liberté du commerce,’’ for clearly ‘‘it cannot be argued
that the rule adopted by the respondent in the conduct of his establish-
ment was contrary to good morals or public order.’’ Having thus sum-
marily annihilated the theme of Carroll’s factum, Justice Rinfret added
‘‘Nor could it be said, as the law stood, that the sale of beer in the
province of Quebec was either a monopoly or a privileged enterprise.’’
194
A licence does allow certain government controls, but its main purpose is
to raise revenue and it does not prevent the operation of a tavern as a
private enterprise. ‘‘The only point to be examined,’’ therefore, was
whether the Licence Act could be applied. Such an examination led to the
conclusion that ‘‘the appellant was not a traveller asking for food in a
restaurant within the meaning of the statute.... According to the defini-
tions, he was only a person asking for a glass of beer in a tavern.’’
195
The
legislature had obliged restaurants and hotels to serve the public, but
‘‘no similar provision is made for taverns.’’ The decision, in which Duff,
Crockett and Kerwin concurred, was that ‘‘As the case is not governed
by any specific law ... it falls under the general principle of freedom of
commerce; and it must follow that, when refusing to serve the appellant,
the respondent was strictly within its rights.’’
196
Christie’s appeal was
dismissed with costs, by a count of four to one.
197
The single dissenting voice belonged to Justice Henry Davis. He
agreed that the Quebec Licence Act could not be applied to a tavern. He
agreed as well that the primary question needing resolution was: ‘‘Has a
tavern keeper in the province of Quebec under the special legislation
there in force the right to refuse to sell beer to any one of the public?’’
198
Thereafter Justice Davis’ reasoning diverged from his colleagues. Since
its first passage in 1921, the Alcoholic Liquor Act
199
had established state
control over alcoholic beverages, including beer. The sale of beer by the
glass with consumption on the premises was strictly limited to specially
adapted and licensed establishments defined as taverns. The furniture
and equipment required to qualify for a tavern licence were regulated,
and the sale of beer was explicitly referred to as a ‘‘privilege’’ conferred
by that licence. The hours and days when beer sales were permitted were
162 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
set out in the Act. Most significantly, the Act listed specified classes who
were not to be served alcoholic drinks, including those under the age of
18 years, convicted drunks, and persons individually prohibited by a
decision of the Quebec Liquor Commission.
200
By a separate statute (the
Alcoholic Liquor Possession and Transportation Act
201
), even the possession
and transportation of alcohol, including beer, were placed under state
control. The York Tavern had been granted a licence and was privileged,
within this strict environment of control and regulation, to sell beer by
the glass for consumption on the premises. But did this ‘‘special privi-
lege’’ include ‘‘the right to pick and choose those of the public to whom
he would sell?’’ The statute governing the licence already defined the
persons to whom the licensee could not sell. Could the licensee impose a
separate code of eligibility?
202
Justice Davis reexamined the precedents to determine whether ‘‘free-
dom of commerce’’ was as encompassing as the King’s Bench decision
allowed. In Loew’s v. Reynolds, for example, Justice Martin had said for
the majority that ‘‘while it may be unlawful to exclude persons of colour
from the equal enjoyment of all rights and privileges in all places of pub-
lic amusement, the management has the right to assign particular seats
to different races and classes of men and women as it sees fit.’’ In
Franklin v. Evans, Justice Lennox had concluded that English cases did
not require a restaurant to serve without discrimination. One of the cases
supporting this conclusion was Sealey v. Tandy,
203
in which a licensee (not
a common innkeeper) was permitted to exclude a customer whom he did
not wish to serve. But, Justice Davis pointed out, in the newest edition of
Halsbury this case carried a footnote to the effect that ‘‘a victualler will
be compelled to sell his victual if the purchaser has tendered him ready
payment, otherwise not.’’ A victualler, according to the dictionary, was
‘‘one who sells food or drink to be consumed on the premises.’’
204
Justice Davis admitted that ‘‘The question is one of difficulty, as the
divergence of judicial opinion in the courts below indicates,’’ but consid-
ering the legislation establishing complete state control over alcohol, he
concluded that taverns were not free to pick and choose their customers.
In the changed and changing social and economic conditions, different principles
must necessarily be applied to the new conditions. It is not a question of creating
a new principle but of applying a different but existing principle of the law. The
doctrine that any merchant is free to deal with the public as he chooses had a
very definite place in the older economy and still applies to the case of an ordi-
nary merchant, but when the state enters the field and takes exclusive control of
Christie v. York Corporation 163
the sale to the public of such a commodity as liquor, the old doctrine of the free-
dom of the merchant to do as he likes has in my view no application to a person
to whom the state has given a special privilege to sell to the public.
Since the Act already specified the various grounds for exclusion, it was
up to the legislature itself, not the licence holder, to enact any additional
ground such as colour, ‘‘race’’ or religion.
205
Professor Melville’s prediction was not fulfilled; the Supreme Court
had upheld the ‘‘malicious principle of racial discrimination’’ and the
Christie Defence Committee had to pay the York Tavern’s legal costs.
206
Fred Christie was personally humiliated and disillusioned by this
betrayal of what he had regarded as ‘‘British justice.’’ A few months after
the Supreme Court decision was announced, Mr. Christie moved to the
United States and took up residence in Vermont.
207
The case attracted
very little public attention, despite its implications,
208
but lawyers read-
ing the Dominion Law Reports were given an Editorial Note identifying
the significance of the Christie judgment:
This would appear to be the first authoritative decision on a highly contentious
question and is the law’s confirmation of the socially enforced inferiority of the
coloured races. The principle upon which the judgment is based, though derived
from Code sources, will be found equally applicable to the common law. The
authorities are considered in Franklin v. Evans.
209
Legal scholars have generally lamented the Christie decision, perceiv-
ing the same consequences as the editor of the Dominion Law Reports.
Some commentators have expressly found that the judgment was wrong;
others have merely regarded it as unnecessary. Closest to the event, and
most critical, was Bora Laskin. Commenting in 1940, Professor Laskin
wrote:
As between the majority’s support of the doctrine of freedom of commerce and
Davis J’s enunciation of a principle based on legislative assumption of control of
an industry the latter ought to be preferred, especially on grounds of policy and
where, as in this case, in the absence of a constitutional guarantee of equality of
treatment, the result would be the rejection by the courts of tendencies toward
discrimination. The principle of freedom of commerce enforced by the Court
majority is itself merely the reading of social and economic doctrine into law, and
doctrine no longer possessing its nineteenth century validity. With governmental
intervention in the control of certain industries and services in the public interest,
164 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
the courts may properly conclude that in the absence of legislative pronounce-
ment there is to be no discrimination by government licensees against custom-
ers. . . . Where the government has established legislative control of products or
services it seems more desirable to interpret the legislation as not permitting dis-
crimination unless expressly providing therefor rather than as allowing licensees
to discriminate unless expressly forbidden.
210
Douglas Schmeiser has argued that the innkeeper principle could have
been extended to cover this situation, had the Court chosen to do so,
211
and Henry Molot has challenged ‘‘the wisdom and validity’’ of the
Christie judgment:
That a business can simply arrogate to itself and to its premises the immunity
which reputedly shelters the private individual in his home... is belied by the
recognition already given by common law and statute to the businessman’s more
vulnerable position vis-à-vis potential patrons: they are invitees, not tres-
passers.
212
Walter Tarnopolsky, like Laskin, has found the dissenting opinion of Jus-
tice Davis to be most compelling.
213
For Ian Hunter, too, the decision
could have been different. ‘‘The judiciary had not lacked opportunities to
advance equality, but had preferred to advance commerce; judgments
had adumbrated a code of mercantile privilege rather than a code of
human rights.’’
214
Frank Scott regretted the majority judgment without
implying that it was in error:
The freedom of commerce, it was said, enabled the tavern-keeper to choose his
customers as he liked. The freedom of Christie from racial insult was not found
to be protected by the law.... [O]ne kind of freedom conflicts with another....
The great principle of equality before the law must prevail at some point over the
other value of freedom of commerce. . . . [T]he law as laid down in the Christie
case should be changed.
215
In a separate comment Professor Scott added that ‘‘In choosing the par-
ticular result in this case, the majority of the judges exercised a discretion
that could as well have gone the other way.’’
216
The literature lacks abso-
lutely any applause for Sir Lyman Duff and his Court in Christie v. York.
It would seem that, as in the case of Quong Wing, a different decision
was at least possible in 1939. Two precedents were chiefly considered:
Loew’s v. Reynolds and Franklin v. Evans. Loew’s v. Reynolds, however, con-
Christie v. York Corporation 165
tained two principal restrictions which limited its application as a prece-
dent for Christie. One, as noted by Justice Davis, was Justice Martin’s
caution that total exclusion ‘‘may be unlawful.’’ For him, it was only the
assignment of particular seats that was clearly within the right of the pro-
prietor.
217
Justice Pelletier seemed to accept the same narrower definition
when he wrote: ‘‘Un propriétaire de théâtre a le droit de placer les spec-
tateurs où il veut dans des endroits....’’
218
The second apparent restriction
was the emphasis placed by the majority in the 1919 decision upon the
fact that Sol Reynolds was aware of the theatre’s discriminatory policy
before he purchased his tickets. Chief Justice Lamothe began his state-
ment by writing ‘‘En achetant un billet, Reynolds savait...,’’ and he con-
cluded with ‘‘Dans les circonstances révélées par la preuve, Reynolds ne
peut réclamer des dommages-intérêts.’’
219
Justice Pelletier distinguished
Sparrow v. Johnson from Loew’s v. Reynolds primarily because Johnson had
been unaware of the theatre’s regulations, whereas ‘‘Dans la présente
cause, non seulement le demandeur connaissait ce règlement, mais il
s’est rendu pour le défier et faire ce qu’il appelle un test case. . . . Il résulte
de tout cela que le précédent de Sparrow v. Johnson n’est pas applicable.’’
220
Justice Martin’s opinion was equally influenced by the fact that Reynolds
‘‘purchased his ticket with the knowledge of the existence of the rule of
the theatre that he would not be seated where he asked to be seated, viz,
in an orchestra seat, and this en vertu d’un règlement porte à sa connais-
sance. He could not successfully urge or contend that there was violation
of any contractual right and he is not entitled to any damages.’’
221
The
judgment summary in Rapports Judiciaires de Québec specifies both these
qualifications: ‘‘a theatre may impose restrictions and make rules as to
the place which each person should occupy,’’ and ‘‘when a colored man
bearer of a ticket of general admission, wants to take a seat in a part of
the house which he knows is by a rule of the manager prohibited to col-
ored persons, he cannot complain if he is refused. . . .’’
222
The York Tav-
ern was refusing service to Fred Christie, not simply assigning him a
certain seat. Fred Christie was totally unaware of the York’s rule, and
had been served by the same management before the tavern moved into
its Forum location. The cases could have been distinguished.
Nor is Franklin v. Evans entirely convincing. Justice Davis drew atten-
tion to the footnote which changed the application of Sealey v. Tandy, i.e.,
that a ‘‘victualler ’’ must not discriminate against a customer who ‘‘ten-
dered him ready payment.’’ Since Justice Lennox found Sealey ‘‘decid-
edly pertinent’’ in dismissing Franklin’s claim, that footnote could have
affected his decision, and modified his statement that he could ‘‘find no
166 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
authority directly in support’’ of Franklin.
223
In rendering the majority
judgment at the Supreme Court, Justice Rinfret did not himself review
the common law cases, but relied on Justice Lennox. This meant that
Barnswell, for example, continued to be ignored, though it was a case
where the plaintiff’s admission to the premises before being refused fur-
ther service was a decisive point. Most of the reasoning in Franklin v.
Evans builds upon the distinction – ‘‘the obvious dividing line’’
224
–
between an inn and a restaurant. In developing this distinction, Justice
Lennox lent great significance to the fact that a restaurant was not a
‘‘monopoly or quasi-monopoly.’’
225
For this to be a ‘‘distinction,’’ then it
must be assumed that an innkeeper did somehow enjoy a monopoly or
quasi-monopoly, and this is what imposed the unique obligation to serve
the public without discrimination. Yet nowhere did Justice Lennox or
any of the cases he quoted specify that an innkeeper’s licence gave
monopolistic privileges. All the evidence Justice Lennox offered against
regarding a municipally licensed restaurant as a monopoly could equally
demonstrate that a municipally licensed inn was not a monopoly either.
The innkeeper’s ‘‘duty to serve’’ had much more complex origins than
Justice Lennox implied, and since this duty had been amenable to appli-
cation by analogy to common carriers and public wharves, there seems
to be no ‘‘obvious dividing line’’ preventing its application to restau-
rants. At least there were some weaknesses in Franklin v. Evans which
could have been exploited had the Supreme Court chosen to do so.
But of course the Supreme Court did not choose to do so. In consider-
ing the different principles involved, there was a direct confrontation
between two sets of rights as then understood. It is only in retrospect that
the rights of Fred Christie take obvious precedence. The right of associa-
tion, for example, contains the right not to associate; the right of a cus-
tomer to buy or not to buy was matched, with certain specified
exceptions, by a proprietor ’s right to sell or not to sell. The fact that an al-
ternative decision was possible in 1939, as every subsequent authority
has maintained, serves to illustrate how context operates upon the judi-
cial process. Although invited to do so by Lowell C. Carroll, the Court
did not find racial discrimination to be contrary to good morals or public
order. The very notion was summarily dismissed in a single sentence by
Justice Rinfret.
226
Henry Davis, like John Idington in 1914, perceived a
change in the context within which the law would be interpreted and
applied. Increasing state intervention in public affairs would shift the
balance of rights between proprietor and public, but on the eve of World
War II that was not yet generally apparent.
Christie v. York Corporation 167
7. AFTERMATH
Undoubtedly the Supreme Court opinion that racial discrimination was
not immoral or damaging accurately reflected prevailing views on
morality and public order. No one ever challenged the York Tavern’s
contention that white patrons preferred not to associate with blacks, and
evidence at the trial indicated that this kind of prejudice was generally
acceptable.
227
Prime Minister Mackenzie King noted his personal dis-
tress, about the same time as the Christie decision appeared, that Ger-
mans and English were killing each other. ‘‘It is appalling to think that in
this way, the white stocks are making it possible for yellow men and the
brown to inhabit the globe.’’
228
The prime minister notwithstanding, it
was the War itself that initiated a process of change.
That change was by no means immediate; the public order assessed by
the Court retained its acceptability well beyond the outbreak of hostili-
ties in Europe. Employment discrimination, for example, was enforced
by the National Selective Service, the government agency created to
direct workers into appropriate employment for the effective prosecution
of the war effort. The NSS used a registration form asking an employer’s
‘‘requirements as to age, skill and race,’’ and it honoured any employer’s
preference to exclude African Canadians. In fact NSS officers were not
merely responsive to the stated prejudices of others: black applicants
were simply assigned to stereotypical positions as domestic servants and
unskilled workers. In many parts of the country black people were not
even considered for employment in war munitions factories.
229
Under
pressure from black groups in Toronto, Montreal and Windsor, the fed-
eral agency finally agreed in November 1942 to withdraw the offending
questionnaire and to end any racial distinctions in its own job assign-
ments. In its statement dated 14 November the NSS admitted that ‘‘dis-
crimination impairs the war effort by preventing the most effective use of
our total labour supply and tends ... to defeat the democratic objectives
for which we are fighting.’’
230
The anomaly was not recognized by the NSS until the War was already
three years old. Even more astonishing, for later generations, was the
reluctance of the armed services themselves to accept African-Canadian
recruits. RCAF regulations stated that ‘‘The following classes of men will
not be eligible for enlistment... (c) Men who are not both of pure Euro-
pean descent and the sons of natural born or naturalized subjects.’’
231
In
1943 the ‘‘pure European descent’’ rule was dropped;
232
in certain in-
stances prior to that some black volunteers were accepted for ground
duties, but could not be appointed to commissioned rank or to air
168 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
crew.
233
The navy’s similar rule, that a recruit must be ‘‘of the white
race,’’ was not changed officially until June 1944, after the D-Day land-
ing.
234
Meanwhile public advertisements urging enlistment in the air
force and navy, like those of the York Tavern, made no reference to racial
qualifications.
235
As had happened in World War I, black Canadians volunteering to
serve their country were told that they were not welcome. The army’s
official policy, once again, was that individual commanding officers must
be free to accept or reject volunteers for any reason. The minister of
national defence wrote to a leader of the Halifax black veterans: ‘‘I am
sure that you will understand why we do not feel that we should inter-
fere with this prerogative and I am sure you will equally recognize that
racial questions have had no part in the establishment of it.’’
236
In a
remarkable echo of the previous war, persistent attempts by black volun-
teers to enlist prompted a survey of unit commanders in Nova Scotia. Of
14 officers queried, all responded that black soldiers would be unaccept-
able: ‘‘would prejudice recruiting,’’ ‘‘objection on part of white troops to
coloured,’’ ‘‘unit would disintegrate,’’ were among the reasons offered.
237
Serious consideration was given to the establishment of a segregated
labour battalion, but Ottawa headquarters rejected the idea.
238
In May
1941, in the midst of an urgent recruiting campaign which attracted
numbers of prospective black volunteers, the Halifax district commander
sought Ottawa’s advice on ‘‘the question of the enlistment of Negroes.’’
Recruitment regulations, he pointed out, suggested that any Canadian
citizen who was ‘‘physically fit and in possession of the necessary educa-
tional qualifications’’ could join the army. He added reassuringly that
‘‘the local Negroes are of a low standard of education, which suggests
the number of enlistments would not be large.’’
239
On 5 June 1941 Nova
Scotian recruiters were advised that ‘‘provided they are physically fit and
not illiterate,’’ black personnel were eligible for enlistment.
240
If the rejec-
tion and segregation of African Canadians was acceptable in a time of
national crisis, as the experience in the early years of the War would
attest, the Supreme Court’s 1939 refusal to enforce integration in a simple
tavern can be recognized as consistent with Canadian morality at that
time. Even after the dramatic changes brought about by the War –
including not only a new sensitivity to the ideology of racism but the
increasing involvement of the state in public affairs with the conse-
quences foreseen by Justice Davis – racial equality was far from won.
The experience of Johnson, Barnswell, Reynolds, Franklin and Christie
continued to be true: black people themselves had to seize the initiative
Christie v. York Corporation 169
and claim their rights; sometimes they would be successful, and some-
times they would not.
Striking testimony to the vigour and legality of ‘‘Jim Crow’’ in postwar
Canada, and to African Canadians’ continuing determination to achieve
equal rights, was provided by the case of Viola Desmond. Mrs.
Desmond was a Halifax beautician who made tours to the smaller black
communities in Nova Scotia to promote her line of beauty products and
sometimes to do the hair of African-Canadian women. Her service was
necessary because many white-operated beauty salons refused to accept
black customers.
241
On one such trip to New Glasgow in November 1946,
Mrs. Desmond attended a performance at the Roseland Cinema. She
asked the ticket-seller for ‘‘one down, please,’’ and proceeded to sit in the
downstairs section of the theatre. The person collecting the tickets, how-
ever, informed her ‘‘this is an upstairs ticket, you will have to go
upstairs.’’ Coming from Halifax, Mrs. Desmond was not familiar with
local practice that African Canadians such as herself were required to sit
in the balcony. She attempted to exchange her ticket, but was told ‘‘I’m
not permitted to sell downstairs tickets to you people.’’ Aware now of
the situation, Viola Desmond quietly but determinedly occupied a seat
downstairs. Manager Henry MacNeil insisted that she move, indicating
the notice on the back of the ticket reserving the right to refuse admission
to anybody. When Mrs. Desmond expressed her conviction that the cin-
ema had no right to discriminate against her, Mr. MacNeil sought the
assistance of a policeman who was standing at the back of the cinema,
watching the show on his supper break.
Unable to intimidate Mrs. Desmond into moving voluntarily, Mr.
MacNeil and the policeman resorted to physical force. In her later testi-
mony Mrs. Desmond referred to a ‘‘scuffle’’ in which her knee and hip
were injured and her purse and one shoe were lost. Mr. Jack Desmond,
Viola’s widower, reports that his wife ‘‘put up a fight,’’ though other
family members claim that Mrs. Desmond’s small stature and dignified
demeanour did not make physical resistance likely. In any case, Mrs.
Desmond was forcibly removed from her seat, carried by Mr. MacNeil
and the policeman to a waiting taxi and taken to the police station where
she was locked up overnight. The next morning, 9 November 1946, Mag-
istrate Rod MacKay found Mrs. Desmond guilty of defrauding the
province of Nova Scotia of one cent in sales tax: the upstairs price of 30
cents included two cents in tax, the downstairs price of 40 cents included
three cents tax. By paying for an upstairs ticket and sitting downstairs
Mrs. Desmond had failed to pay enough tax. She was fined $20 plus $6
170 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
costs. The costs were paid over to Mr. MacNeil.
242
With the moral and financial support of the recently established Nova
Scotia Association for the Advancement of Coloured People, Viola
Desmond engaged Halifax lawyer F. W. Bissett to challenge the New
Glasgow decision. Apparently as a strategy to undercut the legitimacy of
the entire proceedings against his client, Mr. Bissett did not appeal Mag-
istrate MacKay’s specific ruling but instead applied for a writ of certio-
rari, arguing that Viola Desmond ‘‘was illegally and improperly
convicted’’ and alleging ‘‘want of jurisdiction of the convicting magis-
trate for the reason that the evidence did not support the conviction.’’
Justice Maynard B. Archibald of the Nova Scotia Supreme Court, how-
ever, dismissed this application on 20 January 1947 because ‘‘It is
clear . . . that the magistrate had jurisdiction to enter upon his inquiry.’’
It was apparent at the argument that the purpose of this application was to seek
by means of certiorari proceedings a review of the evidence taken before the con-
victing magistrate. It is obvious that the proper procedure to have had such evi-
dence reviewed was by way of an appeal.
But the time for an appeal had passed, and certiorari was inappro-
priate.
243
Mr. Bissett appealed this ruling to the full bench of the Nova
Scotia Supreme Court on 13 March, where he argued that ‘‘natural jus-
tice’’ had been denied to Mrs. Desmond. Following the precedents, and
according to the fundamental purpose for the existence of certiorari,
‘‘There is a denial of justice where a person is convicted without evi-
dence and the court will grant the writ [of certiorari] where an obvious
injustice has been done, even though an appeal could have been
taken.’’
244
But the court unanimously rejected the argument, ruling that
‘‘The defendant was convicted on a conviction good on its face and regu-
lar in form before a magistrate having jurisdiction.’’
245
Justice William
Hall couched his decision in terms that showed he fully understood, and
sympathized with, Mrs. Desmond’s challenge to racial segregation, and
seemed to regret that Bissett had not chosen a straightforward appeal.
Had the matter reached the Court by some method other than certiorari, there
might have been opportunity to right the wrong done this unfortunate woman.
One wonders if the manager of the theatre who laid the complaint was so zeal-
ous because of a bona fide belief there had been an attempt to defraud the
Province of Nova Scotia of the sum of one cent, or was it a surreptitious endeav-
our to enforce a Jim Crow rule by misuse of a public statute.
246
Christie v. York Corporation 171
New Glasgow’s black newspaper, the Clarion, took Justice Hall’s com-
ment as a moral victory. ‘‘It would appear that the decision was the only
one possible under the law.... [T]he reason for the decision lies in the
manner in which the case was presented to court.’’
247
At least ‘‘Jim
Crow’’ had been recognized and denounced.
248
But stories of discrimina-
tory treatment in New Glasgow stores and restaurants continued to
appear in the Clarion, increasing black citizens’ frustration at the failure
of the judiciary to protect them. In August 1947 editors Carrie Best and
James Calvert Best launched a campaign for a municipal by-law author-
izing council to suspend the licences of any establishment refusing ser-
vice on grounds of colour.
249
Their model was a Toronto by-law requiring
places of amusement licensed by the city to accept all customers regard-
less of ‘‘race, colour or creed,’’ passed in response to public demonstra-
tions after a skating rink ejected a boy simply because he was black.
250
No by-laws resulted in Nova Scotia, but the Desmond case and the Clar-
ion’s editorials forced the provincial black population to recognize the
weakness of the law as it stood and prompted the NSAACP to adopt a
program aimed at legislative change rather than judicial enforcement of
‘‘rights’’ that turned out to be deficient.
251
The route to desegregation through a municipal by-law, following the
Toronto model, was attempted in several other Canadian cities. After
widespread publicity was given to a refusal by Calgary hotels to accom-
modate African Canadians in early 1947, organized labour and the CCF
joined the city’s black community in demanding municipal action
against discrimination. A motion was presented to council, but the city
solicitor gave the opinion that since persons refused accommodation at a
common inn or hotel had recourse to damages under the common law,
no by-law was necessary. Any by-law reaching beyond hotels, for exam-
ple to include taverns or other places of amusement, would be outside
the authority of the council. Instead, Calgary mounted ‘‘an educational
campaign to eradicate discrimination.’’
252
The campaign did not con-
vince the manager of a local swimming pool, who admitted in 1948 that
blacks were not permitted to swim there because ‘‘If too many Negroes
came to swim no one else would want to use the pool and we would go
out of business.’’
253
A Calgary dance hall barred blacks ‘‘because the par-
ents of white girls attending dances there have objected.’’
254
Oshawa
council, on the other hand, passed an anti-discriminatory by-law in
December 1949, against the opinion of its city solicitor, who advised ‘‘I
don’t think the city has the power to legislate in such matters.’’
255
This
same doubt had plagued the town council of Dresden, Ontario, where
172 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
local African Canadians began pressing for a by-law to eliminate racial
discrimination in 1947. Unsure of its authority, the council held a referen-
dum in December 1949 asking Dresden citizens: ‘‘Do you approve of the
Council passing a by-law licensing restaurants in Dresden and restrain-
ing the owner or owners from refusing service regardless of race, color or
creed?’’ The vote was 517 to 108 against the by-law.
256
Circumstances such as these, and in particular the continuation of bla-
tant discrimination in Dresden, forced black people and their allies to
move into the provincial arena to seek an end to racist practices. Ontario
was first to provide a remedy through the Fair Accommodations Practices
Act in 1954, which forbade racial discrimination in places to which the
public was ‘‘customarily admitted.’’
257
Over the next decade most other
Canadian provinces passed equivalent laws.
258
Quebec’s Hotels Act was
amended in June 1963 to similar effect.
259
It would no longer be possible
for the York Tavern to refuse a black customer. Fred Christie’s campaign,
indirectly and eventually, seemed to be vindicated. And yet, late into the
1960s, housing discrimination remained prevalent in Montreal, and most
African Canadians still resided in the vicinity of the railroad tracks and
St. Antoine Street.
260
The situation would finally explode in 1969 when
black and other students at Sir George Williams University occupied the
computer centre to protest racial discrimination in their university and in
the city generally. In the resulting publicity, far more attention was paid
to the destruction of computer equipment than to the problems which
had created the student frustration.
261
When, at a Liberal fundraising
dinner in Montreal in 1975, Prime Minister Pierre Trudeau warned that
racism threatened to appear in Canada, his Montreal audience shared the
ignorance of their leader that he was speaking far too late.
262
Fred
Christie might never have existed.
8. CHRISTIE AS PRECEDENT
But if Fred Christie was unknown to the public, the principles enunci-
ated in his case survived in the courts of Canada. Less than six months
after the Supreme Court’s Christie decision, a case with almost identical
circumstances occurred in Vancouver. A black man named Rogers and a
white business colleague entered the Clarence Hotel on Seymour Street,
which had recently undergone renovations and had reopened under new
management. The new proprietor had taken out newspaper advertise-
ments announcing this fact and inviting ‘‘our patrons’’ to see for them-
selves. Mr. Rogers and his friend, a partner in their shoe-repair business,
had often had a beer in the Clarence Hotel under its previous owner, and
Christie v. York Corporation 173
had no reason to think he might be unwelcome now. Yet the new propri-
etor did refuse to serve Mr. Rogers, and stated that she did so only
because she objected to his ‘‘race’’ and colour. Mr. Rogers’ suit for dam-
ages against the hotel reached the British Columbia Court of Appeal in
May 1940.
263
Chief Justice MacDonald found the refusal of service ‘‘contrary to
ethics and good morals,’’ but regretfully he felt bound to follow the
Christie precedent and refuse damages to Mr. Rogers. Justice Sloan
agreed that Christie must be applied, thus giving the hotel a majority of
the three-man court. They felt that the ‘‘freedom of commerce’’ principle
articulated by the Supreme Court was not confined to Quebec. The Que-
bec Licence Act had substantially the same regulations as the BC Govern-
ment Liquor Act,
264
and neither had any explicit provision inhibiting a
proprietor ’s right to refuse service. The use of the Ontario case of
Franklin v. Evans in its Christie judgment placed it ‘‘beyond question’’
that the Supreme Court intended the principle to apply everywhere in
Canada.
265
Justice Cornelius H. O’Halloran dissented. Christie was governed by
the civil law of Quebec, and could not bind the courts of the common
law provinces. According to the legal principles prevailing in British
Columbia, Justice O’Halloran found three reasons to decide in favour of
Mr. Rogers:
First, that it is contrary to common law to refuse service to a person solely
because of his colour or race. Furthermore the appellant could not refuse the
respondent without showing reasonable cause: in that secondly, she ‘‘held out’’
her premises to the public without reservation or limitation, as common and
public refreshment rooms where beer might be purchased by the glass; and
thirdly, the operation of beer parlours in this Province is ‘‘affected with a public
interest,’’ and is a ‘‘public employment’’ so as to displace any asserted common
law right, if such existed in the appellant, to sell only to whom she would.
266
Justice O’Halloran supported these contentions in a thorough canvas of
common law cases. He insisted that ‘‘All British subjects have the same
rights and privileges under the common law,’’ and regretted that Justice
Lennox had overlooked ‘‘this elementary principle’’ in Franklin v.
Evans.
267
Citing Rothfield v. North British Ry Co,
268
in which an Edinburgh
hotel was required to pay damages for excluding a Jewish patron, Justice
O’Halloran illustrated an explicit denial that ‘‘race and nationality’’
could be a reasonable cause to refuse service. The Clarence Hotel could
174 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
refuse Mr. Rogers for reasonable cause, but obviously not simply because
of his ‘‘race.’’ The hotel’s advertisements constituted ‘‘a general invita-
tion’’ to patronize its beer parlour. Though Rothfield dealt with accommo-
dation in what was legally a common inn, the British court’s decision
was based on the fact that it ‘‘held out’’ its services to the general public,
and not on the innkeeper’s duty to serve.
269
Finally, Lord Hale’s doctrine
of ‘‘public interest’’ must be applied, because the provincial legislature
had eliminated ‘‘freedom of commerce’’ in beer and through its Govern-
ment Liquor Act had ‘‘affected the sale of beer with a public interest.’’
270
For these various reasons the Clarence Hotel had no right to refuse Mr.
Rogers.
We cannot consider the right of the beer parlour operator to refuse the respon-
dent without also considering the right of the respondent to be served. Society is
made up of individuals. The common law rights of each individual are necessar-
ily limited by the manner in which their exercise affects the common law rights
of other individuals. If the respondent had the right to be served (as he did from
the general invitation to the public and the ‘‘holding out’’) it is repugnant to any
sense of fair dealing to contend that he could be denied the right except for rea-
sonable cause. It would be unreasonable and unjust; a clear invasion of his com-
mon law rights.
271
The commentator in the Canadian Bar Review viewed the O’Halloran
dissent as the most interesting part of the Rogers decision, but found it
mistaken. Common law equality only meant entitlement to equal treat-
ment ‘‘under the law or before the Courts or as against the Crown or
government’’; it had no application between private individuals. The
comment also criticized Justice O’Halloran’s ‘‘holding out’’ principle:
‘‘One might as well say that when a store advertises its wares it makes an
offer which can be accepted by anyone who appears in response to the
advertisement.’’ On the other hand the CBR was impressed with O’Hal-
loran’s argument that a licensed beer parlour was ‘‘affected with a public
interest’’ and should not therefore discriminate among its customers.
272
Douglas Schmeiser has taken a different line, criticizing Justice O’Hallo-
ran’s use of the British precedents since each cited case applied to an inn-
keeper and not to a liquor establishment. Nor does Professor Schmeiser
agree that Lord Hale’s doctrine of public interest, as interpreted in subse-
quent British and American cases, affected a licensed tavern in BC. He
concludes: ‘‘it must be recognized that no matter how socially desirable
the view of O’Halloran J.A. might appear to be, there is little legal
Christie v. York Corporation 175
authority supporting it.’’ Nevertheless Professor Schmeiser does agree
with Justice O’Halloran that ‘‘There is nothing in the Christie case to indi-
cate that the Supreme Court of Canada intended to lay down a rule bind-
ing in other provinces – in fact, the judgment points to the opposite
conclusion.’’
273
The view that Christie applied only to Quebec, however,
has not been sustained or even argued in other instances.
The federal government, certainly, concluded that Christie confirmed
the right of taverns and restaurants across Canada to discriminate on
grounds of ‘‘race.’’ In 1943 Mr. Hugh Burnett, a carpenter from Dresden,
complained to the minister of Justice that he had been refused service in
a local restaurant because he was black. The deputy minister replied:
I beg to inform you that I have been requested to reply to your letter of July 17th
complaining that the proprietor of a public refreshment parlour – Mr. Morley
McKay – refused to permit you to buy refreshment in his establishment. This
refusal was apparently based on the fact that you are a member of the negro race.
A merchant or restaurant keeper is free to deal as he may choose with such mem-
bers of the public as he may choose. This rule or principle, in certain circum-
stances such as you relate, is unfair or discriminatory in its effect; however, to
adopt a law requiring a merchant or restaurant keeper to transact business with
every member of the public who presented himself, since it would be entirely
one-sided, might operate to the serious detriment of business. The principle of
freedom of contract which I have mentioned has been recognized and accepted
by the Supreme Court of Canada in a decision rendered as recently as 1939. This
was on an appeal from the Court of Appeal of the Province of Quebec.
274
In Calgary in 1947 City Solicitor D. S. Moffat, asked to comment on the
legality of an anti-discrimination by-law, cited both Christie v. York and
Rogers v. Clarence Hotel to conclude that with the sole exception of a com-
mon innkeeper, ‘‘The right to exclude any person from their premises is a
civil right thus established by the Supreme Court of Canada and unless
this were changed by a decision of the Privy Council or by Legislation it
must stand as the law of this Province.’’
275
As has been noted previously,
the Dominion Law Reports editors also assumed that Christie would ‘‘be
found equally applicable to the common law.’’
276
Justice Rinfret, who
wrote the Christie decision, would apparently have agreed. He wrote in
his 1956 ‘‘Reminiscences’’ that in 29 years on the bench he had never
found a single case where the application of common law and civil law
would have yielded different results.
277
Not only was Christie used to restrict the ‘‘duty to serve’’ exclusively to
176 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
common innkeepers, but to limit its application to genuine travellers. On
13 May 1959 Mr. Ted King was trying to contact a friend who he believed
was staying at Barclay’s Motel on Macleod Trail in Calgary. He tele-
phoned the motel to ask if his friend was registered there, describing him
as ‘‘coloured.’’ Proprietor John Barclay replied that he was not, and
added ‘‘We don’t allow coloured people here.’’ Mr. King was one of the
founders, and in 1959 was the president, of the Alberta Association for
the Advancement of Coloured People. The purpose of this association
was ‘‘to promote goodwill and to seek equality in social and civic activi-
ties throughout the province’’; according to another charter member this
included campaigning ‘‘to get rid of some obvious forms of racism.’’
278
Mr. Barclay’s statement seemed to offer an opportunity to challenge one
obvious form of racism. Mr. King and a black colleague, Mr. Harvey Bai-
ley, drove to the motel and asked for accommodation. The ‘‘Vacancy’’
sign was posted outside. Mr. Barclay at first said the motel was full, but
under questioning from Mr. King admitted that ‘‘We don’t take coloured
people.’’ Mr. King then sued the motel for $500 damages, hoping to
establish an exemplary precedent.
279
In Calgary District Court Justice Hugh Farthing accepted the truth of
Mr. King’s charge of racial discrimination, but he decided that the motel
was free to do so. Since Alberta had no regulation against discrimination,
Christie and Rogers both indicated that freedom of commerce must allow
John Barclay to select his own customers. Only an innkeeper was other-
wise obligated, and Justice Farthing noted that an innkeeper was one
who provided ‘‘lodging and food.’’ No food was available at Barclay’s
Motel, and so it was not by definition an inn. Even if it had been, it
would not be obliged to receive Ted King because he was not a bona fide
traveller. King owned a home in Calgary, drove a car with a Calgary reg-
istration, and had taken no luggage to the motel. He admitted in court
that he had gone to the motel ‘‘for purposes of investigation,’’ to test its
discriminatory policies. Judge Farthing dismissed Mr. King’s action with
costs, and added ‘‘in no uncertain terms’’ that he did not ‘‘appreciate’’
the way the case had been publicized in the press by Mr. King’s lawyer,
Tony Palmer.
280
The Alberta Supreme Court heard Ted King’s appeal on
14 February 1961. No written reasons were offered, but all five justices of
the Appellate Division held that King was not a traveller, and four of the
five held further that the motel, which did not serve food, was not an
‘‘inn.’’ The appeal, accordingly, was dismissed, and Mr. King received
another lecture from the bench criticizing his attempt to use the courts to
effect social change.
281
Shortly thereafter Alberta amended its Innkeeper ’ s
Christie v. York Corporation 177
Act to remove the ‘‘food’’ requirement,
282
so that motels would be re-
quired to receive black travellers. The fundamental purpose of the
AAACP action had been achieved, but not through the courts.
An interesting decision in Quebec confronted many of the same issues
as Christie but did not, ironically, even mention that case. In April 1960
Mrs. Joseph, a black woman, made a deposit on a vacant apartment in
Montreal and received the owner’s verbal assurance, made by telephone,
that she could rent the apartment. When she presented herself to sign
the lease, however, the owner refused to confirm the agreement and
explained ‘‘the reason is because you are coloured.’’ Mrs. Joseph’s suit
for damages came before Justice André Nadeau in October 1965. In
granting her damages, including interest from 1960, Justice Nadeau
found that an oral contract could only be broken with a valid excuse, and
this could not include ‘‘race.’’ He concluded that racial discrimination
was, in any case, contrary to good morals and public order:
Toute discrimination raciale est illégale parce que contraire à l’ordre public et aux
bonnes moeurs; le geste discriminatoire posé par le locateur constitue une viola-
tion des règles courament admises de la morale applicables à la vie en société; il
est aussi de la catégoire des actes attentatoires à l’ordre public, étant de nature à
troubler la paix dans la société.
283
Justice Lamothe’s denial in Reynolds that racial discrimination was con-
trary ‘‘aux bonnes moeurs et à l’ordre public,’’
284
echoed by Justice Rin-
fret in Christie,
285
had finally been challenged by a Quebec court. At the
time of Justice Nadeau’s decision, Quebec did not have legislation cover-
ing discrimination in rental accommodation.
Christie’s legal career was not yet terminated, though it moved through
a phase that was remote from the issue of racial discrimination. A bet-
ting agency lost access to Ontario racetracks,
286
but General Electric was
required to sell to an electrical contractor because no other suppliers
were available in the market.
287
In the latter case Justice Nadeau ex-
plained that ‘‘Si répréhensible que fut la conduite du tavernier, il y avait
tout de même d’autres alternatives qui s’offraient au client,’’ and he dis-
avowed the racial element in Christie’s value as a precedent: ‘‘les stan-
dards de conduite de 1940 ont singulièrement évolué depuis, et que ce
qui pouvait être acceptable à cette epoque ne le serait plus aujourd’hui,
la notion d’ordre public évoluant avec le cours des ans.’’
288
Even in cases
where the racial issue per se was not before the courts, it was deemed
expedient to distinguish Christie’s support for discriminatory behaviour
178 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
as belonging to a particular time and place. The courts could, therefore,
continue to recognize a general right of the freedom of commerce with-
out perpetuating the right to discriminate on grounds of ‘‘race.’’ By the
1970s public morality and positive legislation, as Justice Nadeau pointed
out, had fundamentally undermined the legality of racial discrimination.
One recent case to mention Christie does constitute an explicit allegation
of racism, and while the different courts reached opposing decisions, the
impact at all judicial levels was to confirm that racism should no longer
be tolerated in Canadian law.
At issue was the claim of a South Asian woman, an experienced
teacher with a PhD in mathematics, that Seneca College of Applied Arts
and Technology refused to hire her on grounds of ‘‘race’’ and ethnic ori-
gin. Instead of filing a complaint under the Ontario Human Rights Code,
Dr. Pushpa Bhadauria issued a writ for damages for discrimination and
for breach of the Code. Justice Callaghan dismissed her action, finding
that the Code itself established a remedy for her complaint and she there-
fore had no right to a civil action. The Ontario Court of Appeal saw oth-
erwise.
289
The unanimous judgment of the court was delivered by Justice
Wilson, who considered the question in two parts: was there a common
law duty not to discriminate, which the College had breached, and sec-
ondly did a violation of the Ontario Human Rights Code give rise to a
cause of action. Justice Wilson began her answer with a consideration of
Christie v. York and Rogers v. Clarence Hotel, and was most impressed with
Justice O’Halloran’s dissenting opinion in the latter that the common law
gave a right to equality. If so, she went on, there must be a common law
remedy, as the British chief justice had enunciated in Ashby v. White in
1703.
290
Furthermore in 1945 Justice Mackay of Ontario had declared a
racially restrictive covenant to be void as against public policy.
291
It did
not require a positive law: the common law alone grants full protection
against discrimination. Acknowledging that the matter was res integra,
since no authorities directly recognized a tort of discrimination, Justice
Wilson argued that the common law was not restricted by the existence
of the Ontario Human Rights Code, which after all had not created but
merely recognized the right of every citizen to freedom from discrimina-
tion. She therefore concluded that Dr. Bhadauria could sue the College,
as a common law remedy to the breach of a common law right. The ques-
tion of whether the Code itself gave rise to a civil cause of action was, in
the circumstances, irrelevant.
292
The case came before the Supreme Court of Canada in 1981.
293
Once
again the decision was unanimous, but it was this time against Dr.
Christie v. York Corporation 179
Bhadauria’s right to a civil claim. Chief Justice Bora Laskin, on behalf of
the entire Court, found that ‘‘a refusal to enter into contract relations or
perhaps, more accurately, a refusal even to consider the prospect of such
relations has not been recognized at common law as giving rise to any
liability in tort.’’ Christie and the other cases brought by black Canadians
had not revealed a common law right against discrimination; Justice
O’Halloran’s dissent was weakened by its reliance on Rothfield, a case
involving an innkeeper’s obligation, which was not applicable to other
situations. The principle in Ashby v. White only applied if a right in fact
existed. Justice Mackay’s 1945 statement that racial discrimination was
contrary to public policy, with which Chief Justice Laskin personally
agreed, had not been upheld by the Ontario Court of Appeal or the
Supreme Court of Canada in a 1950 property covenant case. While he
commended Justice Wilson’s ‘‘bold . . . attempt to advance the common
law,’’ Chief Justice Laskin decided that the common law route was ‘‘fore-
closed by the legislative initiative which overtook the existing common
law of Ontario and established a different regime which does not exclude
the Courts but rather makes them part of the enforcement machinery
under the Code.’’
294
Dr. Bhadauria’s proper procedure was to lay a com-
plaint under the Code, and seek compensation (i.e., damages) under its
explicit provisions. The Ontario Human Rights Code contained a declara-
tion that public policy was opposed to racial discrimination, and the
Code also laid out the necessary procedures to enforce that policy. Justice
Wilson’s judgment was set aside, and Justice Callaghan’s was restored:
the remedy established in the Code was comprehensive and exclusive;
there was no parallel remedy through a civil action.
295
The Supreme Court did not weaken the prohibition of racial discrimi-
nation, it merely channelled the remedy through the provisions of the
Code rather than through a civil suit for damages. For Dr. Bhadauria her-
self, any vindication of her rights and compensation for the damages she
allegedly suffered would be determined if she laid a complaint before the
Ontario Human Rights Commission. By 1981 the only dispute was over
the means by which a complainant should seek to enforce his or her right
to freedom from discrimination. The Supreme Court’s Bhadauria deci-
sion, however, has the effect of lending retroactive approval to Loew’s v.
Reynolds, Franklin v. Evans, Christie v. York, Rogers v. Clarence Hotel and
R. v. Desmond, all of which occurred before human rights codes existed in
Canada. Although Chief Justice Laskin did not deny the possibility that a
common law right existed prior to the enactment of human rights legisla-
tion, he confessed that he had ‘‘some difficulty in understanding’’ Justice
180 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Wilson’s claim that the Code ‘‘recognized’’ but did not ‘‘create’’ the right
to freedom from discrimination. Indeed he implied that the Code had cre-
ated rather than recognized that right by adding:
There is no gainsaying the right of the Legislature to establish new rights or to
create new interests of which the Court may properly take notice and enforce,
either under the prescriptions of the Legislature or by applying its own tech-
niques if, on its construction of the legislation, enforcement has not been wholly
embraced by the terms of the legislation.
296
In the context this statement was meant to suggest that the legislation
did provide for satisfactory enforcement; placed against Justice Wilson’s
pronouncement it suggests as well that the right was newly created. This
impression is further reinforced by the distinction the chief justice drew
between Rogers v. Clarence Hotel and Rothfield:
The common law of innkeepers’ liability had, historically, developed along differ-
ent lines from that respecting restaurants and taverns; keepers of common inns
were under an obligation to receive travellers or intending guests, irrespective of
race or colour or other arbitrary disqualification.
297
Taverns, such as the York, had therefore not been under any such obliga-
tion.
Christie had survived another test.
Christie v. York Corporation 181
4
Noble and Wolf v. Alley
1. EXCLUSIVECLIENTELE
Almost half a century after it became the subject of a Supreme Court con-
troversy for its restrictive policies, Beach O’ Pines remains ‘‘exclusive’’
and ‘‘restricted.’’ Visitors to this Lake Huron summer estate enter
between stone pillars with notices marked ‘‘strictly private’’ and ‘‘no
trespassing,’’ past a guard-kiosk and barrier gate and along a roadway
interrupted by speed bumps and stop signs every few hundred metres.
The roadway passes handsome summer homes on large wooded lots,
and ends at the border of the Pinery Provincial Park. About halfway
through the estate there is a sign posted in front of one of the private cot-
tages bearing a friendly but anomalous message of welcome: ‘‘Shalom.’’
One wonders: is the irony intentional?
In the 1940s terms like ‘‘exclusive’’ and ‘‘restricted’’ had a specific
meaning, an encoded message, and it was ‘‘No Jews Allowed.’’ The mes-
sage was prevalent throughout the resort areas of Canada in the early
postwar years, a symptom of endemic discrimination against Jews in vir-
tually every reach of Canadian society. In the summer of 1948 Maclean’s
magazine assigned a junior reporter named Pierre Berton to do a feature
article on the phenomenon of Canadian antisemitism. Berton conducted
interviews and collected statistics, and to enliven his story he engaged in
a direct test. Two letters were sent to each of 29 summer resorts, one
The notes to this chapter are on pages 395-410.
using the name Marshall and the other Rosenberg. The Rosenberg letter
was mailed a day earlier. Marshall received twice as many reservations
as Rosenberg, including some from resorts who told Rosenberg they
were already full and others who did not reply to Rosenberg at all. Pur-
suing this technique further, in the autumn Berton recruited two young
women to pose as applicants for employment. One assumed the name of
Greenberg, the other Grimes. Both had identical qualifications and expe-
rience as secretaries, for which there was a large demand at the time.
Greenberg always answered an advertisement first, followed by Grimes
a few minutes later. After 47 companies were called, Grimes had re-
ceived 41 appointments for interview, Greenberg only 17. In 21 cases
Greenberg was told the job was already filled, yet it was still available to
Grimes only moments later. The reporter then called some of the compa-
nies to ask about their employment policies. He was told, among other
things, that Jews did not have the right ‘‘temperament’’ for certain com-
panies, that ‘‘they don’t know their place’’ and simply that ‘‘we don’t
employ Jews.’’
1
Pierre Berton was himself surprised and unsettled by what he had dis-
covered. An acquaintance reported: ‘‘The investigation he undertook for
the article convinced him of the seriousness of anti-Semitism in Canada,
and as he put it, ‘it was an eye-opener’ to him. He feels the tendency is
being accentuated rather than diminished, which is a somewhat discour-
aging view, to say the least.’’
2
The young writer’s perception of a dis-
tressing ‘‘tendency’’ was accurate, though by 1948 antisemitism already
had a long history in Canada.
The pioneers of the Canadian Jewish community had struggled
against a variety of disabilities transported from Britain, until in 1832
they achieved their objective with the proclamation in Lower Canada of
An Act to Declare Persons Professing the Jewish Religion Intitled to All the
Rights and Privileges of the Other Subjects of His Majesty in This Province.
3
Introduced by Louis Joseph Papineau and the first of its kind passed by
any jurisdiction in the British Empire, the Act ensured that there would
be no further de jure discrimination against Jews. Its language also
revealed that in 1832 Jews were recognized as British subjects who hap-
pened to profess a different faith. This accorded with the identity
claimed by the Jews themselves, who were as proud of their British ori-
gin as any Loyalist. They were a small community, numbering scarcely
more than 1,000 people in the first Dominion census in 1871, and well
integrated into the commercial middle class of Anglo-Montreal and
Toronto.
4
Noble and Wolf v. Alley 183
Changes began in the 1880s with the initiation of Jewish immigration
from eastern Europe. Yiddish-speaking, poor and uneducated, pos-
sessing a culture distinctly non-British, bearing the painful memories of
the horrifying pogroms perpetrated by Christian Europeans, the new
immigrants clustered in the poorer districts of a few Canadian cities
where they appeared to their neighbours to constitute an alien blot on
the urban landscape. By the 1921 census there were over 125,000 Jews in
Canada, and the remnant of the British middle-class pioneers had been
overwhelmed by the character of the shtetl and ghetto of working-class
eastern Europe.
5
In Montreal’s St. Lawrence-Main neighbourhood, in
Toronto’s ‘‘Ward’’ around Bloor and Spadina and in Winnipeg’s North
End, the Jews survived as sweatshop labour and avoided the distaste of
the mainstream population by staying close to home and creating their
own cultural, charity and community associations.
6
It was their Canadian-born and -educated children, usually, who con-
fronted Christian Canada more directly by seeking better jobs and better
homes in areas where Jews had seldom been met as equals. But the
stereotype of the alien, annoying, clannish Jew, the rag-collector, the ped-
lar, the seamstress, had already become established and the new genera-
tion discovered that there were limits to their horizons in Canada.
Indicative of mainstream sentiments was a Toronto Telegram allegation in
September 1924: ‘‘An influx of Jews puts a worm next to the kernel of
every fair city where they get a hold.... They are not the material out of
which to shape a people holding a national spirit. They remain cos-
mopolitan. . . . Jews of all countries should be discriminated against as a
race by a poll tax. . . .’’
7
Employment discrimination became much more
overt as Jews gained qualifications and attempted to move into different
endeavours from those occupied by their immigrant parents. In an effort
to stem the flow, universities and professional schools set quotas upon
their Jewish enrolment or refused Jewish students altogether. It was for
these reasons that Canadian Jews tended to seek employment in Jewish-
run enterprises or in the self-employing professions, such as medicine,
dentistry and law, where they could serve a Jewish clientele.
8
While these ‘‘tendencies’’ were already apparent by the 1920s, they
were considerably accentuated during the 1930s. The Depression un-
doubtedly had a serious impact on Jewish employment prospects, and it
also encouraged a quest for scapegoats among those who could be cate-
gorized as ‘‘foreigners,’’ including Canadian-born Jews. In response
many Jews became prominently involved in radical and left-wing orga-
nizations, lending a subversive image to their entire community. The
184 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Globe and Mail editorialized on 15 November 1937: ‘‘Although it cannot
be said that a majority of Jews are Communists, the indications are that a
large percentage, and probably a majority of Communists are Jews.’’
9
Most disturbingly, the rise of Hitler in Germany and international anti-
semitic propaganda had the effect of legitimizing discriminatory and
exclusionary practices directed against Jews in Canada.
10
An increasingly hostile climate of opinion translated into disabilities
imposed upon individual Jews, however talented or acculturated. In
June 1934 Samuel Rabinovitch, who had topped his class at the Univer-
sité de Montréal medical school, was accepted as an intern at the Hôpital
Notre Dame. He was to join the staff on 15 June, but at midnight on the
14th all the interns at Notre Dame went out on strike in protest against
being required to work with a Jew, and against imposing a Jewish physi-
cian upon Christian patients. They were joined in sympathy by the
interns at four other Montreal hospitals, St. Jean-De-Dieu, Ste. Justine,
Hôtel-Dieu and Miséricorde. Under this kind of pressure Dr. Rabinovitch
resigned on 18 June, the hospital was saved from contamination and the
nationalist journal L’Action Nationale applauded the interns’ accomplish-
ment. The Notre Dame incident was a dramatic expression of a senti-
ment common across Canada as Jewish nurses and doctors were denied
hospital training or were accepted only under strict quotas – Toronto
General Hospital, for example, was admitting only one Jewish intern per
year at that time – forcing many aspiring Jewish physicians to do their
internships in the United States and spawning the movement toward
separate Jewish hospitals in Canada.
11
That same year of 1934 the Uni-
versity of Toronto Library School declined a Jew’s application on the
charitable grounds that upon graduation he would be unable to find a
job and therefore ‘‘would spoil the placement record of the School.’’
12
Bora Laskin, who graduated as top student in law from the University of
Toronto in 1933 and proceeded to graduate studies at Harvard, returned
to Toronto in 1937 to find that no established law firm would hire him.
Eventually applying to teach in the Faculty of Law at Toronto, Canadian-
born Laskin required a testimonial letter from the department chair to
the university president declaring that although ‘‘Laskin is Jewish he is a
loyal, bright subject, loyal to our institutional traditions and forms of
government. You may be assured that he will not disgrace the univer-
sity.’’
13
Banks and financial institutions kept Jews only in the most junior
positions, and there were no judges, few teachers or professors and
almost no architects, engineers or chartered accountants who were Jews
anywhere in Canada.
14
Noble and Wolf v. Alley 185
And yet, despite these barriers, Jews continued to strive for educa-
tional and professional qualifications: in 1935-36 over 14 percent of Cana-
dian medical students and 17 percent of dental students were Jews, yet
Jews formed only 1.5 percent of the population.
15
Not surprisingly, the
same attitudes that restricted their employment opportunities also pro-
duced resistance to their presence in residential districts and recreational
facilities. As their attempts to gain access increased, owners and man-
agers sought to deflect them with methods ranging from the subtle to the
most blatant declarations of prejudice. Signs announcing ‘‘Gentiles
Only’’ were commonplace, often placed in prominent locations. Others
bore the insulting message ‘‘No Jews or Dogs Allowed.’’ More polite, but
equally effective, was the notice appearing at the entrance to St.
Andrew’s Golf Club in Toronto: ‘‘After Sunday, June 20 [1937], this
course will be restricted to Gentiles only. Please do not question this pol-
icy.’’
16
Both English and French hotels in the Laurentians posted notices
declaring that Jews would not be admitted. In the summer of 1939 the
vicar of Ste. Agathe urged his flock not to rent their homes and cottages
to Jews, and two days later his ecclesiastical superior announced the for-
mation of a committee to monitor property sales in Ste. Agathe to pre-
vent purchase by Jews.
17
One Montreal-area resort had a sign ‘‘Christians
Only’’ at the entrance, but to be doubly effective an employee ‘‘walked
along the beach with a megaphone, politely inquiring whether there was
a Jew present despite the warning, and asking him to leave as quickly as
possible.’’
18
Eschewing such directness, many more Canadian hotels,
resorts and facilities utilized euphemisms like ‘‘selected’’ or ‘‘restricted
clientele’’ in their advertising to convey the message that Jews could save
themselves an unpleasant confrontation by staying away. The assault
committed upon Jewish self-respect by such public notices rejecting their
company is not difficult to imagine; equally powerful would be the
impact imposed upon the minds of Christians whose attitudes would be
shaped by the apparent universality and acceptability of anti-Jewish prej-
udice.
One indication of Canadian antisemitism in the 1930s was the almost
total rejection of Jewish refugees from Nazi Europe. Of course Jews were
not alone in being excluded as immigrants from Depression Canada, but
as the Hitler regime increased its persecutions Canadians were aware
that Jews were fleeing and that other countries were receiving them in
much greater numbers. Canada’s share of some 4,000 fugitive Jews com-
pared unfavourably with the United States’ 200,000, Britain’s 70,000 or
Australia’s 15,000. At the Evian Conference in July 1938, convened to
186 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
address the fugitive issue, Canada distinguished herself as a reluctant
refuge. Even when the ‘‘Kristallnacht’’ slaughter in November 1938
aroused sympathy across Canada, evoking resolutions and petitions and
editorials advocating a more generous policy toward Jewish refugees, the
government decided that it was more politically advantageous to main-
tain the restrictions. The Globe and Mail, not given to liberal causes, was
moved to utter its regret in an 18 November 1938 editorial that ‘‘The
shock given to the civilized world by the latest demonstration of Nazi
barbarity made not a dent in the complacency of Canada’s government
so far as the country can see.’’ However the pressure upon the govern-
ment, though intense, did not last long, and as Kristallnacht faded from
the news so did the popular demand for a more liberal refugee policy.
19
In January 1939 MP Wilfrid Lacroix presented a petition to the House of
Commons from the St. Jean Baptiste Society with over 127,000 signatures
claiming that ‘‘the energy inspired by the instinct of self-preservation’’
led them to demand an end to ‘‘all immigration whatsoever and espe-
cially Jewish immigration.’’
20
An even more frightening indication of the same sentiment was an ap-
parent Canadian tolerance towards the domestic spread of fascism and
the adoption of overt antisemitic rhetoric by mainstream institutions.
This was especially the case in Quebec. As was discussed in the previous
chapter, Quebec underwent a resurgent nationalism in the 1920s and
1930s, characterized by an attitude of exclusion against any who were
not French and Roman Catholic. Québécois hostility towards Jews was
part of a more general xenophobia of that period. It took on the specific
language and style of antisemitism only when the European example
and Nazi propaganda lent a kind of international validity to attitudes
that were already prevalent.
An occasion for an expression of nationalist anxiety was presented in
1930 when the government of Premier Louis-Alexandre Taschereau
drafted a bill to establish a separate Jewish school commission in Mont-
real. The Roman Catholic hierarchy strongly opposed the move, since it
would introduce a non-Christian element into the Catholic-Protestant
system of education, and popular sentiment was aroused against an
alleged Jewish attempt to win ‘‘special privileges’’ for themselves, dis-
rupting the historic English-French equilibrium. Any disturbance to the
status quo was interpreted as a threat to French Canada’s vulnerable
position in an English-dominated confederation.
21
A political compro-
mise was reached, affirming Jewish access to the Protestant system, but
the schools controversy cast Jews as an enemy to French Catholic inter-
Noble and Wolf v. Alley 187
ests and provided a respectable platform for Montreal journalist and fas-
cist propagandist Adrien Arcand. Arcand exploited the schools issue to
alert nationalist Québécois to the ‘‘Jewish problem,’’ alleging that the
satanic Jews were embarked on a plot to crucify Christianity just as they
had crucified Christ. Inspired by Hitler’s success in Germany, in 1934
Arcand founded Le parti national social chrétien, patterned after the
Nazis, which he used to promote stories of Jewish conspiracy and mur-
der and to distribute racist literature originating in Germany.
22
Arcand represented a ‘‘lunatic fringe,’’ but a note of undisguised anti-
semitism resonated through the nationalist campaigns of the 1930s.
‘‘Achat chez nous,’’ ostensibly a movement to encourage French Canadi-
ans to patronize French Canadian business, effectively became an anti-
Jewish boycott endorsed by newspapers such as L’Action Nationale and
Le Devoir, by Jeune-Canada and the St. Jean Baptiste Society, and by
many clergy including the influential Abbé Lionel Groulx. Jews were an
especial target because they were the largest and fastest-growing ‘‘alien’’
minority in the province (5.8 percent in Montreal by 1931),
23
and because
their neighbourhood shops and businesses offered a readily available
object for economic action. Lists of Jewish-owned businesses were dis-
tributed to facilitate their avoidance. Usually small retail shops were tar-
geted, as accessible symbols of Québécois economic subservience,
though the Jewish-owned Imperial Tobacco Company was also identi-
fied in a campaign beseeching French Catholics to ‘‘fumez Chrétien.’’
Jewish businessmen were denounced not only as exploiters of their cus-
tomers but as practitioners of fraud who undermined the system of hon-
est Canadian commerce. If Quebec sought a villain for the economic
dislocations of the 1930s, the ‘‘Achat chez nous’’ movement pointed to
the province’s Jewish community. When a rally was sponsored by Mont-
real Jews in April 1933 to protest the Nazi takeover in Germany, a
counter-rally was held by the nationalist Jeune-Canada organization
where speakers blamed Jews for their own persecution in Germany or
insisted that tales of Nazi atrocities were a fabrication of Jewish press
barons. Jeune-Canada, with echoes in Le Devoir, suggested that Jewish
immigration must cease and that Jewish citizens of Canada should be
disfranchised to diminish their potential damage to Canadian Christian
society. As André Laurendeau said at the Jeune-Canada rally, ‘‘Les
Israélites aspirent – tout le monde sait cela – au jour heureux où leur race
dominera le monde.’’
24
Through Arcand’s agency, but also independently, Nazi-like organiza-
tions appeared in other parts of Canada as well. William Whitaker and
188 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
A. F. Hart Parker founded the Nationalist Party of Canada in Winnipeg, and
used their Canadian Nationalist newspaper to propagate antisemitic venom.
An Ontario branch of Arcand’s National Social Christian Party was estab-
lished in Ontario in 1937, promoting a boycott of Jewish stores in Toronto,
and in July 1938 there was even a national fascist convention held in
To ronto’s Massey Hall with no apparent interference from the authorities.
The Nazi example provoked, or at least gave form to, several out-
breaks of violence against Jews and Jewish property. Most notorious was
the so-called Christie Pits riot of August 1933, when swastika banners
and anti-Jewish taunts led to six hours of violent conflict between Jewish
and Christian youths in Toronto. Along the eastern beaches of the city
that same summer, swastikas and Nazi slogans were painted and Jewish
bathers were physically attacked. A synagogue was set ablaze during a
sabbath service in a resort district near Montreal in the summer of 1937,
the culmination of a harassment campaign which featured swastikas and
Nazi paraphernalia and the desecration of synagogues.
25
The outbreak of war squelched any further public expressions of
Nazism and postponed the refugee issue, but the old prejudices re-
mained. Certain units in the Canadian forces rejected Jewish volunteers,
leading some young Jews to disguise their background upon enlist-
ment.
26
A Quebec cabinet minister informed the Assembly that his own
son had become ill as a consequence of being examined by a Jewish
physician when he volunteered for army service, and complained that
‘‘Our children were thrown into the hands of infamous Jewish examiners
who regaled themselves on naked Canadian flesh.’’
27
The National Selec-
tive Service discriminated against Jews as well as blacks in assigning
Canadians to work in the war industries and essential services. Although
this practice was ordered to be changed in November 1942, an interpre-
tive circular was issued on 9 December 1943, advising NSS officers across
the country to use ‘‘good sense’’ and not to take the non-discriminatory
policy ‘‘literally’’ by sending applicants to jobs ‘‘where it may not be
practical to employ certain types.’’
28
Official attitudes towards ‘‘race’’
were apparently as confused during the war as ever. The 1941 census
listed ‘‘Jewish’’ as a ‘‘Racial Origin,’’ as had every census since 1901,
while an explanatory note advised that
In actual census practice, the criterion on which the racial origin classification is
based varies for different groups. The Indian, Eskimo, Negro, Hindu, Chinese,
and Japanese races are segregated on the basis of colour; with the Jewish, the cri-
terion is mainly [sic] religion; with the Ukrainian, language.
29
Noble and Wolf v. Alley 189
Of Canada’s 170,241 Jews enumerated by ‘‘race’’ in 1941, only 168,585
were shown as Jewish by religion, lending further confusion to the defi-
nitional criteria employed by census personnel and public alike. What
exactly was a Jew was obviously uncertain, at least insofar as the Chris-
tian majority was concerned; it was certain only that associating with
Jews, on the job or at the beach or even in the streets, was something to
be avoided if possible. In a Gallup Poll taken at mid-war in 1943, Cana-
dians listed Jews in third place after Japanese and Germans as the people
who should be rejected as immigrants to Canada.
30
Enormous changes in both policy and practice would eventually occur,
but they were by no means automatic in the wake of the War. Typical
employment application forms continued to ask for racial origin and reli-
gion, and if it was later discovered that a Jew was hired either by inad-
vertence or misrepresentation, he or she could be fired.
31
Quotas and
restrictions were maintained, with even public employers such as the
City of Toronto refusing to hire Jews in certain positions, including the
police force and the transit commission.
32
In a postwar Gallup Poll,
Canadians moved Jews to second place, behind Japanese but this time
ahead of Germans, on the list of most undesirable immigrants.
33
Surveys
in 1947 and 1950, similar to the one undertaken by Pierre Berton for
Maclean’s, confirmed that most summer resorts upheld an ‘‘exclusive
clientele’’ policy which translated into an exclusion of Jews.
34
Residential separation was maintained through a device known as the
racial restrictive covenant. There were covenants made as agreements
among owners of adjacent properties, binding themselves and their suc-
cessors not to sell or rent to members of certain ‘‘races,’’ and there were
covenants placed in deeds by land companies and developers restricting
ownership according to racial origin. Once instituted, both types were
legally registered and could be enforced by the courts. In Nova Scotia
covenants were most often directed against blacks, in British Columbia
against Asians.
35
In central Canada, while persons of African or Asian
origin were not exempted from such restrictions, covenants usually spec-
ified Jews among the rejected categories. In an extremely elaborate ver-
sion, attached to a deed for Lake Huron cottage lots registered in Sarnia
in 1946, it was specified that the properties must not be
transferred by sale, inheritance, gift or otherwise, nor rented, licensed to or occu-
pied by any person wholly or partly of negro, Asiatic, coloured or Semetic [sic]
blood, nor to any person less than four generations removed from that part of
Europe lying south of latitude 55 and east of longitude 15 east. Relationship,
190 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
however slight, to any class forbidden as aforesaid shall be deemed sufficient to
prevent transfer to or occupancy by such person, it being the intention that the
occupation of the lands in the subdivision and beach aforesaid shall be restricted
to persons of northern and western European descent, other than Jews.
36
It was therefore neither unusual nor illegal when a property developer
known as the Frank S. Salter Company included a restrictive covenant in
the deeds of individual cottage lots being laid out in the Beach O’ Pines
subdivision on the shores of Lake Huron. Each deed, registered in the
County of Lambton in January 1933, contained the requirement that
the Grantee for himself, his heirs, executors, administrators and assigns, cove-
nants and agrees with the Grantor that he will carry out, comply with, and
observe, with the intent that they shall run with the lands and shall be binding
upon himself, his heirs, executors, administrators and assigns, and shall be for
the benefit of and enforceable by the Grantor and/or any other person seized or
possessed of any part or parts of the lands included in Beach O’ Pines Develop-
ment, the restrictions herein following, which said restrictions shall remain in full
force and effect until the first day of August 1962, and the Grantee for himself,
his heirs, executors, administrators and assigns further covenants and agrees
with the Grantor that he will exact the same covenants with respect to the said
restrictions from any and all persons to whom he may in any manner whatsoever
dispose of the said lands.
There followed a number of restrictions on the nature and location of
buildings on the lots, and then a clause (f) stating that
The lands and premises herein described shall never be sold, assigned, trans-
ferred, leased, rented or in any manner whatsoever alienated to, and shall never
be occupied or used in any manner whatsoever by any person of the Jewish,
Hebrew, Semitic, Negro or coloured race or blood, it being the intention and pur-
pose of the Grantor, to restrict the ownership, use, occupation and enjoyment of
the said recreational development, including the lands and premises herein de-
scribed, to persons of the white or Caucasian race not excluded by this clause.
37
Fifteen years later Mrs. Annie Maude Noble, widow and heir of an
original grantee, decided that she was no longer able to enjoy her Beach
O’ Pines cottage, and so she sought to dispose of it by sale. The only offer
came from Bernard Wolf, like Mrs. Noble a respectable resident of Lon-
don, Ontario. Mr. Wolf had migrated to Canada from the Ukraine in 1904
Noble and Wolf v. Alley 191
at the age of 15, and with his father founded Artistic Ladies Wear which,
by 1948, had become a prosperous London enterprise. Wolf ’s solicitor
Edward Richmond, just out of law school, submitted his offer to pur-
chase on 19 April 1948: the agreed price was $6,800, with a $300 down
payment enclosed. Mrs. Noble accepted the offer and banked the $300,
but Richmond became concerned when he discovered the covenant reg-
istered in the title to the cottage lands. On 5 May he wrote to Donald
M. Egener, Mrs. Noble’s solicitor in London:
Required in view of the fact that the purchaser herein might be considered as
being of the Jewish race or blood, we require a release from the restrictions
imposed in the said clause (f) and an order declaring that the restrictive covenant
set out in the said clause (f) is void and of no effect.
38
2. COUNTERATTACK
In the years immediately following World War II, the Canadian Jewish
Congress was scouting opportunities to confront discriminatory prac-
tices in Canada. Organized first in 1919 with a primary program of assis-
tance to Jewish refugees, the CJC slumbered for 15 years until revived by
the Nazi menace and the much greater refugee crisis which resulted. In
1934 the organization represented a different Jewish community, the
Canadian-born or -educated generation in transition from the ghetto
both physically and mentally. It was much more politically aware, and
therefore directed its concern for refugees to the government, employing
lobby-group pressure tactics to encourage immigration policy reform.
For reasons already described this program was not successful in the
1930s, but the CJC gained experience in political involvement which
would be useful later on. The other main thrust of the renewed organiza-
tion was to counter Nazi propaganda and antisemitism in Canada. To
further this particular program the CJC joined with B’nai B’rith, a Jewish
fraternal society, to form the Joint Public Relations Committee. The inten-
tion was to respond to specific instances of antisemitism and also to
engage in broad educational endeavours to overcome negative images
and the restrictions that grew from them.
39
The CJC was bringing a national strategy to bear upon a momentum
that had begun individually and regionally. Considering their rejection
in so many other areas of daily life, Canadian Jews had achieved remark-
able success in politics. Even with the intensified antisemitism of the
1930s Jews were already being elected from constituencies in Montreal,
Toronto and Winnipeg, and although they represented areas of Jewish
192 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
population concentration, Jews formed a majority in none of them. Jew-
ish legislators initiated the movement towards the legal protection of
Canadian minorities, and were thus the pioneers of human rights legisla-
tion in Canada. Believing that laws both reflect public values and influ-
ence public opinion, the leaders of Canadian Jewry regarded the
campaign for the passage and subsequent enforcement of protective leg-
islation as an integral part of their educational program.
40
As early as 1931, provincial member E. Frederick Singer, representing
the St. Andrew’s riding in Toronto, had raised the question of discrimi-
natory practices in the insurance industry. Some companies charged
higher premiums for Jews, or even refused to cover Jews at all, alleging
that they presented a greater risk than Christian clients.
41
Under Singer’s
urging the provincial Superintendent of Insurance wrote to the compa-
nies, advising them that nationality and religion were not in themselves
acceptable factors on which to assess a risk, but at the same time he
assured them that ‘‘no company should be required or compelled to pro-
vide insurance upon a risk which inquiry dictated to be unsatisfactory.’’
In response Singer’s own insurance policy was cancelled without expla-
nation, and so in 1932 he introduced an amendment to the Insurance Act
to render the practice illegal. Singer’s explanations, including examples
of Jews forced out of business because they were not able to get fire
insurance, were revelatory to his fellow-members, and all participants in
the debate denounced this kind of discrimination. In committee the bill
was modified somewhat, but nevertheless the Ontario legislature passed
an amendment which read: ‘‘Any licensed insurer which discriminates
unfairly between risks within Ontario because of the race or religion of
the insured shall be guilty of an offence.’’
42
The principles both stated
and implicit in this innovative amendment would survive in human
rights legislation for an entire generation. Fundamentally it established
that since the public issued the licences, the public could set conditions
upon their operation. Further, ‘‘race’’ discrimination was declared to be
unfair and an offence. Both these principles suggested intriguing notions
about public policy and the legislative reflection of common moral val-
ues.
Also in 1932, and specifically in response to Adrien Arcand’s racist
propaganda, Quebec Jewish members Peter Bercovitch and Joseph
Cohen introduced in the Assembly a bill ‘‘concerning the publication and
distribution of outrageous subject matter against any religious sect,
creed, class, denomination, race or nationality.’’ The ‘‘Bercovitch bill’’
would enable individuals belonging to a maligned group to take civil
Noble and Wolf v. Alley 193
action to obtain an injunction to halt publication of libellous materials.
As Bercovitch explained to the Assembly:
The object of the bill under consideration is merely to prevent a repeated and sys-
tematic publication of libels, not only against Jews, but against any nationality,
any religion and any race.... [T]he law does not authorize the claiming of dam-
ages by the race or nationality that has been libeled nor is there any provision for
punishment by imprisonment; it merely gives a judge of the Superior Court the
power to issue an injunction to restrain the repeated publication of libel against
any nationality or race – in other words, the real object of the law is to give big-
otry no sanction, persecution no assistance.
43
Premier Taschereau was initially sympathetic, but he soon recognized
that ‘‘public opinion is not ready for such a radical measure.’’
44
The
press, particularly Le Devoir, interpreted the bill as another Jewish
attempt to gain ‘‘special privileges’’ and a move towards press censor-
ship, and in any case as unnecessary since Jews and other minorities
were already protected by ‘‘existing law.’’ With government compliance
the Bercovitch draft was referred to a committee which dissolved when
the Assembly prorogued a few days later, automatically killing the bill.
45
While the group-libel bill was still under debate, a Lachine fruit mer-
chant, E. Abugov, brought injunction proceedings against Joseph
Menard, publisher of Adrien Arcand’s antisemitic journals Le Miroir, Le
Goglu and Le Chameau. Mr. Abugov alleged that the anti-Jewish state-
ments and the boycotts instigated by the journals had damaged his repu-
tation and cost him his business. The legislature notwithstanding, a
precedent seemed to be provided by the Plamondon case in Quebec City.
In 1910 Mr. J. Edouard Plamondon delivered a speech containing a
vicious attack on Jews, which was subsequently published as a pam-
phlet. Jewish merchant Benjamin Ortenberg sued Plamondon and the
publisher for defamation, claiming that the speech resulted in loss of
business and harassment against himself and his family. Justice Malouin
decided in 1913 that no defamation was possible since no individual had
been named, but this was reversed by the Court of King’s Bench in 1915
on the grounds that since the Jewish population of Quebec City com-
prised only 75 families, Mr. Ortenberg was sufficiently identifiable to suf-
fer individual injury from an attack on the Jewish collectivity.
46
But in
September 1932 Justice Ganzalve Desaulniers declared himself unable to
reach a similar conclusion. Though he denounced Menard and his mali-
cious antisemitism, Justice Desaulniers regretfully ruled that since the
194 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
legislature had recently declined to empower the courts to impose
injunctions in exactly these circumstances, it was not within his discre-
tion to grant Mr. Abugov’s request.
47
Despite this exposure of the inade-
quacy of ‘‘existing law,’’ the Quebec legislature took no steps to correct it
in the following session.
A bill similar to Bercovitch’s was more successful when introduced in
the Manitoba legislature in 1934 by Jewish member Marcus Hyman.
Hyman was able to gain the support of the Conservative Bracken admin-
istration for his amendment to the Libel Act, authorizing individuals to
obtain an injunction against publications that libelled the ‘‘race’’ or reli-
gion to which they belonged.
48
The law was almost immediately tested
in court by Captain W. V. Tobias, a decorated war hero and prominent
Winnipeg lawyer. Tobias won an injunction against the Canadian Nation-
alist, run by Arcand associates William Whittaker and Herman and Anna
Neufeld, prohibiting the further publication of anti-Jewish allegations, in
particular that Canadian Jews practised the ritual murder of innocent
Christians.
49
Encouraged by the Manitoba victory, Ontario Jewish member J. J.
Glass announced his intention in 1935 to introduce legislation against
racial slander. But in the face of a public and press reaction similar to that
in Quebec, to the effect that the law already provided satisfactory protec-
tion,
50
Glass did not pursue the idea that session. Two years later, when
open antisemitism was increasing and a candidate in the 1937 provincial
election campaigned for a boycott of Jewish stores, Glass again
announced his intention to bring in protective legislation against group
libel or slander. Although entered on the Order Paper, the bill was even-
tually withdrawn when Premier Hepburn advised Glass that its constitu-
tionality was doubtful.
51
The Manitoba law would remain unique in
Canada until 1970.
Parallel to published defamation as a concern for the Jewish commu-
nity was the issue of discriminatory public signs. In 1932 J. J. Glass, then
chair of the Toronto Parks Commission, applied the principle of the
Singer amendment to eliminate the ubiquitous ‘‘Gentiles Only’’ warnings
that began to appear on the Toronto Island beaches that summer. Since
all land on the islands was owned by the city and leased to private indi-
viduals for summer cottages and recreation, Glass announced that the
public had an interest in how its property was used and he inserted a
clause in island leases prohibiting the posting of discriminatory notices.
52
One year later Argue Martin, a Christian member of the Ontario legisla-
ture, introduced a bill to outlaw public advertisements and signs that
Noble and Wolf v. Alley 195
discriminated on the basis of ‘‘race’’ or religion, providing penalties up to
$500. Although the Martin bill would have left intact the right of prop-
erty owners or employers to discriminate, prohibiting only the public
advertising of discrimination, the bill was dropped by the Legal Bills
Committee on the grounds that the problem of racial discrimination
could not be solved through legislation. Instead, the committee pre-
sented a resolution to the House condemning such signs.
53
It would be more than 10 years before a new version of Martin’s pro-
posal was debated and passed by the Ontario legislature. Although it
became a government measure, the project was inaugurated by Jewish
member Joseph Salsberg. In the 1943 provincial election the Communist
Salsberg and his colleague Alex MacLeod had made anti-discrimination
legislation a campaign issue.
54
The election produced a minority govern-
ment for Conservative Premier George Drew, making him more open to
suggestion from opposition members than he might otherwise have
been. Also during 1943 Canadians were becoming increasingly aware of
Nazi wartime atrocities, and thus were readier to regard Jewish concerns
with sympathy.
55
Within two months of the election Drew made the
statement, in the course of a speech denouncing racial prejudice as a
threat to democracy, that ‘‘the stirring up of such prejudices not only
injures those against whom they are directed but in the end weakens the
whole social structure.’’
56
This would be the premier ’s theme throughout
the subsequent debate: everyone suffers when prejudice and discrimina-
tion are tolerated; the entire society is undermined.
57
Prior to the next legislative session Salsberg advised Drew that anti-
discrimination legislation was his party’s most urgent priority, and Drew
invited Salsberg to outline a draft bill on the subject. Salsberg’s proposal
went considerably beyond public notices, suggesting that discrimination
in employment, housing, public accommodations and recreation should
all be declared illegal.
58
The Speech from the Throne a few days later
promised unspecified ‘‘action’’ against discrimination, but when the gov-
ernment bill was introduced in March 1944 it dealt only with the public-
ity issue. The bill aroused vehement objections nonetheless. The Globe
and Mail revived the argument that adequate protection already existed
and the bill posed a danger to the freedom of speech; the Toronto Tele-
gram insisted that people must have the right to make distinctions
among their associates.
59
A public rally at Massey Hall heard representa-
tives from the Orange Lodge and several churches denounce the
unseemly interference this law would create in the citizen’s right to free-
dom of expression.
60
Drew was forced to modify an already moderate
196 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
bill, adding a section that the free expression of opinion was not to be
affected. Though it still refused to endorse the bill, complaining that
‘‘restrictive laws cannot be a substitute for conscience,’’ the influential
Globe and Mail at least withdrew its objection.
61
The legislature finally
passed the Racial Discrimination Act on 13 March 1944, prohibiting the
publication or display of signs, notices or symbols expressing racial or
religious discrimination in Ontario.
62
The Canadian Jewish Congress,
which had lobbied vigorously in support of the Act, regarded it as ‘‘a
small but significant beginning. As little as it was, it established a prece-
dent of interest and the right of the state to step in and enact laws against
racial and religious discrimination.’’
63
The Racial Discrimination Act was innovative on the Canadian scene,
but Ontario was not behaving in total isolation. During the debate
George Drew implicitly acknowledged the impact of World War II on the
Canadian conscience. He told the legislature: ‘‘If you discriminate
against any person because of race or creed in respect to their ordinary
rights as citizens you deny that equality which is part and parcel of the
very freedom we are fighting to preserve.’’
64
It has often been said that a
‘‘paradigm shift’’ occurred during the War, not just in Canada but
throughout much of the world, characterized by the birth of a new con-
cept: human rights. The war against the Nazis and in particular their
racist doctrine caused a coalescence of the allied war aims around the
notion that every human individual had rights which must not be vio-
lated. The Atlantic Charter of 14 August 1941, though it did not yet use
the term ‘‘human rights,’’ delineated certain rights and freedoms which
should belong to everyone regardless of the inclinations of their own
particular government. By 1945 the United Nations Charter could declare
its ‘‘faith in fundamental human rights, in the dignity and worth of the
human person,’’ and dedicate the new world organization to ‘‘promoting
and encouraging respect for human rights and fundamental freedoms for
all without distinction as to race, sex, language or religion.’’
65
Then on
10 December 1948 the UN issued the Universal Declaration of Human
Rights, which set out both the rationale and the direction for human
rights programs in the postwar world: ‘‘Whereas disregard and contempt
for human rights have resulted in barbarous acts which have outraged
the conscience of mankind ... it is essential . . . that human rights should
be protected by the rule of law.’’ Included in these rights were equality
before the law and the equal protection of the law, freedom from racial or
religious discrimination, and, of interest to Bernard Wolf, the right to
own property.
66
Noble and Wolf v. Alley 197
At the UN General Assembly the day the Universal Declaration was
adopted, Canadian delegate Lester Pearson announced on behalf of his
government:
we shall, in the future as we have in the past, protect the freedom of the individual
in our country, where fre e d o m is not only a matter of resolutions but also of day-
to-day practice from one end of the country to the other. The freedoms to which I
re f e r have developed in Canada within the framework of a system of law derived
both from statutes and from the judgments of the courts. We have depended for
the protection of the individual upon the development of this system rather than
upon general declarations. Because this method is in accord with our tradition, we
shall continue to depend on it, and to expand it as the need arises.
67
Professor Frank Scott drew attention to the implications for Canada of
these UN instruments: ‘‘our Parliament and legislatures will now or later
come under an obligation, moral if not legal, to bring our domestic laws
into line with these formal statements. International action thus impels
us toward national legislation.’’
68
In retrospect it can be seen that global factors made the public more
receptive, and legislators more inclined, to the legal articulation of
human rights in Canada. But in the postwar decade there lingered the
notion that morality could not be legislated, and in any case the allega-
tions of discrimination in Canada were really evidence only of the indi-
vidual’s historic right to choose the company he or she might like to
keep.
69
Premier Drew, who faced a backlash within his own party over
the 1944 Act,
70
explained why his government did not see fit to introduce
more legislation of this kind: ‘‘The best way to avoid racial and religious
strife is not by imposing a method of thinking, but by teaching our chil-
dren that we are all members of a great human family; that each member
has a part to contribute and that we are only one part.’’
71
This, then, was the situation faced by the Canadian Jewish Congress as
it prepared its postwar counterattack on the remaining bastions of anti-
semitism in Canada. The war conscience and the international declara-
tions lent a moral base and a publicly recognizable reference point for a
campaign to eliminate racial discrimination; what had to be designed
was a specific program of action which would accommodate majority
Canadians’ reluctance towards legal interference in what were presumed
to be private affairs. In January 1946 the Joint Public Relations Commit-
tee decided that ‘‘This is an auspicious period for basic educational
work.’’ While they would continue to react to racist incidents ‘‘on an
198 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
emergency basis,’’ it was acknowledged that ‘‘overt acts of anti-semitism
are rarer today than they have been.’’ The problem was the myriad dis-
tinctions made regularly and legally to the disadvantage of Jews. What
was needed was a long-range program to ‘‘ensure that the integration of
Canadian Jewry into Canadian life is so complete that anti-semitism will
be discredited as the impossible nonsense that it is in reality.’’
72
Rabbi Abraham Feinberg was chair of the JPRC, and in 1947 Ben
Kayfetz became executive director. Together Feinberg and Kayfetz fash-
ioned a strategy. The legislative target would be laws protecting individ-
ual rights, the rights of every Canadian individual, under which Jewish
rights would automatically be covered. All instances of discrimination
must be exposed, not just those perpetrated against Jews, to illustrate the
need for protection and to expose the ‘‘tacit approval which the absence
of law gives to the social pattern of discrimination.’’ Alliances must
therefore be forged with other minority organizations and with liberal
forces generally in Canada to demonstrate a constituency on behalf of
reform and to avoid the impression that ‘‘pushy Jews’’ were merely seek-
ing to enhance their own interests. There was an urgency not to appear
as a ‘‘special interest’’: the claim to equality had to be universalized and
cast in the most embracing terms. The instruments, according to the cir-
cumstances, might be municipal by-laws, court cases to enforce and
enhance individual rights, and provincial civil rights legislation. Specifi-
cally, the JPRC designed a move against two major areas of concern:
employment discrimination and ‘‘the iron curtain fabricated by restric-
tive covenants.’’ Rabbi Feinberg explained this dual selection of priorities
to a CJC meeting:
One involves the basic need of livelihood, and the other involves the need of sta-
tus and self-respect. Both rest on the spiritual truth that there is no second-class
citizenship in a democracy, and on the practical truth that the citizens of Canada
endorse that proposition.
73
The Canadian Jewish Congress was therefore poised to respond to
Bernard Wolf ’s problem with a certain property covenant.
3. PRINCIPLESAND POLICIES
A covenant is like a contract, or at least it is treated like one by the courts:
a violation gives rise to a cause of action; delinquents can be sued for
damages, or an injunction can be obtained.
74
In 1875 Sir George Jessel
articulated the prevailing principle in the English legal tradition:
Noble and Wolf v. Alley 199
If there is one thing more than any other which public policy requires, it is that
men of full age and competent understanding shall have the utmost liberty of
contracting, and that contracts, when entered into freely and voluntarily, shall be
held good and shall be enforced by courts of justice.
75
On the other hand a property covenant is a restriction on the sale of land,
and an equally valid principle in the English tradition insisted upon the
free and unrestrained sale of property. By a statute in 1289-90 known as
Quia Emptores Terrarum, it was established ‘‘That from henceforth it shall
be lawful to every freeman to sell at his own pleasure his lands and tene-
ments, or part of them.’’ Certain kinds of restrictions, however, became
regarded as acceptable and were deemed not to violate the principle of
freedom of alienation. Specifically these were restrictions which could be
defined as ‘‘partial,’’ for they did not absolutely inhibit the free use and
disposal of property, such as restraints or conditions which lasted for
only a stipulated length of time, or which applied only to a limited set of
people.
76
But would this mean therefore that in the question of a covenant
restraining sale to Jews over a period of thirty years, the sanctity of con-
tract should automatically prevail over the freedom of alienation? ‘‘Pub-
lic interest’’ could be invoked against it, since to uphold such a covenant
the courts would not merely be condoning private discrimination but
using the law to impose discrimination. Furthermore several Canadian
judges had previously argued that any restrictions defined exclusively in
terms of ‘‘race’’ or colour were contrary to common law.
77
Bernard W olf ’s
attempt to avoid being bound by a contract he had not himself made
therefore entered a debate relating to the role of the courts, the scope of
the common law and the nature of the public’s interest, as well as to the
question of racial discrimination.
By 1948 the direction, if not the actual conclusion, of this debate was
reasonably apparent. In 1911 BC Chief Justice Hunter had invalidated a
property covenant restraining sale to Chinese and Japanese, but he gave
no reasons for his decision.
78
In the 1930 Ontario case Essex Real Estate v.
Holmes,
79
the plaintiff company sought to enforce a covenant which
stated ‘‘that the lands shall not be sold to or occupied by persons not of
the Caucasian race nor to Europeans except such as are of English-speak-
ing countries and the French and the people of French descent.’’
80
Despite the apparent intention of the exclusion, Justice Garrow upheld
the defendant’s right to sell a piece of the covenanted land to a Syrian.
200 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
He ruled that the Syrian was a Caucasian and was therefore acceptable
under the first criterion, and that he was not a European and therefore
was not affected by the restriction against non-English- or non-French-
speaking Europeans who were the only Caucasians disqualified by the
covenant.
81
Justice Garrow’s decision was subsequently confirmed by the
Ontario Court of Appeal.
82
A year later another covenant, apparently more precise, came before
the Ontario courts in Re: Bryers and Morris.
83
The covenant declared that
‘‘none of the lands described herein shall be used or occupied by, let or
sold to negroes or Asiatics, Bulgarians, Austrians, Russians, Serbs, Rou-
manians, Turks, Armenians, whether British subjects or not, or foreign
born Italians, Greeks or Jews.’’
84
Though the aspiring purchaser was a
foreign-born Jew, a category specified in the covenant, Justice Hodgins
decided that ‘‘The evidence before the Court ... is not sufficient and the
inquiry which ought to be made should not be made in chambers.’’ He
therefore declined to pronounce upon the validity of the covenant and
gave the parties one month to collect sufficient evidence ‘‘as may enable
the Court to pronounce definitely and finally on this restriction.’’
85
Jus-
tice Garrow’s decision could be interpreted as implicitly accepting the
validity of a racial restrictive covenant, for he concluded only (albeit
inventively) that the covenant in dispute did not apply to the purchaser.
Justice Hodgins’ message, however, had broader implications. If there
was evidence that a purchaser came from a group named in the cove-
nant, and this was not sufficient to enforce it, then it is difficult to think
of what further evidence the parties might collect to enable a definitive
pronouncement by a court of law. Some other body beyond the courts,
Justice Hodgins was implying, must supply the justification for a restric-
tive covenant.
A step was taken away from this direction in March 1945 by Justice
Chevrier in Re: McDougall and Waddell.
86
A covenant had been registered
in September 1944 restraining ‘‘any person or persons other than Gen-
tiles (non-semitic) of European or British or Irish or Scottish racial ori-
gin’’ from owning or using the land.
87
The question put to Justice
Chevrier was a narrow one: was the covenant invalid as an offence
against the Racial Discrimination Act, proclaimed six months before the
covenant was made. Justice Chevrier acknowledged that the covenant
was discriminatory, but he held that the Act only covered the items
specifically enumerated – the publication or display of ‘‘any notice, sign,
symbol, emblem or other representation indicating discrimination or an
Noble and Wolf v. Alley 201
intention to discriminate’’ – and this did not extend to the registration of
a covenant or deed in the Registry Office.
88
In an aside Chevrier la-
mented ‘‘the unchristian action of racial discrimination,’’ denounced the
Holocaust ‘‘inflicted upon certain races and creeds by a satanic direction
in this present war,’’ and extended sympathy to the suffering Jewish peo-
ple. Nevertheless he felt bound to uphold the covenant, for the legisla-
ture could have increased the range of the Act but chose to limit it to
certain specific instances.
89
An option was, however, available, as an edi-
torial note in the Dominion Law Reports suggested, for he could have been
guided by Section 1(A) of the Act, which was a general prohibition
against publication or display, rather than Section 1(B), which enumer-
ated a set of prohibited examples.
90
Justice Chevrier reopened the possi-
bility of having a covenant enforced by the courts, and demonstrated
that Justice Hodgins’ impossibly strict conditions need not be met.
The era of permissiveness thus initiated was not to last for long. In
October 1945 Justice Keiller Mackay heard the case Re: Drummond Wren
in the Ontario High Court.
91
The Workers’ Educational Association had
purchased a lot in East York, intending to build a house on it and then
raffle it off for fund-raising purposes. It was, however, discovered that
the land was restricted by a covenant pronouncing that it was ‘‘not to be
sold to Jews or persons of objectionable nationality.’’ This would seri-
ously complicate the raffle, so the WEA applied to have the covenant
declared invalid. Four alternative grounds were offered: ‘‘first, that it is
void as against public policy; secondly, that it is invalid as a restraint on
alienation; thirdly, that it is void for uncertainty; and fourthly, that it con-
travenes the provisions of the Racial Discrimination Act.’’
92
The applicant
Drummond Wren, who was general secretary of the WEA, was repre-
sented by John Cartwright and Irving Himel, and J. M. Bennett ap-
peared on behalf of the Canadian Jewish Congress, assisted by Jacob
Finkelman, Bora Laskin and Charles Dubin. Justice Mackay had notice
served upon any other parties interested in this or adjacent lands, but no
one appeared in court to oppose the application.
The covenant was declared void on three of the four grounds sug-
gested by counsel. First and most emphatically Justice Mackay found the
covenant to be contrary to public policy. Citing English and American
authorities he established that any contract, covenant or agreement inju-
rious to public policy could not be supported, and that it was the proper
function of the courts to interpret and apply public policy at any given
moment. Public policy will fluctuate with circumstances and with time,
and in determining what it was in Ontario in 1945 Mackay considered an
202 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
imaginative range of indicators. Canada had subscribed, for example, to
the Atlantic Charter and to the UN Charter, committing her to respect
human rights without distinction as to ‘‘race’’ or religion. The Ontario
legislature had revealed its abhorrence of racial discrimination through
the Insurance Act, through regulations passed under the Community Halls
Act, and through the Racial Discrimination Act. Supporting statements
were enlisted from Franklin Roosevelt, Winston Churchill, Charles De
Gaulle and others to show that antisemitism was incompatible with the
democratic order installed in Ontario and could be analogous to treason.
In Keiller Mackay’s stated opinion,
nothing could be more calculated to create or deepen divisions between existing
religious and ethnic groups in the Province, or in this Country, than the sanction
of a method of land transfer which would permit the segregation and confine-
ment of particular groups to particular business or residential areas, or con-
versely, would exclude particular groups from particular business or residential
areas. . . .
Ontario, and Canada too, may well be termed a Province, and a Country, of
minorities in regard to the religious and ethnic groups which live therein. It
appears to me to be a moral duty, at least, to lend aid to all forces of cohesion,
and similarly to repel all fissiparous tendencies which would imperil national
unity.
Conscious that he could be accused of creating a ‘‘new head of public
policy,’’ Justice Mackay added that in the absence of written constitu-
tional guarantees it was an established feature of the common law courts
to employ ‘‘the doctrine of public policy as an active agent in the promo-
tion of the public weal.’’ He continued:
I do not conceive that I would be breaking new ground were I to hold the restric-
tive covenant impugned in this proceeding to be void as against public policy.
Rather I would be applying well-recognized principles of public policy to a set of
facts requiring their invocation in the interest of the public good.
93
Considering the other grounds more quickly, Justice Mackay con-
firmed that the covenant was an improper restraint on alienation. There
was no time limitation placed upon the life of the covenant, so it could
not be regarded as a ‘‘partial restraint.’’
94
Furthermore the wording was
uncertain. The phrase ‘‘persons of objectionable nationality’’ had no legal
meaning at all, and even the term ‘‘Jews’’ had been found less than cer-
Noble and Wolf v. Alley 203
tain in the recent British case Clayton v. Ramsden.
95
Finally, though he rec-
ognized ‘‘considerable merit’’ in John Cartwright’s argument that the
registration of a covenant constituted publication and was therefore con-
trary to the Racial Discrimination Act, Mackay deemed it unnecessary to
contradict Chevrier’s judgment directly in view of the fact that ‘‘the pub-
lic policy applicable to this case in no way depends on the terms of the
Racial Discrimination Act, save to the extent that such Act constitutes a
legislative recognition of the policy which I have applied.’’
96
Justice Mackay’s reasoning coincided exactly with the philosophical
thrust of CJC strategy after the War: the goal was cohesion, the elimina-
tion of barriers, the principle that access should not depend on group
membership. Canadian Jews were delighted at the result, and gratified at
the part played by the CJC in achieving it. The JPRC prepared a pam-
phlet publicizing the decision and explaining its impact upon the rights
of racial minorities.
97
In the United States, ‘‘Negroes, Jews and other
racial and religious minorities found it tonic to their interests and so
widely advertised it.’’
98
Even the crusty old Globe and Mail was moved to
call it a ‘‘blow to prejudice’’ which was ‘‘on the noblest level of juris-
prudence.’’
99
From lawyers the Drummond Wren decision drew immedi-
ate accolades, particularly for its innovative method for the interpretation
and application of public policy. In reporting the case Dominion Law
Reports inserted an enthusiastic editorial note:
The present decision is of importance not merely in breaking new ground of pub-
lic policy, and as indicating the creative nature of the judicial process, but also in
furnishing an instance of a Court ascertaining public policy by analogy to legisla-
tive enactment rather than judicial decision. The common, as opposed to the
civil, law has been slow to use legislative policy from which to argue to new and
unprovided for situations, but the principle seems to accord with accepted ideas
of legislative supremacy as well as our democratic form of government.
100
Other legal commentators have echoed this analysis, praising Keiller
Mackay’s courage and regarding his decision as the ‘‘dawn of a new era’’
in judicial interpretation. Drummond Wren was widely celebrated by
scholars in Britain, the United States and Canada; one American law
review termed it ‘‘a landmark case in the legal order of the entire world,
and one that should always be held in honor.’’
101
Judges far beyond the direct influence of an Ontario precedent paid
tribute by citing Drummond Wren. By 1945 every American court which
had faced the issue had given its sanction to racial restrictive covenants,
204 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
finding most typically that in the absence of explicit legislative prohibi-
tion they must be upheld.
102
The National Association for the Advance-
ment of Colored People launched a major drive involving political
lobbying and court challenges to change public policy, and Drummond
Wr en was embraced as a tactical ally to demonstrate that existing policy
already opposed restrictive covenants if only it were intelligently
applied.
103
In a signal victory, the Michigan Supreme Court in 1947 relied
on the Ontario decision to find a property covenant against blacks to be
invalid.
104
When this case, with three others, came before the US Su-
preme Court in January 1948, Attorney General Tom C. Clark submitted
an amicus curiae brief citing Drummond Wren in opposition to restrictive
covenants, and Solicitor General Philip B. Perlman referred to it in his
oral presentation.
105
In a unanimous decision issued on 3 May 1948, usu-
ally referred to as Shelley v. Kraemer, the Supreme Court found all four
covenants to be unenforceable since by its nature a covenant requires
‘‘the full coercive power of government’’ to uphold a private agreement
to engage in discrimination, and this amounted to an unconstitutional
use of the public power.
106
A decision based on the American constitution had no authority in
Canada, though it served as a corroboration of the wisdom of Drummond
Wr en. Meanwhile in Canada there were further indications reinforcing
the accuracy of Keiller Mackay’s interpretation of public policy. In Jan-
uary 1947 the Toronto skating rink Icelandia refused admission to a Jew-
ish girl, apparently according to its usual practice. In protest the Rev.
James Finley, national chair of the Fellowship Of Reconciliation, held a
meeting at his Carlton Street United Church where 500 participants
passed a unanimous resolution calling for legislation against discrimina-
tion.
107
The issue was promptly taken up by Alderman Nathan Phillips.
With the support of a public delegation, Phillips convinced the Toronto
Board of Police Commissioners to pass unanimously a regulation in
February 1947 withholding licences from any operation under the
Board’s authority – including all places of recreation and amusement –
which practised racial or religious discrimination.
108
Also in 1947 the
CCF government of Saskatchewan enacted a Bill of Rights which pro-
vided inter alia that ‘‘every person or class of person shall enjoy ... the
right to acquire by purchase, to own, lease, rent or occupy any prop-
erty . . . without discrimination because of his race, religion, colour, or
ethnic or national origin.’’
109
Furthermore a Gallup Poll released that
summer revealed that 64 percent of Canadians would support legislation
against discrimination.
110
Noble and Wolf v. Alley 205
Bernard Wolf ’s application therefore seemed relatively straightfor-
ward; the Beach O’ Pines covenant must surely not be valid on grounds
of public policy. On 6 May 1948 Donald Egener, Mrs. Noble’s solicitor,
replied to Ted Richmond that ‘‘in our opinion the decision rendered in
the case of Re: Drummond Wren ... applies to the facts of the present sale,
with the result that the Clause (f) objected to is invalid and the vendor
and purchaser are not bound to observe it.’’
111
The cautious Richmond
was not, however, satisfied. He wrote back the same day insisting that an
order be obtained from the courts to declare the restrictive covenant void
and of no effect.
112
Egener thereupon made application under the Vendors
and Purchasers Act
113
which provided that
A vendor or purchaser of real or leasehold estate or his representative may, at
any time and from time to time, apply in a summary way to the Supreme Court
or a judge thereof in respect of any acquisition or objection or any claim for com-
pensation, or any other question arising out of or connected with the contract,
except a question affecting the existence or validity of the contract, and the Court
or judge may make such order upon the application as appears just, and refer
any question to a master or other officer for inquiry and report.
He asked on behalf of Mrs. Noble for an order
declaring that the objection to the restrictive covenant made in writing on behalf
of the purchaser dated the 5th day of May, 1948, has been fully answered by the
Vendor and that the same does not constitute a valid objection to the title or for
such further and other Order as may seem just.
114
A solid precedent existed; a friendly and influential jurisdiction had
made a parallel decision; the people’s representatives had advanced the
legislative line against discrimination; the popular will had been tested.
Neither Mrs. Noble nor Mr. Wolf had any reason to doubt the successful
outcome of their application when it was heard in chambers by Justice
Schroeder on 22 May 1948.
4. THEPUBLIC INTEREST
When the other property owners learned that Mrs. Noble had agreed to
sell her cottage to a Jew, a meeting was convened of the Beach O’ Pines
Protective Association to discuss strategy options. First they engaged a
London lawyer, John D. Harrison, to approach Ted Richmond with an
offer to buy the Agreement of Purchase and Sale at a profit to Mr. Wolf.
206 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
This offer was ‘‘unceremoniously rejected.’’
115
The Association then
determined to enforce the covenant by more formal means. Six Associa-
tion members retained Kenneth G. Morden, KC, a prominent Toronto
lawyer (and later justice of the Ontario Court of Appeal), to oppose the
sale to Mr. Wolf.
116
They were therefore already mobilized for action
when a Notice of Motion was sent on 8 May 1948 to the Association and
the Frank S. Salter Company, pursuant to the application of Donald
Egener, announcing that a hearing would occur in two weeks’ time.
117
The Salter Company had passed out of existence, but the Association
accepted the challenge on behalf of all the Beach O’ Pines property own-
ers. At the hearing Justice Shroeder confirmed this arrangement by
directing Mr. Morden to represent the interests of the other landowners
as well as the six who had retained him.
118
Ted Richmond was alerted to the strength of the opposition being
raised against this apparently simple property transaction. Bernard Wolf
was an old friend of the Richmond family, so Ted visited him at his home
in the evening to explain the situation frankly. The young lawyer told
his client about Drummond Wren and suggested that John Cartwright,
victorious senior counsel in that case, might be retained to represent
them at the forthcoming hearing. Mr. Wolf was determined to fight, and
insisted that Richmond call Cartwright immediately at his home in
Toronto. John Cartwright was equally enthusiastic and agreed over the
telephone to take the case, asking to have the papers sent to him the next
day. Though Mr. Cartwright would appear on the record on behalf of the
vendor Mrs. Noble, it was Mr. Wolf who recruited him and agreed to be
responsible for all fees and costs associated with the hearing.
119
Before Justice Schroeder of the Ontario High Court, Mr. Morden
argued that over the years since it had been formed in 1935, the Beach O’
Pines Protective Association had nurtured a congenial summer commu-
nity among its members. It had paved and maintained the roads, pro-
vided police and fire protection, and undertaken substantial general
improvement to the property, to the effect that the Beach had become a
desirable location whose value would be diminished by any change to its
character. This positive development had occurred under the protective
shield of the restrictions contained in the covenant, which each owner
had been aware of at time of purchase. Very few changes in ownership
had taken place, so that it was a compatible and intimate group of citi-
zens who in 1948 sought to maintain their enjoyment and the value of
their property.
120
Mr. Cartwright, assisted by Paul Hess, submitted that
the racial clause in the covenant was contrary to public policy, uncertain,
Noble and Wolf v. Alley 207
and an attempt to restrain alienation of property. For all these reasons it
was void and of no effect.
121
In the course of the presentation Justice
Schroeder seemed unconvinced by Mr. Cartwright’s argument, interrupt-
ing on one occasion to state:
What we must keep in mind is that while protecting the rights of minorities, we
must not lose sight of the rights of the majorities as well. Let us say that a man
does not want Hindus or Orientals as his neighbours, would that be against pub-
lic policy too?
Mr. Cartwright: Yes, I have no hesitation in saying it would be.
And again the judge interjected:
There is nothing to indicate that Wolf could not buy somewhere else. . . .
Mr. Cartwright: I have been told he would have to walk a long way along Lake
Huron before he could find a place to buy.
Mr. Justice Schroeder: I am trying to view the situation as a whole. I’m consider-
ing the effect on other people who bought property in this area on the strength of
this covenant.
In another revealing comment Schroeder asked:
This is a small restricted area. It prevents people of a certain race from living
there. Is such a narrow restriction contrary to public good when there are mil-
lions of square miles in the country?
Mr. Cartwright: There is no way for the Court to say it is valid in this small place
without saying it is valid everywhere else.
When Cartwright’s submission was completed Richmond supported it in
its entirely on behalf of Mr. Wolf. Justice Schroeder then announced that
he would reserve judgment: ‘‘This is a problem of far reaching impor-
tance. It is not only this Lake Huron summer colony that is involved but
property all over the country. I want to give it study and considera-
tion.’’
122
In his judgment issued 11 June 1948, Justice Schroeder considered first
the restraint on alienation question. He agreed that freedom of alienation
was a ‘‘cardinal principle of English and Ontario law,’’ but since the
covenant was limited in time to 1 August 1962, and only applied to a
‘‘particular class of persons,’’ he concluded that it did not ‘‘substantially’’
deprive Mrs. Noble of her power to sell her property and therefore
208 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
‘‘comes within the category of partial restraints on alienation.’’ Partial
restraints, he reiterated, were valid.
123
Next Schroeder addressed the more complicated question of certainty.
Was it possible to identify absolutely a person of Jewish ‘‘race or blood’’
as stipulated in the covenant? Citing dictionaries and encyclopedias and
even St. Paul, the judge found satisfactory evidence that ‘‘blood’’ and
‘‘race’’ could be used interchangeably, and that Jews were both com-
monly and officially considered to be a ‘‘race,’’ for example in the Cana-
dian census. The definition of a Jew, he argued, ‘‘must surely be dealt
with in a practical way ... in a broad common sense way.’’ If necessary,
an alleged Jew could be ‘‘subjected to an examination for discovery, in
which questions are directed to him as to his family history and ancestry;
evidence may also be available from friends, neighbours, acquaintances
or relatives of the person whose racial origin is the subject of investiga-
tion.’’ The application of common sense, in Justice Schroeder ’s opinion,
could satisfactorily determine a racial identity. In the British case of Clay-
ton v. Ramsden, which John Cartwright had brought up both here and in
Drummond Wren, the dispute was over a will which insisted that a
daughter marry a person of ‘‘Jewish parentage’’ and ‘‘Jewish faith’’ or be
disinherited. Since the outcome would be complete forfeiture of the
estate, the House of Lords was correct to demand absolute certainty,
Schroeder conceded, especially since ‘‘Jewish parentage’’ did not specify
whether it meant one or both parents, multiple generations, status by
birth or conversion, etc. The unfortunate daughter could never be certain
about an intended spouse and no court could enlighten her beforehand,
and thus she must either renounce her inheritance or renounce marriage
forever. But in a deed or a covenant ‘‘quite different considerations
apply.’’ The test was the simpler one of constructing ‘‘the object which
they were designed to accomplish.’’ In Essex Real Estate v. Holmes,an
Ontario court had decided the issue based on the judge’s interpretation
of what the terms in the covenant meant, and he had decided that a Syr-
ian was a Caucasian. In Mr. Wolf ’s case his own solicitor had announced
that ‘‘he might be considered of the Jewish race or blood.’’ The question
in any event was not whether Mr. Wolf was a Jew but whether the termi-
nology of the covenant conveyed the intent of its designers with suffi-
cient clarity for a court to determine who was to be excluded. Justice
Schroeder decided that it did.
124
The major point was of course the public policy definition established
by Drummond Wren. Justice Schroeder felt that it was inapplicable in the
present case because Drummond Wren concerned basic shelter whereas in
Noble and Wolf v. Alley 209
Noble and Wolf it was the less urgent matter of summer recreation. Also,
the covenant in Drummond Wren was unlimited in time.
125
But he went
beyond these technicalities. Emphasizing that he was not bound by a
decision in a court of co-ordinate jurisdiction, Justice Schroeder declared
that he could not agree with Keiller Mackay’s interpretation of public
policy. Pronouncements by allied leaders, the UN Charter or any other
alleged international obligation had never been given effect by Canadian
legislation, and the UN itself had uttered no demand that domestic laws
must be overborne by Charter provisions. To Justice Schroeder it
appeared that his colleague Mackay had created ‘‘an entirely novel head
of public policy.’’ He continued:
While it may be fairly assumed that the public policy of this country is opposed
to the taking of affirmative action by any competent legislative authority which
would be inconsistent with the sentiments or ideals expressed in these treaties or
enactments, it would, in my view, constitute a radical departure from established
principle to deduce therefrom any policy of the law which may be claimed to
transcend the paramount public policy that one is not lightly to interfere with the
freedom of contract.
126
His proper function as a judge was ‘‘to expound and interpret the law
and not to create the law based on any individual notion or opinion of
what the law ought to be.’’ A competent legislative body must ‘‘deter-
mine what is best for the public good’’ and make a proper enactment.
Until the democratically elected representatives of the people had
decided upon it, it was not in the province of a judge to do so.
127
All
three of John Cartwright’s arguments had been rejected, and the cove-
nant was held valid and enforceable. Counsel for Mrs. Noble had not
satisfactorily answered the objection raised in Ted Richmond’s letter of
5 May, and so the motion for a declaratory order negating the covenant
was dismissed and she was ordered to pay the costs of the third parties
who intervened.
128
The day after the decision was announced Cartwright wrote to Richmond:
I must confess that I am gravely disappointed in the result. I was quite prepared
to have the Drummond Wren case distinguished insofar as it rested upon the
point of restraint of alienation but you will observe that Mr. Justice Schroeder has
dealt also with the point of uncertainty and public policy and has flatly disagreed
with Mr. Justice Mackay. It is never the part of counsel to urge clients to appeal
but I hope that it will be decided to carry the matter to the Court of Appeal.
210 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Inevitably, judicial opinion upon questions of public policy will be uncon-
sciously influenced by the personal views of the individual judges but on this
point I think the reasoning of Mr. Justice Mackay is more persuasive than that of
Mr. Justice Schroeder. On the point of uncertainty with greatest respect I do not
think that the distinctions drawn by Mr. Justice Schroeder between the present
case and the Drummond Wren case and Clayton and Ramsden are sound.
129
Elsewhere the Schroeder judgment was regretted, but the judge him-
self was treated with more sympathy than Cartwright gave him. Gener-
ally speaking the conclusion was that Schroeder had no choice,
considering the absence of specific legislation, and that he had properly
channelled the problem to the legislature, where it belonged. CCF leader
Ted Jolliffe declared that ‘‘The time has come for Ontario to clarify the
law which guides the decisions of the courts and protect the rights of its
citizens,’’ and promised to introduce an appropriate bill in the next ses-
sion.
130
CCF MPP Harry Walters issued a press release saying that
It is a sad commentary on the laws of this supposedly democratic land, that the
judge should be obliged to render such a decision.... Laws against discrimina-
tion should be so clear and forceful that a decision such as that rendered by
Judge Schroeder last week would be impossible.
131
The call for corrective legislation, spearheaded by the CCF, was taken up
by the Canadian Congress of Labour and the Trades and Labour
Congress.
132
As Jolliffe wrote privately, ‘‘I think it was a mistake to expect
too much of the courts. After all, we do not want judges to make law: we
want law to be made by the elected representatives of the people. As far
as McKay’s [sic] judgment is concerned, I have never felt that it served
the purpose.’’
133
Nevertheless, the parties most directly concerned decided to take
Cartwright’s advice and seek a judicial solution. Mr. Wolf was a wealthy
man. His assets, valued at over $2 million, were clearly adequate in the
1940s to sustain an appeal, and he was convinced that he should con-
tinue the battle as a ‘‘mission [for] the protection of the rights, freedoms
and happiness of all Canadian Jewry.’’
134
Furthermore, Justice Keiller
Mackay had asked to meet Mr. Wolf shortly after the Schroeder judg-
ment appeared and told him that he was ‘‘outraged’’ by the decision,
135
an apparent endorsement of Cartwright’s view that an appeal would be
successful. Wolf and Richmond went to Cartwright’s office in Toronto to
announce their decision and to discuss arrangements for the appeal.
Noble and Wolf v. Alley 211
Cartwright drafted the Notice of Appeal and Richmond filed it on
21 June 1948, stating as grounds:
1) That the said clause in the restrictive covenant in question is illegal, void, and
unenforceable, being contrary to public policy;
2) That the said clause is void and unenforceable for uncertainty;
3) That the said clause is an illegal and void restraint upon the freedom of alien-
ation of the lands thereby affected;
4) That the said clause is void and unenforceable as a restraint upon the alien-
ation, occupancy and user of land because of race or blood, such being a novel
restraint unknown to and unrecognized by the Common Law.
136
In the midst of preparing the Appeal Books shortly thereafter, Rich-
mond had a flash of anxiety. He had been reading the Japanese Canadian
deportation case, and was reminded that both the Supreme Court of
Canada and the Judicial Committee of the Privy Council had already
decided that ‘‘race’’ was a sufficiently certain category for legal enforce-
ment. In early 1945 the federal government had conducted a survey
amongst Japanese Canadians, asking them to declare a preference either
for ‘‘repatriation’’ to Japan after the war or for relocation in Canada east
of the Rockies. In conditions of wartime internment and an atmosphere
of intense anti-Japanese sentiment throughout Canada, 6,884 adult
Japanese Canadians opted for ‘‘repatriation.’’
137
By the time the war actu-
ally ended, however, 4,527 of these people had applied to reverse their
earlier decision, but the government utilized the authority of the War
Measures Act, just two weeks before it was due to expire, to pass orders-
in-council on 15 December 1945 providing for the deportation of certain
‘‘persons of the Japanese race’’ regardless of their citizenship or even
their birthplace.
138
Following a challenge by the Co-Operative Commit-
tee on Japanese Canadians, supported by the attorney general of Sas-
katchewan, the federal government agreed in January 1946 to refer the
deportation orders to the Supreme Court of Canada. John Cartwright
and Andrew Brewin argued the case against the deportation claiming,
inter alia, that
The Orders-in-Council throughout depend upon the persons affected being in
fact of the ‘‘Japanese race.’’ It would be the duty of the Court on any application
for Habeas Corpus to determine the issue as to whether or not any particular
individual was ‘‘of the Japanese race.’’... The phrase ‘‘Japanese race’’ is so vague
as to make the provisions unenforceable.
212 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The textbook authorities... indicate that the word ‘‘race’’ is not definable in
scientific terms and has not any precise meaning. It is a hypothetical group
inferred to have existed in the past. Provisions in a will in regard to the ‘‘Jewish
race’’ have been held to be void for uncertainty....
139
Among the seven justices hearing the case, only Chief Justice Rinfret
deigned to comment on this argument, and then only summarily to dis-
miss it:
[T]he question referred to us is whether the Orders in Council are ultra vires, and
the point that some words or sentences therein are vague does not fall within that
question. The Orders in Council would not be ultra vires even if some parts
thereof were vague.
140
Upon failing in Ottawa, the Co-Operative Committee appealed to the
Privy Council in London, where Andrew Brewin repeated the argument
that ‘‘the Orders-in-Council which empower the Minister of Labour to
make orders for deportation of persons ‘of the Japanese Race’ are so
vague that they are incapable of application to ascertained persons and
are therefore inoperative and invalid.’’
141
To this the Privy Council
replied: ‘‘It is sufficient to say that in their Lordships’ opinion they are
not.’’
142
The ‘‘common sense’’ definition of ‘‘race,’’ taken for granted in
the orders-in-council, had been explicitly affirmed in the courts. Al-
though the Canadian government decided not to proceed with enforced
deportations despite their legal approval, Ted Richmond feared that the
Privy Council’s dictum would undermine the second ground of the
Noble and Wolf appeal based on the uncertainty of racial definitions.
John Cartwright, however, did not share this concern, and reassured his
junior colleague that ‘‘uncertainty’’ remained an effective ground on
which to challenge the covenant. Cartwright’s confidence prevailed, and
no amendment was made in the appeal case.
143
It was at this point that the Canadian Jewish Congress became actively
involved in the case. Ben Kayfetz called Ted Richmond to inform him of
how important this appeal was to the Congress, and to offer assistance.
With Cartwright and Richmond’s concurrence, the JPRC formed a com-
mittee chaired by Bora Laskin to monitor the proceedings and provide
advice. At Cartwright’s suggestion the CJC retained J. Shirley Denison,
KC, a former treasurer of the Law Society of Upper Canada and one of
Canada’s leading authorities on real estate law, to represent the pur-
chaser, Wolf, and Mr. Norman Borins was engaged to assist him. Cart-
Noble and Wolf v. Alley 213
wright and Hess continued to represent the vendor, Mrs. Noble.
144
Professor Laskin’s committee of Jacob Finkelman, S. M. Harris, Lou Her-
man, Syd Midanik and Dick Shiff, plus Cartwright, Borins, Denison and
Hess and with Richmond and Wolf in occasional attendance, repeatedly
examined the Schroeder decision for flaws. They were confident that
they were properly prepared for the appeal hearing set for 20 September.
But the Court of Appeal decided that all the Beach O’ Pines property
owners must be contacted and given the opportunity to appear, rather
than simply those who directly retained Mr. Morden. Eventually 26 of
the 35 Beach O’ Pines members, 13 American and 13 Canadian, agreed to
be represented by Morden, and the others declined the right to be repre-
sented at all. Among the Canadians on Morden’s list was Judge H. E.
Grosch of Chatham. The other Canadians came from London, Toronto
and Stratford. All the Americans had Michigan addresses.
145
With all this delay it was not until 10 January 1949 that the case came
before Chief Justice Robertson and Justices Henderson, Hope, Hogg and
Aylesworth of the Ontario Court of Appeal.
146
The appeal team met an
unanticipated hostility from the bench. Shirley Denison, who joined the
appellants’ team after the grounds were submitted in June 1948, led the
argument with a new objection not raised before: conditions (a) to (e) in
the covenant dealt properly with how the land could be used, but
clause (f), the racial restriction, applied improperly to the user. ‘‘It is not
therefore a covenant that will run with the land, under the rule of Tulk v.
Moxhay.’’ According to Mr. Denison, the covenant in question was
purely a personal one and as such was binding upon the original signa-
tories alone; only covenants that ‘‘ran with the land’’ were enforceable
against a subsequent purchaser. It would be an arbitrary extension of the
doctrine ‘‘to uphold a covenant which was not a burden on the land, but
rather a restraint on the capacity of particular races to own the land.’’
Chief Justice Robertson interrupted frequently, primarily to object that
‘‘This is a wholly new point, never argued before in this case.’’ Mr. Deni-
son, then in his seventies, responded with dignity to these intrusions: ‘‘If
the Court does not want to hear me, I will sit down.’’ The chief justice
snapped, ‘‘Oh we will hear you, Mr. Denison.’’ Robertson also com-
plained that the intent of the Vendors and Purchasers Act, under which this
motion was brought before the court, was to settle differences between
vendor and purchaser. It was therefore ‘‘anomalous’’ that in this case the
vendor and purchaser were in agreement.
147
Norman Borins followed, and was given a particularly ‘‘rough time’’
by the court.
148
It fell to Borins to elaborate the public policy argument,
214 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
which he did by indicating that for a hundred years Ontario policy had
been contrary to racial distinctions. To reject the covenant would not be
to ‘‘create’’ public policy; on the contrary, ‘‘To give legal sanction to such
a covenant as this would itself be to create a new head.’’ To Borins’ argu-
ment that specific legislation was not required for the court to recognize
a public policy against racial discrimination, the chief justice interjected,
‘‘That might involve the abolition of such groups as the St. Andrew’s
Society and the St. George’s Society.’’
149
It was clearly not a very sympa-
thetic court.
The most complete case against the covenant was developed by John
Cartwright, subject though it was to constant interruption from the
bench. Fundamentally Cartwright pressed the Drummond Wren prece-
dent: ‘‘a covenant such as this is against the public good, and hence con-
trary to public policy.’’ The covenant was also uncertain and therefore
unenforceable, following Clayton v. Ramsden, and was an invalid restraint
on alienation. It was true that ‘‘partial’’ restraints had been upheld
before, but those cases had different circumstances from the current mat-
ter and were not binding on this court. ‘‘I ask the Court at least to say
that the right to impose a partial restraint must not be extended beyond
the decided cases; a restraint such as the present, excluding particular
classes in the community, would be such an extension.’’ Finally Cart-
wright insisted that the 1944 Racial Discrimination Act did apply. ‘‘Regis-
tration of the covenant is a publication to the world,’’ and was directly
contrary to Section 1 of the Act. Re: McDougall and Waddell must be over-
turned.
150
On behalf of the respondents, Kenneth Morden pointed out that Mrs.
Noble had benefited from the covenant for 15 years, enjoying the pro-
tected environment it created, and only now raised a doubt about its
validity. If the covenant were breached it would affect the value of the
properties and therefore would injure the other owners. Their contract
not to do so was binding. The 1944 Act favoured the respondents: since
the legislature had entered the field and had remained silent on this par-
ticular issue, the court could not find a public policy against it. UN and
other resolutions opposing discrimination were irrelevant. ‘‘This cove-
nant is in effect no more discriminatory than one that requires that a
house built on a particular parcel shall be of a prescribed minimum
value.’’ Freedom to choose one’s associates, as confirmed by Christie v.
York, made a positive contribution and was in the public interest: it
ensured a healthy variety in the community and operated against the
‘‘complete regimentation’’ of society. As a partial restraint the covenant
Noble and Wolf v. Alley 215
was valid, and Clayton v. Ramsden must be distinguished because ‘‘A will
is a unilateral act, but here there is evidence of mutual intention.’’ The
law did recognize a Jewish ‘‘race,’’ in the Statistics Act for example, so
there was no reason why a court must find the term uncertain.
151
If there
was ever any doubt about who was a Jew, Morden concluded, it would
suffice simply to ask the person in question. Justice Henderson com-
mented gratuitously: ‘‘Oh, you don’t have to ask, you can tell.’’
152
Hen-
derson added: ‘‘At the moment, I am inclined to think that if we declared
this covenant void, we would stir up a good deal more hate in the com-
munity than otherwise. It might create hate, ill-will, and probably vio-
lence there.’’
153
From their verbal interjections during the hearing of the appeal it
would seem that the judges’ views were fairly well formed, but it was
not until five months later, on 9 June 1949, that the written decision
appeared. Chief Justice Robertson went through all four issues raised in
Richmond’s Notice plus the fifth raised orally by Denison. He found that
this was a partial, and therefore a valid, restraint upon alienation. ‘‘The
field of likely purchasers is left largely untouched. There is nothing in
any way approaching a general restriction upon alienation.’’ Since many
covenants restricted ownership to members of a certain family, ‘‘race or
blood’’ had frequently been upheld as a valid criterion. He agreed with
Schroeder that rules of certainty were less strict for a covenant than a
condition.
The Court is to give the words their usual and ordinary meaning and not a tech-
nical one. Further, it is not fatal to a covenant that some part or parts of it are not
clear, if the meaning of what remains is clear.... The covenant should be
declared void only if it is impossible reasonably to give it any meaning.
Denison’s submission that the covenant did not run with the land was
quickly dismissed as irrelevant to the specific question before the court,
which Robertson took to be the simple one of whether Mrs. Noble had
answered Mr. Wolf as to the validity of the covenant.
154
It was Robertson’s comments on the public policy issue that attracted
most publicity. Meditating upon a pleasant holiday spent in congenial
company, the chief justice gave the opinion that
The purpose of clause (f) here in question is obviously to assure, in some degree,
that the residents are of a class who will get along well together. To magnify this
innocent and modest effort to establish and maintain a place suitable for a pleas-
216 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
ant summer residence into an enterprise that offends against some public policy,
requires a stronger imagination than I possess.... There is nothing criminal or
immoral involved; the public interest is in no way concerned.
Then, in an abrupt denial of the opinion expressed by Schroeder, among
others, that it was up to the legislature to make explicit rules on the sub-
ject, he added:
Doubtless, mutual goodwill and esteem among the people of the numerous races
that inhabit Canada is greatly to be desired. . . . To be worth anything, either at
home or abroad, there is required the goodwill and esteem of a free people, who
genuinely feel and sincerely act upon, the sentiments they express. A wise
appreciation of the impotence of laws in the development of such genuine senti-
ment, rather than mere formal observances, no doubt restrains our legislators
from enacting, and should restrain our Courts from propounding, rules of law to
enforce what can only be of natural growth, if it is to be of value to anyone.
155
All four of his colleagues concurred in a unanimous affirmation of the
Schroeder decision. Justice Henderson bluntly asserted: ‘‘I am of opinion
that the judgment in Re Drummond Wren is wrong in law and should
not be followed.’’ For Henderson, freedom of contract and freedom of
association were absolute, and besides, ‘‘people are enabled to exercise a
choice with respect to their friends and neighbours.’’ As for the uncer-
tainty argument, Henderson insisted that ‘‘a common-sense reading of
the covenant makes its interpretation certain and unquestionable. ... It is
common knowledge that the people who inhabit Canada are divided
into races or are described as members of one or other particular race. . . .
‘A person of Jewish blood’ is a phrase thoroughly understood. . . .’’
156
Justice Hogg concurred with his colleague in this view. ‘‘The classifica-
tion must necessarily be made having regard to the word ‘race’ in its
ordinary and popular sense. If the language of clause (f) of the covenant
is regarded in its ordinary and popular sense, this clause cannot be said
to be void for uncertainty....’’ Hogg also expanded upon the reason for
rejecting Denison’s ‘‘run with the land’’ argument:
It is true that an appellate Court may allow points of law not taken in the Court
of first instance to be raised upon appeal, but, in the present case, not only was
the point of law argued by Mr. Denison not involved in the reply to the requisi-
tion on title and not raised upon the hearing of the original application, but it
was not one of the grounds of appeal to this Court and all of the parties who
Noble and Wolf v. Alley 217
would be affected by the decision of this Court upon this aspect of the case were
not before the Court. For these reasons I do not think the point in question can be
considered upon this appeal.
157
Justice Hope emphasized the ‘‘public interest’’ theme, giving the opinion
that ‘‘freedom of the individual in and under a democracy has implicit in
it, as an absolute, the freedom of association. ... I can find nothing in the
scheme of covenants in the association in this case which could be sug-
gested, with an atom of reason, as being unduly oppressive of the pub-
lic.’’
158
There was general agreement that uncertainty was not an issue,
that the restraint upon alienation was acceptably partial, and that public
policy did not oppose this covenant. The appeal was dismissed with
costs against the appellants.
159
The public reaction was swift. On behalf of the CJC Rabbi Feinberg
condemned the decision: ‘‘Canadian democracy may never grow beyond
a collection of isolated racial units, roped off from one another by a legal-
ized iron curtain of snobbery and barred from the mutual acquaintance
and understanding which alone can develop internal unity.’’
160
The Asso-
ciation for Civil Liberties was equally critical: ‘‘The court would appear
not to recognize that a war has been fought in which millions were killed
for the principles of the four freedoms and the Atlantic Charter.’’
161
Both
national labour organizations drafted resolutions denouncing the judg-
ment on 10 June.
162
The Hamilton News, among the great majority oppos-
ing the decision, vituperated against ‘‘one of the most vicious legal
expedients ever to be allowed under the British system of law, namely
the restrictive covenant.’’
163
In the midst of this publicity the Canadian
Institute of Public Opinion conducted a poll asking: ‘‘If you were buying
a home and the neighbours asked you to sign an agreement promising
not to sell or rent it later to people of certain races or color, would you be
willing or not willing to sign such an agreement?’’ When the results were
announced in July they showed that only 19 percent of Canadians would
sign, 13 percent were undecided and 68 percent definitely would not
sign.
164
For the Toronto Star Weekly, ‘‘This finding shows the prevalence of
the democratic spirit of tolerance among Canadians.... [T]he law clearly
is lagging behind enlightened public opinion.’’
165
The Toronto Star de-
manded legislation to eliminate such undemocratic practices as restric-
tive covenants, and in the meantime urged an appeal of Noble and Wolf
to the Supreme Court of Canada.
166
Editorially, only the Globe and Mail approved of what the Robertson
court had done. Identifying two basic principles – the right to food and
218 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
shelter without discrimination and the right to choose one’s own associ-
ates – the Globe contended
In this case it cannot seriously be claimed that basic rights to shelter are being
denied by the covenant. But to assert that any group of people should be forbid-
den to associate themselves in a perfectly lawful manner, would create problems
of a far-reaching character with all sorts of dangerous implications. This newspa-
per does not have to protest its opposition to racial discrimination in social and
economic relationships, but it is convinced that to make a law that discrimination
should cease would not be the effective way to deal with the problem. . . . It
would appear to us that to give any one a legal right to force himself uninvited
into an association of people would be the most certain way to add to social ten-
sions. . . . There is much to correct in our treatment of minorities in Canada, but
force is not the way to do it.
167
5. PREPARING FOR THE SUPREME COURT OF CANADA
John Cartwright was distressed but not surprised by the Court of Appeal
decision. Nor had he changed his mind about what the outcome should
have been. The day the judgment came down he wrote:
I read the reasons with care and I find them particularly unsatisfactory on the
question of uncertainty. They deal with this point by saying that the same cer-
tainty is not required in a covenant as in a condition of defeasance. They do not
attempt to define the test which would have to be applied in determining
whether any individual was or was not within the scope of the covenant.
There is always a danger of getting too much convinced of the right and justice
of one’s own side of a case but I must confess that I hope the clients will decide to
take the case further.
168
But the principals in the case were beginning to doubt the wisdom of
proceeding any further. Mr. Wolf had already spent thousands of dollars
and was discouraged by the unanimous result at the appeal. Although
he could readily afford the financial costs of the proceedings, it was the
emotional strain that was taking its toll. In particular his wife was urging
him to drop the matter, confessing that she was embarrassed by the
whole affair and wanted to retire from it with dignity. And the other nec-
essary partner to the transaction, Mrs. Noble, had never been truly keen
on the contest and was becoming anxious that her cottage remained
unsold and was probably declining in value because of the contro-
Noble and Wolf v. Alley 219
versy.
169
Even the CJC had to consider its options. Fred Catzman, who
replaced Rabbi Feinberg as JPRC chair about this time, later said:
we had to make a decision. There were suggestions, vigorously upheld, that the
wisest thing would be to drop the proceedings. The case, admittedly, was not the
best test case on which to try out the principle of discrimination. It did not con-
cern shelter as the 1945 case did, but summer property. The Court of Appeal
ruled in favour of the restrictive covenant without a dissenting opinion. The
Bench, we were told, is always reluctant to give a judgment on public policy and
some people felt that to base our argument on uncertainty, i.e. on the inability to
determine who is not racially a Jew, Negro, or other person, would be a self-
contradiction and a poor position for a Jewish organization to place itself in.
170
Nevertheless the CJC’s decision, when it came later in June, was to
carry the case to the Supreme Court of Canada. The organization would
prepare and finance the appeal; Noble and Wolf would not need to par-
ticipate beyond lending their names to the motion. To some extent this
was a tactical move. Confidence was not 100 percent in a favourable an-
swer, but there could be advantages either way. As Catzman explained:
‘‘should the court rule against us, we could then feel that we had gone to
the court of highest instance and only then could we resort to the legisla-
ture, having used all possible means of redress.’’
171
A win was a win. A
loss would lay the foundation for a legislative campaign. Publicly the
JPRC launched the Supreme Court appeal expressing ‘‘full confidence
that the court would confirm the full civil rights of all citizens, irrespec-
tive of race or religion.’’
172
Mrs. Noble’s doubts were not dispelled. On 28 June her solicitor, D. M.
Egener, wrote to Ted Richmond:
You will understand that Mrs. Noble is an elderly woman and that these whole
proceedings have been a matter of anxiety and worry to her.... [U]nder no cir-
cumstances does she care to be involved in any further appeals.... [H]er health
is being affected by the matter.
173
Richmond consulted Cartwright by telephone, wondering whether to
carry on the appeal only in the name of Wolf. Cartwright was insistent:
both names must appear; the case must be presented on the contract
made between Mrs. Noble and Mr. Wolf. After sounding Egener out fur-
ther, Richmond suggested to the CJC that if they would promise to find
an alternative buyer and pay any difference in price if the appeal was
220 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
unsuccessful, Mrs. Noble would acquiesce.
174
Ben Kayfetz replied with
an immediate telegram – ‘‘Approve of suggestion as your letter June
30th’’ – and followed it with a letter. ‘‘No effort should be spared’’ to
keep Mrs. Noble in the case, Kayfetz urged, and the CJC would guaran-
tee her against any loss in her property value. ‘‘We know how coopera-
tive she has been up to now and appreciate the necessity of her further
participation.’’
175
Frail though she might have been, Mrs. Noble was prepared to fight
for the most favourable terms. Mr. Wolf was to pay forthwith the 1948
and 1949 taxes on the cottage, $650 rent for the ‘‘use’’ of the cottage dur-
ing the court proceedings, and provide ‘‘a written guarantee under seal’’
that regardless of the conclusion in court he would pay the original pur-
chase price plus 5 percent interest from May 1948.
176
A dispirited
Bernard Wolf refused to consent to these terms. He was very doubtful
about his chances in the Supreme Court, and ‘‘personally, would like to
wash his hands of the whole matter.’’ He would, however, consent to
proceed if the CJC would take up Mrs. Noble’s new demands.
177
Cart-
wright was away on vacation, but Kayfetz contacted him by telephone
and reported his conversation to Bora Laskin’s legal committee:
Mr. Cartwright feels that in spite of the unanimous verdict there is a better than
even chance of the higher court reversing it. His opinion is that there is a strong
probability that the court will deal with it on the uncertainty aspect though they
will prefer not to consider the point of view of public policy.
He also feels that the case cannot go on successfully without Mrs. Noble’s par-
ticipation in it. While it would be preferable if the case had been brought as an
action rather than a motion, he feels that if the case were now allowed to die the
Court of Appeal verdict would become a binding judgment.
He feels that while the new terms of Mrs. Noble can be considered onerous, by
the addition of the payment of interest, nevertheless they should be met, having
in view the importance of the case.
178
The CJC deliberated over two weeks, no doubt consulting the treasurer
as well as the assembled legal experience represented by Laskin and his
colleagues, and on 3 August Kayfetz announced that ‘‘The consensus of
opinion is that we have no choice but to meet Mrs. Noble’s terms, unfair
as they might be.’’
179
It took another month to draw up a formula accept-
able to Mrs. Noble. Finally on 6 September she and Mr. Wolf signed an
agreement to allow the CJC to proceed.
180
On 23 September 1949 leave
was granted to appeal to the Supreme Court of Canada.
Noble and Wolf v. Alley 221
While Noble and Wolf was proceeding from the provincial High Court
through to the Supreme Court of Canada, other developments were
affecting Ontario public policy towards racial discrimination in general
and property covenants in particular. On 7 June 1948 the Ontario elec-
torate returned the Conservative government, but Premier Drew lost his
own seat and resigned as leader. After a caretaker period under Premier
T. L. Kennedy, the party selected Leslie Frost as leader on 27 April 1949.
An Orangeman and a small-town Ontario Tory, still Frost was a new man
on the job and a new opportunity for the resumption of the human rights
debate.
181
That opportunity was to be taken promptly by the Association
for Civil Liberties, formed that spring of 1949 with the express intention
of pressing for legislation in the field of ‘‘race relations.’’ The secretary
and ‘‘moving spirit’’ of the ACL was Irving Himel, junior counsel to John
Cartwright in the Drummond Wren case. The chair was Provost Seeley of
Trinity College, and on the board were Ben Kayfetz, Bora Laskin,
Andrew Brewin, Joseph Sedgwick, Abraham Feinberg, Syd Harris, Syd
Midanic, B. K. Sandwell and other representatives of Toronto’s progres-
sive ‘‘establishment.’’
182
Just days after Frost was sworn in as premier on 4 May, Vivien
Mahood, chair of the ACL Committee on Group Relations, wrote to him
asking for an appointment ‘‘to discuss the status of discriminatory prac-
tices in Ontario, and the need for corrective legislation.’’
183
To Attorney
General Dana Porter, Himel explained:
The purpose of the delegation is to submit representations to the Premier and the
government touching on large areas of discrimination that affect minority groups
in the province, and on the need for remedial legislation by the Ontario Legisla-
ture designed to eliminate such discrimination and accord fundamental human
rights to all residents of the province, regardless of race, colour or creed.
184
Mahood’s committee drafted a brief to present to the premier at their
meeting set for 7 June,
185
illustrating instances of discrimination and re-
gretting the ineffectiveness of the 1944 Act. Prominent among the exam-
ples cited in the brief were restrictive covenants, and the conflict between
the judgments of Mackay and Schroeder. ‘‘We believe,’’ the brief contin-
ued,
that the time is appropriate to remove the confusion that now prevails with
regard to these covenants. To make it perfectly clear that such restrictions have
no place in a democracy, we would ask that your government introduce in the
222 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
next session of the legislature an amendment to the Racial Discrimination Act
which will provide that racial restrictive covenants have no legal validity.
186
To the 35 people attending the presentation the premier said he was
‘‘impressed’’ by what they had revealed and would give ‘‘serious consid-
eration’’ to their request for legislation.
187
The lack of committal in the premier ’s response was indicative of his
government’s attitude at the time, and no legislation was forthcoming.
And so in January 1950, in preparation for another session of the legisla-
ture, the ACL mobilized another and much more impressive delegation.
The brief this time was formally printed and bound, and not just
mimeographed as in 1949, and copies were sent to a broad array of orga-
nizations for endorsement. Property covenants were again highlighted
as ‘‘Evidence of the Need for Legislation,’’ and the Court of Appeal’s
Noble and Wolf decision was denounced for placing ‘‘the stamp of legal-
ity on discrimination.’’
188
Seventy organizations, many of them with no
obvious identification with racial issues such as the Canadian Legion and
the Registered Nurses Association, the major religious denominations,
several unions and student groups, joined the ACL in sponsoring the
brief, and over 300 persons participated in the presentation on 24 Jan-
uary.
Following the formal speeches Premier Frost replied that there was no
serious racial problem in Ontario, and such as existed was best handled
through voluntary compliance rather than legal coercion. Irving Himel
interjected with his own profound disappointment in the premier ’s atti-
tude, and asked for his response to the specific proposals in the brief. Frost
declined, but assured the delegation that he was grateful for their concern
and welcomed their advice: ‘‘there is no iro n curtain around me. Any
group of citizens can see me at any time. However I am not prepared to
pass on anything you recommend at this time.’’
189
The Ontario press
r e a c t e d with considerably mor e enthusiasm than Pr emier Fr ost. The
Toronto Star immediately and characteristically endorsed the delegation
editorially, as did newspapers across the province including the Toronto
Telegram, which had not been sympathetic to the issue previously.
190
Satur-
day Night magazine, whose editor B. K. Sandwell was an ACL board
member, criticized Frost’s cool reception of the delegation as a ‘‘serious
mistake’’ and reminded the premier: ‘‘The great body of voters is at the
moment considerably impressed by the world-wide campaign against
these discriminatory practices and by the available evidence that Canada
is not as free from them as a leading progressive nation ought to be.’’
191
Noble and Wolf v. Alley 223
Whether it was the almost universal press support, the evidence of
widespread popular concern represented in the 24 January delegation,
pressure from party colleagues, or an overnight conversion, the premier
apparently changed his mind and in the Speech from the Throne on 16
February he inserted a sentence promising to give ‘‘consideration to a
measure concerning discriminatory covenants in deeds.’’ This simple ref-
erence won a front-page banner headline from the Globe and Mail:
‘‘Ontario Plans to End Bias in Property Deals.’’
192
The covenants mea-
sure, in fact, attracted more attention than anything else in the Throne
Speech that year,
193
and to the premier it brought a host of encouraging
and congratulatory letters.
194
Provost Seeley expressed the ACL’s disap-
pointment that the government program would not address all the prob-
lems raised in the brief, but he welcomed the announcement as a
promising first step.
195
Vivien Mahood, who had coordinated the cam-
paign for endorsements to the brief, wrote of the Throne Speech:
It is a minor triumph, but a triumph. The papers unqualifiedly give the credit for
this move to our delegations, though that alone would not have done it. What is
behind it is the steady pounding of labour, the swing of public sentiment so
noticeable in the press and in our last delegation to the premier. Some of it
undoubtedly springs from the changing American attitude, but nevertheless, I
feel our work has been in good part responsible. It is most gratifying. The papers
selected this item from the Speech to headline, and that in itself is indicative of
the public attitude.
196
The measure when fully unveiled by the attorney general was, how-
ever, of limited effect, for it outlawed only future covenants leaving exist-
ing restrictions intact.
197
The CCF opposition demanded that it be made
retroactive, but Frost insisted that existing covenants were not really a
problem and most would eventually expire, whereas to enact a retroac-
tive ban would disrupt property arrangements across the province. The
real benefit from the bill, he maintained, would be that it would free
property developers from the restraints imposed by covenants, and
therefore encourage more activity and growth to the advantage of all
Ontarians. No doubt with his eye on certain of his own more reluctant
colleagues on the government benches, Frost asked rhetorically:
What would happen, for instance, if some of these lands up in York County that
may be used for housing schemes have restrictions of that sort put on them?
224 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
How would you ever plan a community? The thing would be impossible, and I
think now is the time to stop that sort of thing.
198
The bill to amend the Conveyancing and Law of Property Act was accord-
ingly passed unanimously, providing that
Every covenant made after this section comes into force which but for this sec-
tion would be annexed to and run with the land and which restricts the sale,
ownership, occupation or use of land because of the race, creed, colour, national-
ity, ancestry or place of origin of any person shall be void and of no effect.
199
Exactly one month later the Manitoba legislature amended its Law of
Property Act with a similar provision.
200
The Ontario amendment was proclaimed on 24 March 1950, in the midst
of the CJC preparations for the presentation to the Supreme Court of
Canada. The previous September the ‘‘Special Committee on the Restrictive
Covenant Case’’ had added some new members and had debated the basic
strategy to be followed in the appeal. John Cartwright, whose views were
put to the meeting by Rabbi Feinberg, felt that ‘‘there was an even chance
on the public policy angle and a good chance on uncertainty.’’ He sug-
gested as well that it did not really matter on what grounds a victory was
won, for ‘‘the publicity accruing to the voiding of a covenant, even on
uncertainty, would leave the main impression that such contracts were ille-
gal.’’ Bora Laskin disagreed, urging that the public policy issue be given
most prominence in the pleading to ensure the broadest impact from a pos-
itive judgment. The committee decided to recommend that all four points
made before the Ontario Court of Appeal be reiterated.
201
Then three days before Christmas 1949 John Cartwright was appointed
to the Supreme Court of Canada by Prime Minister Louis St. Laurent. In
gracious letters to Bernard Wolf and Ted Richmond, Cartwright indi-
cated that ‘‘I have no greater regret than that I cannot personally finish
the presentation of your case.’’
202
The regrets were no doubt mutual, for
the appeal team was losing its most prominent player. Ben Kayfetz con-
soled Mr. Wolf: ‘‘Though Mr. Cartwright will not be able to act as counsel
or sit on the Bench which takes your appeal, his name, I understand, will
stand on the appeal application which will appear before the Supreme
Court.’’
203
It was the new judge’s suggestion to retain as his replacement
Mr. Gershom Mason, KC, a leading Ontario counsel and treasurer of the
Law Society of Upper Canada. An approach was made to Mr. Mason in
February but he declined, stating that previous commitments rendered
Noble and Wolf v. Alley 225
him unavailable. Instead, following consultations with everyone in-
volved, the CJC engaged John J. Robinette to present the case for Mrs.
Noble.
204
It was the day the Speech from the Throne was announced in
the Toronto press.
The new legislation provoked a reassessment of strategy. At first it was
thought that the legislation might obviate their case entirely; when its
limited extent was known, its impact upon and use in their presentation
had to be discussed. One point of view wanted the legislation to be used
as a clear indication of public policy, encouraging the court to extend that
policy to cover covenants already in effect when the new law was pro-
claimed. Another view felt that the law favoured the respondents, for
they could argue that the legislature had spoken and that the public pol-
icy thereby enunciated had left the Beach O’ Pines covenant legal. Fur-
ther to this view, the Supreme Court decision would bind all common
law provinces, and to rely upon a single provincial measure could be
counterproductive. In the end John Robinette settled the matter: there
would be no reference to the new legislation in the appellants’ case. ‘‘The
appeal is from the decision of the Ontario Court of Appeal which at the
time did not have for consideration the recent Ontario legislation.’’
205
The
argument would be built upon the four points: that the covenant was
void on grounds of public policy, for uncertainty, as a restraint on alien-
ation, and, in refinement of this, as an attempt to affect the user rather
than the use of the land.
6. NOBLE AND WOLF v. ALLEY
The factum for Mrs. Noble, prepared by Robinette and Hess in early
May, put the first three points: that the Court of Appeal had erred in
holding that clause (f) of the covenant ‘‘(1) was not contrary to public
policy; (2) was not void and unforceable for uncertainty; [and] (3) was a
valid restraint upon the freedom of alienation.’’
206
The argument for point one relied upon Drummond Wren whose con-
clusion could best be understood, it was submitted, as declaring that
‘‘there was no public interest in Ontario requiring the Court to support a
contract aimed at prohibiting the sale of land to Jews.’’ The judgment in
the 1948 American Supreme Court covenants case was quoted to illus-
trate that it was not based exclusively on a piece of legislation peculiar to
the United States but, like Drummond Wren, on an interpretation of
broader indications of public policy. In Hurd v. Hodge the American court
explained that even if the 14th Amendment had not existed,
226 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
there are other considerations which would indicate that enforcement of restric-
tive covenants in these cases is judicial action contrary to the public policy of the
United States.... The power of the federal courts to enforce the terms of private
agreements is at all times exercised subject to the restrictions and limitations of
the public policy of the United States as manifested in the Constitution, treaties,
federal statutes, and applicable legal precedents. Where the enforcement of pri-
vate agreements would be violative of that policy, it is the obligation of courts to
refrain from such exertions of judicial power.
A 1938 Privy Council decision, Fender v. Mildmay, had similarly held that
‘‘There are considerations of public interest which require the Courts to
depart from their primary function of enforcing contracts, and exception-
ally to refuse to enforce them. Public policy in this sense is disabling.’’
The issue could not be cast as a public interest in freedom of contract or
freedom of association; truly, enforcement of the covenant would give
judicial recognition to ‘‘a public interest in the creation of inequality of
civil status because of race or blood.’’
Several English cases had demonstrated the impossibility of giving a
definite legal meaning to racial terms. Just as the daughter in Clayton v.
Ramsden would remain forever single, Mrs. Noble could never sell her
land to anyone because no court could define for her which potential
buyer was or was not a Jew. The census classified people by ‘‘race’’ but
gave no definite legal meaning as could be applied by a court of law. Dif-
ferent dictionary definitions of ‘‘race’’ and ‘‘blood’’ were quoted to show
that the terms were wildly imprecise. In concluding its argument on
uncertainty, the factum added ominously: ‘‘An example of an attempt to
give definite legal meaning to ‘blood’ is found in Germany in the
Nuremberg Decrees of September 29, 1933 [sic]. . . .’’
On the alienation issue the factum was blunt: the covenant was con-
trary to freedom of commerce for it inhibited Mrs. Noble’s right to sell
her land, and it transgressed even further ‘‘by attempting to exclude per-
sons because of their race or blood from equal participation in com-
merce.’’
Shirley Denison had virtually the entire factum of the appellant
Bernard Wolf to elaborate upon the fourth ground of appeal. A restric-
tion on the manner in which land might be used was legally transferable
from one owner to the next, but a restriction on the user of land, he sub-
mitted, is purely a personal one and as such it does not attach to the
land, but exists only between the parties who sign the contract. The
Frank S. Salter Company, which had inserted the clause in its deeds, had
Noble and Wolf v. Alley 227
ceased to function and had lost its charter. The contract had therefore
expired. That the impugned clause (f) was personal, according to Deni-
son, was proclaimed by the fact that it would prevent members of the
excluded ‘‘races’’ from purchasing the land, even as absentee owners,
whether they used the land or not. Clearly, therefore, the covenant was
not about the use of land at all and by the rule expressed in Tulk v. Mox-
hay it could not run with the land. No restriction survived to prevent Mr.
Wolf from buying this land from Mrs. Noble. The factum concluded with
an endorsement of the arguments presented in the Noble factum, with
particular emphasis upon the public policy issue.
207
Kenneth Morden submitted his factum for the respondents in the
name of W. A. Alley et al., members of the Beach O’ Pines Protective
Association. Its fundamental contention was that by the exchange of let-
ters between Egener and Richmond in May 1948, the question submitted
to the court was whether Drummond Wren ‘‘applies to the facts of the pre-
sent sale, with the result that the Clause (f) objected to is invalid and the
vendor and purchaser are not bound by it.’’ Morden argued that Drum-
mond Wren ‘‘was not applicable to the facts of this case, and further, that
it was wrongly decided.’’
208
The lower court decisions were submitted in
evidence of this. Public policy recognized only severely limited reasons
for voiding a contract. Besides fraud, a contract might be invalidated as
‘‘injurious to the state, injurious to the public service [sic], tending to per-
vert justice, contrary to morality, in restraint of marriage, in restraint of
trade.’’ None of these ‘‘existing heads of public policy’’ was applicable to
this case. Public interest, on the contrary, was served by upholding the
covenant, for example the validity of contracts, freedom of association,
freedom of commerce, and the monetary interests of the respondents.
Christie v. York had established ‘‘the right of persons to deal with whom
they pleased.’’ Pressing an argument raised successfully in the Court of
Appeal, Morden insisted that the covenant was socially beneficial:
The Appellants’ argument in essence means that we must all think and act in the
same way. This would result in a dead level of uniformity in the community
which is one of the badges of totalitarianism, whether of the Fascist or Commu-
nistic type. Canada is a country of minorities – and every group has brought cer-
tain characteristics and traditions which have and are enriching our Canadian
heritage. If the Appellants’ argument be sound, such groups as St. George’s and
St. Andrew’s Societies, The Knights of Columbus and B’Nai B’Rith would be ille-
gal organizations.
228 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The restraint on alienation was partial, and the meaning sufficiently cer-
tain, for the court to have no option but to enforce it.
The atmosphere in the Supreme Court of Canada, where the case was
heard from 13 to 16 June 1950, was considerably different from the
Ontario Court of Appeal. The judges appeared sympathetic to Robinette
and Denison, and this time it was Morden who was subjected to inter-
ruptions. For example, when he suggested that his clients’ property
would depreciate in value if Jews were allowed, Justice Ivan Rand inter-
jected that if Albert Einstein and Arthur Rubinstein purchased cottages
there the property values would increase, and the Association ‘‘should
be honoured to have them as neighbours.’’ To Morden’s claim that the
covenant upheld ‘‘freedom of association,’’ Justice Rand retorted, ‘‘free-
dom of association on a voluntary basis is one thing but it is quite a dif-
ferent thing to say that the law should protect an inclination to
disassociate.’’ Morden’s plea for the legal protection of cultural diversity
was termed by Rand ‘‘using the law to enforce a multitude of idiosyn-
crasies.’’ Finally, Rand challenged Morden to reconcile two legal princi-
ples: suppose a Gentile man bought a cottage, then married a Jew and
subsequently died. Under Ontario statute the Jewish widow would own
the property. Would the covenant be enforceable in this circumstance? A
witness to the proceedings later wrote: ‘‘This really exploded the case of
the Beach O’ Pines Association.’’
209
A positive judgment was therefore anticipated by the appellants,
though its appearance on 20 November 1950 gave only a qualified cause
for rejoicing.
210
The result was summarized by the Dominion Law Reports
as follows:
Held, on appeal, Locke J. dissenting, the covenant was not one which would run
against subsequent purchasers of the burdened land since it did not touch or con-
cern the land within the meaning of Tulk v. Moxhay. That doctrine requires that
the covenant be directed to the land or to some mode of its use. It does not apply
to a covenant prohibiting alienation to particular classes of persons. Held, further,
the covenant was void for uncertainty, since there was nothing in it to enable a
Court to say in all cases whether a proposed purchaser was or was not within the
prohibited classes. There was no indication of any limits to the lines of race or
blood which would or would not disqualify a proposed purchaser. The certainty
required in covenants is no different from that required in conditions.
211
Shirley Denison’s argument was given primacy by the court in explain-
ing its decision. To the objection that this was a new ground added to the
Noble and Wolf v. Alley 229
appellants’ case, that was not put before Justice Schroeder and had been
explicitly rejected by the Ontario Court of Appeal, acting Chief Justice
Patrick Kerwin pointed to ‘‘the wide terms of the notice of motion’’
which had asked the Court for a declaration that the purchaser ’s objec-
tion had been fully answered by the vendor ‘‘or for such other order as
might seem just.’’
212
Five of the six judges who rejected the covenant
gave the Tulk v. Moxhay doctrine as their first reason. Indeed, Justice Ker-
win, for himself and Robert Taschereau, relied on that interpretation
exclusively, stating that ‘‘it would be an unwarrantable extension of that
doctrine to hold, from anything that was said in that case or in subse-
quent cases that the covenant here in question has any reference to the
use, or abstention from use, of land.’’
213
Justice Ivan Rand, delivering the judgment of himself, Roy Kellock
and Gerald Fauteux, agreed that ‘‘by its language, the covenant here is
directed not to the land or to some mode of its use, but to transfer by act
of the purchaser.’’ Rand added that ‘‘the covenant was unenforceable for
uncertainty.’’ Clayton v. Ramsden was indistinguishable from the present
case, for it was ‘‘impossible to set such limits to the lines of race or
blood.’’
214
Justice James Estey was swayed by the latter argument: the
language used in the covenant ‘‘fails to indicate the intention of the par-
ties as to the amount or degree of the prohibited race or blood that might
be permitted. It must, therefore, upon the authorities, be held void for
uncertainty.’’
215
The seventh justice, Charles Locke, would have dis-
missed the appeal on the ground that the Tulk v. Moxhay argument was
not raised before Justice Schroeder and the Court of Appeal had declined
to consider it; it would therefore be an improper interference in the Court
of Appeal procedure for the Supreme Court to consider that argument
now. On all the other points raised before the court, Locke stated simply
that he agreed ‘‘with the learned Chief Justice of Ontario.’’
216
Six out of seven is a convincing victory.
217
It was what was left unsaid
and uncontested by the decision that caused disappointment, particu-
larly to Bora Laskin and the CJC. The most resounding silence was on
the public policy issue. Not a hint was raised by any of the judges, not a
challenge or a doubt. In effect this left intact the interpretation of the
Ontario Court of Appeal that racial restrictions were not contrary to pub-
lic policy. Mr. Morden’s contention that the covenant was not immoral
was not contradicted by the court; his argument that Christie v. York
upheld the legality of discrimination drew no comment. The Beach O’
Pines covenant was not invalidated on the racial principle, but on the
fashion of its language.
230 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The Joint Public Relations Committee allowed only a tinge of regret in
its generally celebratory report to the CJC.
While we would have preferred to see the decision made on the broader base of
public policy which per se would have struck a forceful blow against all discrimi-
nation, we nonetheless recognized the great value of the court’s view that restric-
tive covenants were invalid on the basis of a strict reading of law relating to the
use of land. . . .
The meaning of decision and [Ontario and Manitoba] legislation is that no fur-
ther covenants can be registered or, being already written, can be enforced where
contested.
218
The reaction paraded before the public was unstintingly ecstatic. J. Irv-
ing Oelbaum, regional CJC president, announced:
All people of goodwill will hail this judgment with deepest satisfaction. It is fur-
ther evidence that there is no place in Canada for racial and religious intolerance.
The judgment gives force of law to a moral principle.
The hearts of all minorities in Canada will beat faster for Canadianism now
that they are no longer considered second class citizens. There is one law for all
Canadians. The judgment is in keeping with 20th century thinking and its lesson
should be taken to heart. This is a landmark in civil liberties.
219
Rabbi Feinberg hailed the judgment as
a potent weapon in the cold war of ideology between communism and the
west. . . .
We had faith that the highest law body in the land would purge our democ-
racy, once and for all, of the Nazi-like moral taint of restrictive covenants. Now,
the Supreme Court has justified that trust and given much-needed inspiration
and strength to liberal forces throughout the world.
220
Even Norman Borins told reporters the court had declared that ‘‘the dis-
criminatory features of racial restrictive covenants are contrary to the
principles of genuine democracy.’’
221
Generally the press accepted the judgment accordingly. In an awkward
but passionate headline, the Toronto Star told its readers ‘‘Covenant Rule
Seen Proof Canada’s Court Freedom’s Defender.’’ The accompanying
story and an editorial expressed satisfaction that covenants were hence-
forth illegal, and that the decision would help to ‘‘break down race and
Noble and Wolf v. Alley 231
color prejudice in this country’’ and ‘‘make Canada a land of fair play
and equal opportunity for all.’’
222
The Telegram, though expressing itself
more moderately, also welcomed the ‘‘ruling invalidating restrictive
covenants in property deals.’’
223
One letter to the editor was especially
representative of the public’s understanding of what had been decided in
Ottawa:
With a great struggle going on in the world between opposing ideologies, the
decision has struck a great blow for the Western democracies and its effect
should be felt beyond the confines of the Dominion. One of the greatest sources
of foreign propaganda is the allegation of racial prejudice and bigotry to which
minorities in this country are subjected. It is true that we cannot mold the indi-
vidual mind as to its likes and dislikes. But when the highest legal tribunal in our
country upholds the principle of equality and scotches [sic] the doctrine of segre-
gation and the myth of superiority, then indeed it should be a cause of great satis-
faction to all liberal-minded and progressive citizens.
224
Only the Globe and Mail put a sober interpretation upon what the judges
had actually said.
The large volume of extra-judicial interpretation which has followed the judg-
ment of the Supreme Court of Canada respecting restrictive covenants seems to
be confusing the situation rather than clarifying it. . . .
By basing their decision upon the specific circumstances of this case, and by
avoiding any reference to arguments heard concerning the general public inter-
est, the Supreme Court bench has quite properly avoided any attempt to impose
non-discrimination upon individuals by law. By affirming the right of an individ-
ual to dispose of his property as he likes, within the framework of the case before
it, the court has left the law just as it always has been.
225
Who was right? The common view – that racism had suffered a defeat
and that all discriminatory covenants were now illegal – at least con-
firmed the strategy advocated by John Cartwright more than a year pre-
viously, when he said that even a technical victory would have the
desired impact. Subsequent legal and scholarly opinion has been far less
enthusiastic. In an early comment Allan Goldstein reflected that the spe-
cific grounds given for judgment
applied only to the facts of this particular case. The position of other types of
racial covenants has not been clarified.
232 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The covenant in the Noble Case suffered from two defects: it did not run with
the land (five judges) and it was void for uncertainty (four judges). It can safely
be said that at the time that the Noble and Wolf judgment was handed down,
most, if not all racial covenants were void for uncertainty. Apparently this defect
could be avoided in the future by careful drafting. It would not be difficult for an
ingenious conveyancer to satisfy this requirement.
Goldstein added that since it was its restriction on the transfer of land that
had been condemned in the Beach O’ Pines covenant, a different wording
which solely prohibits use by a clearly defined class, and does not purport to
restrict alienation, would be valid. This would confine the case to a narrow scope
and racial covenants running with the land would be operative. . . .
The Supreme Court could have settled it by declaring racial covenants void as
offending against public policy. It chose not to do so.
226
D. A. L. Smout agreed.
[T]he lack of a ruling upon public policy, it is submitted, leads to certain unfortu-
nate results.
If a stipulation should be so phrased as to be definite in its nature, then the rea-
sons of the Supreme Court of Canada indicate that it would accordingly be
enforceable by at least the original covenantee. . . .
[T]he effect of the Supreme Court of Canada’s decision in Noble and Wolf is
not to outlaw the racial or religious stipulation. In provinces where there is no
remedial legislation the stipulation may well remain effective.
227
In a commentary which he left unpublished because the Smout article
pre-empted it, Ted Richmond also pointed out that covenants would
remain enforceable between the original covenantor and covenantee, and
that membership in a religious denomination was ‘‘certain’’ enough to
pass the Supreme Court’s test.
228
Several other commentators have lamented the limitations placed
upon the scope of their decision by the Supreme Court justices. As C. R.
Bourne put it,
One feels some regret that the judges... did not see fit to express an opinion
upon the public policy issue. There is little doubt that, as matters now stand,
lawyers in Ontario will consider the lone decision of Mackay J. in Re Drummond
Wr en, insofar as it relates to public policy, as being thoroughly discredited.
229
Noble and Wolf v. Alley 233
J. R. Shiff asked plaintively, ‘‘Shall then the dicta of Chief Justice Robert-
son and Mr. Justice Schroeder, to the effect that racial restrictive
covenants in no way concern the public interest, remain the actual law
on the subject?’’
230
A somewhat comforting answer came 25 years later
from Walter Tarnopolsky:
It is possible to argue that the Supreme Court decision achieved the same result
as did Mackay J. However, one certainly could not look to the decision for any
inspiration in attempting to achieve an egalitarian society. Pronouncements of
the Supreme Court could and should be looked to for guidance by the public,
and should also provide guidance for the representatives of the public in enact-
ing legislation. Although Noble and Wolf v. Alley was not as unfortunate a deci-
sion as either Quong-Wing or Christie, it certainly will not go down in the annals
of judicial history as one of the more inspiring judgments of our Supreme
Court.
231
Ian Bushnell, in a more recent commentary, is also more positive toward
the decision. ‘‘Noble and Wolf v. Alley is a significant law-making decision,
as well as a significant civil-liberty decision. It was a sister case to
Boucher.’’ Bushnell goes on to argue, however, that the Court engaged in
‘‘some sleight of hand’’ by relying on a convenient interpretation of Tulk
v. Moxhay to invalidate the Beach covenant. ‘‘The judges appeared to be
trying to disguise or hide their reform of the law.’’ Unlike legal critics at
the time Bushnell accepts the proposition that Noble and Wolf outlawed
all racial covenants, and indeed he makes the claim that the Ontario and
Manitoba legislation on the subject was rendered ‘‘completely superflu-
ous’’ by the Supreme Court of Canada decision.
232
Subsequent generations have their perspective shaped by something
unavailable to contemporary commentators: an extended period of his-
tory since Noble and Wolf when there has not been any reported case
involving a racial restrictive covenant in Canada.
233
In practical terms the
Supreme Court did continue the impact of Drummond Wren, though the
absence of a statement on public policy produced other complications as
will be discussed below. The technical, property judgment was appar-
ently sufficient to eliminate the particular problem raised in the case.
Furthermore, as Professor Jim Phillips has pointed out, ‘‘there is a long
tradition of courts using devices like uncertainty (as well as some others)
to strike down conditions of which they probably simply disapprove.’’
234
It was perhaps circumstantial that the Court’s pronouncement about the
uncertainty of ‘‘race’’ was in accord with advanced scientific thinking in
234 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
1950. And yet by refusing to accept the respondents’ contention that
‘‘race’’ was readily ascertainable and legally recognizable, the Court was
at least acknowledging that scientific certainty about racial categoriza-
tion was breaking down.
235
Though the fundamental principle against racial covenants was set-
tled, in 1950, the case itself did not immediately disappear. Mrs. Noble
and Mr. Wolf were awarded costs for both the Ontario Court of Appeal
and the Supreme Court itself. Apparently Kenneth Morden raised the
objection that since the CJC had in fact paid the Supreme Court costs,
and no award had been made to the CJC, his clients should not be held
responsible. This argument was rejected by the Taxing Officer in Septem-
ber 1951, but the costs remained unpaid and so in October the sheriff’s
office was ordered to begin seizing chattels belonging to Alley et al. at
the Beach O’ Pines resort. The threat had some of the desired effect: in
early November Morden negotiated a settlement whereby his clients
paid $4,000, something less than half the sum assessed by the Taxing
Officer.
236
Mr. Wolf turned over all the money he received to the CJC,
adding a personal donation of $1,000, and Mr. Richmond declined to bill
for his services.
237
The rest of the shortfall was absorbed by the CJC’s
operating budget.
By the time this was settled, Bernard Wolf had sold the cottage. He
received an offer from one of the other owners in April 1951, but at first
hesitated to sell to one of the parties opposing him. Richmond sought the
advice of the CJC, explaining that ‘‘once the trouble started 3 years ago,
he lost all interest in the property as far as using it for a residence was
concerned, and from then on it was merely a matter of principle as far as
he was concerned.’’
238
When the CJC was able to suggest no reason why
he should continue the struggle any longer, Mr. Wolf announced on
16 October: ‘‘I am happy that I was able to dispose of the property with-
out further antagonism or ill feeling toward anyone.’’
239
7. NOBLE AND WOLF AS PRECEDENT
The various questions and doubts raised by contemporary observers
have to a considerable extent been settled by Noble and Wolf ’s subsequent
legacy as a precedent. Although not at all widely cited, it has been used
in cases involving both property law and racial issues. Later interpreta-
tions have extended its significance in property cases, but revealed its
weakness as an instrument against racial discrimination.
Noble and Wolf v. Alley 235
Noble and Wolf ’s first appearance as a precedent occurred in a property
covenant case in 1959. A group of University of Toronto professors had
established a 1,000-acre hunting and fishing retreat in 1898, the Mada-
waska Club, providing in its charter that the lands could be used only by
club members who must be graduates, undergraduates or officials of the
university. When club regulations were challenged, it was decided that
they related strictly to the kind of person who could use the land and
therefore could not ‘‘run with the land.’’ In the words of Chief Justice
Kerwin, there was ‘‘no possible ground for any distinction between a
covenant restricting alienation and one restricting occupation.’’
240
The
fears expressed by Allan Goldstein and others, that Noble and Wolf could
be avoided by a covenant restricting use of the land by a clearly defined
class of persons, were laid to rest by Galbraith v. Madawaska Club.
Five years later a second aspect of Noble and Wolf invalidated the will
of Mr. Frank Schechter, who had left much of his estate to the Jewish
National Fund for the establishment of a ‘‘Jewish colony.’’ The BC Court
of Appeal found the term ‘‘Jewish colony’’ to be even less certain than
the ‘‘Jewish race or blood’’ in the Beach O’Pines covenant.
241
Presumably
this was not the kind of legacy intended by Bernard Wolf and the CJC,
though it did illustrate judicial acceptance of the fact that racial terms
were uncertain and unenforceable. This particular benefit was not to last,
however. Mr. Torazo Iwasaki, suing for the return of his property confis-
cated during World War II, contended that the government’s orders-in-
council authorizing the seizure of property ‘‘belonging to any person of
the Japanese race’’ were void for uncertainty and for their basis in the
term ‘‘race.’’ But because the Supreme Court of Canada and the Privy
Council had already upheld the orders in the Japanese Deportation case,
the Exchequer Court rejected Mr. Iwasaki’s claim. Besides, it was noted,
since he was born in Japan and had a Japanese name there was sufficient
evidence to prove that he was a member of the ‘‘race’’ specified in the
orders.
242
Any hope that Noble and Wolf would lead to greater sophistica-
tion in the use of racial terminology in Canadian law was dashed by this
decision.
In 1973 Noble and Wolf returned to the restrictive covenant realm when
Mr. Michael Sekretov challenged a covenant requiring him to keep his
property in its ‘‘natural state.’’ Ironically it was Justice Schroeder who
delivered the judgment of the Ontario Court of Appeal cancelling the
covenant on the grounds that ‘‘It is well settled that restrictive covenants
must be precise in terms, and if they are vague and indefinite in meaning
they will not be enforced.’’
243
Sekretov, with Madawaska, confirmed Noble
236 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
and Wolf ’s role in limiting the application of property covenants, render-
ing any possible racial variation even less enforceable than the Supreme
Court had left it in 1950.
Probably the most significant use of Noble and Wolf came in the
Bhadauria case, whose main outline and implications for the Christie
legacy have already been described.
244
At the Ontario Court of Appeal
level in December 1979 Justice Bertha Wilson had cited Drummond Wren
to support her decision that public policy could be discerned from the
underlying purpose of legislative enactments. Thus, a property covenant
could be invalidated by Keiller Mackay because it was contrary to the
public policy expressed in the Racial Discrimination Act, even though the
Act was silent on property covenants. Similarly, referring to the preamble
of the Ontario Human Rights Code, she found convincing evidence of
‘‘what is now, and probably has been for some considerable time, the
public policy of this Province respecting fundamental human rights.’’
245
That preamble reads in part:
Whereas recognition of the inherent dignity and the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice and
peace in the world and is in accord with the Universal Declaration of Human
Rights as proclaimed by the United Nations;
And Whereas it is public policy in Ontario that every person is free and equal
in dignity and rights without regard to race, creed, colour, nationality, ancestry or
place of origin;
And Whereas these principles have been confirmed in Ontario by a number of
enactments of this Legislature;
And Whereas it is desirable to enact a measure to codify and extend such
enactments and to simplify their administration. . . .
246
Justice Wilson was able to conclude that the Ontario Human Rights Code
recognized rights which were already inherent in the common law, and
therefore there must be a common law remedy.
247
On behalf of a unani-
mous court, Wilson ruled that Dr. Bhadauria could sue Seneca College
for racial discrimination, recognizing a tort of discrimination for the first
time in Canada.
248
One week later Justice Linden in the Ontario High Court of Justice fol-
lowed Bhadauria in permitting Abdul Aziz to pursue a civil action for
damages against the Toronto Chief of Police, alleging racially discrimina-
tory hiring practices.
249
Justice Linden explained:
Noble and Wolf v. Alley 237
By enacting these principles in the preamble of the Code, the Legislature of
Ontario has chosen to underscore its commitment to equal rights for all our citi-
zens and its opposition to all forms of discrimination. The Court of Appeal made
it clear [in Bhadauria], however, that this new tort for discrimination did not
depend for its life on the Ontario Human Rights Code, but rather was based on
the common law. The public policy against racial and other discrimination
existed in Ontario before the enactment of the Ontario Human Rights Code and
was not created by the Code. The Code merely recognizes that pre-existing policy
in its preamble and then establishes an agency and procedures that seek to elimi-
nate or reduce the number of incidents of discrimination in this province. The
Courts of Ontario should cooperate with the Legislature, where possible, in pro-
moting the public policy enshrined in the Ontario Human Rights Code.
250
Justice Linden went on to indicate some of the positive benefits that
would come from recognizing a tort for discrimination, most particularly
that the complainant him or herself remained in control of a suit for
damages whereas the Human Rights Commission directed procedures
following a complaint under the Code. The Commission, whose mandate
is to effect a settlement, might accept a proposal that the complainant did
not find personally satisfactory; the Commission might even decide not
to proceed at all. The common law route ensured that every complainant
could have his or her ‘‘day in court.’’
251
But the new tort of discrimination, which had received a mixed recep-
tion from the Canadian legal community,
252
was to have a short lifetime.
As has already been noted, in 1981 Chief Justice Bora Laskin and a unan-
imous Supreme Court rejected the Ontario Court of Appeal decision. In
the course of doing so it implicitly affirmed the 1939 Christie decision, by
limiting the application of a ‘‘duty to serve’’ to innkeepers.
253
Much more
explicitly, the Laskin court placed a restrictive interpretation upon Noble
and Wolf . In commenting upon Justice Wilson’s use of Drummond Wren,
which he acknowledged lent ‘‘perhaps the strongest support’’ for her
decision, the chief justice pointed out that Wilson had failed to consider
Noble and Wolf . At the Ontario Court of Appeal, Laskin continued, Noble
and Wolf had overturned Drummond Wren’s pronouncement on public
policy, and in Noble and Wolf v. Alley the Supreme Court of Canada had
left that element of the Appeal decision untouched.
254
The reasoning
employed by Justice Wilson, i.e., that Drummond Wren would allow an
analogous use of the Ontario Human Rights Code, was therefore under-
mined by Noble and Wolf , and Wilson’s ‘‘strongest support’’ disappeared.
238 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
The propriety of the Supreme Court’s Bhadauria decision has been
widely debated, and is of no direct concern here. It is however extremely
interesting to find Bora Laskin fulfilling his own prophecy, made when
he insisted that the public policy issue must be given primacy in carrying
Noble and Wolf to the Supreme Court in 1950.
255
At that time Professor
Laskin feared that a judgment omitting public policy would be narrowly
construed, and nowhere was this more accurately demonstrated than in
his own Bhadauria decision in 1981. The Laskin argument is especially
interesting as an apparent illustration of his approach to the application
of judicial precedent, for he admitted that he personally agreed with
Drummond Wren, but found it ‘‘necessary’’ to follow Noble and Wolf .
256
As
Harry Kopyto commented, Bhadauria ‘‘marks a sharp break from, if not a
full repudiation of, the Re Drummond Wren case.’’
257
And this from the
man who appeared on behalf of the Canadian Jewish Congress in Drum-
mond Wren and who headed the CJC’s advisory committee on Noble and
Wolf . A disappointed Ian Hunter, who had advocated the right to choose
a common law remedy in discrimination cases, wrote of Bhadauria:
One cannot but recall Lord Denning’s division of judges into two groups: ‘‘timor-
ous souls... fearful of allowing a new cause of action’’ and, opposing them,
‘‘bold spirits who were ready to allow it if justice so required.’’ One wonders
which side our Supreme Court has chosen to take up. For Chief Justice Laskin,
the great dissenter, it seems a particularly unaccustomed role since he, above all
Canadian jurists, would seem to have deliberately fashioned a judicial career in
the Denning mould.
258
An explanation has been offered by another commentator, Ian McKenna.
He has contrasted the ‘‘rules-based’’ model of applying precedents with
a ‘‘principles-based’’ doctrine as developed by Ronald Dworkin.
259
Ac-
cording to the Dworkin model, judicial decisions are based upon a con-
test of principles relevant at the time; their career as precedents would
depend upon the continued relevance of the successful principle.
McKenna’s application of this distinction to Bhadauria elicits an assess-
ment of Noble and Wolf as precedent:
Basing its judgment on the ‘‘rules-based’’ philosophy of positivism, the Supreme
Court in Bhadauria was virtually compelled to view Noble and Wolf as a rejection
of Re Drummond Wren and to reject the common law action for discrimination in
spite of the fact that the Supreme Court did not disapprove of the approach taken
in Re Drummond Wren. Had it adopted a ‘‘principles-based’’ theory of law in the
Noble and Wolf v. Alley 239
Dworkin mould, the Supreme Court could have viewed Noble and Wolf in the
context of its era. The Chief Justice could have recognized that, while that deci-
sion may have represented a satisfactory balancing of the competing principles of
freedom of contract and freedom from discrimination in the early post-war era, it
was not necessary that the courts of today be bound by the calculus of the courts
of a different era.
260
A different explanation is possible, focusing upon Bora Laskin’s insis-
tance that the enforcement of human rights should be left to Human
Rights Commissions. The first Human Rights Code case to come before the
courts was initiated by Kenneth Bell, who had declined to rent a set of
rooms in his own home to Carl McKay, a young Jamaican immigrant.
McKay complained to the Ontario Human Rights Commission, but be-
fore the board of inquiry prescribed by the Code could be held, Bell
applied for a motion for prohibition on the grounds that the premises in
question were not covered by the Code. The prohibition was granted by
Justice Stewart in the Ontario High Court, accepting the argument that
the rooms did not fall under the category ‘‘self-contained unit’’ described
in the Code. Justice Stewart added, ‘‘It is equally important that the rights
of a middle-aged white Canadian homeowner be protected as those of a
young, black, Jamaican tenant. Neither more important nor less impor-
tant. Equally. And perhaps it is time that this was made clear.’’
261
The Stewart decision was reversed on appeal. Justice Laskin, then a
member of the Ontario Court of Appeal, wrote the unanimous judgment
declaring that the Commission had the authority and responsibility to
pursue a case through a board of inquiry. If the evidence showed that the
Code had not been violated, the board should have an opportunity to
make that decision without interference from the regular courts. Justice
Laskin went on to claim that Mr. Bell’s ‘‘rights at law,’’ which Justice
Stewart had protected, were transformed by the passage of the Ontario
Human Rights Code in 1962.
[T]he Code has drastically changed the common law position of owners of cer-
tain kinds of housing accommodation, as it has changed the position of employ-
ers and of operators of places to which the public is customarily admitted....
Neither Bell nor any other citizen has any legal immunity from administrative
procedures prescribed by a competent Legislature for effectuating a policy which
has been translated into substantive statutory prescriptions.
262
240 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
A majority of the Supreme Court of Canada restored the Stewart decision
on the grounds that the kind of housing Mr. Bell owned was not
included in the Code and that he was not compelled to submit to a board
of inquiry before seeking to have his rights established in a court of
law.
263
The Ontario legislature subsequently enacted the Laskin interpre-
tation when it amended the Human Rights Code so that judicial interven-
tion could occur only after the Commission had completed its own
hearings.
264
Chief Justice Laskin’s Bhadauria decision can be recognized
as consistent with Justice Laskin’s Bell decision, since both upheld the
integrity of the Human Rights Commission as the only legitimate route
to redress in a dispute over racial discrimination. In both decisions Bora
Laskin was also acknowledging that the common law before 1962 had
condoned discrimination.
The Ontario Court of Appeal took another opportunity to reconsider
the public policy implications of Noble and Wolf in 1990, though the earlier
case received only the briefest reference (along with Christie v. York). The
case involved a complaint by the Ontario Human Rights Commission
against a trust, established in 1923 by Colonel Reuben Wells Leonard, to
provide educational scholarships. The terms of the trust excluded from
benefit ‘‘all who are not Christians of the White Race, and who are not of
British Nationality or of British parentage, and all who owe allegiance to
any Foreign Government, Prince, Pope or Potentate.’’ In the Ontario High
Court Justice McKeown upheld the trust in words reminiscent of Justice
Schroeder or Chief Justice Robertson 40 years before:
Is there harm to the Ontario public so obnoxious to the public good that the rules
of law governing testamentary trusts cannot have their normal operation? I think
not. . . .
I accept that racial and religious discrimination is nowadays widely regarded
as deplorable in many respects . . . but I think that it is going much too far to say
that the endowment of a charity, the beneficiaries of which are to be drawn from
a particular faith or are to exclude adherents to a particular faith, is contrary to
public policy....
It is important to remember that the freedom of contract and the freedom of
testamentary disposition are firmly rooted in law and are important matters of
public policy in their own right.
In further echo of the earlier era, Justice McKeown held that the descrip-
tion in the trust ‘‘passes the test of uncertainty’’ and that ‘‘there is a wide
field open ... for the selection of students who manifestly satisfy the
Noble and Wolf v. Alley 241
qualifications of being white, of Canadian citizenship and of the Protes-
tant faith.’’
265
This time, however, the Court of Appeal did not agree.
266
Justice Robins for the majority referred first to community standards,
indicating that about 30 articles had appeared in the press criticizing the
Leonard Foundation terms, and some universities had refused to admin-
ister the scholarships because they were discriminatory. Archbishop Ted
Scott, Primate of the Anglican Church of Canada (to which Colonel
Leonard had belonged) had written to the Foundation in 1986, denounc-
ing its racist criteria as contrary to public policy and not ‘‘in keeping with
the spirit and intent of the Canadian Charter of Rights.’’ The archbishop
appealed for a revision of the scholarship terms, arguing that
There is every reason why the good works of the generous benefactor of the
Foundation should live on in perpetuity but, in my view, they must be in keeping
with the society of today just as what was written those many years ago was, no
doubt, although regretfully, in keeping with the society of that day.
267
All things considered, Justice Robins was able to conclude that
The freedom of an owner of property to dispose of his or her property as he or
she chooses is an important social interest that has long been recognized in our
society and is firmly rooted in our law. That interest must, however, be limited in
the case of this trust by public policy considerations. In my opinion, the trust is
couched in terms so at odds with today’s social values as to make its continued
operation in its present form inimical to the public interest.
268
In this case, therefore, the public policy against racism took precedence
over freedom of contract and of testamentary disposition.
Concurring in that result, Justice Tarnopolsky wrote a separate judg-
ment addressing the Human Rights Commission’s claim to exclusive
jurisdiction over the case and adding his own reflections on the public
policy issue. Canvassing case law and legislation on human rights, par-
liamentary debates and international conventions ratified by Canada,
Justice Tarnopolsky decided: ‘‘Clearly this is a charitable trust which is
void on the ground of public policy to the extent that it discriminates on
grounds of race (colour, nationality, ethnic origin), religion and sex.’’
269
But Justice Tarnopolsky added a caveat:
This decision does not affect private, family trusts. By that I mean that it does
not affect testamentary dispositions or outright gifts that are not also charitable
242 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
trusts. Historically, charitable trusts have received special protection. . . . This
preferential treatment is justified on the ground that charitable trusts are dedi-
cated to the benefit of the community. It is this public nature of charitable trusts
which attracts the requirement that they conform to the public policy against dis-
crimination. Only where the trust is a public one devoted to charity will restrictions that
are contrary to the public policy of equality render it void.
270
Justice Robins had implied a similar rationale when he wrote:
While the Foundation may have been privately created, there is a clear public
aspect to its purpose and administration. In awarding scholarships to study at
publicly supported educational institutions to students whose application is
solicited from a broad segment of the public, the Foundation is effectively acting
in the public sphere. Operating in perpetuity as a charitable trust for educational
purposes, as it has now for over half a century since the settlor’s death, the Foun-
dation has, in realistic terms, acquired a public or, at the least, a quasi-public
character.
271
It would seem, therefore, that a private act of discrimination adminis-
tered without benefit of charitable status would be sufficiently non-pub-
lic to avoid the public policy veto, even if it were publicly recorded in
legal instruments.
272
The legacy of Noble and Wolf still haunted Ontario
jurisprudence.
And so, apparently, Noble and Wolf has been assigned a particular role
in Canadian legal history, based on certain assumptions that deserve
examination. They are, first, that the Supreme Court’s silence on public
policy must be taken as an endorsement of the Schroeder and Court of
Appeal denunciation of Drummond Wren and, secondly, that public pol-
icy in 1950 therefore tolerated racial discrimination. Neither assumption
is necessary. The tendency to make decisions on the narrowest possible
grounds is a characteristic of legendary proportions in the common law
judicial system. If a case can be decided on one ground, others need not
be considered. Witness even Keiller Mackay’s reluctance to declare upon
the terms of the Racial Discrimination Act since he could decide against
the covenant without directly contradicting his colleague Chevrier in
McDougall and Waddell.
273
Witness as well Bertha Wilson’s refusal to an-
swer Dr. Bhadauria’s claim that a breach of the Human Rights Code gave
rise to a civil cause of action, since a sufficient ground existed in the com-
mon law.
274
Both Mackay and Wilson limited their reasoning to what was
necessary. In Noble and Wolf the Supreme Court found the technical
Noble and Wolf v. Alley 243
arguments to be sufficient. Although there has been much legitimate
regret at the failure to comment on public policy, it must be recognized
that it was not necessary in the circumstances to do so. This is not to
deny that their silence could have been calculated, but rather to question
the automatic assumption that it must have been.
With respect to Ontario public policy in 1950, there are indications that
it was against discrimination which are at least as compelling as those
which suggest the contrary. The reception of Drummond Wren was uni-
versally positive, including comments made in the Ontario legislature. If
the legislators felt that their 1944 Act had been abused they could have
said so, or even have passed new legislation. Premier Frost’s refusal to
make the Conveyancing Act amendment retroactive, when challenged
during second reading on 22 March 1950, was accompanied by a state-
ment that ‘‘the position of this government here and my personal posi-
tion is one of strongest opposition to racial discrimination of any
kind.’’
275
While there may be a conflicting impression of public policy
from the 22 March debate, the government was absolutely direct in the
preamble to the Fair Employment Practices Act, introduced just three
months after the Noble and Wolf decision, in which the Universal Decla-
ration of Human Rights was explicitly endorsed and it was declared that
racial discrimination was ‘‘contrary to public policy in Ontario.’’
276
Speaking to a Brotherhood dinner at Beth Shalom synagogue in April
1951, Premier Frost expanded on the reasons behind the Fair Employ-
ment legislation:
The first is our obligation to the United Nations.... [I]n passing such legislation
we are making our contribution to the furtherance of the ideals of the Charter to
which our Canadian government has subscribed as representing the people of
Canada.
Secondly, there is our obligation to ourselves.... Our people subscribe to
these principles. They believe in them. . . .
I am glad to have played a humble part, in company with my colleagues and
with the citizens of Ontario and with the unanimous vote of the Legislature, in
placing on our statutes a law which above everything else carries with it our
recognition that all men of whatever race, colour or creed must be accorded
equality.
277
A more emphatic confirmation of Drummond Wren is hard to imagine.
It is obvious in retrospect that the Supreme Court of Canada could
have included an affirmative statement on public policy in Noble and
244 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Wolf without fear of contradiction or controversy and without violating
the intentions of the Ontario legislature. Had it done so the court would
have gained for itself and for the Canadian judiciary a much more signif-
icant place in the movement for racial equality that ensued across
Canada and the world in the 1950s and 60s. By omitting the public policy
issue from its judgment, the Supreme Court consigned Noble and Wolf to
a much less distinguished legacy in Canadian case law. It also dimin-
ished any opportunity to engage other discriminatory government prac-
tices, most notably immigration policy, in the courts of Canada.
Noble and Wolf v. Alley 245
5
Narine-Singh v. Attorney
General of Canada
1. ‘‘RACE’’AND IMMIGRATION
For a country such as Canada, immigration is undoubtedly the most fun-
damental policy a government can set. Immigrants provide the raw
material for the national identity. The nature of the country itself, and
what it is to be in the future, is determined by the kind of people who are
allowed to enter. An immigration policy is a conscious screening mecha-
nism enabling the current occupants of the territory to select their part-
ners in the building of the nation. As one-time immigration minister
Frank Oliver reminded the House of Commons in 1914:
We are in occupation of the country; we are in control of its affairs, and there is
nothing that is of such intimate, immediate and ultimate future concern as the
character of the population that goes to make up the country. The country is the
people; the people are the country, and it is the first duty of the country, as it is
the first duty of the Government, to take such measures as may be right and
expedient to prevent, if prevention is necessary, the occupation of this country by
population that shall hamper and deter in any material degree the development
of those ideals of civilization which we believe ourselves to be here for the pur-
pose of working out to their highest degree.
1
The notes to this chapter are on pages 411-25.
To this declaration Oliver’s leader, Sir Wilfrid Laurier, added: ‘‘The peo-
ple of Canada want to have a white country.’’
2
Since immigration policy
did in fact reflect the core attitudes of the Canadian people, the doctrine
articulated by Oliver and Laurier consistently produced restrictions
upon the entry of persons who were not white.
On 17 September 1953 a 26-year-old Trinidadian, Harry Singh, entered
Canada to visit his uncle Clive Ablack, a Canadian citizen. Under Sec-
tion 7(c) of the Immigration Act,
3
Mr. Singh was granted visitor status
until April 1954, but after several months in Toronto and many conversa-
tions with his uncle, who had served as a wireless operator in the RCAF
during World War II, he decided to enlist in the Canadian forces himself.
He sent for his wife Mearl, who arrived from Trinidad on 1 March 1954,
and shortly thereafter Harry Singh applied to the army’s Toronto recruit-
ing office. As a qualified draftsman he proved attractive to the recruiting
officer but, it was explained, he would need the approval of the Immigra-
tion Branch. Lieutenant McPherson called the local immigration office to
make an appointment for Mr. and Mrs. Singh.
4
Harry and Mearl presented themselves at the immigration offices on
Church Street in Toronto on 5 April 1954. Immigration Officer T. Delaney
perceived that this was not to be a routine authorization, for the Singhs
appeared to belong to a category whose admission to Canada was re-
stricted. Delaney therefore passed the applicants to Special Inquiry Offi-
cer C. Schreiber, who announced that the Singhs must submit to an
immediate Board of Inquiry to determine their suitability as immigrants.
Harry asked for a postponement and for the right to have a lawyer pre-
sent, but Mr. Schreiber explained that a postponement would cost him
$100 and that although he could have a lawyer present if he wished, it
really was not necessary as all he had to do was answer a few questions.
Harry and Mearl consulted together for a few minutes, and then decided
to proceed with the hearing. Once they were sworn, Mr. Schreiber pro-
ceeded to ask a series of questions. He determined both Harry and
Mearl’s family backgrounds, including the names, maiden names and
addresses of their parents in Trinidad, names, ages and marital status of
their brothers and sisters, the war record of uncle Clive Ablack, Harry’s
occupation as a draftsman and Mearl’s as a housewife, the routes they
followed in travelling to Canada, the state of their health. The core of the
Inquiry, however, was more succinct. Harry was asked:
Q. What is the place and date of your birth?
A. April 19, 1928, Trinidad, British West Indies.
Narine-Singh v. Attorney General of Canada 247
Q. Of what country are you a citizen?
A. I am a British subject.
Q. Of what race are you?
A. East Indian. . . .
Q. Of what race is your wife?
A. East Indian.
Schreiber thereupon concluded that Harry did not meet the conditions of
Section 20(4) of the Immigration Regulations, which stated that
the admission to Canada of any person is prohibited where in the opinion of a
Special Inquiry Officer such person should not be admitted by reason of . . .
(b) his unsuitability, having regard to the economic, social, industrial, educa-
tional, labour, health or other conditions or requirements existing, temporar-
ily or otherwise, in Canada or in the area or country from or through which
such person comes to Canada.
5
Harry was consequently ordered to be deported. As his wife, Mearl was
automatically ordered deported as well.
6
Harry was further ordered to
be detained pending his deportation, but was released conditionally after
posting a $100 bond.
7
Through Mr. Ablack, Harry learned of the Toronto Labour Committee
for Human Rights, an organization that was gaining a reputation for in-
tervening in discriminatory immigration cases. When she heard the cir-
cumstances of the Singhs’ inquiry, the Committee’s executive secretary,
Donna Hill, telephoned Schreiber to protest. She maintained that Harry
had been ‘‘tricked’’ into an official hearing when he had believed that he
was merely going for a letter of permission to join the army. Schreiber re-
sponded that all British West Indians, except the immediate family of
Canadian citizens, were ordered deported under Section 20(4)(b). Ms.
Hill indicated that she knew of several West Indians who had been ad-
mitted under the ‘‘case of exceptional merit’’ category, and surely this
should apply to a skilled craftsman in whom the army had expressed a
positive interest. That same afternoon Schreiber called Harry on the tele-
phone and invited him back to the immigration office.
8
Hopeful once again, Harry Singh appeared at the immigration office
on 7 April. Officer Schreiber tore up his deportation notice, but immedi-
ately issued a new one which specified that Section 20(2) of the Regula-
tions absolutely barred the Singhs from Canada. The Section stated that
248 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
the landing in Canada of any Asian is limited to the following classes of person
or persons: the wife, the husband or the unmarried children under twenty-one
years of age of any Canadian citizen resident in Canada who is in a position to
receive and care for his dependents.
9
Harry protested that he was not an ‘‘Asian’’: his family had been in
Trinidad for five generations, and he had never even visited Asia; in fact
he had never been anywhere except Trinidad and Toronto. Schreiber
insisted that the Singhs were Asian by ‘‘race.’’ His only concession was
to advise Harry to appeal to the minister of Immigration. The Singhs’
appeal was considered by the minister on 29 April, but it was unsuccess-
ful. Harry and Mearl were ordered to leave Canada within 30 days. As
soon as she learned the result, Donna Hill enlisted Toronto lawyer
Andrew Brewin to launch an appeal through the courts.
10
2. RESTRICTIVETRADITION
As early as 1815 the Nova Scotia House of Assembly crystallized the pre-
vailing outlook in a resolution designed to prohibit the arrival of fugitive
American slaves. Black people were labelled as total aliens, incapable of
adjusting to the physical conditions of British North America, unable to
assimilate or even associate with Anglo-Canadians, suitable only for
unskilled labouring and service employment and therefore an economic
threat to equivalent classes already here.
11
All the elements that would
persist for a century and a half are to be found in this resolution. Never-
theless Nova Scotia’s declared wish in 1815 was ignored by the British
government, emphasizing the fact that until Confederation, immigration
to British North America was determined by officials in London. Then by
Section 95 of the British North America Act, control of immigration was to
be shared by the federal and provincial governments, though policy
established by the federal Parliament would predominate.
12
Control of entry to post-Confederation Canada was jealously guarded,
being deemed a sine qua non for the development of a Canadian national-
ity. Methodist leader Rev. S. D. Chown was not the only one to believe
that ‘‘The immigration question is the most vital one in Canada today, as
it has to do with the purity of our national life-blood.’’
13
In Parliament,
Frank Oliver expressed the pith and substance of the Canadian position:
To say that we in Canada shall not be able to say who shall join us in the work of
building up the country, that we must accept the dictation of other people as to
who shall join us in that work, places us in a position not of a self-governing state
Narine-Singh v. Attorney General of Canada 249
in a free empire, but in the position of a subordinate dependency not in control of
its own affairs.
14
In this spirit the new dominion had promptly passed its first Act Respect-
ing Immigration and Immigrants in 1869.
15
The Act implicitly assumed that
the bulk of immigrants would come from Britain with a smaller number
from northern Europe. Section l declared that immigration agents were to
be located throughout Britain, with one on the continent of Europe. Sec-
tions 11 and 16 permitted the government to deport handicapped persons
or others who might likely become a public charge, but no reference was
made to racial qualifications. An 1872 amendment added ‘‘criminal or
other vicious classes’’ to the category of those who might be excluded.
16
Canada was a British dominion in political terms, and it would be a
British nation in demographic terms. As a leading intellectual, G. M.
Grant, would insist, ‘‘Canada is paramountly a British nation: founded
on British principles, peopled by sturdy stock from the British Isles, and
dedicated to the furtherance and continuation of the British Empire.’’
17
This was not simply a matter of aesthetic preference or ethnic pride, for
in that age of ‘‘scientific racism’’ it was believed that potential immi-
grants’ character and future behaviour could be predicted according to
the ‘‘race’’ to which they belonged. Some ‘‘races,’’ Anglo-Saxons being
the outstanding example, had an instinct for political liberty and demo-
cratic government, as well as for material progress. Others were best
suited to despotism and were satisfied with meagre material returns in
life. To admit the wrong type would be to undermine Canada’s free insti-
tutions, for certain peoples could not understand constitutional democ-
racy, and material advance would equally be thwarted. ‘‘Alien settlers
must be assimilated and made acquainted with our institutions,’’ Robert
Borden declared at a political rally, and ‘‘a national spirit must be created
and maintained.’’
18
But some groups were believed to be biologically un-
able to assimilate, a view that was supported by orthodox medical opin-
ion as reflected in the mainstream Canadian medical journals. Because of
unalterable genetic characteristics and natural antipathies between racial
categories, doctors maintained that ‘‘public health’’ demanded a homo-
geneous population.
19
The consequences of a bad immigration policy
could be the destruction of Canada itself.
20
The Great War Veterans’
Association was merely uttering the conventional wisdom when in 1927
it supported an admission policy restricted ‘‘to such races as are so
related to the British and French peoples by blood or tradition as to be
readily assimilated and amenable to our traditions, customs and laws.’’
21
250 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
From Confederation to 1896, fully 90 percent of Canadian immigrants
came from Britain. In the fall of that year Clifford Sifton took over the
Ministry of the Interior, with responsibility for immigration, and he ex-
panded the recruitment area for Canadian prairie settlers to include cen-
tral and eastern Europe. He explained to his chief, Prime Minister
Laurier:
Our desire is to promote the immigration of farmers and farm labourers. We
have not been disposed to exclude foreigners of any nationality who seemed
likely to become successful agriculturalists.... It is admitted that additions to the
population of our cities and towns by immigration [are] undesirable from every
standpoint and such additions do not in any way contribute to the object which
is constantly kept in view by the Government of Canada in encouraging immi-
gration for the development of natural resources and the increase of production
of wealth from these resources. . . .
22
Sifton concentrated his efforts to attract immigrants upon those Euro-
pean regions he believed would send appropriate prairie farmers.
Though only persons perceived to be diseased, criminals, or likely to
become public charges were explicitly proscribed, there continued the
implicit assumption that all immigrants would be white and European.
Sifton’s promotional efforts, including free land for prairie settlers, finan-
cial incentives for recruiting agents and subsidies for steamship compa-
nies, were directed only at Europe.
23
The government’s policy of encouraging immigration met with favour
from entrepreneurial and business interests in Canada. Throughout the
Laurier era, industry as well as agriculture required increasing supplies
of labour, both skilled and unskilled, and so businessmen actively partic-
ipated in the recruitment of suitable immigrants. Recognizing exactly
the same effects from immigration, but regarding them from a different
perspective, organized labour was equally inclined to discourage the
entry of competitors. The Trades and Labour Congress actually sent an
anti-immigration agent to England to counter the claims of Canadian
government and business advertising. At home the TLC argued that the
privileges and subsidies granted to immigrants would be better spent
improving conditions for Canadian labour, and it repeatedly went on
record decrying the arrival of more and more workers whose chief
impact was to keep wages low.
24
As has already been described with respect to Chinese immigration to
British Columbia,
25
labour resolutions were typically laden with cultural
Narine-Singh v. Attorney General of Canada 251
and racial overtones. At its 1904 Convention the TLC complained that
‘‘of late, an inferior class of immigrants are arriving from Continental
Europe; they do not assimilate, [and] are very slow to adopt our methods
of living, herding on the communal plan.’’
26
The key concept, as always,
was assimilation: implying the threat of low wages and unseemly per-
sonal characteristics, the label ‘‘unassimilable’’ remained the most devas-
tating charge against any body of immigrants.
A new Immigration Act, designed by Sifton just before his departure
from the ministry, was enacted in 1906. It granted the government au-
thority to ‘‘prohibit the landing in Canada of any specified class of immi-
grants,’’
27
though in 1906 the classes specified were still assumed to be
the diseased, the impoverished and the immoral. A scant four years later,
a new Act highlighted an increasing recognition that ‘‘race’’ seemed to
require equally explicit attention. It was the events in Vancouver in 1907
and the continuing prospect of large-scale Asian immigration that
prompted this more careful articulation of what constituted desirability.
Section 37 of the Immigration Act of 1910 declared that immigrants must
‘‘possess in their own right money to a prescribed minimum amount,
which amount may vary according to the race, occupation or destination
of such immigrant,’’ and Section 38 enabled the government to
(a) prohibit the landing in Canada or at any specified port of entry in Canada of
any immigrant who has come to Canada otherwise than by a continuous
journey from the country of which he is a native or naturalized citizen, and
upon a through ticket purchased in that country or prepaid in Canada;...
(c) prohibit for a stated period, or permanently, the landing in Canada, or the
landing at any specified port of entry in Canada, of immigrants belonging to
any race deemed unsuited to the climate or requirements of Canada.
28
The urges expressed in Nova Scotia’s 1815 resolution had finally been
actualized: ‘‘race’’ was now designated as an immigration category in a
Canadian statute. Also in the 1910 Act, and of significance for Harry
Singh’s eventual story, was section 23 specifying that
No court, and no judge or officer thereof, shall have jurisdiction to review, quash,
reverse, restrain or otherwise interfere with any proceeding, decision or order of
the Minister or of any Board of Inquiry, or officer in charge, had, made or given
under the authority and in accordance with the provisions of this Act relating to
the detention or deportation of any rejected immigrant.
252 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
By 1910 those ‘‘races’’ supposed to be genetically incapable of assimila-
tion could be kept out by the decision of immigration officials, not even
subject to judicial review. Parallel to this policy were the various enact-
ments denying equal rights to certain ‘‘races,’’ as previously described.
The unassimilable were to be isolated within Canada, and kept from full
participation in Canadian institutions, for to do otherwise would be to
risk Canada’s survival as a democratic, progressive, British nation. Di-
rected first against the Chinese and then the Japanese in British
Columbia, the discriminatory restrictions were amenable for application
to any immigrant group that could be identified by racial criteria.
3. SOUTHASIAN IMMIGRATION
A Colonial Office Minute written in 1897 set out Britain’s imperial dilem-
ma in confronting the migration of East Indians to the self-governing
white colonies:
The whole subject is perhaps the most difficult we have had to deal with. The
Colonies wish to exclude the Indians from spreading themselves all over the
Empire. If we agree, we are liable to forfeit the loyalty of the Indians. If we do not
agree we forfeit the loyalty of the Colonists.
29
The colony of Natal in South Africa proved most resourceful in solving
this problem with legislation requiring all immigrants to pass a test writ-
ten in ‘‘a European language.’’ Because it did not mention any specific
group, the law appeared unbiased and universal in application. In prac-
tice the test requirement could be arranged to enable immigration offi-
cials to exclude any individual: if the applicant could pass the test in
English, it would be administered in Dutch, for example, and so on until
the applicant failed. Known as ‘‘the Natal Formula,’’ this ingenious
device served as a prototype to other anxious British dominions seeking
to avoid both Indian immigration and the wrath of Westminster.
30
At first Canada did not find it urgent to emulate the Natal Formula.
Almost no Indians were entering Canada at the turn of the century; in
fact there was not even a category for registering arrivals from India. Vis-
itors passed through on occasion – Sikh soldiers en route to London for
Queen Victoria’s 1897 jubilee and again for King Edward’s 1902 corona-
tion, for example – and positive impressions of Canada were apparently
circulating amongst the Sikhs of Punjab, but very few came to stay. The
first recorded immigrants landed in 1903-4, and once begun the move-
ment increased rapidly so that by 1907-8 over 5,000 persons had immi-
Narine-Singh v. Attorney General of Canada 253
grated from India. Almost all were Sikh men and most originated in the
same small area in the Punjab. Although they had been farmers at home
the Sikhs became labourers in Canada, often in the sawmills and lumber
camps of British Columbia, where they could earn five times the amount
paid for manual labour in India. Among them was a handful of business
and professional men.
31
As their numbers increased, the Indians at-
tracted attention: the various restrictions already imposed on Chinese
and Japanese in BC were reworded to include Indians as well, and in
1907 natives of India were disfranchised.
32
This new influx from Asia, in
particular the arrival in Vancouver harbour of a ship bearing a rumoured
900 Indian migrants, was one of the factors precipitating the Vancouver
race riot in September 1907.
33
Ironically, Indians avoided attack by the Vancouver mob because they
did not inhabit the central area where the riot occurred, but they cer-
tainly did not avoid the open hostility of both press and public in BC.
Not only were they included in the general invective against Chinese
and Japanese, they often suffered in comparison with other Asians. They
were considered, according to the scientific orthodoxy of the times, to be
genetically incapable of assimilation, unsuited to Canadian conditions, a
threat to public health, and unfair economic competition in labouring
occupations. ‘‘They are a case even more apart than the Chinese,’’ com-
plained the Victoria Colonist, while the Victoria Trades and Labour Coun-
cil passed a resolution that
The people of India, in common with all Asiatic races, are reared and nurtured in
and under the influence of civilizations and environments that seem to be, in
principle, totally opposed to the civilization and environments under which we
of the Western civilization are born and reared. In practice they are certainly
found to be both unwilling and incapable of assimilating with the people of the
western races who have settled and developed this country, and who, for very
justifiable reasons, aspire to control the destiny of this broad and fair land, with
the hope that civilization in the best and truest sense may advance and develop
to a fuller degree than has yet been achieved. But the invitation or admission of
these people, the Hindus, would threaten and even make impossible the realiza-
tion of such hopes.
34
India was deemed ‘‘a hotbed of the most virulent and loathsome dis-
eases,’’ which could be transmitted to Canada, and Indians belonged to
‘‘a race of people who can never be of any use to Canada as citizens and
whose very existence amongst our people could be a menace to the well-
254 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
being of the community.’’
35
A public meeting in Vancouver carried unan-
imously a resolution ‘‘that the influx of Asiatics is detrimental and
hurtful to the best interests of the Dominion, from the standpoint of citi-
zenship, public morals, and labour conditions.’’
36
When a suggestion was
made that Sikh veterans of Britain’s Indian army might be recruited to
the BC militia, it was reported that white militiamen would thereupon
resign.
37
Even the saintly J. S. Woodsworth considered Indians to be
inappropriate immigrants for both physical and cultural reasons.
38
It is hardly surprising that the Canadian government should take ac-
tion against such an unpopular immigration. The restraint of course was
that Britain did not wish to give her Indian subjects a legitimate ground
of complaint. Colonial Secretary Joseph Chamberlain warned that
explicit regulations against Indians would cause ‘‘substantial unrest’’ in
India, and would therefore not be acceptable to the Crown.
39
Superinten-
dent of Immigration W. D. Scott conducted a personal investigation in
Vancouver and pronounced the Indians ‘‘unsuitable’’ and ‘‘unassimil-
able’’; his findings were sent to the government of India to discourage
further migration.
40
More dramatically the deputy minister of Labour,
W. L. Mackenzie King, went to London to seek an efficient and accept-
able method to exclude Indians. In the high reaches of the British govern-
ment King found ‘‘That Canada should desire to restrict immigration
from the Orient is regarded as natural, that Canada should remain a
white man’s country is believed to be not only desirable for economic
and social reasons, but highly necessary on political and national
grounds.’’
With classic diplomatic hypocrisy King reported:
it was recognized in regard to emigration from India to Canada, that the native of
India is not a person suited to this country, that, accustomed as many of them are
to the conditions of a tropical climate, and possessing manners and customs so
unlike those of our own people, their inability to readily adapt themselves to sur-
roundings entirely different could not do other than entail an amount of priva-
tion and suffering which render a discontinuance of such immigration most
desirable in the interests of the Indians themselves.
His recommendations were to publicize throughout India the harsh con-
ditions met by Indians in Canada, to induce steamship companies to
exercise caution in carrying Indian immigrants to Canada, to encourage
India to enforce a law against the emigration of contract labour, to
require intending immigrants to possess a sum of money high enough to
Narine-Singh v. Attorney General of Canada 255
serve as a disincentive, and to introduce a ‘‘continuous journey’’ rule.
These remedies, King concluded, would preserve the integrity of the
British Empire and protect Canada from a ‘‘serious disturbance’’ to her
social and economic fabric.
41
It was in consequence of King’s report that the federal cabinet passed
orders-in-council in 1908 requiring all ‘‘Asiatic’’ immigrants except those
already covered by separate provisions to possess at least $200,
42
and
stipulating that immigrants must come to Canada by a continuous jour-
ney and on a through ticket from their country of origin.
43
Although
Indians were never mentioned in the regulations, Chinese and Japanese
were excepted by the existence of separate immigration provisions, leav-
ing Indians as the only ‘‘Asiatics’’ to be affected by the $200 requirement.
Furthermore there did not exist any means to make a continuous journey
from India to Canada nor were there ticketing arrangements available in
India to piece together a journey via Hong Kong. The government of
India, nevertheless, pronounced itself ‘‘pleased’’ that Canada had man-
aged to solve its immigration problem ‘‘without resorting to invidious
legislation aimed particularly at British Indians.’’
44
As Mackenzie King had predicted, the impact of the new regulations
was immediate: immigration from India declined drastically after 1908
from thousands to only a few dozen per year. Among other things this
meant that South Asians already resident in Canada could not bring
in their wives and children. Family reunification became the primary
campaign theme and the chief moral argument for South Asian organiza-
tions over the next several decades. The Khalsa Diwan Society, initiated
in 1907 as a Sikh religious organization, led the campaign on behalf of
all South Asians. Petitions and delegations were sent to Ottawa and to
London, public rallies were staged in Vancouver, and a propaganda
organ, an English-language publication entitled Aryan, was distributed
amongst potential allies including white women’s and church groups.
The case presented in Aryan and in the various petitions and debates
was that Indians were British subjects, many had served in the imperial
services, separation of families was unnatural and immoral, and besides,
Indians were not members of the inferior Asiatic ‘‘races’’ but in fact
cousins of the Anglo-Saxons through their Aryan ancestors.
45
Interest-
ingly, the attack on racial discrimination did not deny the validity of
racist assumptions, but merely argued that Indians did not belong in the
disadvantaged class.
46
Following the passage of the 1910 Immigration Act, whose Sections 37
and 38 belatedly empowered the government to impose the monetary
256 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
and continuous journey requirements, new orders-in-council were issued
stating that
[926] No immigrant of Asiatic origin shall be permitted to enter Canada unless in
actual and personal possession in his or her own right of two hundred dollars,
unless such person is a native or subject of an Asiatic country in regard to which
special statutory regulations are in force or with which the Government of
Canada has made a special treaty, agreement or convention;
47
and that
[920] the landing in Canada shall be and the same is hereby prohibited, of any
immigrants who have come to Canada otherwise than by continuous journey
from the country of which they are natives or citizens, and upon through tickets
purchased in that country or purchased or prepaid in Canada.
48
This particular wording would bring the government to grief in 1913.
4. REHEARSAL: NARAIN SINGH AND MUNSHI SINGH
On 17 October 1913, 56 South Asians arrived in Victoria; 17 were permit-
ted to land because they had previously established domicile in Canada
and were returning after a visit to India, and the remaining 39 were
ordered deported under PCs 920 and 926. The detainees’ first application
for a writ of habeas corpus was dismissed on the grounds that Section 23
of the 1910 Immigration Act precluded judicial intervention in an immi-
gration board decision, but on appeal to BC Chief Justice Gordon Hunter
the result was different.
49
The issue in the appeal of Narain Singh et al., as stated by attorney
J. Edward Bird, was that the Indians were being held illegally because
their deportation derived from orders-in-council that were ultra vires
and, since compliance with the orders was impossible for people in
India, the court must intervene to correct a fundamental injustice.
50
Chief
Justice Hunter rejected any concern ‘‘with questions of expediency or
good faith,’’ declaring that if the government wished to ban Indians by a
‘‘subterfuge’’ it had a right to do so. But he did accept Bird’s contention
that PCs 920 and 926 differed substantially from their enabling legisla-
tion and must therefore be found ultra vires. Section 37 of the Act permit-
ted the government to require immigrants to ‘‘possess in their own
right’’ a prescribed amount of money; PC 926 required Asiatics to be ‘‘in
actual and personal possession’’ of the money. An immigrant with suffi-
Narine-Singh v. Attorney General of Canada 257
cient money in a Canadian bank would satisfy the Act but not the order.
Section 37 also permitted the government to vary the amount according
to the ‘‘race’’ of the immigrant; PC 926 imposed the requirement on
‘‘immigrants of Asiatic origin.’’ As the chief justice pointed out, ‘‘the
word ‘origin’ includes more than the word ‘race.’ ’’ A person born in
India of British parents would be Asiatic by origin but not by ‘‘race.’’ PC
920 required continuous journey ‘‘from the country of which they are
natives or citizens’’; Section 38 of the Act specified ‘‘native or naturalized
citizen.’’ The difference, Chief Justice Hunter insisted, was that the same
hypothetical British child born in India would be a ‘‘native’’ of India but
a ‘‘citizen’’ of Great Britain; the order would exclude such a person from
Canada while the Act would not. Since the orders exceeded the Act in
these various ways they were ultra vires and the Indians’ deportation
notices were cancelled. Article 23 was of no effect because its restriction
on judicial interference ‘‘applies only to proceedings had under the
authority and in accordance with the provisions of this Act,’’ a condition
not existing in this instance.
51
A week after the Narain Singh decision, the federal government
enacted an order temporarily banning all artisans and labourers from
landing in BC ports.
52
In early January 1914 orders 920 and 926 were
replaced by PCs 23 and 24, answering Chief Justice Hunter’s objections
with wording carefully following the terms of the Act.
53
There would be
no more loopholes, and no more immigrants from India. But another
result of the 1913 decision was that it encouraged one more attempt to
challenge Canada’s restrictions against South Asians. Gurdit Singh
enlisted Indian passengers for a voyage by chartered ship from Hong
Kong to Vancouver. The Komagata Maru left Hong Kong in April bearing
376 persons, mostly Sikhs, and arrived in Vancouver on 23 May 1914.
54
Immigration agents kept the ship anchored in Burrard Inlet, and the gov-
ernment declared its intention to keep the gates closed. Prime Minister
Borden advised the House of Commons:
It is my opinion that the immigration of Oriental aliens and their rapid multiplica-
tion is becoming a serious menace to living conditions on the West Coast and to the
future of this country in general. This Government shall take immediate action to
bring to an end such immigration for residence purposes. Specifically those Sikhs
who are pre s e n t l y seeking such admittance in Vancouver shall be barred.
55
Sir Wilfrid Laurier warned ominously: ‘‘I know that if these Hindus are
allowed to come into British Columbia, there may be riots on the streets
258 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
of Vancouver and Victoria.’’
56
Accordingly, deportation orders were
issued to all but 22 of the passengers, the exceptions having established
previous domicile in Canada.
The 354 excluded passengers hired J. Edward Bird, recommended by
his Narain Singh victory just six months previously. It was decided to
apply for writs of habeas corpus and thereby to challenge the validity of
the deportations. The government sought to engage in a single test case,
to decide the fate of all the passengers with minimum fuss and publicity.
The passengers, naturally, sought individual hearings, but after stalling
for a month, with conditions deteriorating on board the Komagata Maru,
they submitted reluctantly to the government’s proposal. Munshi Singh,
a Sikh farmer from Punjab, was selected as the representative case. An
application on his behalf for a writ of habeas corpus was speedily rejected
without argument or reasons by Justice Murphy so that the BC Court of
Appeal could hear the case without delay.
57
The arguments put by Bird and his associate Robert Cassidy followed
several themes present in the Indians’ own campaign for immigration
reform, but framed in constitutional terms. The fact that all persons born
in British India were British subjects and should therefore enjoy equal
rights throughout the Empire was, for example, a frequent claim put by
East Indians in Canada. Bird and Cassidy took that point to challenge the
constitutionality of the Immigration Act itself. Under the BNA Act the fed-
eral government had control over ‘‘aliens,’’ but British subjects were not
aliens. Thus the Immigration Act provisions for the detention and depor-
tation of British subjects were ultra vires and trenched upon the appel-
lant’s ‘‘civil rights’’ which belong constitutionally to provincial jurisdiction.
The orders issued under the authority of the Immigration Act exceeded
the powers delegated by the statute. Section 37 permitted a monetary
requirement which could ‘‘vary’’ according to the ‘‘race’’ of the immi-
grant. PC 24 set a $200 sum for ‘‘the Asiatic race,’’ but no amounts for
any other ‘‘race.’’ This was not a ‘‘variation,’’ but a specific imposition
and a clear case of discrimination. With respect to PC 23 it was argued
rather forcedly that Munshi Singh had in fact complied with it: a British
subject born in British territory (India) had begun his voyage to Canada
from British territory (Hong Kong) and had therefore made a continuous
journey. In any case PC 23 and its enabling Section 38 of the Act were
ultra vires because they banned ‘‘any immigrant who has come.’’ This
wording made the banning conditional upon arrival, and the govern-
ment had no authority to establish a condition precedent to the making
Narine-Singh v. Attorney General of Canada 259
of a proclamation or order. The constitutionality of PC 897, banning all
labourers, was not challenged, but it was argued that Munshi Singh was
a farmer, not a labourer. The immigration officials had no evidence that
Munshi Singh was a labourer, and so their decision was a violation of the
common law principle that ‘‘a man shall not be convicted without proof
such as would satisfy natural justice.’’
58
Natural justice was violated, too,
as was the Magna Carta,bythe Immigration Act’s denial of appeal to the
courts for persons deprived of their freedom by an immigration board
order and by the impossibility of an applicant’s case being heard by a
jury of his peers.
59
The appellants reached beyond constitutional issues
as well. Blandishing an encyclopedia, Bird anticipated an argument of
the 1950s when he stated that the expression ‘‘Asiatic race’’ used in the
orders was ‘‘ethnologically incorrect and too indefinite to be capable of
application.’’
60
And, whatever definition was offered for ‘‘Asiatic race,’’ it
could not include Munshi Singh. The peoples of India to which Munshi
Singh belonged were Caucasians, members of the Aryan family, and as
such were racially cousins to the English. Munshi Singh was an ‘‘alien’’
neither legally nor racially. He deserved to be admitted to Canada.
61
But this time it was not Chief Justice Hunter on the bench. All five jus-
tices of the Court of Appeal rejected every argument put on Munshi
Singh’s behalf. Although their language differed, each judge upheld the
deportation order and scoffed at the logical and grammatical tactics used
by counsel. Chief Justice MacDonald termed them ‘‘ingenious’’ but
‘‘absurd.’’
62
It was held that the Immigration Act was constitutional, and
that Parliament had the right to ban British subjects including even those
born in England of English ancestry. The BNA Act gave sovereign power
to Canada, specifying power over immigration.
63
The $200 requirement
was seen as reasonable, and since the Act made discrimination inevitable
the order could not be impeached on that ground.
64
That Hong Kong
could be considered Munshi Singh’s native country was dismissed as a
fallacy.
65
The onus of proof that he was not a labourer fell on Munshi
Singh; his failure to convince the immigration officials that he was a
farmer did not constitute a denial of justice.
66
And of course he could
appeal the deportation decision, not to the courts but to the minister.
67
Parliament, not the courts, was responsible for the establishment of pol-
icy. Justice Martin reminded Bird that ‘‘A court of law has nothing to do
with a Canadian Act of Parliament, lawfully passed, except to give it
effect according to its tenor .... It cannot be too strongly put that with the
wisdom or policy or expediency of an Act, lawfully passed, no Court has
a word to say.’’
68
Or, in the words of Justice McPhillips, ‘‘This Court – one
260 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
of His Majesty’s Courts of Justice – is without jurisdiction to hear this
appeal, but this in no way indicates there is any refusal of justice. The
Courts of law cannot attract to themselves jurisdiction. Jurisdiction must
be conferred.
69
In response to the non-constitutional arguments, the Encyclopedia Bri-
tannica was quoted as justifying the use of the term ‘‘Asiatic races,’’
70
and
an association called the ‘‘Asiatic Society,’’ founded in Calcutta in 1784,
was explicitly mandated to examine Indian culture, so that India and the
Indians were understood as being Asiatic.
71
In a more sophisticated rejec-
tion of the ‘‘Aryan family’’ argument than that given by the United States
Supreme Court, who relied on ‘‘common understanding’’ to classify Indi-
ans as different from whites, Justice A. E. McPhillips pointed out that
what the people of India and of England shared was not their racial
attributes but their linguistic roots in the Aryan family of Indo-European
languages. ‘‘Kindred languages’’ did not imply any ‘‘blood’’ relation-
ship.
72
On that particular issue Justice McPhillips took extravagant care
to indicate that Indians (whom he called Hindus) and Europeans were
racially quite distinct, and in doing so he articulated the fundamental
principles motivating Canada’s immigration policy:
It is plain that upon study of the question, the Hindu race, as well as the Asiatic
race in general, are, in their conception of life and ideas of society, fundamentally
different to the Anglo-Saxon and Celtic races, and European races in general....
The laws of this country are unsuited to them, and their ways and ideas may
well be a menace to the well-being of the Canadian people. . . .
The Parliament of Canada – the nation’s Parliament – may be well said to be
safeguarding the people of Canada from an influx which it is no chimera to con-
jure up might annihilate the nation and change its whole potential complexity,
introduce Oriental ways as against European ways, eastern civilization for west-
ern civilization, and all the dire results that would naturally flow therefrom. . . .
In that our fellow British subjects of the Asiatic race are of different racial
instincts to those of the European race – and consistent therewith, their family
life, rules of society and laws are of a very different character – in their own inter-
ests, their proper place of residence is within the confines of their respective
countries in the continent of Asia, not in Canada, where their customs are not in
vogue and their adhesion to them here only give rise to disturbances destructive
to the well-being of society and against the maintenance of peace, order and
good government. . . .
Better that peoples of non-assimilative – and by nature properly non-assimila-
tive – race should not come to Canada, but rather, that they should remain of res-
Narine-Singh v. Attorney General of Canada 261
idence in their country of origin and there do their share, as they have in the past,
in the preservation and development of the Empire.
73
Scarcely a month later Canada was at war, and the immigration issue
became academic. The war interrupted the greatest movement of people
to Canada since overseas settlement began: 400,870 arrived in the peak
year of 1913 alone, indicating the welcome Canadians generally ex-
tended to immigrants whose origin was deemed suitable. The merest
handful came from India, however, and many of these returned to India
during the War. By the 1921 census there were only 1,016 East Indians in
Canada.
74
Under pressure from Britain and India at Imperial War Confer-
ences, Canadian regulations were changed to permit East Indian men in
Canada to apply for the entry of their wives and children, but mecha-
nisms to implement this program were tardy, complicated and unpubli-
cized. In the decade following its passage, when immigration generally
was being resumed, only 144 women and 188 children came to Canada
from India.
75
Then on 16 September 1930 all previous regulations were
replaced with PC 2115, which stated that
the landing in Canada of any immigrant of any Asiatic race is hereby prohibited,
except . . . :
The wife or unmarried child under 18 years of age of any Canadian citizen
legally admitted to and resident in Canada, who is in a position to receive and
care for his dependents,
Provided that this regulation shall not apply to the nationals of any country in
regard to which there is in operation a law, a special treaty, or agreement, or con-
vention regulating immigration.
76
5. WESTINDIAN IMMIGRATION
For nearly a century before Confederation, Maritime merchants enjoyed
a flourishing commercial relationship with the British Caribbean
colonies. In 1868 Nova Scotian Presbyterians established a mission in
Trinidad, aimed particularly at the large East Indian community there
(into which Harry Singh would be born in 1928). Canadian missionary
activity spread to other British islands and mainland Guiana, soon fol-
lowed by Canadian financial institutions. During the 1880s and 1890s
the Royal Bank of Canada, the Bank of Nova Scotia and the Sun Life
Insurance Company began the tradition of Canada’s dominant influence
in the financial affairs of the British West Indies.
77
Contacts therefore
were close at certain levels, and although they largely involved Canadi-
262 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
ans going to the West Indies, there was always some movement in the
other direction. Individual slaves from the West Indies were imported
into New France and Nova Scotia,
78
and occasionally free black migrants
would appear. The most dramatic migration was the sudden and unan-
nounced arrival in Halifax of over 500 Jamaican ‘‘Maroons’’ in 1796. Fol-
lowing an armed conflict between the Maroons and the British governors
of Jamaica, one group of Maroons was sent into exile in Nova Scotia, but
they never adjusted and so, in 1800, most of them were removed by the
British government to the colony of Sierra Leone in West Africa.
79
During
the 19th century there were a few dozen West Indians in Victoria,
Toronto and Halifax, admitted by their status as British subjects. They
continued to trickle in, brought by ships’ captains seeking a return cargo
from a voyage delivering Canadian fish or lumber to the Caribbean. The
largest number, recruited initially in Barbados, settled in Sydney, Nova
Scotia, where they were employed in the coal mines and blast furnaces
and would become the founders of a thriving cultural community which
remains distinct in Canada.
80
Although these early migrants were eco-
nomically useful and employers continued to seek more West Indian
workers, the government response was to classify them as inadmissible.
Superintendent of Immigration W. D. Scott explained to his officials in
Nova Scotia:
The government does not encourage the immigration of coloured people. There
are certain countries from which immigration is encouraged and certain races of
people considered as suited to this [country] and its conditions, but Africans, no
matter where they come from are not among the races sought, and, hence,
Africans no matter from what country they come are in common with the unin-
vited races, not admitted to Canada.
81
In the early 20th century there was a huge demand from middle- and
upper-class households for domestic servants, but a limited supply of
young Canadian women willing to engage in this poorly paid and
demanding work. The answer, clearly, was to import domestic labour: in
the decade prior to World War I alone, 129,000 domestic servants entered
Canada from overseas.
82
Only a few of these came from the West Indies,
despite regular demand from employers and several attempts to increase
the supply. In 1910-11, for example, lawyer Joseph Dion devised a
scheme to recruit domestics for Quebec homes from the French colony of
Guadaloupe. Immigration officials in New York examined the first group
to arrive en route to Montreal, and reported that ‘‘Taking all things into
Narine-Singh v. Attorney General of Canada 263
consideration, they may be classed desirable as domestics. The scarcity of
such help in the cities they are going to will no doubt help them in the
future to be in a position to secure employment at all times.’’
83
But the arrival of the Guadaloupe domestics in Canada attracted atten-
tion to West Indian migration just as the movement of African Americans
from Oklahoma to the prairies was receiving national publicity and
arousing attendant fears. In May 1911 a questionnaire was sent to 96
employers who had received Guadaloupienne servants; of the 55 re-
sponses, 49 were overwhelmingly positive, but immigration officials
chose to emphasize the few negative comments they received. Super-
intendent Scott wrote to Minister Frank Oliver in June that ‘‘the girls
admitted are not all of good moral character, and I think this class of
immigration should be discouraged.’’
84
Scott informed Joseph Dion that
his scheme must cease by 30 June 1911, and despite frequent requests
from scores of Canadian households in subsequent months the govern-
ment insisted that West Indian women were physically and morally
unfit.
85
One disappointed Canadian family was told: ‘‘We do not regard
immigration of this sort as desirable and I have no doubt that even you
yourself would not like to have Canada filled up with persons of the
class you are now seeking to bring into this country.’’
86
Under this gaze the already infinitesimal migration of West Indians to
Canada shrank even further. The chief Immigration Branch inspector in
the Maritimes was asked to conduct an investigation. He suggested that
if all other means failed, West Indians could ultimately be rejected under
Section 3(g) of the Immigration Act as ‘‘likely to become a public charge.’’
Scott immediately accepted this advice, and instructed local agents that
all West Indian applicants ‘‘are to be rejected as LPC.’’
87
There would be
some exceptions made, for example when the Dominion Coal and
Dominion Iron and Steel companies were authorized to import needed
labourers as a special wartime concession,
88
but more often Canadians
seeking West Indian employees were urged to ‘‘suffer some little incon-
venience’’ rather than flood Canada with undesirables.
89
As in the case of the East Indians, the British government grew
alarmed that overtly discriminatory policies were being applied against
British subjects. In addition, Canadian employers and traders with
Caribbean connections protested that exclusionary practices damaged
Canada’s economic interests. The Canadian government was able to
respond that ‘‘There are no special regulations governing the entry to
this Dominion of British-born subjects coming from the West Indies,’’ but
to save embarrassment and gain outside approval it was decided that
264 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
use of the ‘‘continuous journey’’ order might be most acceptable. Since
virtually all ships from the West Indies then stopped at New York or St.
John’s en route to Canada, PC 23 proved to be almost as total an obstacle
for West Indians as for East Indians. As an extra measure, steamship
companies were advised that they would be held liable for any costs
incurred in detaining and returning inadmissible West Indian passen-
gers. Although demand for agricultural labourers and domestic servants
was high in the 1920s, and deliberate efforts were being made to recruit
European immigrants throughout the decade, it was decided that West
Indians were unsuited to farm labour and that black domestics had
already proved themselves unfit for Canadian homes.
90
Finally, by order-
in-council in 1923, the Canadian government limited West Indian immi-
gration by the simple expediency of omitting them from the list of British
subjects eligible to come to Canada.
91
As the minister stated, to explain
why barriers were being created at a time of labour shortage, ‘‘there are
some would-be immigrants into Canada who are not suited for the
Dominion owing to physical, moral, or industrial unfitness or because
they belong to races that cannot be assimilated without social or eco-
nomic loss to Canada.’’
92
If no genuine economic reason existed, then one
could be invented.
6. POLICYSHIFTS, 1945-52
As has already been noted, World War II was a watershed in the flow of
Canadian attitudes about the world and its peoples. The specific war
aims of the democratic allies made it seem disloyal to espouse openly
racist ideals. A war fought against Nazi racism challenged policies and
practices based on racial preferences, and this eventually came to include
immigration. In introducing an immigration resolution in April 1946,
Moose Jaw MP W. R. Thatcher indicated that the first weakness of Cana-
dian policy as it then existed was that ‘‘it is based on racial discrimina-
tion and outworn prejudices.’’ He continued: ‘‘It seems very strange that
during the recent war, at the very time Canadians were being urged to
enlist to help in eradicating racial intolerance abroad, our own nation
was practising similar intolerance at home in selecting its immigrants.’’
93
Later, another Saskatchewan MP, E. B. McKay, argued that in admitting
immigrants ‘‘There should not be any preferred races.... Canadian boys
laid down their lives to defeat militarism promoted by a race which
rated itself as supermen.... Let us have done with superior races and
preferred nations.’’
94
For, as the member for Winnipeg North, Alistair
Stewart, pointed out:
Narine-Singh v. Attorney General of Canada 265
The war taught us there are no superior and inferior races, that the superior races
might easily become the inferior races and vice versa, that we are all dependent
upon one another for mutual protection, that the old shibboleths are obsolete,
that narrow nationalisms must give way to a broader community of nations.
95
The War provoked a recognition not only that ‘‘race’’ was a dangerous
foundation for state policy but that certain Canadian practices were out
of step with declared Canadian ideals, and suggested that some reforms
were therefore necessary.
To Canada’s awakened conscience were added certain external pres-
sures and commitments. Madame Chiang Kai-shek raised the question of
Chinese exclusion during a wartime visit to Ottawa,
96
West Indian gov-
ernment representatives complained of barriers against British subjects
from the Caribbean,
97
and the leaders of the new India were quick to
raise objections about Canada’s treatment of people with origins in
India.
98
Canadian adherence to the United Nations Charter was cited re-
peatedly in the House of Commons as a moral and legal obligation to
eliminate racial selectivity in immigration policy; even more acute feel-
ings were aroused by Canada’s membership in a multiracial Common-
wealth of supposedly equal members.
99
CCF leader M. J. Coldwell
declared: ‘‘The time has come, if we are to be regarded as the kind of
nation that we hope to be regarded throughout the world, for us to
remove every jot and tittle of this discriminatory legislation from the
statute books of Canada.’’
100
Outside parliament, too, it was being recog-
nized that the values espoused by Canada internationally were not
reflected in immigration regulations. The Khalsa Diwan Society enlisted
the support of the UN Charter in a renewed campaign for a non-discrimi-
natory immigration policy.
101
The Ottawa diocesan synod of the Anglican
Church passed a resolution at its 1947 convention that ‘‘This synod
opposes any advantage being given to immigrants of any racial or reli-
gious group.’’
102
Some of the pressures for change were more materialistic. The Cana-
dian Manufacturers’ Association, the Canadian Chamber of Commerce
and agricultural associations were all calling on the government to in-
crease the supply of immigrant workers. A low birth rate during the
Depression meant a postwar shortage of workers which only immigra-
tion could solve. Within two years after the War it became apparent that
the transition to a peacetime economy had been accomplished without
serious dislocation, and that Canada was engaged in an economic expan-
sion that would require a large increase in population and labour power
266 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
to sustain.
103
Unions, as well as business, could observe the economic
need for more workers and more consumers in the expanding postwar
economy. Gradually, organized labour began to modify its anti-immigra-
tion stance. As early as 1942 the TLC favoured open immigration within
the British Empire and the Americas. In 1944 the TLC called for Canada
‘‘to do her share’’ in receiving postwar refugees from Europe, and the
CCL passed a similar resolution the same year.
104
By 1946, when they were invited before a parliamentary committee on
immigration, both the TLC and the CCL favoured an expanded immigra-
tion policy as long as it did not introduce a pool of cheap and docile
workers into Canada. CCL president A. R. Mosher, in answering a direct
question, went so far as to accept Japanese and ‘‘Negro’’ immigration;
the TLC, however, reaffirmed its adherence to Article 12 of its Platform of
Principles, which demanded ‘‘Exclusion of all races that cannot be prop-
erly assimilated into the national life of Canada.’’
105
TLC president Percy
Bengough explained his reasoning before the 1947 annual convention:
It must be recognized that there are citizens of other countries who may be good
brothers and sisters, internationally, but yet would not be accepted as brothers-
and sisters-in-law to Canadians. Experience has clearly demonstrated that
because of this fact certain nationals who have in the past been admitted into
Canada remain as a distinct race and will remain a problem for future genera-
tions. The result of permitting such an immigration policy has been equally
unfair to those admitted and to their children, as to the citizens of Canada gener-
ally. Organized Labour naturally opposed such immigration for the fact that such
immigrants came and for many years remained a reservoir of cheap labour and a
menace to Canadian standards of living. Any system of selection must include
the suitability of assimilation, and must, in the best interests of all, be rightly
adhered to.
106
Within these limitations there can be recognized a genuine movement
away from a historical opposition to immigration, and another powerful
member was added to the lobby for policy reform.
The body hearing labour’s testimony was the Senate Committee on
Immigration and Labour, established in 1946. In over 1,000 hours of testi-
mony, the Committee heard no one ‘‘opposed to the general principle of
immigration into Canada.’’
107
Not surprisingly the Committee’s final
report included recommendations to increase immigration, but within a
set of selection criteria. On the one hand, the Committee stated,
Narine-Singh v. Attorney General of Canada 267
There should be no discrimination based on race or religion in the execution of
Canadian immigration policy.... Any suggestion of discrimination based on
either race or religion should be scrupulously avoided both in the drafting of any
future Immigration Act and its administration.
But just a few pages later the impact of this recommendation was modi-
fied by the cautionary statement that ‘‘As the limitations placed on Asi-
atic immigration are based, of course, on the realities of effective
absorption, such restrictions should continue.’’
108
The new postwar attitude, therefore, was encouraging to reform, but
few people were asking for revolutionary change. In keeping with public
opinion, the government initiated an incremental shift in policy without
altering any fundamental principles. The chief immigration policy
instruments at war’s end were PC 2115 of 1930, covering Asians, and PC
695 of 1931, covering virtually everybody else.
109
Both were characterized
by their restrictive nature. The only piece of legislation that was specific
to one country was the Chinese Immigration Act of 1923. Faced with a well-
organized lobby demanding its repeal, and with no real reason to con-
tinue it, the government readily withdrew the Chinese Act early in 1947.
The result was not the open admission of Chinese immigrants, but
merely that Chinese now came under PC 2115 like other Asians. It was
anticipated that the number of wives and minor children eligible to enter
Canada under PC 2115 would only number in the hundreds: no signifi-
cant increase in the Chinese-Canadian population was expected.
110
Pressed during the debate on the Chinese amendment to make a
definitive statement on immigration policy, Prime Minister King re-
sponded on 1 May 1947 with what has come to be regarded as the ‘‘clas-
sic’’ position on postwar immigration. Government policy, the prime
minister stated, was to encourage immigration for the purpose of foster-
ing economic growth. Regulations would ensure the careful selection ‘‘of
such numbers of immigrants as can advantageously be absorbed in our
national economy.’’ In the short run, the economic requirements under
PC 695 would be interpreted more leniently to allow designated British
subjects and American citizens to enter, and the range of relatives admis-
sible from Europe would be broadened. Special measures would be
designed for special situations, such as the Displaced Persons in Euro-
pean refugee camps, but individual selection would be maintained to
choose ‘‘a type likely to make good citizens’’ and ‘‘who can be readily
placed in employment.’’ For the longer term, the prime minister pro-
mised carefully planned growth, with numbers adjusted annually
268 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
according to ‘‘the absorptive capacity of the country.’’ On the subject of
racial discrimination in the selection of immigrants, King had this to say:
I wish to make it quite clear that Canada is perfectly within her rights in selecting
the persons whom we regard as desirable future citizens. It is not a ‘‘fundamental
human right’’ of any alien to enter Canada. It is a privilege. It is a matter of
domestic policy. Immigration is subject to the control of the parliament of
Canada. This does not mean, however, that we should not seek to remove from
our legislation what may appear to be objectionable discrimination. . . .
There will, I am sure, be general agreement with the view that the people of
Canada do not wish, as a result of mass immigration, to make a fundamental
alteration in the character of our population. Large-scale immigration from the
orient would change the fundamental composition of the Canadian population.
Any considerable oriental immigration would, moreover, be certain to give rise
to social and economic problems of a character that might lead to serious difficul-
ties in the field of international relations. The government, therefore, has no
thought of making any change in immigration regulations which would have
consequences of the kind.
I wish to state quite definitely that, apart from the repeal of the Chinese Immi-
gration Act... the government has no intention of removing the existing regula-
tions respecting Asiatic immigration unless and until alternative measures of
effective control have been worked out. Canada recognizes the right of all other
countries to control the entry or non-entry of persons seeking to become perma-
nent residents. We claim precisely the same right for our country.
111
The necessity to confront ‘‘what may appear to be objectionable discrimi-
nation’’ was acknowledged with what appeared to be a reform. No
‘‘fundamental alteration’’ would be made in the ‘‘character ’’ of the Cana-
dian population.
Between 1947 and 1950 a series of new orders-in-council gave effect to
Mackenzie King’s statement. The range of family members eligible for
sponsorship by Canadian residents was expanded, the list of acceptable
occupations was extended, and the category of approved nationalities
was broadened.
112
During 1947 the first Displaced Persons came from
Europe, eventually to total over 165,000 people from regions previously
considered ‘‘non-traditional.’’
113
In 1948, at the urging of the new prime
minister, Louis St. Laurent, France was placed in the preferred category,
and in 1950 Germans became admissible.
114
This expansionary trend
was, however, an echo of the pre-Depression policies of the 1920s, for it
was limited in practical terms to the continent of Europe. The only excep-
Narine-Singh v. Attorney General of Canada 269
tion was a regulation adopted on 28 December 1950 which, recognizing
that ‘‘people of the Asiatic races seldom marry persons of European ori-
gin,’’ amended PC 2115 to allow Asian women who were Canadian citi-
zens to bring their Asian husbands to Canada. The age for admissible
unmarried children was raised from 18 to 21.
115
There was a demonstrable movement away from British exclusivity,
and the most overt example of discriminatory legislation, the Chinese
Act, had been repealed, but prospective immigrants from anywhere
except Europe were virtually as restricted as ever. In the early 1950s the
Department of Citizenship and Immigration was still routinely sending a
standard letter to applicants from southern countries, including Com-
monwealth territories, which read as follows:
[I]n dealing with applications from persons residing in tropical or sub-tropical
countries, consideration must be given to their prospects for becoming readily
adapted to the Canadian mode of life. It must also be borne in mind that natives
of such countries are more apt to break down in health than immigrants from
countries with similar climatic conditions to those of Canada. These points are
taken into consideration in conjunction with the circumstances existing in each
individual case which is carefully reviewed by the Department. . . .
[A]ll aspects of your case were very carefully reviewed and the conclusion
reached was that you cannot qualify under present immigration regulations.
116
Restrictions against citizens of independent India were an irritant and
a complication in Indo-Canadian relations. India regarded Canadian reg-
ulations as an insult and a threat to Commonwealth unity; Canada
insisted that immigration was a domestic matter, and every nation, India
included, must be free to set its own rules. A symbolic compromise was
reached in January 1951, when an annual quota of Indian immigrants
was set. Apparently the suggestion that a quota be struck came from
India, though the Americans had already established a quota in 1946,
admitting 100 Indians per year. The 1951 agreement permitted 150 Indi-
ans to enter Canada under their own qualifications, in addition to the
close family members of Canadian citizens already admissible under PC
2115. Though scarcely significant in numerical terms, the Indian quota
signalled a breach in the wall so long maintained against migrants from
the southern hemisphere.
117
270 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
7. THE IMMIGRATION ACT, 1952
On 4 July 1952 Immigration Minister Walter Harris rose in the House of
Commons to defend his budget of $244,046. Since 1951 had witnessed
the largest number of immigrant arrivals in almost 40 years, the minister
was careful to assure the House that although liberalization had oc-
curred, immigration policy had remained the same in principle since
Mackenzie King’s 1947 statement. ‘‘That policy,’’ Harris summarized, ‘‘is
to admit to Canada in numbers not exceeding the absorptive capacity of
our country and without altering the fundamental character of our peo-
ple, such persons as are likely to contribute to our national life.’’
118
Harris
went on to explain the regulations existing in PCs 2856 and 2115, indicat-
ing between them ‘‘precisely who is admissible from what particular
country.’’ He unfolded a set of four layers divided into twelve ranks of
admissibility, emanating outward from most to least acceptable. In the
first layer were white British subjects and citizens of Ireland, the United
States and France, who shared the top rank and who had virtually open
access. The next layer held various nationals of northern and western
Europe, ranked from Scandinavians to Greeks and Italians, who were eli-
gible if they proposed to work in certain occupations. The qualifying
immigrant could bring a spouse, children, siblings, parents, grand-
parents, fiancé(e) and even orphaned nieces and nephews under 21.
Grouped in the third layer were nationals from the rest of Europe, some
Middle-Eastern countries, South America and the British West Indies,
who needed to be closely related to a legal Canadian resident in order to
qualify. ‘‘Cases of exceptional merit’’ were also admissible from these
ranks. Finally came Asians and ‘‘others’’ (Africans were the only major
group left unnamed) who had to be the spouse or unmarried child under
21 of a Canadian citizen in order to gain immigrant status. It will of
course be noticed that the requirements grew systematically tighter as
the line moved further away from the Anglo-Celtic core.
119
This was an extremely candid public pronouncement of Canadian reg-
ulations, made in the context of a ministerial report during the annual
supply debate. While governments had muttered frequently in the past
against specific groups, chiefly people of African and Asian origin, never
before had a minister been quite so explicit in describing the intimate
details of the ranking system. Naturally, Opposition members took aim.
CCF leader M. J. Coldwell decried the discrimination against Common-
wealth citizens, particularly Indians. He was joined in this by Conserva-
tive leader George Drew. BC Conservative MP Davie Fulton added that
East Indians who had immigrated earlier had become valuable Canadian
Narine-Singh v. Attorney General of Canada 271
citizens, and so restrictions against their relatives were mistaken. Even
BC Liberal MP James Sinclair rose to confess that Canadian-born chil-
dren of South Asian ancestry had assimilated completely to life in BC.
120
Harris insisted, despite these comments, that it was the clear desire of the
Canadian people to favour immigrants from northern Europe, particu-
larly Britain and France.
121
On the very day that this debate took place Royal Assent was being
given to a new Immigration Act, reconfirming the priorities outlined by
the minister. During the second reading two weeks previously Harris
had avoided a full debate, arguing that the bill merely revised adminis-
trative procedures. The new legislation ‘‘retains the principles [and] fol-
lows the pattern of the present [1910] Act which defines those admissible
as of right and those prohibited, and vests the governor-in-council
authority to make regulations for the admission of others.’’ The major
contribution of the bill, Harris claimed, was to ‘‘modernize’’ certain
aspects of the 1910 Act and ‘‘to vest in the department, the minister and
the governor-in-council in some cases, up-to-date powers to deal with
problems which are faced by all countries who choose to keep their bor-
ders from being entered by undesirable people.’’
122
The government
view, Harris later explained, was that the administrative details and chief
policy instruments should continue to be under ministerial discretion
and via orders-in-council, and need not be specified in a statute, for
immigration could not possibly become a matter of law and we did not want to
get into a system... whereby we would try to define in law those persons who
could be admitted to Canada, so that one could approach the Courts in this coun-
try and have a judge decide in an action at law whether an applicant came within
the terms of the law.
123
The Immigration Act of 1952
124
did indeed delegate authority over the
details of immigration policy to the minister. At the heart of the Act was
Section 61:
The Governor in Council may make regulations for carrying into effect the pur-
poses and provisions of this Act and, without restricting the generality of the
foregoing, may make regulations respecting. . . .
g) the prohibiting or limiting of admission of persons by reason of
i) nationality, citizenship, ethnic group, occupation, class or geographical
area of origin,
ii) peculiar customs, habits, modes of life or methods of holding property,
272 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
iii) unsuitability having regard to the climatic, economic, social, industrial,
educational, labour, health, or other conditions or requirements existing,
temporarily or otherwise, in Canada or in the area or country from or
through which such persons come to Canada, or
iv) probable inability to become readily assimilated or to assume the duties
and responsibilities of Canadian citizenship within a reasonable time
after their admission.
125
Subsection g) was a carte blanche to prohibit anyone the minister hap-
pened not to like. Parliament was virtually delegating its legislative
authority to the governor-in-council. Parliament also delegated judicial
powers to the minister and, more ominously, to officials in his depart-
ment. Having established that ‘‘immigration officers-in-charge are Spe-
cial Inquiry Officers,’’ Section 11 went on to state that ‘‘a Special Inquiry
Officer has authority to inquire into and determine whether any person
shall be allowed to come into Canada or to remain in Canada or shall be
deported.’’ At this inquiry, by Section 27, ‘‘the person concerned, if he
desires and at his own expense, shall have the right to obtain and be rep-
resented by counsel.’’ An unsuccessful applicant could appeal to the
minister, but the minister need not conduct another hearing or even give
reasons for a decision. And, as in the 1910 Act, Section 39 provided that
No court and no judge or officer thereof has jurisdiction to review, quash,
reverse, restrain or otherwise interfere with any proceeding, decision or order of
the Minister, Deputy Minister, Director, Immigration Appeal Board, Special
Inquiry Officer or immigration officer had, made or given under the authority
and in accordance with the provisions of this Act relating to the detention or
deportation of any person, upon any ground whatsoever, unless such person is a
Canadian citizen or has Canadian domicile.
The Act was essentially exclusionary, reaffirming the principle that no
one had a right to immigrate to Canada,
126
and the authority over whom
to exclude was left to the Department of Immigration.
One apparently meaningful change from 1910 was that the word
‘‘race’’ was replaced by the more acceptable term ‘‘ethnic group’’ in Sec-
tion 61(g)(i). By 1952, ‘‘race’’ had come under severe scientific question-
ing, and few serious scientists gave the term any credibility. Alastair
Stewart, CCF MP from Winnipeg North, had quoted UNESCO docu-
ments in March 1952 to indicate that racial origin had no effect on the
mental abilities or achievements of human beings.
127
During second
Narine-Singh v. Attorney General of Canada 273
reading of the immigration bill, Stewart condemned the government for
being
prepared to ban people on racial grounds. . . . Experience has shown that [‘‘race’’]
is a word which had very little scientific validity.... But what is the meaning of
‘‘race’’? . . .
I agree that it is right and proper for Canada to decide who should come to this
country, but we have used these racial concepts viciously in the past.
128
Whether the government accepted this argument, and how meaningful
was the word change in Section 61(g), would await further elaboration in
the case of Harry Singh.
8. CAMPAIGN FOR IMMIGRATION REFORM
Harry Singh’s closest collaborators and financial sponsors in his bid to
remain in Canada were members of the Toronto Labour Committee for
Human Rights. This body was founded in 1947 at the instigation of the
Jewish Labour Committee of Canada, recognizing that organized
labour ’s attitude towards racial and religious minorities required change.
Representatives of both the TLC and CCL were involved in establishing
the Toronto Committee, whose initial tactics were to attend union meet-
ings and conventions with educational material on the dangers and dam-
ages to working people caused by discrimination. It was quickly
discovered that political activity was required as well, and so the Toronto
Committee began drafting resolutions calling for changes in public pol-
icy for adoption at labour gatherings. Close contacts were established
with the CCF members of Parliament, who often cooperated in bringing
these concerns to public attention.
129
Early in 1951 the Toronto Committee became aware of the role of
immigration policy in the syndrome of Canadian discrimination when
two West Indians about to be deported appealed for help. When the
Committee’s intervention with government officials proved successful,
many more West Indians faced with deportation sought their aid. By
September 1951, having discovered PC 2856
130
as a source of the prob-
lem, the Committee decided ‘‘to bring this matter to the attention of the
public’’ and to seek to change the racist features of Canadian immigra-
tion policy.
131
One early success occurred at the TLC’s 1951 annual con-
vention in Halifax, which unanimously approved a resolution removing
Section 12 from the Platform of Principles – which had called for the
exclusion from Canada of unassimilable ‘‘races’’ – ‘‘as it is in direct con-
274 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tradiction to the established policy of the TLC against racial discrim-
ination.’’
132
A month later the CCL convention passed a resolution
specifically condemning PC 2856 as being racially discriminatory.
133
At almost exactly the same time, a group of West Indians in Toronto
formed the Negro Citizenship Association, primarily to discover why so
many of their compatriots were being deported or refused admission to
Canada. The letters and documents sent to rejected applicants were
worded very generally, and gave no explicit reasons why that individual
was not qualified to enter Canada. In the course of their search they too
found PC 2856 and the definition of ‘‘British subject’’ that excluded
them.
134
The two organizations decided to collaborate in their efforts
both to protect West Indians already in Canada and to affect the policy
restricting their entry.
135
‘‘Case work’’ continued – posting bonds for jailed deportees, making
individual inquiries to officials and to the minister – but ‘‘political work’’
became more and more central.
136
Considerable attention was gained in
April 1952 when their campaign reached the floor of the Commons. A
founder of the Negro Citizenship Association sought to bring his grand-
daughter from Barbados, and his application drew the typical depart-
mental response. Gordon Milling, executive secretary of the Toronto
Labour Committee for Human Rights, wrote to M. J. Coldwell and other
CCF MPs describing this case and suggesting a set of questions that
could be asked in the House. Joseph Noseworthy, MP for York South,
wrote to Harris for information, and received a reply couched in the
terms used in departmental letters. The minister wrote:
I have had the case reviewed by the immigration branch to ascertain whether
some grounds could not be found for extending favourable consideration. It is
quite evident, however, that Miss Braithwaite does not qualify for admission
under present regulations and in the circumstances no encouragement can be
offered. . . .
[O]ne of the conditions for admission to Canada is that immigrants should be
able readily to become adapted and integrated into the life of the community
within a reasonable time after their entry. In the light of experience it would be
unrealistic to say that immigrants who have spent the greater part of their life in
tropical or sub-tropical countries become readily adapted to the Canadian mode
of life which, to no small extent, is determined by climatic conditions. It is a mat-
ter of record that natives of such countries are more apt to break down in health
than immigrants from countries where the climate is more akin to that of
Canada. It is equally true that, generally speaking, persons from tropical or sub-
Narine-Singh v. Attorney General of Canada 275
tropical countries find it more difficult to succeed in the highly competitive Cana-
dian economy.
137
Since the minister claimed that these weaknesses were ‘‘a matter of
record,’’ Noseworthy asked the pre-arranged questions in the House of
Commons designed to expose the nature of this alleged record:
1. How many persons of British West Indies origin are at present living in
Canada?
2. How many persons have entered Canada from the British West Indies during
each of the five years 1947-51, inclusive?
3. How many applicants for entry to Canada from the British West Indies have
been refused entry during each of the five years 1947-51, inclusive?
4. For what reasons were these applicants rejected, and how many were rejected
for each of these reasons?
5. How many students were admitted to Canada from the British West Indies for
the purpose of studying in Canada during each of the years 1947-1951, inclu-
sive?
6. How many of those students applied for permanent residence in Canada?
7. How many of these student applicants were granted permanent residence in
Canada?
8. Are any statistics available to show how immigrants to Canada from the
British West Indies compare with immigrants from other warm climate coun-
tries in the following respects (a) health records; (b) wages or salaries earned;
(c) unemployment records; (d) profession and occupation followed; (e) public
liabilities?
138
The minister was not, of course, in a position to answer these detailed
questions, and so they were passed as orders for returns. They lan-
guished in that state for over a year.
The two Toronto groups meanwhile prepared a brief to the prime min-
ister and cabinet decrying PC 2856 as discriminatory and unjust, and
harmful to Canada’s reputation as a democratic country. The brief gave a
capsule history of blacks in Canada, emphasizing their loyalty and par-
ticipation in every one of Canada’s wars. In recent years they had
proven themselves as equals in Canadian society and were therefore
‘‘entitled to all the rights, privileges and responsibilities that are inherent
in the status of Canadian citizen.’’ They asked, in consequence, for a ‘‘fair
ratio’’ of West Indian immigrants and for a change in immigration law to
remove its overtly discriminatory features. Copies of the brief were
276 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
mailed to MPs and cabinet ministers, along with a resolution passed at a
public meeting held in Carlton Street United Church calling for changes
to PC 2856.
139
The Toronto material arrived in Ottawa in June 1952, about
the same time as a brief from the Khalsa Diwan Society asking for the
same privileges in bringing relatives to Canada as those enjoyed by
Europeans.
140
Both the West Indians and the East Indians made a special
point of the fact that fellow citizens of the Commonwealth, if they hap-
pened not to be white, had fewer rights than white foreigners. Their
arguments obviously had no impact on Walter Harris, whose 4 July sum-
mation of immigration policy openly proclaimed the racially based char-
acteristics of Canadian policy.
Organized labour was more responsive. The Ontario Federation of
Labour called for a non-discriminatory immigration policy and urged its
affiliates to assist immigrants in trouble; the TLC’s annual presentation to
the federal cabinet included a recommendation to revise immigration
policy so as to remove racial discrimination; and the CCL roundly
attacked the ‘‘degrees of desirability for admission’’ contained in govern-
ment policies that were especially unfair to West Indians.
141
The national
convention of the CCF, held at Toronto in August 1952, unanimously
passed a resolution drafted by Gordon Milling of the Toronto Labour
Committee for Human Rights, regretting that
this evidence of a ‘‘white supremacy’’ policy in Canada will inevitably tend to
discredit us in the eyes of the non-white peoples of the world, both within the
Commonwealth and elsewhere, and must undermine the confidence of minority
groups within their own country....
[We] demand an immigration policy that will conform more closely to the
principles of the United Nations, with uniform standards and conditions of
admission based on the legitimate requirements of the country rather than on
groundless prejudices.
142
The CCF caucus in Ottawa followed through. When Immigration esti-
mates were next discussed, in April 1953, Joe Noseworthy revealed to the
House the answers he had just received to his parliamentary questions
put a year previously. Reminding the House that, according to the minis-
ter, it was ‘‘a matter of record’’ that natives of southern countries could
not adapt to the Canadian climate and therefore broke down in health
and failed economically, Noseworthy read out the Department’s admis-
sion that it was unable to answer a single one of his questions because
records were not available on the subject. His CCF colleague Angus
Narine-Singh v. Attorney General of Canada 277
MacInnis leapt on the discomfited minister with a new brief from the
East Indians in British Columbia, complaining against discriminatory
regulations which kept families divided. Then Alistair Stewart attacked
Harris’ annual report, which continued to list immigrant arrivals by
‘‘race’’ despite the changed wording in the Act. Indicating the headings
used in the Department’s columns, Stewart declared:
I submit that there is no such thing as a Scottish race or an Irish race, or to take
two different examples, the Belgian race or the Swiss.... Ethnically the term is
outmoded, and I should like to see it removed.
143
Other Opposition MPs joined the chorus, but it was obviously Nose-
worthy’s revelations that stung the minister most. He issued a statement
that the letter to Noseworthy had been mistakenly drafted by depart-
ment officials, that he had signed it but warned that it not be sent until
the matter was reconsidered, but then by error the letter was in fact
delivered.
144
Just a month later a new order-in-council was proclaimed,
setting out the ‘‘Norms of Admissibility to Canada.’’
145
Notably missing
was any reference to ‘‘climate,’’ though it appeared in Section 61(g) of the
enabling Act. Then in December came another moral boost for the cam-
paign when the Queen’s Christmas message was dedicated to the theme
of racial equality. Queen Elizabeth pledged ‘‘To that new conception of
an equal partnership of nations and races I shall give myself heart and
soul, every day of my life.’’
146
Commonwealth partnership, colonial independence, the judicial
assault on American segregation laws in the spring of 1954: these things
generated a spirit that came in conflict with Canada’s traditional immi-
gration ideals, causing some confusion and some hypocrisy. Shortly after
the Queen’s message, Walter Harris reiterated in a public speech the
Mackenzie King principle and explained that it meant ‘‘that the racial
background of our people would be maintained within reasonable bal-
ance; and that we would avoid an influx of persons whose viewpoint dif-
fered substantially from that of the average, respectable, God-fearing
Canadian.’’
147
The Globe and Mail wondered editorially from whom
Canadians were being protected, ‘‘Arabs, Zulus, or what?’’ ‘‘No one,’’ the
Globe affirmed, ‘‘seriously proposed taking immigrants from any part of
the world save Western Europe.’’
148
The Toronto Star Weekly, in an edito-
rial praising the Queen’s commitment to racial equality, added the com-
ment that ‘‘Racial discrimination is an established (and most would say
sensible) feature of our immigration policy.’’
149
In February 1954, during
278 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
a state visit to New Delhi, Louis St. Laurent advised the Indian Parlia-
ment that ‘‘The Commonwealth is an association of people of many races
and colours and creeds, working together on a basis of mutual respect
and complete equality of status.’’
150
A few weeks after this, in a radio
debate with labour representative Eamon Park, Harris denied the charge
that Canada discriminated against certain British subjects and Common-
wealth citizens. ‘‘I must assure you that we are not going to draw any
lines which would be contrary to the Canadian understanding of the
equality of all people.’’
151
The Canadian people could be forgiven if they
did not entirely understand the position of their government on this
most crucial issue.
The Toronto campaigners decided that the time was ripe for another
joust at the restrictive policies. Plans were carefully laid for an effective
delegation to Ottawa on 27 April 1954.
152
The decision was made to con-
centrate only on West Indian immigration, leaving Asia and Africa aside
for the moment. Kalmen Kaplansky of the Jewish Labour Committee of
Canada advised his Toronto colleagues: ‘‘If the Immigration Act could be
amended whereby West Indians would be treated in the same manner as
other British subjects, it would set a precedent, which we could utilize in
pressing for the liberalization of the whole Act.’’
153
Donna Hill, executive
secretary of the Toronto Labour Committee for Human Rights, sought a
wide range of endorsements for the brief she had helped to prepare. The
CCL quickly came on board, agreeing to be part of the delegation as well
as signing the brief. The TLC, more cautious as always, declined the invi-
tation to participate. Both the United and Anglican churches formally
endorsed the brief, as did the Brotherhood of Sleeping Car Porters, the
United Auto Workers, the Universal Negro Improvement Association,
and 20 other Canadian organizations. On 27 April the delegation of 35
representatives led by the Negro Citizenship Association steamed into
Ottawa to confront Walter Harris.
154
The written brief, presented by Donald Moore, emphasized the dis-
crimination in PC 2856 against citizens of the Commonwealth West
Indies ‘‘because it creates two classes of Her Majesty’s subjects,’’ dividing
white from coloured and instilling ‘‘a feeling in these divided groups . . .
that there are superior and inferior races.’’ Similar ideas had recently
shattered the world, and Canada as a democracy must help to extinguish
this threat to global peace. The climate argument against West Indians
had been demolished, the brief continued, and as English-speaking citi-
zens of the British Empire, West Indians were already adapted to Cana-
dian customs, habits, modes of life and methods of holding property.
Narine-Singh v. Attorney General of Canada 279
The adjustment required upon arrival in Canada was minimal. The regu-
lations allowed for the admission of ‘‘cases of exceptional merit.’’ One
would assume this category would include persons whose skills were
needed in Canada, ‘‘but cases in the last few years indicate that immigra-
tion authorities have turned down applications for permanent entry of
persons whose skills were most desirable: nurses, draughtsmen, stenog-
raphers, and graduates of Canada’s leading educational institutions have
been rejected.’’ Citing the Queen’s Christmas message and the Universal
Declaration of Human Rights, the brief called upon the government to
amend the definition of ‘‘British subject’’ in the immigration regulations
to include all peoples who were legally definable as such, to make provi-
sions for the entry of British West Indians ‘‘without regard to racial ori-
gin,’’ to define the term ‘‘persons of exceptional merit,’’ and to establish
an immigration office in the British West Indies. Spoken presentations
during the meeting were not always so constrained. For example, Stan-
ley G. Grizzle, Toronto president of the Brotherhood of Sleeping Car
Porters, gave Harris the figures his own officials had been unable to find:
728 ‘‘British Negroes’’ had entered Canada since the war, an annual aver-
age of 104 and ample evidence, for Grizzle, of a ‘‘Jim Crow Iron Curtain’’
in Canadian immigration regulations. ‘‘They evince in a hundred ways a
determination . . . to keep other races in a position of subordination and
inferiority. It is against this very attitude peoples the world over are in
revolt.’’
155
Harris was gracious in response. He said he would give ‘‘serious con-
sideration’’ to the brief and would see if it were possible to widen the
category of admissible relatives. He expressed concern about only one of
their recommendations, the entry of British West Indians without regard
to racial origin. ‘‘You were not thinking of the Chinese?’’ Harris asked.
‘‘These are as big a problem as I have to deal with. If I admit Chinese
from the West Indies, how can I exclude Chinese from places other than
the West Indies?’’
156
In the House of Commons he was less candid and
less encouraging. During his annual report and consideration of the esti-
mates in June 1954, he was asked by Joe Noseworthy
what action, if any, the government has taken or proposes to take as a result of
the brief presented to him during the latter part of April by the Negro Citizen-
ship Association on behalf of immigrants from the West Indies, those British sub-
jects who, by regulation of the immigration department, are not British subjects.
Harris replied:
280 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Upon receiving the brief we studied it. I examined the statistics with regard to
these persons and I found that there had been a steady increase in the numbers of
Negroes from the West Indies being admitted to Canada. If we leave the present
regulations as they are for the time being I think the numbers will probably
increase in any event and that we shall have what I would consider to be a rea-
sonably fair representation of these people in the flow of immigrants to Canada. I
could place before the House the shifting changes in the numbers but I assure the
hon. members that they are on the increase. In addition to the close relative
groups who come in in almost every case I should not say as of right but never-
theless almost so, we have a special merit case and we have been using it with
respect to these people.
157
And once again Harris submitted his report on immigration ‘‘by racial
origin.’’ Still listed as ‘‘races’’ were Irish, Scottish, Belgian and Swiss,
along with Chinese, Japanese and Negro.
158
Four days later Harris retired and was replaced by his close associate
Jack Pickersgill who, on being offered a choice between Transport and
Immigration, chose the latter as a ‘‘lighter portfolio’’ so that he could
spend more time in his role as special assistant to the prime minister.
159
The change in ministers, not surprisingly, did not imply any change in
policy. Pickersgill reconfirmed the government’s retention of the
Mackenzie King principle and, when asked about restrictions on West
Indians and Asians, replied: ‘‘We are not going to permit any massive
immigration from those areas.’’
160
A new order-in-council issued in
September 1954, PC 1351, carried identically worded ‘‘Norms of Admis-
sibility’’ over from the previous PC 859.
161
Following several letters from
Donald Moore, president of the Negro Citizenship Association, the min-
ister finally acknowledged that he had read the brief, but ‘‘I can offer no
encouragement.’’
162
The ‘‘lighter portfolio,’’ however, turned out not to be as Pickersgill
expected. He was continually on the defensive in the House.
163
The 1955
session of parliament began with a motion of no confidence put by Conser-
vative Davie Fulton: ‘‘in the opinion of this house, the immigration policy of
the government is not clear, consistent or coordinated; is not in conformity
with the needs or responsibilities of Canada; and in its administration
denies simple justice to Canadians and non-Canadians alike.’’
164
Next to high taxation and unemployment, Fulton contended, immigra-
tion was the subject of greatest concern to Canadians. This debate gave
Joe Noseworthy and Angus MacInnis another opportunity to raise objec-
tions to the restrictions against West Indians, East Indians and Chi-
Narine-Singh v. Attorney General of Canada 281
nese,
165
but not every critic of government policy had the same changes
in mind. Toronto Conservative Donald Fleming attempted to identify the
source of the public concern noted by his colleague Fulton:
Let us face frankly the fear which immigration has engendered in some Canadi-
ans. Those fears have been principally on the grounds of race and employment.
On the subject of race I think the government owes a duty to the people of
Canada to say, as we Conservatives say and say emphatically, that immigration
to this country must never be permitted to have for its purpose disturbance of
the fundamental racial composition of Canada. We subscribe most emphatically
to that point of view.
166
No doubt relieved to find a question he could answer in the affirmative,
Pickersgill retorted: ‘‘Has the hon. member not read the statement made
by Mr. King on May 1, 1947, by which we still abide and in which a dec-
laration of this character was made long before the Conservative party
had any policy on the subject?’’
167
Over the next several days, the debate grew more specific in support-
ing the charges made in Fulton’s motion. The Canadian Bar Association
had struck a subcommittee to examine immigration policy at its 1952
annual meeting. Two of the subcommittee’s three members were John
R. Taylor of Vancouver and John H. McDonald of Ottawa, prominent
immigration lawyers. Their report, submitted to the Association’s 1954
annual meeting in Winnipeg, called for the codification of regulations
and publication of directives sent to field officers on their interpretation,
the implementation of legal appeal procedures, the availability to appli-
cants of non-confidential files concerning their own cases, and ‘‘the
establishment of a procedure setting forth reasons for rejection in each
case, in such a way as to give the rejected party ... an opportunity of
overcoming the department’s objections.’’
168
This report, as one observer
has noted, served as the ‘‘heavy ammunition’’ for Opposition MPs
attacking the procedural inconsistencies and injustices in current regula-
tions.
169
The minister was not inclined to take the subcommittee’s report quite
so seriously. Taylor and McDonald, it seems, collaborated on a number of
immigration cases which had been unsuccessful and, according to Pick-
ersgill, they deliberately used the subcommittee to embarrass the depart-
ment by alleging abuses and irregularities. In his autobiography,
Pickersgill explained the background to Fulton’s motion:
282 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
It turned out that the whole agitation was based upon Chinese Canadian cases
handled by Taylor ’s law firm [for which McDonald was Ottawa agent]. In
September 1954 McDonald came to see me and said he and Taylor would call off
their campaign against the Immigration officials if I would reverse the decisions
made when Harris was Minister refusing a number of specific applications, of
which I later learned all but one were from Taylor ’s clients. I was told, if I did
not follow his suggestion, I could expect trouble in Parliament.
170
However, the case Fulton highlighted as a prime example of departmen-
tal inefficiency and even inhumanity, that of Leong Ba Chai, was not rep-
resented by Taylor or McDonald.
Leong Hung Hing, a Canadian citizen, had applied for the admission
of his son Leong Ba Chai in 1951, when the son was 18 years old. When
the young man was investigated in Hong Kong, it was learned that his
mother was Leong Hung Hing’s second wife, married when the first
wife proved to be sterile. The first wife had since deceased, but as she
was still alive when Leong Ba Chai was born, immigration officials
decided this made the boy illegitimate and therefore ineligible to go to
Canada. Though PC 6229 made no reference to legitimacy in allowing
Asians to bring in unmarried children under age 21, the department
refused to consider him further. Justice Clyne in the BC Supreme Court
ordered the department to consider the application on the grounds that
PC 6229 was silent on the issue of legitimacy and besides, according to
the customs of China where he was born, Leong Ba Chai was legitimate.
The department then took the case to the BC Court of Appeal and, upon
a second loss, pursued it to the Supreme Court of Canada late in 1953.
171
The department’s attempt to hide behind Section 39 of the Act, prevent-
ing judicial review, was to no avail. The Supreme Court decided that by
not discharging his duty to consider Leong Ba Chai’s application under
the regulations, the official was liable to review by the courts. The
department’s appeal was dismissed once more. But ‘‘considering’’ the
application took almost another year: x-ray reports took longer than
expected; correspondence between father and son had to be translated
and studied in Ottawa. On 30 November 1954, Leong Hung Hing died:
Leon Ba Chai was no longer the son of a Canadian citizen in a position to
receive and care for him. The application was therefore and finally re-
jected in December 1954.
172
Leong Ba Chai was notable mostly for the tenacity with which the
department fought to keep a single representative of an unwanted ‘‘race’’
Narine-Singh v. Attorney General of Canada 283
from the shores of Canada. If the minister was the least bit embarrassed
by the revelations, he did not show it. He later wrote:
Fulton’s attack had really boiled down to a single question: did a Canadian citi-
zen whose application for a relative was refused by an immigration officer have a
right to appeal to the law courts and, for that purpose, to be told why the relative
had been refused?
173
His short answer was a simple ‘‘no.’’ In his parliamentary response,
which he assessed as ‘‘the most important speech I ever made on immi-
gration,’’
174
Pickersgill defended his officials’ resistance to having immi-
gration matters aired in the courts.
After all, the purpose of our Immigration Act is to get good immigrants into
Canada and not to enter into complicated consideration of marginal cases. . . .
The hon. member for York South (Mr. Noseworthy) [suggested] that these peo-
ple were being convicted without being heard, and if they could bring in evi-
dence a different judgment might be rendered. . . .
These people are not on trial at all in the sense that someone is on trial in a
court. They are people who have applied for entry into this country, which we
have a perfect right to deny to anyone who is not a Canadian. . . .
So far as discrimination is concerned, I am more concerned to see that there is
no discrimination as between one person and another who is in this country, who
had been admitted to this country, than I am about a certain limited discrimina-
tion among those whom we admit.
175
Reporting his departmental statistics a month later, Pickersgill re-
vealed that some of the exposure in Parliament and in court was having
an effect: immigrants were categorized for the first time according to
their ‘‘Last Permanent Residence’’ rather than ‘‘race’’ as heretofore.
176
But
that the change was no more than cosmetic is indicated by an answer he
gave to Parliament in May 1955. Asked if a Chinese American was
admissible to Canada, Pickersgill explained that the regulations applied
to all ‘‘persons of the Chinese race,’’ regardless of citizenship.
177
An
American citizen of Chinese extraction would be barred. Summarizing
government policy at that time, the Canada Year Book for 1955 explained
that immigrants were admissible ‘‘if they are found to be suitable and
desirable.’’ The explanation continued:
284 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Suitability and desirability are established in part by social, economic and labour
conditions in this country. Prospective immigrants should be of a type that will
become readily integrated into the community and that will be able to assume
the duties and responsibilities of Canadian citizenship within a reasonable time
after admission.
178
In a confidential memorandum dated 14 January 1955, the director of
immigration revealed that ‘‘suitability’’ was interpreted to mean that cer-
tain ‘‘races’’ were considered incapable of meeting the demands of Cana-
dian citizenship:
It is not by accident that coloured British subjects other than negligible numbers
from the United Kingdom are excluded from Canada. It is from experience, gen-
erally speaking, that coloured people in the present state of the white man’s
thinking are not a tangible asset, and as a result are more or less ostracized. They
do not assimilate readily and pretty much vegetate to a low standard of living.
Despite what has been said to the contrary, many cannot adapt themselves to our
climatic conditions. To enter into an agreement which would have the effect of
increasing coloured immigration to this country would be an act of misguided
generosity since it would not have the effect of bringing about a worthwhile
solution to the problem of coloured people and would quite likely intensify our
own social and economic problems. I think that the biggest single argument
against increasing coloured immigration to this country is the simple fact that the
Canadian public is not prepared to accept them in any significant numbers.
179
Or in the minister’s own folksy idiom, ‘‘it is easier to transplant into soil
which is similar to that from which you take the plant.’’
180
9. THEINEVITABLE: HARRYSINGH
IN THE ONTARIO COURTS
The passage of Ontario’s Fair Employment Practices Act in 1951
181
and its
federal counterpart in 1953
182
helped to relieve Canadian labour’s fear of
competition from cheap immigrant labour. The activists in the Toronto
Labour Committee for Human Rights, who had in fact been significant in
the Fair Employment campaign as well, were gaining a more positive
response in the union constituency for their arguments in favour of
immigration policy reform. Both the major labour organizations, the TLC
and the CCL, were formally committed to the elimination of ‘‘race’’ as a
qualification for entry, and many individual unions had passed equiva-
lent resolutions. The crusaders were poised for an assault on the federal
Narine-Singh v. Attorney General of Canada 285
government. The stage was set and the plot was written; all that was
missing was a lead character. And then Harry Singh walked into the
Toronto Committee’s office.
Harry Singh became the test case, the living symbol, the human content
in an otherwise faceless movement to change the law. This is not to say
that Singh’s interests were ignored or that the result in his court appeal
could have been different, but it is true that his appearance offered a
golden opportunity to link an abstract principle to a man and a woman
caught in a personal drama. Sid Blum of the Toronto Labour Committee
wrote to president Donald Moore of the Negro Citizenship Association:
the case is very important for two reasons: l) to show the public the unfair treat-
ment that non-white British subjects are receiving from a Department of the
Canadian Government; and 2) to show the Immigration Department that such
policies are unfair and that a substantial section of the public feel deeply enough
about this injustice to protest against it.
183
To the CCL’s Toronto Council, Blum wrote reminding them of CCL reso-
lutions against discrimination in immigration policy, and adding: ‘‘We
feel that this is an important issue – and one of the ways we can fight
against such injustice is to challenge Singh’s deportation in the
courts.’’
184
In his standard letter acknowledging contributions toward
Singh’s legal expenses, Blum closed with the assurance that ‘‘The Com-
mittee has high hopes that our fight will result in substantial changes in
the Immigration Act – changes in accord with the democratic ideals and
aims of the Canadian Labour Movement.’’
185
As soon as she learned the circumstances of Harry Singh’s new depor-
tation order as an ‘‘Asian,’’ Donna Hill knew that she had a case virtually
designed to reveal the ridiculous and arbitrary features of Canadian pol-
icy.
186
Just before her impending motherhood caused her to vacate her
position as executive secretary of the Toronto Labour Committee, Ms.
Hill enlisted the CCL leadership and the CCF party in the Singhs’ sup-
port. MP Alistair Stewart took up the case with Walter Harris, unsuccess-
fully, and promised to push the matter publicly, but privately he told
Donna Hill: ‘‘I don’t think we are going to get far but at least the facts of
the situation certainly demand their being placed on the record.’’
187
Opti-
mistic still, Hill recruited Andrew Brewin, noted immigration lawyer
and social crusader, who agreed to take the case without fee as he was
personally convinced that a precedent-setting decision was possible. Ms.
Hill issued a press release describing the factual background, while Mr.
286 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Brewin initiated the court challenge.
188
Hill’s colleague and successor as
executive secretary, Sid Blum, established a Singh Defence Fund and
began soliciting donations from union locals and individual workers.
189
He wrote personal notes to reporters at all three Toronto daily newspa-
pers, giving them the human interest story and offering further informa-
tion as the case progressed.
190
Certain liberal elements in the press became aroused by Harry Singh’s
experience. The Toronto Star featured a story emphasizing that Harry and
Mearl had faced a ‘‘surprise hearing before the Immigration Board of
Inquiry . . . without being warned in advance’’ and that they were ‘‘effec-
tively prevented from having legal counsel.’’
191
Saturday Night magazine
carried a front-page editorial denouncing the Immigration Act as ‘‘well-
spattered with gobbledygook’’ and the Immigration Department as pop-
ulated by ‘‘arrogant little men.’’ The editorial described the Singhs’ ‘‘sur-
prize hearing’’ and the absence of a lawyer as ‘‘shocking’’ and openly
discriminatory, and concluded:
The present Immigration Act obviously confers arbitrary powers on petty offi-
cials and leaves much too much room for discriminatory, unfair treatment of visi-
tors and settlers. It is up to Mr. Harris to present to Parliament amendments to
the Act which will make it a clear, just vehicle for the regulation of immigration –
and at the same time to ensure that his Department is organized to apply the reg-
ulations with courtesy and reason.
An accompanying photograph of Walter Harris bore the caption ‘‘A time
for spring-cleaning.’’
192
These and similar stories prompted the official involved, Mr.
C. Schreiber, to demand an apology from Harry Singh, which was imme-
diately forthcoming. In his statement to Schreiber, Harry regretted ‘‘all
the recent unfavourable publicity’’ and affirmed that ‘‘you did not
deceive me.’’ He acknowledged that he had an opportunity to have a
lawyer but declined, that Schreiber had informed him that he must
appear before a Special Inquiry, and that inferences to the contrary in the
Toronto press were incorrect.
193
This experience undoubtedly contributed
to a growing doubt on Harry’s part of the wisdom of his supporters’
course of action. In a conversation with Sid Blum toward the end of May
1954, Singh confessed that he was worried about the publicity and feared
that Immigration officials would become biased against him. His
employer, a Mr. Fitzgibbons, had tried to interfere on Harry’s behalf with
some ‘‘influential Liberal friends,’’ and had received a letter from Walter
Narine-Singh v. Attorney General of Canada 287
Harris warning him that this campaign was connected with ‘‘commu-
nists or Reds.’’ Harry’s relatives in Trinidad, where local papers had
picked up the story, were writing in alarm at Harry’s notoriety. In a writ-
ten aide-mémoire recording this conversation, Blum noted:
Singh asked me to try to see that he, and the case, did not attract too much pub-
licity. I tried to persuade him that the right kind of publicity would help his case,
but he appeared very frightened and still wanted to have as little to do with the
press as possible.
I told him that I would try to help him, but once the case went into court there
was little that I could do.
194
Convinced however of the righteousness of his cause, Blum continued to
prod the attention of the press in both Toronto and Trinidad, and issued
personal invitations to attend Harry’s appearance before Justice Aylen, of
the Ontario Supreme Court, scheduled for 29 June 1954.
195
Andrew Brewin applied for a writ of habeas corpus with certiorari in
aid, to determine the validity of Schreiber ’s decision. In his submission
before Justice Aylen, Brewin directly confronted the racist features of
Canadian policy. Using UNESCO materials supplied by Sid Blum, the
lawyer argued that ‘‘race’’ theories had no scientific justification, racial
discrimination was ‘‘odious,’’ and policies based on ‘‘race’’ were ‘‘con-
fused and unenlightened and are more in keeping with national social-
ism in Germany.’’ ‘‘Race’’ had been eliminated as an entrance criterion in
the 1952 Immigration Act, Brewin continued, so the reference to ‘‘Asian’’
in the regulations, which was not specifically defined there, could not be
interpreted as a racial category. Harry’s ‘‘ethnic group’’ could not be
described as ‘‘Asian’’: in Trinidad, he and his forebears had participated
in a composite culture deriving from Africa and Europe as well as Asia,
he was born into a Christian family, and he followed no identifiably
Asian practices. The only remaining definition of ‘‘Asian’’ was geograph-
ical, and Harry had never even been in Asia and had no geographical
association with that continent. The Immigration official had operated on
the principle that the word ‘‘Asian’’ in the regulations referred to a racial
category, and had therefore improperly inquired into Harry Singh’s
racial background. Since this was an error, the official had not conducted
an inquiry in accordance with the provisions of the Act and his decision
must be quashed by the court.
Brewin called upon Leong Ba Chai as a precedent, for there the Su-
preme Court of Canada had determined that when an immigration offi-
288 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
cial exceeded his authority and inquired into irrelevant details, the
decision must be set aside. He also cited Samejima v. The King to indicate
that an improper procedure at an immigration inquiry must result in the
reversal of a deportation decision.
196
The substitution of a second depor-
tation notice following Donna Hill’s complaint, Brewin contended, con-
stituted a procedural irregularity not authorized by the Act.
The Immigration Department’s attorney, J. D. Pickup, argued simply
that although ‘‘race’’ and ‘‘Asiatic’’ had been eliminated from the Act, the
terms had been replaced by ‘‘Asian,’’ ‘‘ethnic group’’ and ‘‘geographical
area of origin,’’ all of which retained the meaning of the previous word-
ing for the purposes of immigration. Asians were not welcome as immi-
grants under the 1910 Act and they were not welcome under the 1952
Act.
197
Justice Aylen found the simpler argument more convincing. The omis-
sion of ‘‘race’’ from the Act, he pointed out, was accomplished by a revi-
sion, not a formal amendment. The intent of the previous wording had
not been changed. ‘‘Asian’’ meant the same thing as ‘‘Asiatic,’’ and
according to both the Shorter Oxford and Murray’s New English dictionar-
ies, an Asian was ‘‘a person pertaining to or characteristic of one of the
Asian races.’’ The intent of the Act could hardly be geographical, be-
cause that would exclude an English person born in Asia and such per-
sons were quite obviously admissible to Canada. The ‘‘racial’’ interpretation
was the only sensible one. An immigration officer had to make a practical
decision based on any applicant’s ‘‘predominant characteristics,’’ and if
the officer made a mistake the applicant could appeal to the minister.
Furthermore, Justice Aylen found the Ontario decision in Re: Robinson to
be more pertinent as a precedent: if the Board of Inquiry was conducted
according to the Act, its decision was immune from judicial interference
even if that decision was based on faulty evidence.
198
Harry and Mearl
‘‘received a fair and apparently well-conducted hearing,’’ and Schreiber
had ‘‘acted under the authority and in accordance with the provisions of
the Act.’’ There were therefore no circumstances to justify an appeal to
the courts. Brewin’s application was dismissed.
199
Blum immediately brought his campaign back into operation, with
Brewin’s concurrence, for an application to the Ontario Court of Ap-
peal.
200
There was a renewed appeal for funds, and an attempt to gain
the endorsement of the TLC as well as the CCL. The secretary of the TLC
responded that ‘‘the Executive are not unsympathetic to the appeal to a
higher court in behalf of Mr. Singh but cannot endorse the appeal to the
unions [for funds]. . . .’’
201
The ensuing fundraising effort was therefore
Narine-Singh v. Attorney General of Canada 289
limited to CCL-affiliated unions and, for practical purposes, to the
province of Ontario. Blum also revived his publicity tactics, advising
Trinidadian as well as Canadian newspapers of the Aylen decision and
the forthcoming appeal to a higher court.
202
The parties assembled before Justices Hope, Aylesworth and Gibson
on 10 September 1954. Mr. Brewin began, as previously, by contending
that ‘‘The new Immigration Act ... is substantially different from its pre-
decessor.’’
203
Previously members of ‘‘the Asiatic race’’ were banned from
Canada, under authority of the old Act which permitted restriction by
‘‘race’’; now ‘‘race’’ was no longer a ground for exclusion, but ‘‘Asians,’’
were prohibited under the regulations. ‘‘The meaning is not the same,’’
Brewin argued, yet ‘‘the word ‘Asian’ is apparently still interpreted by
the authorities as having only a racial significance.’’
204
Referring to Sec-
tion 61(g) of the 1952 Act, prohibiting admission by reason of ‘‘national-
ity, citizenship, ethnic group, occupation, class or geographical area of
origin,’’ by which Section 20(2) of the 1953 regulations was authorized,
he indicated that the only term applicable to Harry Singh was ‘‘geo-
graphical area of origin,’’ as there was no such thing as Asian nationality,
citizenship, ethnic group, occupation or class. And on that basis Harry
and Mearl Singh were not ‘‘Asians,’’ since they came from Trinidad. Jus-
tice Hope intervened at this point to ask whether ‘‘origin’’ did not refer
to the applicants’ ancestors, to which Brewin replied ‘‘that the expression
is equivalent to domicile of origin or place of birth.’’
205
Since the inquiry
officer erred in interpreting ‘‘Asian’’ as a ‘‘race,’’ his decision was not
protected from judicial review by Section 39 of the Act. The officer
‘‘declined jurisdiction, or wrongly exercised his jurisdiction, by consider-
ing the question of race. The record clearly shows that it was on the basis
of race alone that he decided the applicant was an ‘Asian,’ and Parlia-
ment itself had made the question of race extraneous.’’
206
On the one hand, then, was the evidence that the Singhs’ inquiry was
improper; on the other hand there remained the possibility that Section
20(2) was intended to apply to ‘‘race,’’ and if so the regulation itself was
ultra vires.
Parliament has given the Governor in Council the right to define classes to be
excluded, but it must be done in a definite way, and show clearly the tests that
are to be applied, so that a special inquiry officer can easily determine the nature
of the inquiry to be made by him. There must be some reasonable degree of cer-
tainty.... Parliament has delegated wide power to the Governor in Council, and
those powers are to be interpreted liberally, but they do not include the making
290 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
of Regulations that set up no standards whatever and are too indefinite. The
word ‘‘Asian’’ is so vague and indefinite as to be outside what Parliament autho-
rized.
207
After this frontal attack, Brewin retreated to a technical argument. Sec-
tion 28(3) of the Act, which authorized Schreiber ’s order, permitted
exclusion of persons ‘‘seeking admission to Canada’’; the Singhs were
already in Canada and were therefore not seeking admission, and
Schreiber ’s order was invalid.
208
Without calling upon Mr. Pickup to respond to Mr. Brewin’s case, Jus-
tice Hope delivered the judgment of the court orally. First, they found
that Schreiber ’s inquiry ‘‘was not in error procedurally, nor did he err on
any principle of law.’’ Therefore the court had no jurisdiction to interfere.
Secondly, ‘‘Asian’’ was not vague or indefinite. According to Murray’s
New English Dictionary it meant ‘‘pertaining to Asia,’’ and in the case
under consideration it would mean ‘‘a member of an ethnic group which
ordinarily is located in Asia. An ‘ethnic group’ is defined as, and is well
understood to relate to, race or any part of a particular race.’’ Section
20(2) was therefore intra vires. Thirdly, Justice Hope dismissed Brewin’s
technical argument by showing that, as visitors to Canada under Sec-
tion 7(3), the Singhs were properly considered by an inquiry under Sec-
tion 28(2)(b).
209
The appeal had failed.
10. ANTICLIMAX: THE SUPREME COURT OF CANADA
Immediately after the Court of Appeal decision, Andrew Brewin wrote
to Sid Blum:
In my view it should, if it is at all possible, be appealed to the Supreme Court of
Canada.
The issue involved, to put it briefly, was whether the Immigration Officials are
entitled to reject prospective immigrants on the sole grounds of racial origin....
In 1952 the Parliament of Canada revised the Immigration Act and excluded race
as a proper ground for exclusion of immigrants. It is true that they did permit the
Cabinet to pass regulations for exclusion on the ground of ‘‘Ethnic Group.’’ It
seems to me therefore that the Immigration Officials in introducing the element
of race are going directly against the intention of Parliament in omitting the ter-
minology of race. The concept of an Ethnic Group is far more precise and reason-
able. It also seems to me that the exclusion of people on the broad general
ground that they are Asian is offensive and probably illegal. In my view the Law
Courts who have rejected our argument have failed to deal with the main argu-
Narine-Singh v. Attorney General of Canada 291
ment involved in the case and that is the question of exclusion on racial grounds
on the face of the amendment to the Statute of the Immigration Act in 1952.
I am satisfied that we have a good prospective of success on an appeal to the
Supreme Court of Canada. The sort of problem that is involved in this case
would undoubtedly be received with very much greater sympathy than in the
Ontario courts. It will be recalled by way of illustration that in the Ontario Courts
they upheld the validity of restrictive covenants based on racial grounds, but
were reversed in the Supreme Court of Canada. I am therefore convinced that
both on legal merits and as a matter of attempting to remove racial intolerance as
a factor in the administration of the Immigration Act, that this case should be
appealed if possible.
Brewin added that once again he would ‘‘prepare the appeal and argue it
in the Supreme Court of Canada without any fee,’’ but funding would be
necessary for the $500 bond, for printing the appeal case and factum, for
travel to Ottawa and for other expenses.
210
For a third time Blum rallied his troops, planting stories in newspapers
and raising funds from union locals.
211
The most successful tactic in the
generation of publicity was placing a resolution before the CCL annual
convention in Toronto on 27 September 1954, written by Blum and pre-
sented by Bromley Armstrong and Dennis McDermott of the United
Auto Workers:
Whereas the Canadian Immigration Act contains provisions that provide for dis-
criminatory treatment of non-white British subjects;
And whereas these provisions provide that British subjects in the Common-
wealth not be considered British subjects for purposes of Immigration unless
they come from Britain, Ireland, Australia, New Zealand or South Africa;
And whereas these provisions enable the Immigration Department to arbitrar-
ily bar British subjects from Canada because of their colour or racial extraction,
particularly prospective immigrants from the British West Indies, and thus give
the lie to our professions of brotherhood with the rest of the British Common-
wealth and the principles of Canadian Democracy;
Be it resolved that we urge the Canadian government to amend the Immigra-
tion Act so that British subjects from all Commonwealth countries be treated
equally under the Act, regardless of their race, creed, or colour.
212
In an accompanying report from R. J. Lamoureux, chairman of the CCL’s
Committee on Human Rights, it was claimed that discriminatory immi-
gration policies were ‘‘a blot on Canada’s good name’’ and would drive
292 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
the countries of Asia and Africa ‘‘into the Communist camp.’’ The
Toronto press, in attendance for this national meeting, gave prominent
attention to the discussion and to the fact that Canadian immigration
regulations were racially defined.
213
The campaign for funds was, considering that this was the third
appeal to the same unions, remarkably successful. Predicting that ‘‘a
favourable decision in the Singh case will help to remove racial intoler-
ance, in the Immigration Department, as well as have widespread effects
on other sections of the Government and the Community,’’
214
Blum
attracted a stream of $5 and $10 donations. In less that two weeks he had
raised enough for the $500 deposit.
215
Andrew Brewin was able to pro-
ceed with his application to the Supreme Court of Canada ‘‘for the issue
of a writ of habeas corpus and with certiorari in aid and by way of certio-
rari.’’
216
The Appellant’s Factum contained no new arguments, and in fact the
technical challenge to Section 28 was dropped. In his Grounds of Appeal
Brewin claimed the Ontario Court of Appeal was erroneous because the
Special Inquiry Officer exceeded his jurisdiction by considering the
Singhs’ ‘‘race,’’ the Singhs were not Asian by geographical origin, and
the regulations were ultra vires. The written Argument proceeded
through the points made in the lower courts, resting on the submission
that the omission of ‘‘race’’ as a possible ground of exclusion must be deemed to
have been in pursuance of a deliberate policy of the Parliament of Canada and
that it is not open to Immigration Officers to reintroduce the category of race into
any consideration of the admissibility or otherwise of prospective immigrants.
Parliament undoubtedly had authority to legislate for the admission of
aliens, including on grounds of ‘‘race,’’ but had not in fact done so. The
concept of ‘‘race’’ was ‘‘vague, unscientific and offensive.’’ The term
‘‘ethnic groups,’’ used in the 1952 Act, did not mean a ‘‘race’’ but a group
of people distinguished by their physical and cultural environment; their
membership was demonstrated by their behaviour and practices. Asia
contained ‘‘almost every conceivable ethnic group,’’ so that the term
‘‘Asian ethnic group’’ was meaningless. To link the Singhs geographi-
cally with an Asian origin was tantamount to calling an American Negro
‘‘African’’ or a Canadian Indian ‘‘Asian.’’
The extreme confusion and complication that would ensue if the place of more
remote ancestral origin was to be investigated would reduce the concept of the
Narine-Singh v. Attorney General of Canada 293
word ‘‘Asian’’ as a test for admission of immigrants or for any other test involv-
ing a judicial decision to a high degree of absurdity.
Section 20(2) of the regulations did not indicate which categories from
Section 61(g) of the Act were being applied, and it was therefore ‘‘so
vague and uncertain as not to be a valid exercise of the subordinate leg-
islative power’’ conferred by the Act and must be ultra vires.
217
The Factum of the Respondent was prepared by John D. Pickup with
F. P. Varcoe as solicitor for the attorney general. They argued that all the
appropriate steps were taken in the Singhs’ special inquiry, and so the
courts had no right to examine its decision. The regulations were not
uncertain. According to the dictionary ‘‘ethnic’’ meant ‘‘pertaining to
race’’ and ‘‘Asian’’ was identical to ‘‘Asiatic.’’ In Regulation 20(2)
‘‘Asian’’ meant ‘‘a person pertaining to or characteristic of one of the
races of Asia.’’ The respondents noted that in Quong Wing, Justice Duff
had ruled that it was the ‘‘common understanding’’ of racial terminology
that must be accepted in the courts, and that ‘‘as generally used in Cana-
dian legislation’’ such terms ‘‘point to a classification based upon origin,
upon racial or personal characteristics and habits, rather than upon
nationality or allegiance.’’ Justice Martin’s statement from Munshi Singh
was enlisted to the same effect. ‘‘[T]he expression ‘Asiatic race’,’’ Martin
had found, ‘‘must be construed according to the common understanding
of the words,’’ and if this were done ‘‘there is no uncertainty about its
meaning or application. We speak constantly about European, Asiatic
and even Latin-American races, and no one doubts what the people at
large understand thereby.’’ Finally from that same case the factum
quoted Justice McPhillips’ insistance that the words ‘‘Asiatic race’’ as
used in the immigration orders were ‘‘in their meaning comprehensive
and precise enough’’ for judicial enforcement. Pickup and Varcoe submit-
ted that the same test of ‘‘common sense’’ must be applied to ‘‘Asian’’ in
the 1952 regulations: ‘‘The word ‘Asian’ according to the common under-
standing of the word refers to a member of an ethnic group which is
native of Asia.... As commonly used or understood the word
‘Asians’ . . . has a definite and clear meaning.’’ Since Harry Singh was
already free on bail, habeas corpus was not an available remedy; since the
regulations were intra vires and the inquiry was conducted properly, cer-
tiorari did not apply.
218
The Supreme Court met on 5 April 1955 to consider the Singhs’ case,
with Chief Justice Patrick Kerwin and Justices Ivan Rand, Roy Kellock,
James Estey and John Cartwright in attendance. Andrew Brewin made
294 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
an oral presentation, and John Pickup and his associate were pre p a r i n g to
present their arguments when the chief justice interrupted to say that a
decision had already been reached: the appeal was dismissed.
219
Wr i t t e n
re a s o n s for this decision appeared two weeks later.
220
On behalf of the
court Justice Kellock wrote that ‘‘ethnic’’ and ‘‘race’’ were equivalent terms,
according to the Oxford Dictionary, and therefore Parliament had not
effected any practical change when the wording in the Act was revised.
Asians were restricted by Section 39(c) of the former Act, and they were
re s t r i c t e d still by Section 61(g) of the current Act. When Schreiber asked,
‘‘ O f what race are you?’’ Harry Singh answered, ‘‘East Indian,’’ clearly
establishing his identity. The deportation order was authorized by Regula-
tion 20(2), and the Regulation itself was within the statute. There was no
re a s o n for judicial interference, and the appeal must fail.
221
Harry and Mearl Singh were denied entrance to Canada,
222
but Sid
Blum and Andrew Brewin did not consider the case a total failure. Blum
reported to Kalmen Kaplansky:
Andy feels that he might have misjudged the legal attraction and interest of the
case, but in the circumstances it should have been presented to the Supreme
Court anyway. As far as its effect on our educational work, he feels that the
defeat in Court merely underlines the need for changing the political administra-
tion of the Immigration Act. . . .
I feel that the battle was well worth the effort – and the money. These things
have to be challenged. It is very easy not to lose battles. Do not fight any. Actu-
ally the Court may be quite correct – ‘‘ethnic group’’ can be used as a racial dis-
criminatory feature of the Immigration Act, even though it doesn’t contain the
word race. As far as future court cases involving racial discrimination – we both
feel that the decision in this case covers so narrow an area that it will have no
harmful effect.
223
Far from retreating in defeat, Blum called together a meeting in Toronto
of persons committed to the cause of immigration reform, including
lawyers Andrew Brewin, Bora Laskin, David Lewis and Sid Midanuk, to
consider a strategy for future campaigns.
224
According to Brewin, the
Singh result ‘‘indicates that the remedy for this situation lies in public
opinion and legislative action. The case will have served to underline the
true situation and bring it to public attention.’’
225
And the result did serve a propaganda purpose for the reform cause.
The Toronto Star carried a major feature by Charles Woodsworth, asking
‘‘How many generations does it take before the racial origin or immi-
Narine-Singh v. Attorney General of Canada 295
grant stock ceased to count...?’’ Describing the Singhs’ experience in
detail, Woodsworth concluded, ‘‘The case illuminates some points in
Canadian immigration policy and the regulations which embody it, that
are not too familiar to many Canadians.’’
226
The Ontario Federation of
Labour inserted a paragraph in their annual brief to the Ontario govern-
ment in April 1955, describing the Singh campaign and claiming that the
decision illustrated an unfortunate fact: ‘‘If you’re white, you’re okay. If
you’re colored, you’ll get kicked around.’’
227
Prompted by Singh, the TLC
adopted a resolution condemning the racially discriminatory features of
immigration policy at its annual meeting in May.
228
Blum felt as well that
the publicity had embarrassed immigration officials and helped to soften
their attitudes, making them amenable to admit a group of black nurses
from the West Indies when similar attempts in the past had been unsuc-
cessful.
229
On 17 August 1955 the Toronto Star carried a front-page article
reporting a speech by Sid Blum in which he suggested that Singh had
demonstrated a sorry reality that was virtually ignored by the Canadian
people: ‘‘race’’ was still a valid concept in Canadian public policy.
230
11. CONFIRMATION
Sid Blum had discovered a truth when he decided ‘‘the Supreme Court
may be quite correct:’’
231
Parliament had not intended any meaningful
change in Canadian immigration policy after all; ‘‘race’’ and ‘‘ethnic
group’’ were meant to maintain the same barriers and achieve the same
goal. The revision was cosmetic, to disguise Canadian policies in a Com-
monwealth and a world increasingly hostile to overt racism. It was the
‘‘continuous journey’’ strategy, updated for the 1950s. In a November
speech in Victoria, BC, just months after his department’s success in
keeping the Singhs out of Canada, Jack Pickersgill insisted:
There is no racial discrimination in Canada’s immigration policy despite some
public feeling to the contrary .... It is not the government’s intention to maintain
any precise racial balance in the Canadian population, but I believe that we want
to attract the bulk of our immigrants from the UK and from those countries in
northern and western Europe whose historical traditions and political and social
institutions are most like our own.
232
The minister, too, was correct: ‘‘we’’ – a majority of the Canadian people –
did not wish to see any shift away from the ‘‘traditional sources’’ of immi-
grants; ‘‘we’’ wanted discriminatory regulations kept in place.
233
Confi-
dent that his views were widely shared, Pickersgill was quite candid in
296 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Parliament. Asked why Canada had only one immigration agent for all
of South Asia, he replied:
As a matter of fact, you know as well as I do, that we do not have an office in
India for the purpose of getting immigrants for the sake of increasing the popula-
tion of Canada. We agreed upon this quota as a gesture for the improvement of
Commonwealth relations, and having done so, we have to treat these applicants
decently and have enough employees there to answer the letters and deal with
the correspondence and the applications which are received. That does not mean,
however, that we have any great interest in Indian immigration.
234
Singh has never been cited in a subsequent case; its legal history was
brief. The reason for this brevity is that the regulations challenged in
Singh were amended a year later, following a return engagement
between Messrs. Pickup and Brewin and a reconsideration of some of the
same underlying issues by the Supreme Court of Canada. The occasion
was the case of Shirley Kathleen Brent, a white American, who was
rejected at an immigration inquiry in Toronto in January 1954 under Sec-
tion 20(4)(b) of the regulations by reason of her ‘‘unsuitability, having
regard to the economic, social, industrial, educational, labour, health, or
other conditions or requirements existing, temporarily or otherwise, in
Canada or in the area or country from or through which [she came] to
Canada.’’
235
Ms. Brent asked that the reason she was being judged unde-
sirable be clarified. The officer, C. R. Brooks, merely showed her a copy
of the regulations and asked if she could read English. Her appeal to
Minister Pickersgill was similarly rejected without indicating the
grounds for her deportation. Andrew Brewin took her case before Justice
Wilson of the Ontario High Court in July 1954, arguing that she had not
received the ‘‘full and proper inquiry’’ required by Section 11 of the Act
since she could not respond to the unstated objections of the immigration
official. Justice Wilson agreed, finding that an immigration decision must
be conveyed to the applicant in an ‘‘intelligible form,’’ and that Section
20(4)(b) was so vague that no applicant could ever prove him or herself
suitable as an immigrant. The deportation order was quashed.
236
This result was escalated when the department took the case before the
Ontario Court of Appeal in October 1954. In his written decision, issued
one day after the Singh defeat in the Supreme Court of Canada, Justice
Aylesworth agreed with every one of Andrew Brewin’s arguments. Not
only had Brent failed to receive a ‘‘full and proper inquiry’’; the regula-
tion was ultra vires. Section 20 virtually repeated the language of Section
Narine-Singh v. Attorney General of Canada 297
61 of the Act: in other words, the powers granted by Parliament to the
governor-in-council had in turn been handed over directly to immigra-
tion officials. This exceeded the authority of the Act, which had intended
the governor-in-council to define specific regulations to carry out the
general principles stated in Section 61.
237
The department felt obliged to appeal this to the Supreme Court of
Canada. As Pickersgill informed the House, ‘‘If the judgment in the Brent
case were to stand we would have to give very serious consideration to
the whole state of immigration law. It is for this reason . . . that we appeal
that case to the Supreme Court of Canada.’’
238
But stand it did. In Febru-
ary 1956, Chief Justice Kerwin explained:
I agree with Justice Aylesworth . . . that Parliament had in contemplation the
enactment of such regulations relevant to the named subject matters, or some of
them, as in His Excellency-in-Council’s own opinion were advisable and not a
wide divergence of rules and opinions, ever changing according to the individual
notions of Immigration Officers and Special Inquiry Officers. There is no power
in the Governor General-in-Council to delegate his authority to such officers.
239
The ruling had the impact Pickersgill feared. In his memoirs he wrote:
The Supreme Court decision in effect destroyed the whole administrative basis
for the selection, admission, and exclusion of prospective immigrants and visi-
tors. . . . I spent many hours with the officials of the department and with the
Deputy Minister of Justice drafting the kind of regulations the government could
make that would be within both the letter and the spirit of the law.
240
When the new regulations were issued on 24 May 1956, they bore the
imprint not only of Brent but of Singh as well. PC 785 did not eliminate
discrimination: the familiar pattern of descending acceptability from
white British subjects to Asians was maintained.
241
But underlying mem-
bership in each category was citizenship ‘‘by birth or naturalization.’’ All
explicit references to ‘‘Asians’’ or to ‘‘race’’ were dropped, and instead
the hierarchy was established on the basis of a legal qualification rather
than a personal characteristic. Pickersgill related that
It gave me real satisfaction that the new Regulations removed the offensive pro-
vision which excluded prospective immigrants of ‘‘Asiatic race.’’ [This wording
had, of course, already been removed in 1952.] This change did not mean, nor
was it intended to mean, that Canada had adopted an open-door policy in place
298 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
of selective immigration; but in the new Regulation, geography and citizenship,
not race, became the basis of selection.
242
Then, in an apparent reference to Harry and Mearl Singh, Pickersgill told
the House of Commons that the 1956 regulations
removed one anomaly which I must say troubled me a great deal. It was not a
very important thing, but it was a source of annoyance to a number of people.
For instance, persons of east Indian and Chinese origin who were living, say in
Trinidad, found it more difficult to get into Canada than persons of other origins
in Trinidad and that did seem rather absurd, especially if the family had been
there for several generations. This is no longer true.
243
On reading this in Hansard, Sid Blum wrote to Andrew Brewin: ‘‘Your
arguments in the Harry Singh case appear to have had a substantial, if
delayed, effect on the Immigration Department.... While we lost the
case, we accomplished the hoped-for change in the regulations.’’
244
The crusaders had not, however, accomplished what they hoped. In
that same debate, Pickersgill permitted a rather intimate glimpse into the
process by which the new regulations had been drafted, revealing that
the fundamental principles had not changed at all. The discussion was
prompted by a delegation and a written brief from the East Indian Wel-
fare Association, complaining that people from such non-Common-
wealth southern countries as Egypt, Lebanon, Turkey and Latin America
could bring in a broader range of relatives under the regulations than
could Commonwealth South Asians. First, Pickersgill reported to the
House, he had told the delegates
that one of the reasons why they have [a] favourable public opinion at the present
time is that they have become good Canadian citizens and are accepted in the com-
munity. I said to them: ‘‘Now let us be completely honest about this and recognize
that one of the reasons that this situation exists is that your numbers are compara-
tively small. ... W e a r e n o t going to contribute anything to the welfare of this coun-
try if we admit newcomers of any group in such numbers as to create problems,
tensions and strains in this country that it would be desirable not to have.’’
245
Having acknowledged in this way that racial feeling remained pro-
nounced in the mainstream population, and therefore in government
policies, Pickersgill went on to point out that certain countries only
appeared to be in a more favourable category, but in fact no discrimina-
Narine-Singh v. Attorney General of Canada 299
tion would occur. It is impossible to believe that the minister did not rec-
ognize the heavy irony in his detailed explanation of why Egypt, Israel,
Lebanon, Turkey and Latin America appeared in the more favourable
category 20(c) in a set of regulations which he claimed had eliminated
racial distinctions.
There are virtually no Egyptians in this country and the applications we do
receive from Egypt are almost entirely from people who are not Egyptians but
people who happen to be living there and who are English or French or in many
cases Armenian in origin. . . .
The same thing applies to Turkey. There are practically no Turks in this country
and there is no desire on the part of Turks to come here. But there are Armenians
and other communities in Turkey where the people have relatives in this country,
and it is just for administrative convenience that these two countries are in this cate-
gory....
Israel is a country of immigration and the government of Israel is very anxious
to keep able-bodied people in that country, and I doubt if there are many mem-
bers of the house who do not sympathize with their desire, particularly at this
time. We do everything we can to discourage applications from these people....
In the case of Lebanon, it is true we have quite a considerable number of
Lebanese in this country .... In many ways Lebanon is almost more a European
country than it is an Asiatic country but again immigration is very small. . . .
So far as the South American and Central American countries are concerned,
the same thing is even truer. These countries are also countries of immigration
and the local inhabitants very rarely come here as immigrants. . . .
Having made this explanation, I hoped that would satisfy the East Indians that
there was no intention to discriminate in these matters in the sense of saying that
some people are better than others. It is just an administrative device.
246
Pickersgill’s explanations were more accurate than Blum’s enthusiastic
outburst. Had Harry and Mearl Singh applied after the 1956 regulations
came into effect they would still have been rejected, but the reason
would have been their Trinidadian citizenship rather than their Asian
‘‘race’’ that offended the regulations. The ‘‘continuous journey’’ device
had been sophisticated once more. There remains little doubt that in the
Singh decision the justices of the Supreme Court of Canada correctly
interpreted the will of Parliament when they concluded: ‘‘We therefore
think that for present purposes at least, the change in the language of the
statutes and the regulations is not of significance.’’
247
They had also
granted a victory to ‘‘common sense.’’
300 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
6
Implications
If Canadians imagine a racially defined society, it is probably Nazi Ger-
many or apartheid South Africa that come most readily to mind. In that
classic of racist propaganda, Mein Kampf , Adolf Hitler described Jews in
terms that seem idiosyncratic in their assumption of racial purity and the
threat posed by genetic mixing: ‘‘With satanic joy in his face, the black-
haired Jewish youth lurks in wait for the unsuspecting girl whom he
defiles with his blood, thus stealing her from her people. With every
means he tries to destroy the racial foundations of the people he has set
out to subjugate.’’
1
According to Hitler, Jews spread disease and eco-
nomic disorder and were explicitly responsible for prostitution and the
white slave traffic. Against the ‘‘Jewish threat’’ the Nazis inaugurated a
set of economic restrictions, including a boycott of Jewish shops and
exclusion from many employment categories (the practice of law among
them), then authorized the barring of Jews from theatres, restaurants and
hotels. The 1935 Nuremberg Laws gave precise legal definition to racist
terminology, forbade intermarriage between Jews and other Germans,
protected ‘‘Aryan’’ women from Jewish violation even to the extent that
Jews were not permitted to employ them, and specified that full citizen-
ship in Germany would be limited to ‘‘Aryans.’’
2
In apartheid South
Africa there were laws assigning every South African a racial identity,
establishing residential segregation, protecting white women from black
The notes to this chapter are on pages 425-28.
sexuality, setting ‘‘influx controls’’ on African migration, keeping blacks
and whites apart in restaurants, bars, theatres and beaches and distin-
guishing employment access on lines of ‘‘race.’’
3
These are the images,
perhaps combined with American scenes of southern segregation and
northern ghetto violence, against which Canadians have been able to
contrast their own experience not only in relative but in absolute terms.
And yet the four case studies suggest a startlingly different reality. Many
of the restrictions in genuinely racist societies apparently had a Canadian
counterpart, including features for the protection of women of the domi-
nant class, employment and other economic disadvantages, limited
access to land and services, legalized segregation and even the legal defi-
nition of citizens by ‘‘race.’’ If the extent and impact of the Canadian leg-
islation was minuscule by comparison, a similar acceptance of the
meaning of ‘‘race’’ was recognizable, as was a readiness to use the
machinery of the state to regulate relations between ‘‘races.’’
It has become common in recent years to regard ‘‘race’’ as a social con-
struct. Over the half century represented in these case studies, in Canada
as elsewhere, ‘‘race’’ was also a legal artifact. And in the process of its
formulation, the Supreme Court of Canada was a significant participant,
legitimating racial categories and maintaining barriers among them.
Even in Noble and Wolf the Court allowed the respondents’ argument –
that racial discrimination was both morally and legally acceptable – to
pass without contradiction, and declined to confirm the appellants’ as-
sertion that racial distinctions were contrary to public policy. None of the
seven judges in the case commented on discrimination per se or its legal-
ity so that the law already established on racial discrimination, for exam-
ple by the Quong Wing and Christie decisions, was not affected. Then in
Narine-Singh the Supreme Court positively upheld the legality of ‘‘race’’
as a discernible factor in Canadian public policy. The widespread exis-
tence of a racial paradigm in Canada and a legal role in its fashioning are
two of the observations one might take from the examined cases.
If these four cases were ‘‘telling events,’’ then they should articulate
the legal and racial sensibilities of their times. In the sections that follow,
some of the more general meanings of the cases will be drawn, and par-
ticularly their implications for a better understanding of ‘‘race’’ and ‘‘race
relations’’ in Canada, the functioning of the Canadian legal sensibility
through the Supreme Court of Canada, and the quest for ‘‘keys’’ to facets
of Canadian history which have been locked away.
302 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
1. ‘‘RACE’’ AND ‘‘RACE RELATIONS’’
The evidence examined in the four case studies exposed something that
could be called ‘‘systemic racism,’’ rather than individual deviancy or
pathological personalities. Furthermore, this system was the product of a
long and highly complex historical process. Temporary social and eco-
nomic forces, such as bursts of immigrant numbers or the Depression of
the 1930s, were seen to exacerbate the symptoms, but the syndrome per-
sisted regardless of any identifiable ‘‘causative’’ events in Canada. Indi-
vidualized explanations would require different kinds of evidence; the
process here observed formed an intimate aspect of everyday Canadian
life, supported by the leading institutions, sustained by high culture and
popular belief. It is easy to recognize the heroes in these stories, but more
difficult to find individual villains.
Throughout the period under study there were numerous indications
that external, even global influences permeated the Canadian experience,
and what happened in Canada refracted global patterns. It is indeed
tempting to adopt a Geertzian model and find the Canadian ‘‘local
knowledge’’ of a universal racist paradigm. Certainly the European over-
seas expansion and its resulting hierarchies produced an assignment to
specific economic and social functions on the basis of ‘‘race.’’ M. G.
Smith’s pluralism is useful in recognizing how European imperialism
incorporated the resources and the populations of much of the world,
from which emerged differentiated economic and political access distin-
guishable by membership in a ‘‘race.’’ Roles had already been assigned
and stereotypes had already been generated, in other words, in an impe-
rial context in which Canada was only a very small player. Thus when
certain types of immigrants were specifically admitted to perform certain
tasks, an external pluralism was being imported into Canada;
4
Asians
and Africans migrated from one part of a pluralized globe to another.
That very telling resolution of the Nova Scotia assembly in 1815, defining
all African people as ‘‘labourers and servants,’’
5
did not derive from local
experience alone.
A global network of ideas and practices pertinent to ‘‘race’’ was appar-
ent, too, in Canada’s deliberate emulation of American, Australian and
South African restrictions on Chinese,
6
or the inspiration of the ‘‘Natal
Formula’’ as a device for excluding unwanted subjects of the British
Empire.
7
The Victoria newspapers assessed the character of the Chinese
based on tales emanating from California and Australia.
8
The anxieties
rampant in the Edmonton IODE petition crossed the border before the
African Americans themselves.
9
The influence of Nazi ideology was evi-
Implications 303
dent during the 1930s in the utterances of Adrian Arcand, in campaigns
in both Montreal and Toronto for boycotts of Jewish shops, and use of
the swastika emblem by vandals and rioters.
10
Operating in a different
direction but equally indicative of external influences was the ready
adoption in Canada of the rhetoric, and eventually the principles, of
wartime and postwar movements against colonial oppression and racial
hierarchies across much of the world.
11
One significant transmitter of global paradigm to local circumstance,
indicated by this evidence at least, was the law. Canadians do not need
to imagine some hypothetical process translating imperial models for
application in Canada; there is a concrete example in the legal system.
Law was a channel for bringing imperial experience to Canada directly,
through Privy Council decisions, and continuously through the suffusion
of English precedents in Canadian courts. Perhaps Tomey Homma stands
as the paramount example, for it created an authentication for laws cast
explicitly in terms of ‘‘race’’ and launched a legal discourse on racial dif-
ferentiation that resonated through almost every case considered here.
12
The imperial connection could also act as a restraint, as in the modera-
tion of certain immigration policies discriminating against subjects of the
Empire or imperial allies, and in the nullification of local laws which vio-
lated British treaty commitments.
13
More recently Canada’s own adher-
ence to United Nations and other international agreements has shaped
domestic law.
14
Canadian law, then, provided a mechanism for the local manifestation
of principles that were broadly current throughout Western civilization,
and beyond.
15
Legislative acts and judicial decisions fitted those princi-
ples to Canadian circumstances, fixing local needs and preoccupations in
legal terms. For example, the Court upheld Saskatchewan’s Female
Labour Act because it dealt with Chinese ‘‘as men of a particular race or
blood,’’ evidencing not only the Privy Council’s Tomey Homma authoriza-
tion but the realities of Canadian federalism which would put Chinese
‘‘as aliens or naturalized subjects’’ under the jurisdiction of the Dominion
government.
16
By responding rather precisely to local Canadian con-
cerns, law institutionalized and perpetuated a peculiarly Canadian ver-
sion of the ‘‘race’’ phenomenon.
Immigration law probably provides the clearest revelation of this pro-
cess at work. Canadian anxieties provoked by transnational stereotypes
and racial doctrines demanded that certain peoples be excluded entirely
or, of equal significance, admitted to a narrowly defined function in
Canada. ‘‘Race’’ made its explicit debut in the Immigration Act of 1910.
17
304 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
To sustain the conditions of admission, and to assuage local concerns
about unfair economic competition, legal instruments were introduced
restricting employment opportunities of targeted groups. Direct legisla-
tion prevented employment in the public service, outlawed occupational
categories such as underground mining, denied licences to operate a
business. Indirect legal devices imposed contract compliance and leasing
agreements upon employers and set differential licensing fees and taxa-
tion benefits.
18
Educational disadvantage was legally effected by segre-
gated schools in Nova Scotia and Ontario, with the added touch in Nova
Scotia of legislating a limit upon the qualifications of teachers in the
black schools.
19
Laws prescribed differential access to civil rights, protec-
tions and benefits, including the vote, public office and jury service.
20
The courts upheld an entire network of discriminatory practices in ser-
vices and accommodation, and in effect not only condoned but extended
such practices through the establishment of precedents. The Christie
Defence Committee’s fear that a negative decision would ‘‘encourage
further and more open discrimination’’ was more than realized in its
eventual reverberations from Dresden, Ontario, to Calgary and Van-
couver.
21
As a result of the law, ‘‘race’’ became an officially meaningful
category in Canada, a ‘‘factor of legal consequence’’ as the German
ambassador would say.
22
‘‘Race’’ as discourse was rendered ‘‘race’’ as
artifact. Although every Canadian institution has not been examined in
this study, and it remains possible that some other factors were even
more important, still an instrumental role for the law is recognizable in
giving public effect to private beliefs and fears about ‘‘race,’’ and in set-
ting the terms of relations among the groups thus designated.
Because of entry restrictions, colour and status became equated. With
the legal structuring that occurred in Canada, entry status tended to be
perpetuated beyond the immigrant generation. Status, it might be said,
had been ‘‘racialized,’’ and colour could serve as a marker of status even
when no other differences were present. Since ‘‘race’’ coincided with
position in society, occupation, educational achievement, residential pat-
terns and social behaviour, local observation confirmed numerous
transnational stereotypes. ‘‘Race’’ made the observable distinctions intel-
ligible. ‘‘Race’’ had become common sense. Notice the entirely common-
sensical approach taken in the postwar Senate Committee on
Immigration: there should be no discrimination based on ‘‘race,’’ but
restrictions on Asians were based, ‘‘of course,’’ on ‘‘reality’’ and should
be continued.
23
Or the Star Weekly editorial in 1954 praising the Queen’s
Christmas message calling for racial equality in the Commonwealth and
Implications 305
adding, as if without contradiction, ‘‘Racial discrimination is an estab-
lished (and most would say sensible) feature of our immigration
policy.’’
24
‘‘Race,’’ clearly, had entered the prevailing discourse and became con-
structed as ‘‘truth.’’ Captured within that discourse was a pervading fear,
as Tory MP Donald Fleming told the House of Commons in 1955, that
different ‘‘races’’ would disturb the welfare of the white majority.
25
One
fundamental component, which Fleming identified, was the widely ob-
served phenomenon that persons of colour tended to work for lower
wages, threatening employment opportunities of others. Acceptance of a
lower standard of living was attributed, by common sense at least, to
genetic factors such as a lack of ambition or even lower physical require-
ments. Other features in the discourse reflected a similar fear towards
characteristics believed to be genetically immutable and potentially dis-
ruptive. The notion that other ‘‘races’’ were ‘‘lawless’’ had an enduring
currency in Canada, as specified in Ontario petitions against the settle-
ment of fugitive American slaves,
26
in BC’s 1884 Act restraining Chi-
nese,
27
and in the Munshi Singh decision rejecting East Indian
immigrants.
28
The most widely perceived threat was probably sexual:
lower ‘‘races’’ could not control their basic instincts. Every group cov-
ered in this study faced the charge, at some time, of errant sexuality,
29
though the evidence was most indicative of attitudes toward Chinese.
The Saskatchewan law was accepted as a protective measure because the
Chinese sexual threat was taken for granted. ‘‘The control or influence of
any Chinaman,’’ the Saskatchewan Supreme Court decided, would ‘‘en-
danger ’’ white women; no actual incidents were offered or demanded.
30
Support for the Chinese restriction from white middle-class women’s
associations and from organized labour, insisting that Chinese were ‘‘a
menace to the virtue of white women,’’ appeared not only in
Saskatchewan but in every province from Ontario westward, and pub-
lished innuendo about the Chinese threat had national circulation.
31
An
equivalent attitude toward people of African ancestry was exemplified in
the 1911 IODE petition and the immigration report that ‘‘farmers’ wives’’
in Manitoba were afraid of black men.
32
Cancellation of the scheme to
bring domestics from Guadaloupe was explained by the women’s
‘‘immorality.’’
33
East Indians, a Vancouver public meeting resolved, were
a threat to ‘‘public morals.’’
34
The presence of people bearing such characteristics was especially dis-
turbing because their differences were attributed to genetics and were
therefore assumed to be permanent. The Trades and Labour Congress’
306 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
long-standing platform principle against the immigration of ‘‘unassimil-
able races’’ was one example of a concern echoing through Canadian dis-
course until the middle of the 20th century.
35
The racially alien would
remain foreign, even those born in Canada; Bora Laskin needed a special
letter to vouch for his Canadian loyalties, though he was Canadian-born,
and Quebec campaigns against ‘‘alien Jews’’ did not exempt families
who had been in Canada for several generations.
36
Segregation was
accepted as normal because inherent difference was believed to produce
a natural aversion between ‘‘races,’’ as part of a racial group’s survival
mechanism. Justice Mackenzie of Regina could expect ‘‘racial antipathy’’
to preserve the virtue of white women against alien seduction,
37
Justice
Pelletier of the Quebec Court of King’s Bench announced that ‘‘il est
prouvé que la présence des noirs... empêche d’autres citoyens,’’
38
and
Chief Justice Robertson of Ontario felt that the purpose of a racially
restrictive covenant was ‘‘obviously to assure... that the residents are of
a class who will get along well together.’’
39
Mackenzie King’s fear that
Asian migration would ‘‘change the fundamental composition of the
Canadian population’’
40
bore the same underlying assumption that the
‘‘wrong’’ kind of immigration would be disruptive; as a BC court said in
1914, it would endanger ‘‘the maintenance of peace, order and good gov-
ernment.’’
41
The fact that earlier generations had assimilated, or that local
experience often denied the validity of transnational stereotypes, was not
sufficient to interrupt the momentum. The minister of Immigration felt
justified in arguing in 1951 that it was a ‘‘matter of record’’ that people of
African heritage broke down in health in Canada, ignoring over 300
years of African Canadian history and, as was shown by Joe Nosewor-
thy, the absence of any such records.
42
Especially poignant was the Cana-
dian military’s rejection of African Canadian volunteers in World War I,
just when new recruits were most desperately needed. The notion of
black unsuitability for warfare was conventional wisdom among the
Western allies early in the century, but it was directly contradicted by
Canadian experience: black soldiers had served with distinction in Cana-
dian and British armies in many wars before their image was changed by
the ‘‘Scramble for Africa’’ late in the 19th century.
43
Each group categorized as a ‘‘race’’ had an appropriate ‘‘place,’’ with
repercussions that encompassed people’s lives as the case studies
showed. And yet, despite this clear pattern, majority Canadians consist-
ently denied that racial inequality existed in their country. Defence Min-
ister Norman Rogers insisted that racial discrimination had no part in
the rejection of black volunteers early in World War II;
44
Mayor George
Implications 307
Miller of Vancouver found no racial discrimination in his city’s refusal to
permit Chinese restaurants to hire white waitresses;
45
Lester Pearson
could hold at the United Nations that Canada had no racial discrim-
ination;
46
Leslie Frost could declare in his own legislature that racial dis-
crimination was not practised in Ontario.
47
Especially revealing were
apparently blatant contradictions in public utterances on ‘‘race.’’ In one
article the Toronto Globe decried ‘‘racial mixing’’ as ‘‘criminally unwise,’’
yet called the female labour laws unfair for failing to distinguish
between good and bad Chinese;
48
other newspaper articles and official
statements demanded the elimination of racial restrictions yet proposed
that Asian exclusion should continue.
49
This may have been simple
hypocrisy, but other explanations are possible. If a genuine belief in
Western racial doctrine is allowed, and if it is understood that the pre-
vailing definition of equality meant that ‘‘likes’’ should be treated alike
(with the corollary that ‘‘unlikes’’ could be treated differently),
50
then the
apparent contradiction is reconcilable. One is sceptical of Immigration
Minister Walter Harris’ radio statement in 1954 – ‘‘I must assure you that
we are not going to draw any lines which would be contrary to the Cana-
dian understanding of the equality of all people’’
51
– until the term
‘‘Canadian understanding’’ is drawn to attention. Under the British
rhetoric of maternalistic trusteeship that formed so prominent a part of
Canadian discourse until well after World War II, distinctions were justi-
fied as long as they were intended for the benefit of the less fortunate
and did not differentiate among persons ‘‘similarly situated.’’ To deny a
restaurant licence was not incompatible with this outlook as long as its
purpose was to protect white women. Only if some Chinese were
affected, and others not, would the law be classed as inequitable, accord-
ing to this logic, or if some other party gained an unfair advantage from
it. This was common sense, and required no hypocrisy from persons de-
claring it. To receive condemnation from contemporaries, a particular act
had to violate prevailing standards of equality. This helps to explain why
what was then defined as ‘‘racial discrimination’’ was regarded as
pathology, practised by aberrant individuals, while the majority recon-
ciled their racial practices with a commitment to British justice and fair
play.
52
But there was a different interpretation of those Canadian virtues, and
it is interesting to see how often the minority challengers turned the
same rhetoric on its head to demand ‘‘equal’’ treatment for themselves.
That these positions were taken up by entire communities would indi-
cate that a different ‘‘common sense’’ was able to co-exist within Cana-
308 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
dian society. For an understanding of Canadian ‘‘race relations’’ it is
surely significant that minority groups had not accepted their fate or sub-
mitted to the doctrine of their own inferiority, and that their resistance
was imbued with a faith that ‘‘British justice’’ would set things right for
them. The global human rights ‘‘paradigm shift’’ that allegedly occurred
during and after World War II represented at least a shift in sensibility in
Canada: public protests against discriminatory businesses, the cam-
paigns against Japanese Canadian deportation and to repeal the Chinese
immigration laws, support for Asian enfranchisement, passage of munic-
ipal by-laws and provincial fair practices legislation, all represented the
development of a new perception among majority Canadians about what
was right and fair. At the same time this study cautions against attribut-
ing too much to a ‘‘paradigm shift.’’ If Drummond Wren was most repre-
sentative of the new era, Noble and Wolf demonstrated its limitations and
Narine-Singh provided a dash of insight into the continued prevalence of
the ‘‘race’’ paradigm in Canadian life and public policy. However helpful
the global fallout might have been, Canadian struggle was required in
order to overcome racial disadvantage in Canada.
2. LEGALSENSIBILITY
For non-lawyers, the four case studies have probably revealed a surpris-
ing degree of ‘‘judicial creativity’’ in the legal decision-making process.
Despite their incessant denials, judges clearly had a determining influ-
ence on public policy, and the impression is that they were ‘‘making’’ law
and not simply applying existing rules. In each case the judges had a
choice, and there were legally acceptable reasons for deciding more than
one way. Only the Narine-Singh decision was unanimous; in the other
three cases, and in most of the case law examined with them, there were
powerful dissenting judgments illustrating an alternative (and usually
an opposite) solution to the problem before them. In some of the cases, as
well, there was more than one set of reasons for arriving at the same deci-
sion. On its own ‘‘the law,’’ apparently, was not enough to determine a
‘‘correct’’ conclusion. Contradictions and ambiguities abound, both in
the case law and in the legislation. In deciding which statutes or prece-
dents to apply, the judges had not only to find the law but to assign its
meaning.
In the various cases considered here, the standard judicial procedures
could not be described as rigid or mechanistic. Stare decisis offered con-
siderable latitude. To the lay person Quong Wing perhaps presents the
starkest example: there were reasonable arguments for selecting either of
Implications 309
the two Privy Council precedents. The momentum from Tai Sing in 1878
to Bryden in 1900 was against setting special regulations for Chinese
Canadians, but Tomey Homma opened a new line of interpretation.
53
In
Christie, though recent case law had been moving in the direction of the
proprietor ’s right to exclude, still the facts of the case permitted a distinc-
tion to be made.
54
It is interesting to find both sides in Noble and Wolf v.
Alley citing Christie: for the appellants Christie meant freedom of com-
merce, Mr. Wolf ’s right to buy and Mrs. Noble’s right to sell; for the re-
spondents it meant the freedom to associate with persons or groups of
their own choice.
55
Justice Wilson selected Drummond Wren as her prece-
dent for Bhadauria, without even mentioning Noble and Wolf or address-
ing its relevance for her construction of the case law.
56
Judicial discretion
was considerable, and precedents seemed to be used as much to support
a particular interpretation as to dictate an automatically discernible con-
clusion.
In assessing statutes the interpretive role of judges was equally appar-
ent. In Christie they had to decide whether the language of the Quebec
Licencing Act applied to a tavern, and the answer was not always the
same.
57
Justice Chevrier in 1945 decided that Ontario’s Racial Discrimina-
tion Act applied only to the specific items listed as examples; though he
denounced racial discrimination in his decision and extended sympathy
to Jews, he upheld a restrictive covenant. Justice Chevrier was interpret-
ing not only the Act but his own function as a judge, for he declared him-
self bound by the wording of the Act, yet a Dominion Law Reports
editorial suggested that he could have followed the Act’s general prohi-
bition of discrimination, and Justice Mackay demonstrated in Drummond
Wr en how a judge could find in the same Act the ‘‘legislative recogni-
tion’’ of a policy against restrictive covenants.
58
The determination of leg-
islative intent was at the core of the Narine-Singh decision as well.
Although the decision seems simplistic, with its reference to an ordinary
dictionary to establish the meaning of the Immigration Act, the judges
were in fact declaring that when Parliament changed the language of the
Act they had not intended to change its meaning, and for this insight they
could not rely on a dictionary.
59
In each instance more than one plausible
meaning was available.
Since the law as written was so often indeterminate, sometimes ambig-
uous and occasionally contradictory, judges had to look beneath the text
to the underlying principles that suffused the law, to what was called its
‘‘pith and substance,’’ and to assess the long-term trajectory of the com-
mon law against the case in question. To grasp the essential principles in
310 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
an elusive case, the judges would engage in a diagnostic process to find
an analogy to some other principle or body of law. An obvious and often
tortured example of this is found in Christie and the cases leading up to
it, where the analogy to contract law was eagerly adopted. Of Justice
Archibald’s several reasons for finding in favour of the complainant in
Johnson v. Sparrow, only the notion that the sale of a theatre ticket was
like a contract survived the appeal court. Justice Archibald also offered
an analogy to the common innkeeper and stated that the British tradition
opposed discrimination among citizens. Had these points been sustained
in the appeal court ratio decidendi, the subsequent cases of Barnswell,
Reynolds, Franklin, Christie, Rogers, Desmond and King would have
been entirely different.
60
As this example shows, even when subtextual
diagnosis occurred there was still no obvious or correct answer to be
found. Consider the debates between Justice Wilson and Chief Justice
Laskin or Justice O’Halloran and his BC colleagues over the fundamental
and cumulative meaning of equality under the common law.
61
The
underlying principles themselves could often be indeterminate, some-
times ambiguous and occasionally contradictory.
Judges were making a choice, and the choices they made, the analogies
they drew and the principles they discovered, reflected a set of assump-
tions and values on the part of the judge him- or herself. It would be dif-
ficult to match Justice Archibald’s moral fervour in Johnson v. Sparrow
62
or Justice Idington’s in Quong Wing,
63
for both were articulating a moral
position recognizable today, yet Chief Justice Fitzpatrick expressly found
the Saskatchewan law to be ‘‘in the moral interest.’’
64
Morality, appar-
ently, was a feature in the way judges made their choices. Justice Rin-
fret’s denial on the part of the majority in Christie that racial discrimination
could be considered immoral is dramatic evidence of the same charac-
teristic.
65
Chief Justice Robertson of Ontario said of a racially restrictive
covenant that ‘‘There is nothing criminal or immoral involved.’’
66
Not
only was morality a legitimate consideration, but moral outlooks did not
always coincide, as reversals and dissents illustrated. Social values,
assumptions about what was good and beneficial, were present in every
one of the analyzed decisions. Judges considering Quong Wing denied
themselves any judgment on the wisdom or policy of the Saskatchewan
Act, yet that was exactly what they did do: they found not only that the
law was within the provincial jurisdiction but that it was ‘‘necessary to
the welfare of women and girls in Saskatchewan’’; Justice Idington,
opposing, argued that the act was a ‘‘breach of faith.’’
67
These comments
revealed that the wisdom, justice and policy of the Act were very much
Implications 311
under consideration, a process called by Professor Laskin in a 1940 com-
ment on Christie, ‘‘reading social and economic doctrine into law.’’
68
Each case began in a dispute over a ‘‘right’’ or a conflict between
‘‘rights,’’ and perhaps no issue is more indicative of a moral and political
outlook than how rights are defined. Of particular interest is the way in
which these disputes were rendered justiciable. To carry a claim into
court, a plaintiff had to contend some legally recognizable ‘‘fact’’; in
examining the claim, the judges cast it as a question amenable to the kind
of answer they were able to give. In the terminology of current policy
analysis, the courts had to consider the situation as a legal ‘‘problematic’’
before they could solve it. Quong Wing’s initial challenge sprang from
his claim that the discriminatory Saskatchewan law was unfair. This was
rendered justiciable by putting it in terms of federal-provincial jurisdic-
tion, ‘‘the only real question for the Court’’ as the Saskatchewan Supreme
Court revealed so tellingly, so that the problematic finally put to the test
was the province’s ‘‘right’’ to protect white women and girls. Given that
question the province’s right was upheld, but Quong Wing’s question
was not answered.
69
Fred Christie’s claim that discrimination was wrong
was similarly translated into a question the courts of his day were
equipped to consider. ‘‘We ought to start,’’ Justice Rinfret explained,
with the principle of ‘‘complete freedom of commerce.’’
70
Then the ques-
tion became: was there anything in this case to justify limiting the tav-
ern’s freedom? In this translation of the issue the analogy to a business
contract was intelligible, and a judge could be found suggesting, in
answer to Mr. Christie’s contention about racial discrimination, that the
tavern’s advertisements were not ‘‘an offer to sell’’ but an ‘‘invitation to
buy,’’ and therefore there was no contract. Even in dissent the best Justice
Galipeault could argue was that an implied contract did exist.
71
The dis-
tance from the original problem remained glaringly apparent. In court,
‘‘race’’ dropped from view, but in the ‘‘real world,’’ as has been de-
scribed, Christie as precedent produced an increase in racial discrim-
ination.
72
The courts had not addressed Fred Christie’s problem at all.
In Noble and Wolf the contest between the appellants’ ‘‘equality of civil
status’’ and the respondents’ ‘‘freedom of association’’ did receive con-
sideration throughout, though not ultimately in the Supreme Court of
Canada decision.
73
The debate at the Ontario Court of Appeal exhibited
two fairly explicit views of social harmony, both employing the language
of what would now be called multiculturalism. The Beach O’Pines Asso-
ciation, and the Chief Justice of Ontario, held forth on the virtue of cul-
tural variety and the right of every group to preserve its differences; Mr.
312 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Wolf and the Canadian Jewish Congress were arguing for the right, in a
multicultural society, of every individual to have access under the law to
the same assets and advantages. At the Ontario court the Beach vision
prevailed.
74
The closest the Supreme Court of Canada came to this de-
bate, in its written decision, was to declare that group membership in
terms of ‘‘race’’ could not be established with legal certainty. Five of the
six majority judges expressed their decision on the reasoning that a
restrictive covenant, like a personal contract, was valid only between the
contracting parties and could not attach to a piece of land. Once Shirley
Denison asked the right question, the appellants achieved the result
(although not exactly the answer) they had wanted.
75
A similar process was visible through Narine-Singh, but only in hind-
sight with the benefit of the subsequent Brent decision. Andrew Brewin
argued in Narine-Singh that the immigration regulations were ultra vires
because in the Act Parliament gave the governor-in-council authority to
define the classes to be excluded from Canada, but the regulations were
‘‘so vague and uncertain’’ that no actual standards were set and immi-
gration officials were conducting improper hearings.
76
In this instance it
was the vagueness and uncertainty of the terms ‘‘Asian’’ and ‘‘race’’ that
were in contention. In its abrupt decision the Supreme Court of Canada
found those terms certain enough, and so the ultra vires argument failed.
Language precision became the justiciable issue, not the structural weak-
nesses of the immigration regulations. The manner of the Narine-Singh
decision was misleading – the terse dismissal of Brewin, the failure even
to call on the government lawyer to state an argument – for it seemed to
suggest that only one answer was obvious and that Brewin had no rea-
sonable case at all. Just months later Mr. Brewin played the same argu-
ment again, in a case sharing many pertinent facts. This time the courts
decided that the governor-in-council had acted improperly in not setting
precise rules for officials to follow, and so the regulations were ultra
vires.
77
The example in Brent, a woman excluded for ‘‘unsuitability,’’ dis-
played sufficient vagueness for the courts to recognize the structural
defects in the system. Andrew Brewin finally gained the result, but still
not the answer, he had wanted.
The impression gained from the case studies is that judicial decisions
were not as simple or mechanistic as they might seem at first glance. But
neither were they arbitrary. Infusing each case was a legal sensibility, a
notion of what constituted a relevant question, a legitimate analogy, an
acceptable argument, as well as an appropriate range of answers. What
the judges tried to do was to make sense of the often disconnected facts
Implications 313
and conflicting rights before them, to make them coherent as a lawful
interpretation and a reasonable resolution of the dispute. These notions
were culturally contingent: ‘‘sense’’ and ‘‘reason,’’ like ‘‘rights’’ and ‘‘jus-
tice,’’ were achieved within a context. Judges’ oft-noted reluctance to be
innovative or to assume an interpretive initiative reflected their legal sen-
sibility, which set a particular meaning on the nature of law and the role
of judges. This was not a case of hypocrisy on the part of judges, for they
could not avoid being part of the context. The legal sensibility was
widely shared across Canadian society: it was part of the prevailing
paradigm, the common sense.
It is striking, in the cases under study, how closely the decisions repre-
sented the mind of the nation, how contemporary values and priorities
were so generally captured. Judges applied what have come to be called
‘‘community standards,’’ giving legal effect within the paradigm to issues
of community concern. Ian Bushnell, in a 1992 comment on Quong Wing,
wrote: ‘‘In an extremely brief judgment that bordered on nonsense, Chief
Justice Fitzpatrick characterized the [Saskatchewan] law as being the reg-
ulation of places of business in the interest of the morals of females.’’
78
Assuming (incorrectly) that ‘‘Public opinion was silent, since the case
was not reported in the newspapers,’’ Bushnell intimated that had public
opinion and the press been mobilized in 1914, the Quong Wing decision
would have been different.
79
The contextual background presented in
chapter 2 suggests the opposite: in every corner of society there was con-
cern over immigration, especially Chinese immigration, and the legal
sensibility quite obviously accepted the legitimacy of racially specific
restriction. The press did report the case at each level from magistrate’s
court to the Supreme Court of Canada, and there was no hint that the
judicial reasoning was considered ‘‘nonsense.’’ That the Court accurately
interpreted the Saskatchewan legislation was made retroactively clear
when, in 1924, a Regina judge did permit Yee Clun to hire white wait-
resses for his restaurant. Immediately the legislature amended the law to
make it easier for local authorities to restrict white female employment
by Chinese. Provincial legislatures, municipal councils, trade unions,
women’s groups, all asserted a need for, and the propriety of, the dis-
criminatory legislation.
80
Anyone reading the Hansard debates on immi-
gration during that era could not escape the conclusion that the
community demanded protection against Chinese.
81
Then, in 1927-28,
when the Ontario law was inadvertently proclaimed and enforced, the
Quong Wing decision was in effect tested again in the press, in the legisla-
ture, in diplomatic exchanges, in public discourse. Although there were
314 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
a few moderate voices of disapproval, only the Chinese consul labelled it
‘‘inconsistent with Anglo-Saxon sense of justice and fairplay.’’
82
Consul
Chow, like the 1992 commentator, did not share the legal sensibility of
majority Canadians in the 1910s and 1920s. Evidence at Fred Christie’s
first court appearance made it equally unmistakable that racial segrega-
tion was widespread and acceptable to the majority.
83
Community stan-
dards also accepted the right of a proprietor to refuse any customer as
consistent with fairness and justice. Injustice in the 1930s would be to
require a proprietor to serve an unwanted patron. When the deputy min-
ister of Justice wrote to Dresden’s Hugh Burnett in 1943 to report that it
was lawful for a local restaurant to discriminate on grounds of ‘‘race,’’ he
explained that a law forcing businesses to serve any member of the pub-
lic ‘‘would be entirely one-sided,’’ and he appealed to Mr. Burnett’s com-
mon sense to understand.
84
Although Hugh Burnett did not share this
particular feature of the paradigm, discriminatory practices during war-
time by the National Selective Service and the Canadian armed forces
suggest that he held the minority view, and that the Supreme Court in
1939 had resolved the Christie dispute according to the legal sensibility
of the times.
85
In this example, common law was indeed common: it
operationalized common sense.
For understanding the context of Noble and Wolf, there are opinion
polls tracking contemporary views on Jews and other minorities and on
the acceptability of racial covenants. Although Jews remained unpopu-
lar, ranking second to Japanese as undesirable immigrants as late as
1945,
86
by 1947, 64 percent of Canadians approved of legislation to pre-
vent employment discrimination and the approval rate increased when
Jews (rather than the more general ‘‘race, colour or religion’’) were speci-
fied in the questionnaire.
87
In a 1949 poll, 68 percent declared that they
would refuse to sign a racially restrictive covenant, and only 19 percent
said they would agree.
88
The Association for Civil Liberties enjoyed
widespread endorsement from individuals and community groups in its
campaign to restrain private discrimination through the instrument of
the law.
89
A resolution passed by the Women’s Missionary Society of the
United Church of Canada in early 1950 and sent to Premier Frost repre-
sented how the pulse of the nation was beating to a different rhythm
from less than a decade previously:
Whereas instances of flagrant race discrimination are being reported from all
parts of the country, including Ontario; and whereas the essence of a democracy
is equal rights for all its citizens; and whereas a fundamental doctrine of Chris-
Implications 315
tianity is the belief in the Fatherhood of God and the Brotherhood of man, involv-
ing as that does a respect for every human soul and a duty to treat as a brother
every person irrespective of colour, race or creed;
Therefore the Executive of the Women’s Missionary Society of United Church
of Canada calls upon the Government of Ontario to strengthen its legislation in
such a way that racial and religious discrimination, particularly in the matters of
employment, rental and purchase of property, access to hotels, restaurants and
public places, may be eliminated.
90
The distance from resolutions passed by women’s organizations earlier
in the century is remarkable.
91
The same file in Premier Frost’s papers bulges with letters and resolu-
tions congratulating the premier on the passage of his legislation against
r e s t r i c t i v e covenants. Pr ess r esponse to the legislation, and to the Supr eme
Court of Canada decision eight months later, was overwhelmingly posi-
tive.
92
Not only had attitudes towards minorities changed, but so had the
public’s acceptance of discrimination by private individuals and of the
propriety of using the law to enforce majority standards. As was men-
tioned in chapter 4, the Court could almost certainly have declared dis-
crimination to be contrary to public policy without violating the prevailing
sentiment of 1950. It remained true, however, that the limited decision was
consistent with the practice of pronouncing only upon the essential points
re q u i re d to resolve an issue, itself an entrenched aspect of Anglo-Canadian
legal sensibility, and that a significant portion of the Canadian population
still hesitated to see the state interfere in private relationships. As the chief
justice of Ontario said, with a frequent echo from the Globe and Mail,
morality was not an appropriate field for legislation because the law could
not change minds or hearts.
93
The Noble and Wolf decision rather effec-
tively captured the delicate cusp of this shift in sensibility.
Data from opinion polls also helps to explain the Narine-Singh decision.
Despite the postwar momentum for immigration reform and statements
from churches, parliamentary committees, labour and press opposing
racially discriminatory regulations, this position must be examined in the
context of a continued belief in the reality of ‘‘race’’ characteristics and a
definition of ‘‘discrimination’’ that included only certain kinds of distinc-
tion. The Globe and Mail was surely correct in its January 1954 editorial:
‘‘ N o one seriously proposed taking immigrants from any part of the world
save Western Europe.’’
94
Parliament’s 1956 revision of the regulations, in
the wake of Brent, left the level of racial discrimination more or less
exactly as it had been when the Supreme Court of Canada discerned that
316 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
no change was intended, and a 1956 opinion poll showed the majority of
Canadians satisfied with policies ensuring that immigrants would come
from ‘‘traditional’’ source countries.
95
The court had accurately read parlia-
mentary intent, and had recognized ‘‘community standards’’ through an
ambiguous public rhetoric denouncing discrimination.
All of which serves to emphasize the overwhelming significance of
context for the analysis of a law or legal decision, not just a snapshot of
surrounding circumstances but a consideration over time of the intercon-
nections between the legal issue and other manifestations of contempo-
rary culture, the ‘‘social dynamics,’’ of which the law forms such an
important part. Values, morals and principles found expression in these
cases, along with public concern and political expediency, all translated
into a meaningful legal rule for people to follow. The question of
whether the law was a reflection of what already existed or a vision of
what was to come assumes a false dichotomy: the law was a participant
in the context. As a part of the cultural system, law had a specific func-
tion: to render society’s norms into a form that could be understood, pre-
dicted, respected and enforced. Law was process. As racist doctrine and
anxieties about racial degeneration increased, laws to maintain racial
separation confirmed and reproduced the motivating forces. As conven-
tional wisdom about ‘‘race’’ began to change, law was engaged to partici-
pate in the transformation of structures that were no longer appropriate.
It is frequently remarked that the Canadian Supreme Court has been
‘‘passivist’’ in contrast to the ‘‘activist’’ American Supreme Court. Re-
garded historically, the way Canadian judges articulated their rulings
implied that they were ‘‘strictly, even mechanistically, applying estab-
lished rules and precedents.’’
96
A leading legal historian has written:
Our courts have tended to express attitudes and values within narrow limits and
through results and technical reasoning, and they have not usually made deci-
sions that have a major impact on society.... Nor have we used courts much to
declare values nor to focus and make apparent problems, especially diffused
problems that affect otherwise relatively powerless groups.
97
The cases included in this study do not support this perspective, for
judges openly consulted moral principles, applied social values and di-
agnosed conflicting trends. The social impact of their decisions, particu-
larly upon ‘‘relatively powerless groups,’’ was considerable. A private
dispute in a civil law case in Quebec became both public and national as
a consequence of the Court’s declaration of values in Christie. The stand-
Implications 317
ard interpretation of a non-active court reflects a ‘‘presentist’’ orientation:
since the Court did not then advance values and groups that are ascend-
ant today, they must have been doing nothing at all.
It is true that the Supreme Court of Canada was not an instrument for
civil libertarian reform, and that the social order its judges adhered to
was conservative and hierarchical; but it would not be accurate to say
that the Court was isolated from majority concerns. Neither does the evi-
dence support the proposition that law was a deliberate instrument to
benefit particular interest groups. There was no specific interest being
served by Quong Wing, for example;
98
although organized labour and a
small commercial sector were motivated partly by economic protection,
these are not the classes usually associated with control of the judiciary.
The concept of ‘‘instrumentalism’’ seems analytically useful only if it is
defined sufficiently broadly, as in David Kairys’ observation that ‘‘The
law is a major vehicle for the maintenance of existing social and power
relations. . . . The law’s perceived legitimacy confers a broader legitimacy
on a social system.’’
99
The Court operated as a ‘‘power centre’’ (as Fou-
cault expressed it), functionalizing the dominant discourse. If this con-
cept is tested against Christie, it reveals that the law maintained a
property and business orientation, and within that context legitimized
the freedom to discriminate for the sake of upholding the ‘‘sanctity of
contract’’ and ‘‘freedom of commerce.’’
100
It was also apparent, however,
that views inherent in the Christie decision were not the exclusive pre-
serve of property or any other identifiable interest. The decision was
‘‘instrumental,’’ but it was rendering into law a social and power rela-
tionship that permeated every level of Canadian society at that time.
Without denying the influence of personal idiosyncrasy in the deci-
sions under study here, in every example the rules upheld by the Court
were already part of the social and moral framework. It exercised its
interpretive latitude within the permissible realms of the legal sensibility
then existing. As individuals the judges were after all participants in the
same general culture as their contemporaries. Renowned jurists such as
Lyman Duff and Ivan Rand and even Bora Laskin made decisions that
appear less than innovative today, and may seem to restrict present defi-
nitions of ‘‘rights.’’ This reflection should encourage a respectful under-
standing that common sense is context-bound, for judges as for every
other member of society, and this includes the propriety of selecting one
precedent over another. Some, it is true, recognized an ‘‘implied Bill of
Rights’’ in both the common and the civil law. In BC, Justices Gray and
Crease went beyond the division of powers issue to denounce anti-
318 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Chinese legislation,
101
and Justice O’Halloran bluntly announced that
‘‘it is contrary to common law to refuse service to a person solely because
of his colour or race.’’
102
In Quebec, Justice Archibald found that ‘‘Our
constitution is and has always been essentially democratic, and does not
admit of distinctions between races,’’ and Justice Fortin agreed that ‘‘In
this country the colored people and the white people are governed by
the same laws, and enjoy the same rights without any distinction what-
ever.’’ This was echoed by Justice Carroll – ‘‘Tous les citoyens de ce pays,
blancs et noirs, sont soumis à la même loi et tenus aux mêmes obliga-
tions’’
103
– and Justice Galipeault had no difficulty claiming that racial
discrimination was ‘‘contre les bonnes moeurs, contre l’ordre public, con-
tre le droit et la loi.’’
104
But these were minority opinions at the time, and
none prevailed. Not only was the weight of precedent against them, but
so was the expressed wish of the legislatures and the majority popula-
tion. When change in the law occurred, it was not because a reforming
judge decided to break with tradition, but when the social dynamic
within which the law existed underwent a shift. In the examples studied
in this book, the initiative for reform was taken first by members of the
public who perceived a need for change, usually individuals from the
affected minority. The evidence considered here suggests that the law
did not change itself. Challenge, resistance and struggle were required in
court, in Parliament, and in the public discourse. Reform was accommo-
dated only when common sense grew to accept it.
3. HISTORICAL STUDY
The history in Canada of the ‘‘race’’ phenomenon may serve as a
reminder for historians that an exclusively national focus in historical
explanation has limitations. Canada was very much on the periphery of
developments which led to a civilization committed to the principle that
‘‘race’’ was significant in human behaviour, and then to a conviction that
it was not. Events within Canada are not sufficient to explain either a
Quong Wing or a Noble and Wolf. Canadian attitudes and practices were
so often an apparent fragment of a globally pervasive paradigm, but at
the same time local conditions had a defining impact on the specific
manifestations of ‘‘race’’ in Canada: federalism, building the railroad,
scarcity of labour, stresses of nation building, demographic and settle-
ment patterns, reliance on immigration. An examination of the Cana-
dian events is therefore a useful reminder as well that there were local
systems operating within the broader civilization. This kind of analysis
can help in the discernment of the ‘‘universal’’ patterns: recognition of
Implications 319
how the universal took forms that varied from one society and period to
another may clarify the factors involved and contribute eventually to an
understanding of the phenomenon itself. Local study conducted from a
larger-scale perspective, it would seem, can lend insight into both the
particular and the general.
The four cases examined here suggest that, in approaching local study
in this way, the works of Clifford Geertz can provide a helpful guide for
historians. There is meaning in the local devices that are developed to
construe the universals, as Geertz demonstrated, and so analytical atten-
tion turned to the ‘‘construable signs’’ and ‘‘orienting notions’’ assists in
understanding the ‘‘conceptual world’’ that might otherwise remain
inaccessible. Of particular benefit for a study such as this one is Geertz’s
identification of a ‘‘legal sensibility’’ as one of those signs.
105
On the other
hand, the cases have indicated the significance of the time dimension,
which Geertz did not emphasize. Quong Wing could be misconstrued
without analysis of the political and legal developments of the 1920s;
Narine-Singh could be misconstrued in ignorance of Brent and the 1956
immigration amendments; none of the cases is isolatable from the on-
going trajectories into which they offered a momentary glimpse. The
‘‘location’’ metaphor, implicit in Geertzian description, does not supply
an adequate model for historians. Place and time condition the context,
and both deserve analytical attention. Frozen in time, something that is
‘‘becoming’’ appears as if it already ‘‘is.’’
When the four cases are viewed from a historical perspective the con-
text is revealed as movement, as a process, and the movement is dynamic
from universal to local and back again, from one local event to another.
Historical change is not unidirectional; it resonates. German ‘‘local
knowledge’’ resonated to Canada in the 1930s, intensifying Canadian
antisemitism; the Drummond Wren decision resonated to the United
States and much of the Western world.
106
British imperial interests res-
onated to Canadian immigration restrictions against people from India;
the Komagata Maru incident resonated back to India, fostering political
unrest against the Empire.
107
Not only were universals manifest in Cana-
da, but Canadian developments helped shape the universals. The frag-
ment’s meaning is discernible through its relationship to the whole.
Within this dynamic movement definitions changed. Morality, as was
so often demonstrated in these cases, was particularly susceptible to con-
textual motion. ‘‘Rights,’’ despite their frequent description as ‘‘univer-
sal’’ and ‘‘inalienable,’’ underwent comparable shifts in definition. Rights
are what the law says they are, and the law on this point changed dra-
320 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
matically. Perhaps the most fundamental conceptual mutation recorded
here was the shift towards state intervention. Restrictions on personal
behaviour – even to restrain the public posting of a discriminatory sign –
were impossible to legislate in the 1930s and were introduced in the face
of a powerful individual rights-based resistance in the 1940s. Society did
not necessarily value racial discrimination, but it did value the right of
the individual to be free from state coercion. That same rhetoric of indi-
vidual rights would come to signal the rights of the citizen to be pro-
tected by the state against displays of racial discrimination.
108
South Africans have an anecdote that neatly illustrates this transition.
Van der Merwe, the typical slow-witted character in Afrikaans humour,
was fined for assaulting a black worker. ‘‘What’s freedom coming to,’’ he
asks the magistrate, ‘‘if you can’t hit your own kaffir on your own farm
with your own sjambok?’’
109
‘‘Freedom’’ had changed its meaning, in
South Africa as in Canada. Common sense itself accommodated the defi-
nitional shift, so that the former way of looking at rights became wrong.
The discourse conveying the reversal, much to the confusion of Canadi-
ans in the 1950s, was engaged in this dynamic, resonating with colonial
independence struggles, the decline of hierarchical models, wartime ac-
ceptance of unprecedented state controls, stricken conscience. Only in
retrospect does the process seem inevitable, with a pre-established direc-
tion. Around Noble and Wolf and Narine-Singh in particular, the discourse
can be understood as intercourse, as reverberation and exchange and
generation. Historians’ accustomed reluctance to subscribe to determin-
ism is justified by the course of these stories.
Evident throughout this study has been the sound of more than one
voice at any given time. Minority resistance challenged the hegemony of
the prevailing paradigm and revealed the presence of multiple historical
trajectories within Canadian society. Minority resistance did not begin
with World War II, and it was carried frequently before the majority pop-
ulation in petitions and delegations to legislatures, newspaper cam-
paigns, action in the workplace, and testing through the courts. The
majority could ignore it because it was the protest that was considered
aberrational according to the common sense of the times, but historians
do not need to perpetuate the same mythology by portraying minorities
as pliable, passive and content. Nor was it only in a struggle against re-
striction that minorities displayed historical integrity. These were vibrant
communities with religious institutions, newspapers, political and social
organizations, a range of cultural expressions, all contributing to a group
momentum distinct from the mainstream. These were recognizable enti-
Implications 321
ties, subordinate in some respects but in others preserving considerable
control over their own lives. This was a history in which people were
actively engaged, not as victims or objects, but as participants in the
shaping of their own destinies.
A pattern of multiple entities, brought forward in the forceful commu-
nity efforts described in these cases, contests the concept of ‘‘master
story’’ in Canadian history. Numerous ‘‘facts’’ in the conventional inter-
pretation are directly contradicted, particularly those which have con-
tributed to a Canadian identity incorporating an image of generosity
toward minorities. Furthermore the wars, elections and migrations
which feature in the master story have quite different meaning for differ-
ent groups. Canada did not ‘‘come of age’’ as a democracy, during World
War I, for the men of the No. 2 Construction Battalion.
110
It is not intelli-
gible to define Canadian history according to any one trajectory. On the
other hand, to acknowledge multiple trajectories need not mean their
pursuit as disconnected group stories. As has been shown, connections
were intricate and unavoidable, forming a propelling force in the Cana-
dian social dynamic. Not all of them were vertical lines of oppression
and opposition. It is this web of relations that deserves attention from
Canada’s interpreters. To render those relationships coherent remains a
worthy challenge for a new generation of social historians.
In pursuit of this challenge the singled-out case approach has certain
advantages. Since the focus is upon a particular ‘‘subject,’’ either individ-
ual or group, the perspective is forced away from the surrounding society
except in terms of its relationship to the ‘‘subject’’; the webs of relations
become important and they become apparent. Similarly, societal structures
and conceptual tr ends ar e p r e s e n t e d in terms of personalized experience,
involving relations between the ‘‘subject’’ and the contextual environment.
There is a further advantage from singling out legal cases for the study of
social relations. The law represents organizing principle in Western demo-
cratic society; it is the law that orders power relations and rationalizes
them according to contemporary sensibility. For the social historian, law
grants access to the lines of connection. This is not to suggest that the
‘‘ rules’’ hold the key to understanding social relations, but the ways in
which rules are designed, applied, explained, avoided and resisted. In the
singled-out case, attention moves beyond the political and legislative
sphere to the functioning of law in human lives, to the social dynamic in
which law participates, to the relationships that are eff e c t e d and affected.
Although there is an increasing use of criminal case records by social
historians in Canada, illustrating one aspect of ‘‘history from below,’’
322 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Canadian history generally has not considered the law as a route to
understanding social conditions or the beliefs and values of an age. The
grand interpreters of national history have virtually ignored the law. The
case studies presented in this book suggest that law, and case law in par-
ticular, does articulate the prevailing principles and paradigms historians
seek through research in other sources. Encasing the body of law, as has
been seen, is a ‘‘legal sensibility’’ which is part of the ‘‘conceptual world’’
at any given time and is made visible through the way laws are inter-
preted in the resolution of real disputes in court. The case law examined
here exposed some of the ‘‘orienting notions’’ in early 20th-century Cana-
da which can contribute to a historical understanding of their period and
especially of the relations that channelled so much in daily life: the func-
tion of government, the rules of commerce, individual rights, gender
roles, sexual anxieties and stereotypes, the assumptions of common
sense. The exploration of ‘‘race’’ as an orienting notion revealed the com-
plexity and range of the relationships infused with this concept. It was
more subtle than colour antipathy, more complicated than a capitalistic
plot, more pervasive than working-class protectionism. It was a strand in
political, economic and moral networks ravelling the social process, and
for analytical purposes it cannot be separated from its context. ‘‘Race’’ as
a force in the Canadian past does not submit to the common sense of
today. The singled-out case method applied to legal cases requires a con-
sideration of context and common sense through the analysis of statutes,
evidence, opposing arguments and the judges’ resolution. The challenge
to conventional wisdom and the separate trajectory, as well as the domi-
nant ideology, are ensnared in the case records. ‘‘Presentism,’’ that great
barrier to historical understanding which imposes current values on past
events, is perhaps more easily avoided in the struggle to explain a legal
decision. The fragments will not have meaning, or not the meaning that
led to their connection in court, unless they are examined in terms that
were recognizable to contemporaries.
Social history practised in this way can bring the legal component into
an interpretation of Canadian history generally, and it may also appeal to
legal historians. Legal developments are extremely context-connected, so
that interpretive models fashioned in other cultures may not be totally
transferable. With its insistence upon specific contextual analysis and
detailed archival research, the singled-out case approach offers a tech-
nique to assess the local characteristics of Canadian law and the cultural
framework within which it has taken shape.
Implications 323
Afterword
Prevailing Canadian opinion holds that the Charter of Rights and Free-
doms is a powerful weapon on behalf of individual rights;
1
it is widely
regarded, in the words of a 1986 CTV special program, as A Gift of Free-
dom.
2
In a celebratory statement launching the Charter, Justice Minister
Jean Chrétien expressed a typical expectation:
Now it is not just the politicians who will defend our rights, it will also be the
courts. That is better because politicians sometimes tend to just go with the wind.
Now, due to the Charter, it is also possible to think about those issues in the
courts away from the arena of political debate and where emotions and votes
cannot influence you.
3
Nor was it only Liberals who had such confidence. Conservative Prime
Minister Brian Mulroney would say in the House of Commons that it
was the Charter that enabled Canadians to ‘‘live in the kind of democ-
racy for which we are all grateful.’’
4
Conventional wisdom accepted that
the courts had at last been equipped to fulfil this vital role. The courts,
and especially the Supreme Court of Canada, had been ‘‘transformed’’ by
the Charter,
5
and a new era had begun in the way Canadians would be
governed;
6
a judicial ‘‘renaissance,’’ even a ‘‘revolution,’’ was in process,
7
introducing a ‘‘new paradigm’’ into the interpretation of Canadian rights
The notes to the Afterword are on pages 428-36.
and the judicial function.
8
Chief Justice Antonio Lamer shared this vision
of a new dawn in Canadian judicial practice. On the tenth anniversary of
the Charter’s implementation a Toronto newspaper reported his opinion
that ‘‘the Charter has changed our job descriptions.’’ Rather than simply
applying the law, as had been the case before 1982, the courts now had a
responsibility to ‘‘judge’’ the laws themselves, to make value judgments,
to become an active participant in public policy. ‘‘Now that’s a revolu-
tion,’’ the chief justice claimed. ‘‘That’s like introducing the metric sys-
tem. It is like Pasteur’s discoveries. Medicine was never the same after.
Like the invention of penicillin, and the laser. It was a great event.’’ An
additional consequence of the Charter, the chief justice observed, was
that Canadians had become much more rights-conscious since 1982.
‘‘The public wants its rights... And they know if they are correct the
court will give it to them.’’
9
Within a decade of the Charter’s implementation, the four cases stud-
ied here seemed consigned to the dustbin of history. No longer viable as
precedents or representative of continuing principles in Canadian judi-
cial reasoning, their only further purpose would be as object lessons of
what used to be. If Quong Wing was the ‘‘base-point from which to mea-
sure the evolution of egalitarian principles in Canadian law,’’
10
then
clearly a sincere and profound advancement had been made, to the vir-
tual reversal of trends previously in existence. It was of course not the
Charter alone that caused this change. By the early 1980s societal devel-
opments, in Canada and internationally, were apparently leading to-
wards a new sensibility, even a new common sense, and it was already
being recognized in legislative innovations and in human rights jurispru-
dence. The Charter was part of a broader process, which can be traced
through developments in public policy since the mid-1950s. Positive
though it all appears, this new policy direction needs to be tested against
actual conditions in the lives of Canadian minorities, and against judicial
trends which could have an impact on minority rights. Such an exercise
provides grounds for sincere apprehension.
1. DIRECTIONS IN PUBLIC POLICY
At the time when Narine-Singh was decided, public policy in Canada still
served as a source of discrimination and as an enforcer of discriminatory
acts by others. But then during the 1950s positive laws imposing racial
distinctions were removed, with the notable exception of immigration
regulations, and a solution to the problem of racism was proposed
through laws protecting minorities from overt acts of private discrim-
Afterword 325
ination.
11
This policy impulse, which might be labelled the ‘‘protective
shield,’’ continued into the 1960s and 1970s.
The quintessential federal example of the new direction was the Bill of
Rights passed by the Diefenbaker government in 1960. Although it cre-
ated no new rights, the Bill was a ‘‘manifesto’’
12
confirming Parliament’s
respect for traditional rights and freedoms. Canadians would be pro-
tected against violation of those rights, for the Justice Department was
required to scrutinize every parliamentary bill and every act already in
existence to guarantee compatibility with the bill’s declaration of equal-
ity before the law.
13
As the deputy minister of Justice who drafted the Bill
put it, ‘‘the Bill operates prenatally.’’
14
Action by the courts was not there-
fore expected to be considerable, but judicial review was explicitly
invited to ‘‘construe and apply’’ every Canadian law according to the
principles contained in the Bill unless – in recognition of parliamentary
supremacy – Parliament itself declared that a particular act should oper-
ate notwithstanding the Bill of Rights. The entire machinery of the state,
Parliament, civil service and courts, was enlisted to protect the individ-
ual rights of Canadians including in particular ‘‘equality before the law
and the protection of the law.’’ The Canadian Bill of Rights applied only to
actions of the federal government, but there was a provincial counter-
part. Beginning with Ontario in 1962, each province eventually intro-
duced human rights legislation confirming equality before the law,
declaring that public policy was contrary to racial distinctions, and rec-
ognizing the state’s right to interfere to protect the individual.
15
Equally significant, and politically more revolutionary, were changes
in immigration law during this same era. In 1962 the Conservative gov-
ernment introduced new regulations granting admission to Canada on
the basis of an applicant’s ‘‘education, training, skills or other qualifica-
tions.’’
16
Although the regulations retained one discriminatory feature –
sponsorship privileges were broader for Europeans than for Asians and
Africans – Immigration Minister Ellen Fairclough explained to the House
that from now on ‘‘any suitably qualified person from any part of the
world can be considered for immigration to Canada, without regard to
his race, colour, national origin or the country from which he comes.’’
17
Orders introduced by the Liberal government in 1967 completed the
movement begun by the Conservatives in 1962, establishing a ‘‘points
system’’ assigned to applicants on the basis of qualifications.
18
Ostensibly
no more than a rationalization of existing policy, the 1967 regulations
removed ‘‘race’’ from the text of Canadian immigration law.
326 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
A step in the same policy direction was taken on 8 October 1971 when
Prime Minister Trudeau announced that Canada was committed to
‘‘multiculturalism within a bilingual framework.’’
19
When the Royal
Commission on Bilingualism and Biculturalism was appointed in 1963, it
had been instructed to ‘‘take into account’’ ‘‘the contribution made by the
other ethnic groups to the cultural enrichment of Canada and the mea-
sures that should be taken to safeguard that contribution.’’
20
As a part of
the Liberal program to build ‘‘national unity’’ emerging from the B and B
Report, Trudeau announced his government’s dedication to full partic-
ipation in Canadian society for all individuals whatever their ‘‘race’’ or
ethnic background. Cultural diversity was an instrument toward inte-
gration rather than a product valued for itself. According to Trudeau,
multiculturalism
should help to break down discriminatory attitudes and cultural jealousies.
National unity, if it is to mean anything in the deeply personal sense, must be
founded on confidence in one’s own individual identity; out of this can grow
respect for that of others and a willingness to share ideas, attitudes and assump-
tions. A vigorous policy of multiculturalism will help to create this initial confi-
dence. It can form the base of a society which is based on fair play for all.
21
Multiculturalism was a part of a broad policy sweep, commencing after
World War II, to remove barriers to the effective integration of all Cana-
dians, including those who had earlier been considered unsuitable. As
elaborations upon the same theme, there were serious proposals during
the 1960s to abolish Indian reserves,
22
and in Nova Scotia the most fa-
mous separate black community, Africville, was annihilated and its peo-
ple relocated in downtown Halifax.
23
The underlying principle was
inclusivity, with the power of the government enlisted to guarantee
every citizen’s right to equal participation.
The same principle was affirmed in a new Immigration Act passed in
1976. For the first time immigration legislation explicitly stated that non-
discrimination on grounds of ‘‘race,’’ national or ethnic origin, colour,
religion or sex was a fundamental objective of Canadian admission pol-
icy.
24
Coincident with the new Immigration Act, the federal government
introduced a Canadian Human Rights Act,
25
applying the non-discrimina-
tory principles of its provincial counterparts to the federal sphere and
declaring Canada’s expanding dedication to equality.
The legislative momentum since 1960 was unmistakable: the Bill of
Rights, human rights codes in every jurisdiction, a national policy of mul-
Afterword 327
ticulturalism and a non-discriminatory immigration law. Public policy
was clearly committed to the path of egalitarianism. The Supreme Court
of Canada seemed to share in this momentum. In 1970 it met its first case
dealing with ‘‘race’’ since passage of the Bill of Rights. At issue in R. v.
Drybones
26
was a provision in the Indian Act that imposed penalties upon
an Indian person for intoxication ‘‘off a reserve,’’ whereas the regular
laws of the Northwest Territories where the offense occurred imposed a
milder penalty for non-Indians and only for intoxication in a ‘‘public
place.’’ The Supreme Court decided that this section of the Indian Act
violated Mr. Drybones’ equality rights because Section 1(b) of the Bill of
Rights, in the words of Justice Ritchie,
means at least that no individual or group of individuals is to be treated more
harshly than another under the law, and I am therefore of opinion that an indi-
vidual is denied equality before the law if it is made an offence punishable at law,
on account of his race, for him to do something which his fellow Canadians are
free to do without having committed any offence or having been made subject to
any penalty.
27
However, the limitations of the Drybones interpretation of ‘‘equality
before the law’’ would soon become apparent. In AG Canada v. Lavell
28
another section of the Indian Act was challenged, which provided that an
Indian woman who married a non-Indian man lost her Indian status and
band membership. When an Indian man married a non-Indian woman,
on the other hand, he retained his status and his wife actually gained sta-
tus as an Indian and became a registered band member. In this case the
Supreme Court decided that no violation of the Bill of Rights had
occurred. Beginning with the principle that the BNA Act gave the federal
Parliament constitutional authority to make laws for ‘‘Indians and Indian
lands,’’
29
the Court maintained that the fulfilment of this function would
require distinctions between Indians and non-Indians. Otherwise the Bill
of Rights would have to be seen as rendering the entire Indian Act inoper-
ative, an option the Court rejected as inconsistent with parliamentary
intent. Instead ‘‘equality before the law’’ was construed to mean ‘‘the
equal subjection of all classes to the ordinary law of the land as adminis-
tered in the ordinary courts.’’
30
Drybones could be distinguished because
in that case his ‘‘race’’ subjected him to discriminatory treatment ‘‘in the
administration and enforcement of the law before the ordinary courts of
the land.’’
31
In Lavell, despite the distinctions between Indian men and
Indian women and between Indian women and non-Indian women, the
328 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Court ruled that the circumstances did not warrant interference under
the Bill of Rights. Indian status and band membership, as Justice Beetz
later elaborated, were instrumental to the application of the Indian Act
and indispensable to Parliament’s effective control over ‘‘Indians and
Indian lands.’’ Penal laws, such as was impugned in Drybones, were not
in the same category.
32
Clarification of the distinction between Drybones and Lavell was
offered in a subsequent case, AG Canada v. Canard. Mrs. Canard objected
that an executor had been appointed by the Department of Indian Affairs
to administer her late husband’s estate, against her wishes and without
her knowledge. Non-Indians had the right to administer their deceased
spouses’ estates, so she claimed discrimination contrary to Section 1 (b)
of the Bill of Rights. Justice Ritchie rejected her claim because
The civil right said to be denied to Mrs. Canard ‘‘that other Canadians not of her
race enjoy’’ is a provincial right which is beyond the scope of the legislative
authority of the Parliament of Canada, and which cannot therefore, in my view,
be invoked in contra-distinction to the provisions of otherwise valid federal legis-
lation so as to result in a denial... of ‘‘equality before the law’’ within the mean-
ing of S. 1 (b) of the Canadian Bill of Rights....
This is not a case like R. v. Drybones ... where there was found to be inequality
before the law because of the interaction of two federal statutes.
33
Further clarification was provided in an unrelated case when the Court
ruled:
This Court has held that S. 1 (b) of the Canadian Bill of Rights does not require that
all federal statutes must apply to all individuals in the same manner. Legislation
dealing with a particular class of people is valid if it is enacted for the purpose of
achieving a valid federal objective.
34
Within five years of Drybones, ‘‘equality before the law’’ had come to
mean ‘‘equality when brought to face a charge before a judge.’’
In its direct confrontation with what it defined as racial discrimination
in Drybones, the Supreme Court clearly stated that restrictions on the
basis of ‘‘race’’ contravened the right to equality before the law. To
define equality so narrowly as to mean that a law must apply equally
only to persons within a particular group, the Court declared, would be
to justify ‘‘the most glaring discriminatory legislation against a racial
group.’’
35
On the other hand the Court was conscious that, by the word-
Afterword 329
ing of the bill, the rights and freedoms listed there ‘‘have existed and
shall continue to exist,’’ meaning that the bill ‘‘did not create new rights.
Its purpose was to prevent infringement of existing rights.’’
36
Further-
more, in deference to parliamentary supremacy, the Court decided that
even if a government act was discriminatory it could still be acceptable if
it fulfilled ‘‘a valid federal objective.’’
37
Justice McIntyre explained in
1980:
The question which must be resolved in each case is whether such inequality as
may be created by legislation affecting a special class... is arbitrary, capricious
or unnecessary, or whether it is rationally based and acceptable as a necessary
variation from the general principle of universal application of law to meet spe-
cial conditions and to attain a necessary and desirable social objective.
38
To fix the meaning of the law in terms of what is ‘‘rational,’’ ‘‘necessary’’
or ‘‘acceptable’’ would seem to deny any meaning at all beyond what the
judges felt to be the case at any given moment.
39
As a ‘‘protective shield,’’
the Bill of Rights was not playing a particularly effective role.
Perceived problems with the Bill of Rights had an impact on the con-
ceptualization and the specific wording of the Charter of Rights and Free-
doms. The Charter was also a product of negotiation and compromise,
particularly its keystone Section 15 on equality rights. In the fall of 1980,
in the face of provincial reluctance for constitutional reform, Prime Min-
ister Trudeau announced a federal proposal to patriate the constitution
unilaterally, and he established a Special Joint Committee to consider the
text for a new Canadian constitution, including a Charter of Rights.
40
In
that highly politicized atmosphere of 1980-81, with federal and provin-
cial governments competing for moral support, the parliamentary com-
mittee’s discussions offered an opportunity to insert political programs
into an entrenched constitution, and the federal negotiators were at least
prepared to listen.
41
The final product read:
15. (1) Every individual is equal before and under the law and has the right to
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.
330 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Racial discrimination headed the list of proscriptions, and the elaborate
wording of Section 15 seemed to cover any conceivable operation of the
law. The confusions arising under the Bill of Rights could no longer occur.
A constitutional scholar was able to conclude that ‘‘S. 15 should be inter-
preted as providing for the universal application of every law. When a
law draws a distinction between individuals, on any ground, that dis-
tinction is sufficient to constitute a breach of S. 15.’’
42
One of his colleagues, however, commented more ominously:
Section 15 was developed primarily on public relations grounds as a means of co-
opting highly visible and vocal interest groups into supporting the Trudeau gov-
ernment’s unilateral constitutional restructuring. The public and legislative dis-
cussions concerning it provide little guidance to our judges as to how far or how
fast it is desirable to eliminate all forms of discrimination in Canadian society.
43
Still the Charter did contain another article which could conceivably
affect the implementation of Section 15 as a guarantee of racial equality:
‘‘27. This Charter shall be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of Canadi-
ans.’’
The Charter did not simply prohibit discrimination; it provided a posi-
tive guarantee that ‘‘everyone has the following fundamental free-
doms. . . ,’’ ‘‘everyone has the right to life, liberty and security...,’’ ‘‘every
individual is equal.’’
44
Taken with Section 15 (2), this kind of wording
suggested a readiness to interfere in support of individual rights, to take
positive measures in furtherance of the constitutional guarantees. A simi-
lar conceptual orientation was displayed in the Ontario Human Rights
Code when it was rewritten in 1981. In the original 1962 Code the pream-
ble had declared: ‘‘it is public policy in Ontario that every person is free
and equal in dignity and rights without regard to race.’’
45
In 1981 it
became:
it is public policy in Ontario to recognize the dignity and worth of every person
and to provide for equal rights and opportunities without discrimination that is
contrary to law, and having as its aim the creation of a climate of understanding
and mutual respect for the dignity and worth of each person so that each person
feels a part of the community.
46
The old Section 4 stated: ‘‘No person shall discriminate. . . .’’ In 1981 Sec-
tion 4 began: ‘‘Every person has a right to equal treatment. . . .’’ The
Afterword 331
philosophical thrust was no longer protection against antisocial acts by
aberrant individuals, but the active promotion of an egalitarian com-
munity based on the assertion of people’s rights. Until this time
Ontario’s Code, and all the others modelled upon it, recognized only
direct and deliberate discriminatory practices. By Section 10 in the new
Code, Ontario added non-deliberate or ‘‘systemic’’ practices which
were not intentionally discriminatory but which would have a discrim-
inatory ‘‘result.’’
47
The correction of unequal conditions, rather than
punishment of offenders, had become the human rights theme. The
duties of a new Race Relations Division, set out in Section 27 of the
1981 Code, reflected the movement away from a complaints-based pro-
gram to something far more pro a c t i v e . The Division was granted a
mandate
to inquire into incidents of and conditions leading or tending to lead to tension
or conflict... and take appropriate action to eliminate the source of tension or
conflict;
to initiate investigations into problems . . . that may arise in a community and
encourage and coordinate plans, programs and activities to reduce or prevent
such problems;
to promote, assist and encourage, public, municipal or private agencies... to
engage in programs to alleviate tensions and conflicts.
An examination of existing policy instruments, as Ontario’s 1982 Strategy
for Race Relations reported, had ‘‘clearly demonstrated the need for a
more active promotion of harmonious race relations.’’
48
Numerous other related policies participated in the directional shift
towards more positive intervention. A Special Committee on the Partici-
pation of Visible Minorities in Canadian Society was formed in 1983
under MP Bob Daudlin as chair. Their 1984 report Equality Now!, issued
following nationwide public hearings, recommended an assault on sys-
temic discrimination and the active promotion of a hiring program for
‘‘visible’’ minorities.
49
Also in 1983 the federal government appointed
Judge Rosalie Abella to conduct a Royal Commission on Equality in
Employment. Her 1984 report strongly supported ‘‘affirmative action,’’
which she called ‘‘employment equity,’’ whose need she demonstrated
statistically in existing employment and income discrepancies.
50
A
‘‘National Strategy on Race Relations’’ appeared in 1984, calling upon
Canadians to participate in ‘‘helping minority groups to overcome barri-
ers to full and equal participation in Canadian society’’ through ‘‘institu-
332 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
tional change.’’
51
When Otto Jellinek launched Canada’s ‘‘Programme of
Action for the Second Decade to Combat Racism and Racial Discrimina-
tion’’ in 1985, he could admit that the existence of Canadian racism had
been ‘‘well documented’’ by Equality Now! and Equality in Employment.
‘‘ Today the law provides for equality.... The task now for our society is to
translate these provisions into the reality of everyday life.’’
52
Another par-
liamentary report in 1985, Equality for All, endorsed the ‘‘systemic’’ or
‘‘ results-oriented approach’’ to Section 15 of the Charter.
53
Then, less than
two months before Section 15 was to come into effect in April 1985, Parlia-
ment amended the Indian Act to eliminate the disadvantage faced by
Indian women who married non-Indian men, and granted individual
bands the right to determine their own membership.
54
In 1986 the Abella
Commission’s recommendations were enacted as the Employment Equity
Act,
55
committing the federal government and Crown corporations to affir-
mative hiring programs and requiring contractors and federally regulated
businesses to move towards ‘‘proportional representation’’ in their work-
force through ‘‘positive policies’’ and ‘‘reasonable accommodation.’’ As a
r e s u l t of the government’s r esponse to Equality Now!, ‘ ‘ v i s i b l e minorities’ ’
were included as a ‘‘target group’’ under the federal Employment Equity
program.
56
In 1988 Prime Minister Mulroney announced that an agree-
ment had been reached on ‘‘redress’’ to Japanese Canadians for their
Wo r l d Wa r II dislocation and violation of their rights. This announcement
had great symbolic significance, for it recognized a responsibility for past
injustice and signalled a determination to remedy its effects.
57
A discursive change, a shift in sensibility, was evident in the measures
of the 1980s, and the new direction was perhaps most explicitly captured
in the multicultural policy by which Canadians had come to define
themselves as a nation. In 1988 Canada introduced the world’s first Mul-
ticulturalism Act,
58
which made ‘‘race relations’’ its top priority and
‘‘institutional change’’ its method. The Multiculturalism Act, along with
Section 27 of the Charter, made diversity a central feature in the Cana-
dian vision, an ‘‘organizing principle’’ of Canadian life and law, but a
diversity conditional upon equal respect and equal opportunity. Multi-
culturalism therefore became an instrument to ensure access, with proac-
tive and remedial measures aimed at social structures and systemic
disadvantages long considered benign.
59
Discrimination had been rede-
fined, and the policies and agencies designed to address a previous defi-
nition were no longer seen as effective. The ‘‘protective shield’’ was
being replaced by a ‘‘remedial sword’’ in the struggle against injustice
and inequality.
Afterword 333
In April 1985 the Supreme Court of Canada gave a ruling exhibiting its
concurrence with 1980s definitions of equality,
60
at the same time indicat-
ing that the ‘‘frozen rights’’ concept had thawed and that the Court was
joining the remedial stream. Rejecting Bill of Rights jurisprudence, Justice
Dickson on behalf of the majority wrote that
the Canadian Charter of Rights and Freedoms does not simply ‘‘recognize and
declare’’ existing rights as they are circumscribed by legislation current at the
time of the Charter’s entrenchment. The language of the Charter is imperative...
intended to set a standard upon which present as well as future legislation is to be
tested.
61
In proceeding with this analysis, he said, the Court must first determine
the purpose of the legislation in the broadest sense. Then, if the purpose is
deemed constitutionally appropriate, the Court must next examine the
law’s effect. If the effect or impact was discriminatory, even if the purpose
was valid, the Court would overturn the law.
62
Justice Wilson agreed
with the majority result, but she insisted that a law’s purpose was irrele-
vant in determining its validity. The Charter, she claimed, was ‘‘first and
foremost an effects-oriented document,’’
63
and that was all the Court
needed to consider. Interesting, too, was Justice Dickson’s contention
that ‘‘equality’’ did not mean ‘‘identical treatment.’’ ‘‘In fact,’’ he con-
cluded, ‘‘the interests of true equality may well require differentiation in
treatment.’’
64
Positive ‘‘equality,’’ as much as its negative ‘‘discrimina-
tion,’’ had clearly undergone a redefinition.
In another case that same year the Court clarified its definition of
equality and the legal remedies available to create it.
65
‘‘Adverse effect,’’
the Court confirmed, was the only criterion required to prove discrimina-
tion. ‘‘The proof of intent, a necessary requirement in our approach to
criminal and punitive legislation, should not be a governing factor in
construing human rights legislation aimed at the elimination of discrim-
ination.’’
66
The momentum peaked in the first Charter Section 15 case actually to
be argued before the Court. The facts of Andrews v. Law Society of BC
67
were deceptively simple: a man who met all the qualifications to be
called to the bar of British Columbia except Canadian citizenship laid a
complaint under the Charter when his bar application was rejected solely
on grounds of citizenship. In response to Mr. Andrews’ challenge the
members of the Court generated three separate and complex judgments.
For the sake of assessing Andrews’ place in the development of equality
334 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
rights, however, it is possible to focus on the decision of Justice McIntyre
and its interpretation of the meaning of Section 15 (1), for in this all the
written opinions generally concurred. Justice McIntyre definitively put
aside the protective shield and waved the remedial sword: ‘‘The promo-
tion of equality entails the promotion of a society in which all are secure
in the knowledge that they are recognized at law as human beings
equally deserving of concern, respect and consideration. It has a large
remedial component.’’ The old ‘‘similarly situated’’ test of equality, as
applied in Bill of Rights decisions, was ‘‘seriously deficient.’’ ‘‘If it were to
be applied literally, it could be used to justify the Nuremberg laws of
Adolf Hitler.’’
68
The wording of Section 15 (1), with its ‘‘four basic
rights,’’ was intended to overcome the defects of the Bill of Rights, Justice
McIntyre continued, and in doing so it ‘‘reflected the expanded concept
of discrimination being developed under the various Human Rights
Codes.’’ Every Canadian jurisdiction had passed laws attacking discrimi-
nation, and the principles developed in those laws and the jurisprudence
associated with them created a broad context within which to under-
stand how Section 15 should be applied. The Section guaranteed equality
‘‘without discrimination,’’ and on the basis of its historical evolution Jus-
tice McIntyre was able to conclude that
discrimination may be described as a distinction, whether intentional or not but
based on grounds relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society. Distinctions based on personal characteristics attributed to an individual
solely on the basis of association with a group will rarely escape the charge of
discrimination, while those based on an individual’s merit will rarely be so
classed.
69
The differences among the justices arose not over the McIntyre interpreta-
tion of Section 15, but whether the discrimination in Andrews’ particular
case was justifiable under Section 1 which recognized that ‘‘reasonable
limits’’ could be imposed on Charter rights. Justice McIntyre himself,
despite his expansionary views on equality, decided that the restriction
against non-citizens was reasonable. The majority decision, written by Jus-
tice Wilson, was that Section 1 could not be invoked to save the discrimi-
natory feature in BC’s regulation.
70
Mr. Andrews won his case, though in
the meantime he had become a Canadian citizen anyway.
Afterword 335
One other case from 1985 revealed the direction of Charter jurispru-
dence. Under the Immigration Act of 1976
71
persons already physically
present in Canada could not apply for landed immigrant status: either
they had to leave the country and apply from elsewhere, or claim special
status as refugees. In order to render this process efficient, and to elimi-
nate ‘‘unfounded’’ claims more quickly, the Act permitted the Immigra-
tion Appeal Board to reject applicants for refugee status on the basis of
written evidence. If the applicant’s sworn statement and transcript of an
interview with an Immigration official seemed less than convincing, the
Board could decide not to proceed to an actual hearing with the appli-
cant. In 1985 the Supreme Court of Canada heard appeals against this
procedure brought by seven individuals under a single representative
case, Singh v. Minister of Employment and Immigration.
72
The Court empha-
sized that it was not considering the merits of individual claims but the
refugee determination procedures by which the claims had been denied.
A unanimous Court decided that the Immigration Act violated the
claimants’ rights, but the judges divided three to three on the reasons for
their decision. One interpretation, written by Justice Beetz, was that the
refugee procedures were contrary to Section 2 (e) of the Bill of Rights,
which guaranteed that ‘‘no law of Canada shall be construed or applied
so as to ... (e) deprive a person of the right to a fair hearing in accor-
dance with the principles of fundamental justice for the determination of
his rights and obligations.’’ Since Mr. Singh had been denied a hearing,
his rights under the Bill were wrongfully restricted.
73
The other view was
put by Justice Wilson and was based on Section 7 of the Charter: ‘‘Every-
one has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental justice.’’ The Charter argument was perhaps the more inter-
esting. Section 7 guarantees rights to everyone, and Justice Wilson found
‘‘that the term includes every human being who is physically present in
Canada and by virtue of such presence is amenable to Canadian law.’’
74
In Singh v. Minister of Employment and Immigration the ‘‘principles of fun-
damental justice’’ were held to include a fair hearing, but the even more
fundamental principle that the Charter applied to ‘‘everyone’’ would
mean that Section 15 equality rights could also be invoked to support an
immigration claim.
75
Either by the Bill or the Charter the Immigration Act
provisions were struck down, and a strong case was made that immigra-
tion procedures, would have to operate in full accordance with the Char-
ter guarantees.
336 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Not only had the Charter overcome the weaknesses of the Bill of
Rights, but in Singh the Bill itself was brought into line with the ‘‘correc-
tional’’ mode in rights interpretation. In a few key Charter decisions the
Court had amended or rejected the discriminatory principles incorpo-
rated in the cases studied in this book, along with many of the judicial
practices by which they had been created and maintained. Charter Sec-
tion 1, requiring the courts to determine limits ‘‘as can be demonstrably
justified in a free and democratic society,’’ demanded an assessment of
methods and alternatives available to the elected representatives. To ful-
fil this task, as Justice McLachlin has written,
76
judges would have to
embrace an expanded definition of acceptable evidence. Intervenors
were admitted in increasing numbers – 10 parties intervened in Andrews,
for example – and there was increasing reference to scholarly interpreta-
tion, to the benefits of American experience with entrenched rights, and
to international agreements to which Canada was committed.
77
As a consequence of these more elastic procedures, the courts were
beginning to recognize the creativity of the judicial role. Stare decisis was
no longer considered a restraint, as the explicit rejection of previous deci-
sions had illustrated. Reasons for judgment seemed to display an under-
standing of the law as an expansive and responsive element in the social
fabric. Just before he became chief justice, Brian Dickson wrote that a
constitution
is drafted with an eye to the future. Its function is to provide a continuing frame-
work for the legitimate exercise of governmental power and, when joined by a
Bill or a Charter of Rights, for the unremitting protection of individual rights and
liberties. Once enacted, its provisions cannot easily be repealed or amended. It
must, therefore, be capable of growth and development over time to meet new
social, political and historical realities often unimagined by its framers. The judi-
ciary is the guardian of the Constitution and must, in interpreting its provisions,
bear these considerations in mind. Professor Paul Freund expressed this idea
aptly when he admonished the American courts ‘‘not to read the provisions of
the constitution like a last will and testament lest it become one.’’
78
2. APPREHENSIONS
According to the trajectory traced in the previous section of this chapter,
‘‘race’’ should no longer be a consideration in Canadian life or law.
Developments from the 1970s and 1980s, of which the Charter was a
part, would render the conditions leading to the case studies impossible
to repeat, and besides, those four decisions would not fit the common
Afterword 337
sense (community standards) of the post-Charter era. Turning from legal
theories to some indicators of social reality for many Canadians, how-
ever, it is apparent that these expectations are not entirely warranted.
Opinion surveys on the eve of the Charter revealed that a majority of
Canadians would admit to some degree of racial bias, and 16 percent
were defined by researchers as ‘‘hard-core’’ racists. Africans and Asians
were identified as unwelcome marital partners or in-laws, and about one
third of Canadians reported that they might move if many ‘‘visible
minorities’’ came to live in their neighbourhood.
79
Surveys conducted
later in the 1980s and into the mid-1990s showed little change. In 1986, 42
percent of ‘‘Anglo-Saxons’’ expressed concern about ‘‘more and more
minorities’’ moving into their neighbourhood.
80
In 1994, after more than
a decade of Charter-consciousness and policy reform, the percentage of a
national sample labelled ‘‘hard-core’’ racists remained exactly the same
at 16.
81
Especially indicative were studies tracing attitudes toward immi-
gration: survey after survey showed that as many as half of all Canadi-
ans believed there were too many immigrants of Asian or African origin,
and up to three quarters expressed a concern that immigrants should not
change the ‘‘character ’’ of Canada and should assimilate to mainstream
culture and values.
82
A survey analyst concluded in 1994 that these fig-
ures seemed to represent a ‘‘retreat’’ from Canada’s ‘‘tradition of toler-
ance and compassion,’’
83
though historically no ‘‘retreat’’ was apparent:
the figures and the specific concerns were remarkably consistent with
previous decades. Meanwhile, surveys among the ‘‘victim’’ groups pro-
duced reports that more than half, and sometimes as high as 85 percent,
of African, Asian and Jewish Canadians felt that they had been the tar-
gets of racial discrimination.
84
Since different surveys asked different
questions of different population samples, it is not possible to depict
trends over time with any acceptable degree of accuracy. The poll results
do, however, suggest that there was no counterpart shift in common
sense comparable to the developments in public policy during the same
period.
To the impressionistic evidence from survey samples could be added
more objective data illustrating the survival of ‘‘race’’ as a meaningful
factor in Canadian life. At its most extreme, racial antagonism continued
to provoke harassment, vandalism and assault. In 1993, according to
B’nai B’rith, there were more ‘‘hate crimes’’ than in any year since
records began in 1981, with Jews and African Canadians the most fre-
quent victim groups.
85
More indicative of Canadian reality were census
data from 1981, 1986 and 1991 revealing that ‘‘visible minorities,’’ and
338 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
especially African Canadians, had consistently lower-than-average in-
comes and higher levels of unemployment. Even when qualifications,
experience and regional factors were considered, Canadians of African
and Asian origin earned less than white Canadians in comparable cir-
cumstances.
86
To test the degree to which racial discrimination was
responsible for this discrepancy, a study was conducted in 1985 (similar
to Pierre Berton’s in 1948) to test employer responses to white and visi-
ble-minority job applicants. Sending actors with comparable resumes to
more than 400 employment interviews, the researchers found that white
applicants received three times as many job offers. They also reported
that white applicants were treated with greater courtesy during the inter-
views and when successful were offered higher salaries.
87
A national sur-
vey of 672 employment recruiters in 1987 reported that 87 percent of
corporate recruiters and 100 percent of employment agencies received
explicit requests to discriminate by ‘‘race’’ when selecting personnel;
these requests were actually fulfilled by 73 percent of the corporate
recruiters and 94 percent of the private agencies.
88
A series of tests run by
the Canadian Civil Liberties Association in the 1980s and 1990s into
employment agencies showed a consistent 80 percent willing to ‘‘screen’’
applicants according to racial requests from employers.
89
Racial discrimi-
nation was widely reported in housing as well, and in one 1986 ‘‘test’’ of
apartment rentals in Toronto more than 40 percent of applications were
denied on apparently racial grounds.
90
Perhaps most insidious of all,
studies by the Toronto Board of Education showed that black school chil-
dren were streamed into ‘‘basic’’ courses at a rate more than double that
for white children, a factor no doubt contributing to a higher drop-out
rate for African-Canadian students than for any other identified group.
91
And so ‘‘race’’ remained a ‘‘factor of consequence,’’ determining where
some Canadians could live, what they could study in school, how they
could earn their living, raising the question of whether human rights and
the redefinition of equality had penetrated this dark corner of the Cana-
dian experience. And while ‘‘race’’ had been eliminated in explicit terms
from immigration law, many observers still found a racial ‘‘effect’’ in the
regulations. For example, a disproportionate number of immigrants
admitted under the ‘‘Entrepreneur ’’ and ‘‘Investor ’’ programs, which
grant entry to anyone willing to invest a substantial sum of money in
Canada, came from non-European countries, leading one study to
describe these programs as a ‘‘reinstituted head tax’’ requiring Asians to
buy their way into Canada.
92
Regulations for the unwealthy have mean-
while become more stringent: in 1992 nannies were required to have
Afterword 339
completed a grade 12 education and a six-month training course. The
year before the new regulations, 68 percent of immigrant nannies came
from the Philippines and 4.5 percent from Britain; the year following, 7
percent came from the Philippines and 30 percent from Britain.
93
At the
same time bonus points for assisted relatives were reduced and the cost
of applying for an adult relative under family reunification was $450,
non-refundable in case of failure, a situation MP Roy Pagtakhan of Win-
nipeg, himself of Filipino origin, described as ‘‘systemic racism’’ since its
chief impact was felt by Third World applicants.
94
In 1995 a ‘‘right of
landing’’ fee was inaugurated by the government, requiring anyone over
age 19 seeking permanent residence in Canada to pay a sum of $975.
Although presented by the government as a tax-saving measure, by hav-
ing immigrants pay a share of their own processing costs, immigration
advocates noted that the new fee fell heaviest on Third World immi-
grants.
95
Even refugees faced a kind of ‘‘continuous journey’’ clause, by
which they could come to Canada only from their country of origin, and
airlines were made responsible for the return passage of immigrants
refused entry into Canada. These policies need not imply overt racism, as
some commentators suggested,
96
but they did coincide with an anxiety,
reflected in public opinion polls, concerning the rate of immigration of
people of colour.
Despite profound changes in the law, the ‘‘remedial’’ phase in rights
policy beginning around 1980 had limited impact upon ‘‘race relations’’
in Canada. By most measurements, racial minorities were in more or less
the same situation more than a decade after the ‘‘sword’’ was un-
sheathed. Why, then, was the legal reform not being translated into gen-
uine change in people’s lives? Had the Charter done nothing better than
constitutionalize the racial status quo? Some trends were emerging, as
the Charter entered its second decade, suggesting that the courts had not
been reequipped to fulfil their new responsibilities.
One problem complicating the relationship between the new values of
human rights and the daily experience of many Canadians was that the
laws incorporating those values remained ambiguous. Most human
rights codes did not define ‘‘discrimination,’’ and the same action may be
considered discriminatory or non-discriminatory depending on quite
arbitrary circumstances. According to one commentator this has created
a ‘‘legislative mosaic’’ in which certain practices may or may not be ille-
gal, depending on the precise language of each protective code.
97
On the
same day in 1985, the Supreme Court of Canada decided in favour of
Theresa O’Malley, a Seventh Day Adventist in dispute with Simpsons-
340 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Sears over Saturday work, and against K. S. Bhinder’s claim that the
CNR discriminated against his religion by requiring him as a mainte-
nance electrician to wear a safety helmet over his turban. Both plaintiffs
identified employers’ regulations which interfered with the practice of
their religion. The difference in the two cases was the wording of the
human rights laws under which the complaints were laid, the Ontario
Human Rights Code for Mrs. O’Malley and the Canadian Human Rights Act
for Mr. Bhinder. The CNR’s hard-hat rule was definable as a ‘‘bona fide
occupational requirement’’ under the federal Act, and so its enforcement
was acceptable.
98
Although the Court reversed its own Bhinder decision
in 1990 by deciding that a ‘‘bona fide occupational requirement’’ cannot be
used to excuse ‘‘adverse effect discrimination,’’
99
the signal from Bhinder
and O’Malley was that ‘‘basic human rights’’ could vary from case to case.
In a series of decisions on mandatory retirement in 1990, employees cov-
ered by the federal Charter could claim discrimination, but those com-
plaining under the Ontario Human Rights Code could not because Section 9
(a) defined the protected age range to be from 18 to 65.
100
A ‘‘rights
mosaic’’ derived as well from the power of legislatures to exempt a statute
from human rights protection, making it possible to ‘‘treat people differ-
ently’’ and still stay within the law. In 1992 the Supreme Court of Canada
permitted Ontario insurance companies to charge discriminatory rates
according to a customer’s age, sex and marital status on the ground that
Section 21 of the Ontario Human Rights Code provided an exemption for
insurance contracts.
101
It may be noted that the Code addresses only ‘‘dis-
crimination that is contrary to law,’’ thus allowing legislators to enact dis-
criminatory regulations with full legality.
102
Most human rights codes
contain explicit exemptions for religious, charitable, racial and ethnic asso-
ciations, permitting them to accept as members or to employ only persons
belonging to an identifiable group.
103
Rights exemptions on grounds of
‘ ‘ r a c e ’ ’ ar e of course intended for positive purposes, to foster group
integrity or to overcome disadvantages, but they are also entrenching the
concept of differential rights in the law and the public consciousness and
their unintended results in both social and legal terms could be ominous.
Even the precise language of Section 15 of the Charter has not made it
immune to similar ambiguities. The Supreme Court of Canada has
demonstrated a willingness to define equality rights as group rights, so
that they could vary from group to group and result in the restoration of
a ‘‘similarly situated’’ conceptualization of equality. The Charter’s inten-
tion, or that of its architect, was entirely otherwise. Pierre Trudeau was
confident that the Charter would ensure that every Canadian individual
Afterword 341
must ‘‘enjoy certain fundamental, inalienable rights and cannot be
deprived of them by any collectivity (state or government) or on behalf of
any collectivity (nation, ethnic group, religious group or other).’’
104
Wal-
ter Tarnopolsky ably articulated the conventional wisdom at the time of
the Charter’s inception when he pointed out that
an assertion of a human right emphasizes the proposition that everyone is to be
treated the same regardless of his or her membership in a particular identifiable
group. The assertion of group rights, on the other hand, bases itself upon a claim
of an individual or a group of individuals because of membership in an identifi-
able group.
105
There are many group rights recognized in the Charter – language
rights in Sections 16-23, aboriginal rights in Section 25, denominational
education in Section 29 – but equality rights were not initially among
them. Section 15 (1) guaranteed equality to ‘‘Every individual . . . without
discrimination’’ based on group membership. As Justice McIntyre put it
in Andrews: ‘‘Distinctions based on personal characteristics attributed to
an individual solely on the basis of association with a group will rarely
escape the charge of discrimination.’’
106
Section 15 (2) permits certain
exceptions so that remedial programs designed to overcome ‘‘conditions
of disadvantaged individuals or groups’’ should not be held to violate
the individual principle expressed in Section 15 (1). But in 1989 the Court
suggested that ‘‘discrimination’’ could occur only when its recipient
belonged to a certain kind of group, particularly a ‘‘discrete and insular
minority.’’
107
While superficially a benevolent interpretation directing
protection towards those suffering ‘‘historical disadvantage or vulnera-
bility to political and social prejudice,’’ Justice Wilson’s invention in
Turpin of a concept of ‘‘frozen disadvantage’’ could require Section 15 (1)
claims to be cast in terms of group membership. If such an interpretation
were to survive, the courts would have to decide which group, in com-
peting circumstances, is most deserving of their sympathetic attention.
Since then there has been another apparent shift. In a 1990 minority opin-
ion, Justice McLachlin noted that the rights of a citizen to protection
under the Charter were defined differently in the Court’s Andrews and
Turpin decisions. ‘‘In my view,’’ she stated, ‘‘the essential requirements
for discrimination under S15 remain as set forth in Andrews.’’
108
Then in
1995 all nine justices of the Supreme Court of Canada endorsed a version
consistent with Andrews and rejected the ‘‘discrete and insular minority’’
criterion, finding ‘‘that membership in such a disadvantaged group is not
342 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
an essential precondition for bringing a claim under S15 of the Char-
ter.’’
109
Judicial inconsistency over the meaning of the Charter has pro-
voked confusion and cynicism in the minds of many Canadians.
110
Even
more dangerous, however, are the constitutional ghettos that may be cre-
ated by decisions which confirm legal distinctions, stereotypes and dif-
ferential treatment based on group membership.
3. REFLECTIONS
These impressions combine to suggest that public policy may not have
changed so much as the public seems to believe. There is still the poten-
tial for different laws for different people, definitions of equality that
vary from group to group in assigning protections and benefits, legally
justified discrimination and restricted access, depending on how the
judges interpret human rights codes and the Charter. Various (and
sometimes conflicting) solutions for this dilemma have been offered by
Canadian critics. It has been suggested, for example, that judges could be
elected, which would render them accountable for decisions made and
provide a mechanism for the expression of the public voice.
111
There
could be pre-appointment hearings, as occurs in the United States, to
ascertain a prospective judge’s views on issues of current concern.
112
Judges may be deliberately appointed to represent certain groups or
points of view in society,
113
or there could be post-appointment seminars
to sensitize judges to selected issues.
114
Decisions could be opened up to
a wider range of influences and points of view through extending the
definition of admissible evidence to give the courts more information to
apply to a question in dispute,
115
through expert research explicitly com-
missioned by the courts to provide the non-legal information that is so
often vital to Charter decisions,
116
through encouraging interventions by
groups with a special interest or knowledge in a given case.
117
What this variety of criticisms suggests is a recognition that rights
issues are not yet settled in Canada, but the implicit confidence that pro-
cedural reform can make law precise and scientific, or achieve an imme-
diate social transformation, seems misplaced. If there is a final
impression from the historical case studies, it is probably that ‘‘race,’’
rights and law are imbued in a broad cultural sensibility. This would
help to explain why changes in the past have rarely been accomplished
through direct frontal attacks in the courts. Even Noble and Wolf , the sin-
gle ‘‘victory’’ examined here, participated in a much wider shift in con-
sciousness. Courtroom struggle bore fruit only when it was accompanied
by struggle in the legislatures, the press, academic research, and public
Afterword 343
conversation; that is, the sensibility itself had to shift, and not just one of
its instruments. History does not necessarily repeat itself, but there
appears to be good reason to believe that this general condition remains
substantially true.
118
Is the Canadian dream then an illusion? No doubt many of the dream’s
underpinnings have been challenged in this book, as they relate to a pre-
sumed tradition of tolerance and equality, and yet its very survival repre-
sents something significant, something ‘‘real,’’ about Canadians. We
would not select these characteristics for ourselves, even link them to our
national identity, unless we held them to be valuable. The national dream
indicates that Canadians want a tolerant nation, a legal system that pro-
motes equality, a national history that makes sense of ourselves as a multi-
cultural people. Left as undisturbed illusion, the dream can perpetuate
inequality by denying the very existence of racial disadvantage; put for-
ward as an unrealized ambition, the dream can become a force for social
change. Experience suggests that a new sensibility will emerge to reconcile
the quest for equality with standards of fairness, but its precise nature can-
not be predicted or taken for granted. Its direction may very well be influ-
enced by the way our national dream is interpreted. As has been the case
throughout our history, a shift in sensibility will involve something more
than proclamations by courts, commissions and legislatures; it is a broader
process, akin to a national conversation, testing attitudes against realities
and assessing the way our law represents our ambitions. It can benefit
from a genuine reflection upon our past, to learn how our institutions
have neglected reality for many Canadians, how common sense has
shifted its ground over time. To understand 1914 or 1939 or the 1950s in
their own context leads to an appreciation for how context operates, how
‘‘orienting notions’’ actually do orient people’s perceptions of what is
right or what needs attention, what is achievable and who should do it.
What was true for previous generations remains true for our own. We are
not nearly so unique as we sometimes like to think, and this is a pro-
found lesson to be taken from historical study. Clifford Geertz put a simi-
lar sentiment with unmatchable eloquence:
To see ourselves as others see us can be eye-opening. To see others as sharing a
nature with ourselves is the merest decency. But it is from the far more difficult
achievement of seeing ourselves amongst others, as a local example of the forms
human life has locally taken, a case among cases, a world among worlds, that
[comes] the largeness of mind, without which objectivity is self-congratulation
and tolerance a sham.
119
344 ‘‘Race,’’ Rights and the Law in the Supreme Court of Canada
Notes
The following abbreviations are used throughout the Notes.
Archives
CJC Canadian Jewish Congress, National Archives
DND Department of National Defence
NA National Archives of Canada
OJA OntarioJewish Archives
OPA Ontario Public Archives
PABC Provincial Archives of British Columbia
PANS Public Archives of Nova Scotia
SAB SaskatchewanArchives Board
Case Reports
AC Appeal Cases, Judicial Committee of the Privy Council
BCR British Columbia Reports
CA Cour d’appel, Québec
CCC Canadian Criminal Cases
CCLT Canadian Cases on the Law of Torts
CLJ Canadian Law Journal
CPR Canadian Patent Reporter
CR Criminal Reports
CS Rapports judiciares de Québec, cour supérieure
CSP Cours des Sessions de la paix
DLR Dominion Law Reports
ER English Reports
MPR Maritime Provincial Reports
NSR Nova Scotia Reports
OLR Ontario Law Reports
OR Ontario Reports
OWN Ontario Weekly Notes
QKB Quebec Court of Appeal, King’s Bench
SCR Supreme Court Reports
SC Rapports judiciares de Québec, Superior Court
UCQB Upper Canada Court of Queen’s Bench
US United States Supreme Court
WLR Western Law Reporter
WLT Western Law Times
WWD Western Weekly Digest
WWR Western Weekly Reports
Statutes
BS British Statutes
SA Statutes of Alberta
SBC Statutes of British Columbia
SC Statutes of Canada
SM Statutes of Manitoba
SNB Statutes of New Brunswick
SNS Statutes of Nova Scotia
SO Statutes of Ontario
SQ Statutes of Quebec
SS Statutes of Saskatchewan
SUC Statutes of Upper Canada
INVITATION
1 For example, in a discussion of the Yonge Street ‘‘race riot’’ of 4 May 1992,
Austin Clarke commented that despite recent troubles, Canada ‘‘is still north of
the border of America and of racism’’ (Public Enemies: Police Violence and Black
Youth [Toronto: HarperCollins, 1992], 18).
2 Canadian Press, 1 April 1991, reporting a survey conducted by Goldfarb for
the Heritage Project of the C. R. Bronfman Foundation.
3 Maclean’s, 3 July 1989.
4 For example, in a 1955 essay on American and Canadian Viewpoints (Washington,
DC: American Council on Education, 1955), Dennis H. Wrong wrote: ‘‘Canadi-
ans are today perhaps more aware of the differences in their attitudes toward
the law than of anything else distinguishing them from Americans’’ (38).
Things had not changed 40 years later, when Bronwyn Drainie could write in
the Globe and Mail, 7 September 1995: ‘‘Fairness is one of the great Canadian
virtues, and when it comes to managing a social and legal nightmare like the
Bernardo trial, citizens of this country can look with a certain grim satisfaction
at the fair and measured way that case was handled by our court system. The
shenanigans surrounding the O. J. Simpson trial, running concurrently in the
United States, could not have presented a more eloquent example of the cul-
tural difference between our two countries.’’
5 Globe and Mail, 1 July 1995.
6 Hansard, 19 February 1981, 7474-76.
7 When case files are 60 years old they are transferred to the National Archives.
8 The Female Labour Act for Quong Wing and the Immigration Act for Narine-Singh.
346 Notes to pages 3-10
9 The Consolidated Chinese Benevolent Association for Quong Wing, the Cana-
dian Jewish Congress for Noble and Wolf and the Jewish Labour Committee
and the Ontario Labour Committee for Human Rights for Narine-Singh. Some
local records from the ad hoc committee in support of Fred Christie were also
found in private hands in Montreal.
1 ORIENTATION
1 Quoted in Michael Banton, Racial Theories (Cambridge: Cambridge Univer-
sity Press, 1987), vii.
2 Quoted in Carl Berger, The Sense of Power: Studies in the Ideas of Canadian
Imperialism, 1867-1914 (Toronto: University of Toronto Press, 1970), 230-31.
3 For example, see Frank M. Snowden, Jr., Before Color Prejudice: The Ancient
View of Blacks (Cambridge, MA: Harvard University Press, 1983).
4 Pierre Bourdieu, In Other Words: Essays Towards a Reflexive Sociology (Stan-
ford: Stanford University Press, 1990), 52.
5 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology
(New York: Basic Books, 1983), 10-11.
6 For example, see Mariana Valverde, The Age of Light, Soap and Water: Moral
Reform in English Canada, 1885-1925 (Toronto: McClelland and Stewart, 1991),
esp. chap. 5, ‘‘Racial Purity, Sexual Purity and Immigration Policy.’’
7 James S. Woodsworth, Strangers within Our Gates, or Coming Canadians, with
an introduction by Marilyn Barber (Toronto: University of Toronto Press,
1909; rpt. ed. 1972), 76, 84, 102, 108-9, 116, 132, 155, 158, 164, 181-82, 230-32.
8 Quoted in R. Bruce Shepard, ‘‘Plain Racism: The Reaction Against Oklahoma
Black Immigration to the Canadian Plains,’’ Prairie Forum, 10 (1985): 375. The
petition was endorsed by Boards of Trade in Strathcona, Morinville, Fort
Saskatchewan and Calgary, Alberta, Yorkton and Saskatoon, Saskatchewan
and Winnipeg, Manitoba.
9 Quoted in Kay J. Anderson, Vancouver ’s Chinatown: Racial Discourse in
Canada, 1875-1980 (Montreal and Kingston: McGill-Queen’s University
Press, 1991), 90.
10 Hansard, 27 March 1903, 597-600.
11 Hansard, 16 December 1907, 700.
12 Ibid., 722.
13 Ibid., 732-38.
14 Ibid., 738.
15 Hansard, 8 May 1922, 1510, 1514, 1515, 1516.
16 Ibid., 1555-56, 1562, 1564.
17 For example, Robert E. Park, Race and Culture (Glencoe, IL: Free Press, 1950).
18 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democ-
racy, 2 vols. (New York: Harper & Row, 1944).
19 John Murray Gibbon, Canadian Mosaic: The Making of a Northern Nation
(Toronto: McClelland and Stewart, 1938), v.
Notes to pages 10-16 347
20 W. Burton Hurd, ‘‘Racial Origins and Nativity of the Canadian People,’’ Cen-
sus of Canada, 1931, Vol. 13 (Ottawa: Supply and Services, 1942), vii.
21 Ibid.,567-68.
22 Ibid., 571, 636, 685, 693, 700.
23 Ibid.,827.
24 Hansard, 12 February 1936, 151.
25 Hansard, 17 February 1938, 570.
26 John Dollard, Caste and Class in a Southern Town (Garden City, NY: Double-
day, 1937).
27 T. Adorno, E. Frenkel-Brunswick, D. Levinson and R. Sanforo, The Authori-
tarian Personality (New York: Harper & Row, 1950).
28 For example, see Gordon Allport, The Nature of Prejudice (Cambridge, MA:
Addison-Wesley, 1954); Thomas F. Pettigrew, ‘‘Personality and Sociocultural
Factors in Intergroup Attitudes: A Cross-National Comparison,’’ Journal of
Conflict Resolution, 2 (1958): 29-42.
29 Franz Boas, ‘‘History and Science in Anthropology,’’ American Anthropology,
38 (1936): 140.
30 For a clause-by-clause discussion of the UNESCO document, see Ashley
Montagu, Statement on Race (New York: Oxford University Press, 1951).
31 Hansard, 17 July 1944, 4925-26.
32 Ibid., 4929.
33 Ibid., 4935.
34 ‘‘Chinatown! Time was when that foreign quarter... had an aura of wicked-
ness for the Vancouver consciousness.... How it has changed! Or perhaps,
how we, under the impact of World War Two have changed. China is now
our ally, and visitors look at Chinatown through new eyes’’ (Vancouver Sun,
1 May 1943, quoted in Anderson, V ancouver ’ s Chinatown, 177).
35 Hansard, 2 June 1952, 3079.
36 Norman J. Berrill, ‘‘The Myth of White Supremacy,’’ Saturday Night, 27 Octo-
ber 1956.
37 Quoted in Ian Bushnell, The Captive Court: A Study of the Supreme Court of
Canada (Montreal and Kingston: McGill-Queen’s University Press, 1992), 56.
Justice Anglin’s views were reflected as well in the United States Supreme
Court in the early years of the 20th century, where ‘‘the common law was
recognized as the distinct subject matter of legal science – as that body of
doctrine that emerged when prior judicial decisions were systematically
studied with a view to their principled coherence’’ (Paul W. Kahn, Legitimacy
and History [New Haven: Yale University Press, 1992], 110).
38 For example, see Donald E. Fouts, ‘‘Policy-Making in the Supreme Court of
Canada, 1950-1960,’’ in Glendon Schubert and David Danelski, eds., Compar-
ative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the
East and West (New York: Oxford University Press, 1969), 257-91; Mark
R. MacGuigan, ‘‘Precedent and Policy in the Supreme Court,’’ Canadian Bar
Review, 45 (1967): 627-65; Patrick J. Monahan, ‘‘Judicial Review and Democ-
348 Notes to pages 17-22
racy: A Theory of Judicial Review,’’ UBC Law Review, 21 (1987): 87-164, and
‘‘Commentary,’’ 165-206; Paul Weiler, In the Last Resort: A Critical Study of the
Supreme Court of Canada (Toronto: Carswell Methuen, 1974); Bertha Wilson,
‘‘Decision-Making in the Supreme Court,’’ University of Toronto Law Journal,
36 (1986): 227-48.
39 A. V. Dicey, The Law of the Constitution, 10th ed. (London: Macmillan, 1965),
39.
40 British Statutes (BS) 1867 c. 3, s. 91 and 92.
41 AG Ontario v. AG Canada (Reference Appeal), [1912] AC 571.
42 Peter W. Hogg, Constitutional Law of Canada, 2nd ed. (Toronto: Carswell,
1985), 257-59.
43 Ibid., 88-89. In the early years after Confederation, Hogg explains, the fed-
eral government dominated the provinces ‘‘akin to a colonial relationship.’’
But Privy Council decisions, aided by tendencies within Canada toward
decentralization, ‘‘elevated the provinces to coordinate status with the
Dominion.’’ This was especially true under the tutelage of Lord Watson
(1880-99) and Lord Haldane (1911-28).
44 Bora Laskin, ‘‘An Inquiry into the Diefenbaker Bill of Rights,’’ Canadian Bar
Review, 37 (1959): 77-78. F. R. Scott, Civil Liberties and Canadian Federalism
(Toronto: University of Toronto Press, 1959), argued that ‘‘if we go back to
our constitutional roots in English history we find several notable formula-
tions of rights and liberties, from Magna Carta in 1215 down to the Bill of
Rights of 1689.... The theoretical sovereignty of the British Parliament has
tended to blind us to the reality of the limitations upon that sovereignty
residing in the theory of government these documents proclaim. . . . Parlia-
ment is restrained in England by certain principles of government almost as
effectively as if they were written into a binding constitution’’ (14-15). Scott
further identified ‘‘the established rule that all statutes should be strictly
interpreted if they limit or reduce the rights of the citizen. Parliament must
always be presumed to have intended the least interference with our free-
dom, not the most’’ (26). As will be shown in subsequent chapters, there
were Canadian judges who accepted this tradition of a common law guaran-
tee of equality.
45 W. R. Riddell, The Constitution of Canada in Its History and Practical Working
(New Haven: Yale University Press, 1920), 98-100. In the first two para-
graphs quoted here, Riddell was repeating verbatim comments from his own
judicial decisions in 1909 and 1908, respectively.
46 National Archives (NA), RG 25, G-1, Vol. 1875, file 558, H. U. Granow to
O. D. Skelton, 14 March 1938. I am grateful to Myron Momryk of the
National Archives for bringing this file to my attention.
47 Ibid., reply,27June 1938.
48 S. 91 ss.25; S. 92 ss.13.
49 Canada, Parliament, Sessional Papers, Vol. 36, No. 13, 1902, No. 54, Report of
the Royal Commission on Chinese and Japanese Immigration, including appen-
Notes to pages 22-25 349
dices; Robert Huttenback, Racism and Empire: White Settlers and Colored Immi-
grants in the British Self-Governing Colonies, 1830-1910 (Ithaca: Cornell
University Press, 1976).
50 Statutes of British Columbia (SBC) 1872 c. 39; 1895 c. 20; 1907 c. 16; Statutes of
Saskatchewan (SS) 1908 c. 2. For a list of the disadvantages deriving from dis-
franchisement, see Canada, Parliament, Senate, Proceedings of the Special Com-
mittee on Human Rights and Fundamental Freedoms (Ottawa, 1950), 277-79.
51 For example, Statutes of Canada (SC) 1885 c. 41. Originally ‘‘an Indian nor-
mally resident on an Indian reservation’’ was disqualified from voting. In
1948 the Dominion Elections Act was amended to read ‘‘For the purpose of
this provision ‘Indian’ means any person wholly or partly of Indian blood
who is entitled to receive any annuity or other benefit under any treaty with
the Crown’’ (SC 1948 c. 46, s. 6 ss. f).
52 For more detail see James W. St. G. Walker, ‘‘‘Race’ and Recruitment in
World War I: Enlistment of Visible Minorities in the Canadian Expeditionary
Force,’’ Canadian Historical Review, 70 (1989): 1-26.
53 For example, SC 1879 c. 34, s. 7 and 8; SC 1880 c. 28, s. 95 and 96.
54 Forexample, Anderson, V ancouver ’ s Chinatown, 90.
55 SBC 1884 c. 2; 1899 c. 39; 1900 c. 18; 1908 c. 3; 1910 c. 30.
56 Ken Adachi, The Enemy That Never Was (Toronto: McClelland and Stewart,
1976), 142-45; Patricia Roy, ‘‘Educating the ‘East’: British Columbia and the
Oriental Question in the Interwar Years,’’ BC Studies, 18 (1973): 51-52;
W. Peter Ward, White Canada Forever: Popular Attitudes and Public Policy
toward Orientals in British Columbia (Montreal: McGill-Queen’s University
Press, 1978), 119-23.
57 NA, MG31 E55, Tarnopolsky Papers, Vol. 43, file 4; SBC 1885 c. 30; 1902 c. 39;
1908 c. 50; 1912 c. 34; Hansard, 9, 10 and 23 March 1911, 4930-31, 5038-39,
5941-48; Public Archives of Nova Scotia (PANS), ‘‘Colored Cooks, Stewards
and Firemen,’’ file of correspondence concerning Canadian National
Steamships.
58 Howard Palmer, Patterns of Prejudice: A History of Nativism in Alberta
(Toronto: McClelland and Stewart, 1982), 145-48.
59 Chief Joe Mathias and Gary R. Yabsley, ‘‘Conspiracy of Legislation: The Sup-
pression of Indian Rights in Canada,’’ BC Studies, 89 (1991): 39.
60 Statutes of Nova Scotia (SNS) 1884 c. 29; 1918 c. 9; Revised Statutes of Ontario
(RSO) 1960 c. 368; NA, Tarnopolsky Papers, Vol. 44, file 5; V. Carter and
W. Akili, The Window of Our Memories, Vol. 1 (St. Albert, AB: Black Cultural
Research Society of Alberta, 1981), 55; Patricia E. Roy, A White Man’s
Province: British Columbia Politicians and the Chinese and Japanese Immigrants,
1858-1914 (Vancouver: University of British Columbia Press, 1989), 15, 24-27.
61 SC 1869 c. 10; 1885 c. 71; 1900 c. 32; 1903 c. 8; 1907 c. 50; 1910 c. 27; 1923 c. 38;
Hansard, 8 and 14 June 1900, 7052-57, 7406-15, 27 March 1903, 597-612, 23
March 1923, 1443-54; Sessional Papers, 1902, No. 54; Ward, White Canada For-
ever.
350 Notes to pages 25-27
62 Howard Sugimoto, ‘‘The Vancouver Riots of 1907: A Canadian Episode,’’ in
H. Conroy and T. Miyakawa, eds., East Across the Pacific: Historical and Socio-
logical Studies of Japanese Immigration and Assimilation (Santa Barbara, CA:
American Bibliographic Center-Clio Press, 1972), 92-126; NA, MG26 G1(a),
Laurier Papers, Vol. 477, correspondence and reports on the riots; Vol. 489,
Confidential Report by the Hon. Rodolph Lemieux on his visit to Japan.
63 The final version of this order is found in PC 32, 1914.
64 NA, RG76 Vol. 192, file 72552, ‘‘Immigration of Negros [sic] from the United
States to Western Canada’’; Hansard, 2, 22 and 23 March and 3 April 1911,
4470, 4471, 5911-13, 5941-48, 6523-28; PC 1324 and 2378, 1911; Shepard,
‘‘Plain Racism,’’ 365-82; Harold Troper, ‘‘The Creek-Negroes of Oklahoma
and Canadian Immigration, 1909-11,’’ Canadian Historical Review, 53 (1972):
272-88.
65 Treaties and Historical Research Centre, Indian and Northern Affairs, The
Historical Development of the Indian Act (Ottawa, 1978), 5-8.
66 Statutes of the Province of Canada 1857 c. 26; BS 1867 c. 3 (British North
America Act), s. 91 ss. 24; SC 1869 c. 6.
67 SC 1876 c. 18.
68 Ibid.,ss. 86-94.
69 For example, see Vic Satzewich and Linda Mahood, ‘‘Indian Affairs and
Band Governance: Deposing Indian Chiefs in Western Canada, 1896-1911,’’
Canadian Ethnic Studies, 26 (1994): 40-58; SC 1869 c. 6, s. 10; SC 1880 c. 28, s.
72.
70 For example, Kathleen Jamieson, ‘‘Sex Discrimination and the Indian Act,’’
in J. Rick Ponting, ed., Arduous Journey: Canadian Indians and Decolonization
(Toronto: McClelland and Stewart, 1986), 112-36. SC 1869 c. 6, s. 6, said: ‘‘Any
Indian woman marrying any other than an Indian shall cease to be an Indian
within the meaning of this Act.’’
71 For example, Tina Loo, ‘‘Dan Cranmer’s Potlatch: Law as Coercion, Symbol,
and Rhetoric in British Columbia, 1884-1951,’’ Canadian Historical Review,73
(1992): 125-65; SC 1884 c. 27, s. 3; SC 1895 c. 35, s. 6; SC 1914 c. 35, s. 8.
72 For example, John Tobias, ‘‘Protection, Civilization, Assimilation: An Outline
History of Canada’s Indian Policy,’’ in Ian Getty and Antoine Lussier, eds.,
As Long as the Sun Shines and Water Flows (Vancouver: University of British
Columbia Press, 1983), 39-55; SC 1894 c. 32, s. 11.
73 Historical Development of the Indian Act, 114-15, 124; SC 1920 c. 50; SC 1922
c. 26; SC 1933 c. 42.
74 For example, James S. Frideres, Native Peoples in Canada: Contemporary Con-
flicts (Scarborough, ON: Prentice Hall, 1988), chap. 2, ‘‘The Indian Act,’’
25-38; Historical Development of the Indian Act, 23-25, 61. S. 3 ss. 3 of the 1876
Act defined an Indian as ‘‘Any male person of Indian blood reputed to
belong to a particular band; Any child of such person; Any woman who is or
was lawfully married to such person.’’
Notes to pages 27-29 351
75 For example, Mathias and Yabsley, ‘‘Conspiracy of Legislation,’’ 34-45;
Howard E. Staats, ‘‘Some Aspects of the Legal Status of Canadian Indians,’’
Osgoode Hall Law Journal, 3 (1964): 36-51; Historical Development of the Indian
Act.
76 Sarah Carter, Lost Harvests: Prairie Indian Reserve Farmers and Government Pol-
icy (Montreal and Kingston: McGill-Queen’s University Press, 1990).
77 Kenneth Coates, ‘‘Best Left as Indians: The Federal Government and the
Indians of the Yukon, 1894-1950,’’ in Robin Fisher and Kenneth Coates, eds.,
Out of the Background: Readings on Canadian Native History (Toronto: Copp
Clark Pitman, 1988), 236-55.
78 Department of National Defence (DND), file HQ 61-4-10, ‘‘Sorting Out
Coloured Soldiers’’; Canada, Parliament, House of Commons, Special Com-
mittee on Orientals in British Columbia, Report and Recommendations
(Ottawa, 1940); NA, RG24 Vol. 2765, file 6615-4-A, Vol. 5, correspondence
and committee minutes on enlistment of ‘‘Asiatics’’; RG27 Vol. 130, file
601-3-4, ‘‘Conscription of East Indians for Canadian Army.’’
79 NA, RG27 Vol. 1486, file 2-153-1, petitions; DND, file HQ 504-1-7-1, Vol. 1,
‘‘Organization and Administration. Enlistment of Chinese’’; Douglas
MacLennan, ‘‘Racial Discrimination in Canada,’’ Canadian Forum, October
1943, 164-65.
80 Adachi, Enemy, 199ff.; Peter Ward, ‘‘British Columbia and the Japanese Evac-
uation,’’ Canadian Historical Review, 57 (1976): 289-308; Carol Lee, ‘‘The Road
to Enfranchisement: Chinese and Japanese in British Columbia,’’ BC Studies,
30 (1976): 54-60; Hansard, 17 July 1944, 4911-38; SC 1944-45 c.26.
81 Donna Hill, ed., A Black Man’s Toronto, 1914-1980: The Reminiscences of Harry
Gairey (Toronto: Multicultural History Society of Ontario, 1981), 56-57; F. J.
McEvoy, ‘‘‘A Symbol of Racial Discrimination’: The Chinese Immigration
Act and Canada’s Relations with China, 1942-1947,’’ Canadian Ethnic Studies,
14 (1982): 34-35; NA, Tarnopolsky Papers, Vol. 32, file 13 and Vol. 36, file 5;
RG25 Vol. 1539, file 178, ‘‘Immigration to Canada of Chinese,’’ petitions; SC
1946 c. 15.
82 SC 1951 c. 29; SC 1960 c. 39.
83 NA, MG30 A53, Kaplansky Papers, Vols. 20 and 21, ‘‘Reports of Activities for
Improved Human Relations, 1946-1956’’; Tarnopolsky Papers, especially
Vols. 36, 40, 41 and 45.
84 Walter Tarnopolsky, ‘‘The Iron Hand in the Velvet Glove: Administration
and Enforcement of Human Rights Legislation in Canada,’’ Canadian Bar
Review, 46 (1968): 565-90, ‘‘The Canadian Bill of Rights from Diefenbaker to
Drybones,’’ McGill Law Journal, 17 (1971): 437-75, Discrimination and the Law
in Canada (Toronto: R. de Boo, 1982); T. C. Hartley, ‘‘Race Relations Law in
Ontario,’’ Public Law (1970): Part 1, 20-35, Part 2, 175-95; P. V. MacDonald,
‘‘Race Relations and Canadian Law,’’ University of Toronto Faculty of Law
Review, 18 (1960): 115-27; Mark MacGuigan, ‘‘The Development of Civil Lib-
erties in Canada,’’ Queen’s Quarterly, 72 (1965): 270-88.
352 Notes to pages 30-32
85 PC2115, 1930; Hansard, 11 February, 1 May 1947, 307-45, 2644-47.
86 Hansard, 24 April 1952, 4351-53; SC 1952 c. 42; NA, MG28 V75, Jewish
Labour Committee of Canada Papers, especially Vols. 41 and 42.
87 Sec.101.
88 Hansard, 18 March 1870, 507.
89 George Adams and Paul J. Cavalluzzo, ‘‘The Supreme Court of Canada. A
Biographical Study,’’ Osgoode Hall Law Journal, 7 (1969): 61-86; Bushnell, The
Captive Court; Fouts, ‘‘Policy-Making in the Supreme Court of Canada’’; Bora
Laskin, ‘‘The Supreme Court of Canada: A Final Court of and for Canadi-
ans,’’ Canadian Bar Review, 29 (1951): 1038-79, ‘‘The Supreme Court of
Canada: The First One Hundred Years. A Capsule Institutional History,’’ and
‘‘The Role and Functions of Final Appellate Courts: The Supreme Court of
Canada,’’ Canadian Bar Review, 53 (1975): 469-81; MacGuigan, ‘‘Precedent
and Policy in the Supreme Court’’; Frank MacKinnon, ‘‘The Establishment of
the Supreme Court of Canada,’’ Canadian Historical Review, 27 (1946): 258-74;
Peter McCormick and Ian Greene, Judges and Judging (Toronto: J. Lorimer,
1990), chap. 7; Peter H. Russell, The Supreme Court of Canada as a Bilingual and
Bicultural Institution (Ottawa: Royal Commission on Bilingualism and Bicul-
turalism, 1969), 1-11, 26-27, 33-37; Snell and Vaughan, Supreme Court of
Canada; Weiler, In the Last Resort, chap. 1; Wilson, ‘‘Decision-Making in the
Supreme Court.’’
90 The Supreme Court and Exchequer Court Act, SC 1875 c. 11.
91 [1935] SCR 378, at 381. Over the years various practices in interpreting
statutes have been designated as ‘‘rules’’ which elaborate upon the meaning
to be assigned to a disputed piece of legislation. For summaries of these
rules, see Elmer A. Driedger, The Composition of Legislation (Ottawa: Queen’s
Printer, 1957), especially chap. 13, ‘‘Rules of Interpretation Applied to Draft-
ing’’ and chap. 19, ‘‘Statutory Interpretation,’’ and John Willis, ‘‘Statute Inter-
pretation in a Nutshell,’’ Canadian Bar Review, 16 (1938): 1-27.
92 Carl Baar and Ellen Baar, ‘‘Diagnostic Adjudication in Appellate Courts: The
Supreme Court of Canada and the Charter of Rights,’’ Osgoode Hall Law Jour-
nal, 27 (1989): 1-25; Bushnell, The Captive Court; J. A. Corry, ‘‘The Use of Leg-
islative History in the Interpretation of Statutes,’’ Canadian Bar Review,32
(1954): 624-37; E. A. Driedger, ‘‘The Preparation of Legislation,’’ Canadian Bar
Review, 31 (1953): 33-51; Fouts, ‘‘Policy-Making in the Supreme Court of
Canada’’; D. G. Kilgour, ‘‘The Rule Against the Use of Legislative History:
‘Canon of Construction’ or ‘Counsel of Caution’?’’ Canadian Bar Review,30
(1952): 769-90.
93 Supreme Court of British Columbia, Reasons for Judgment of the Hon. Chief
Justice Allan McEachern (Victoria, 1991); (1991) 79 DLR (4th) 185. Besides the
usual attention from legal commentators, Delgamuukw has attracted critics
from other disciplines and from those engaged in native issues in Canada.
Of particular interest is a special number of BC Studies, 95 (1992), including
Robin Fisher, ‘‘Judging History: Reflections of the Reasons for Judgment in
Notes to pages 32-36 353
Delgamuukw v. BC,’’ 43-54, and Bruce G. Miller, ‘‘Common Sense and Plain
Language,’’ 55-65. For a collaborative discussion by an anthropologist and a
legal scholar, see Michael Asch and Catherine Bell, ‘‘Definition and Interpre-
tation of Fact in Canadian Aboriginal Title Litigation: An Analysis of Delga-
muukw,’’ Queen’s Law Journal, 19 (1994): 503-50.
94 DLR, at 201.
95 Ibid.,at 251.
96 For example, see James W. St. G. Walker, ‘‘The Indian in Canadian Historical
Writing,’’ Canadian Historical Association, Historical Papers 1971 (Ottawa,
1971), 21-51.
97 Bruce G. Trigger, ‘‘Early Native North American Responses to European
Contact: Romantic Versus Rationalistic Interpretations,’’ Journal of American
History, 77 (1991): 1195-1215; Sarah Carter, Lost Harvests: Prairie Indian
Reserve Farmers and Government Policy (Montreal and Kingston: McGill-
Queen’s University Press, 1990).
98 E. H. Carr, What Is History? (Harmondsworth, Middlesex: Penguin, 1964), 87,
103.
99 For example, see Richard T. Vann, ‘‘The Rhetoric of Social History,’’ Journal of
Social History, 10 (1976), 224, 230-31; Lloyd S. Kramer, ‘‘Literature, Criticism,
and Historical Imagination: The Literary Challenge of Hayden White and
Dominick LaCapra,’’ in Lynn Hunt, ed., The New Cultural History (Berkeley:
University of California Press, 1989), 100; Allan Megill, ‘‘Recounting the
Past: ‘Description’, Explanation and Narrative in Historiography,’’ American
Historical Review, 94 (1989): 627.
100 English Social History (London: Longmans, Green, 1944), vii.
101 Peter N. Stearns, ‘‘Social History and History: A Progress Report,’’ Journal of
Social History, 19 (1985): 319; Hunt, The New Cultural History, ‘‘Introduction,’’
1, 4; Lynn Hunt, ‘‘History Beyond Social Theory,’’ in David Carroll, ed., The
States of ‘Theory’: History, Art, and Critical Discourse (New York: Columbia
University Press, 1990), 95. For a considerably less positive reaction to this
conquest see Gertrude Himmelfarb, The New History and the Old: Critical
Essays and Reappraisals (Cambridge, MA: Belknap, 1987).
102 Trian Stoianovich, French Historical Method: The Annales Paradigm (Ithaca:
Cornell University Press, 1976).
103 Harvey J. Kaye, The British Marxist Historians (Cambridge: Polity Press,
1984).
104 Fernand Braudel, The Mediterranean and the Mediterranean World in the Age of
Philip II, 2 vols., English translation (New York: Harper & Row, 1972). Quo-
tation is from Vol. 1, 21. See also ‘‘Preface’’ to the same volume, and Fernand
Braudel, On History, English translation (Chicago: University of Chicago
Press, 1980), especially ‘‘The History of Civilizations,’’ 177-218.
105 For example, especially Thompson, The Making of the English Working Class
(New York: Pantheon Books, 1964), and Whigs and Hunters: The Origin of the
Black Act (New York: Pantheon Books, 1975).
354 Notes to pages 36-38
106 Peter N. Stearns, ‘‘Coming of Age,’’ Journal of Social History, 10 (1976), and
‘‘Social History and History: A Progress Report.’’
107 For example, Bernard S. Cohn, ‘‘History and Anthropology: The State of
Play,’’ Comparative Studies in Society and History, 22 (1980): 198-221; Ian
McKay, ‘‘Historians, Anthropology, and the Concept of Culture,’’ Labour/Le
Travailleur, 8/9 (1981/82): 185-241; Roger Chartier, ‘‘Intellectual History or
Sociocultural History? The French Trajectories,’’ in D. LaCapra and
S. Kaplan, eds., Modern European Intellectual History: Reappraisals and New
Perspectives (Ithaca: Cornell University Press, 1982), 30; E. Somekawa and
E. A. Smith, ‘‘Theorizing the Writing of History or, ‘I can’t think why it
should be so dull, for a great deal of it must be invention’,’’ Journal of Social
History, 20 (1988): 149-61; Peter N. Stearns, ‘‘Social History Update: Encoun-
tering Postmodernism,’’ Journal of Social History, 24 (1990): 449-52.
108 Foucault Live: Interviews 1966-84 (New York: Semiotext(e), 1989), 80. Fou-
cault styled himself ‘‘an historian of culture.’’
109 L’histoire de la folie (Paris: Gallimard, 1961).
110 Foucault Live, 295.
111 Ibid., 296.
112 Mark Poster, ‘‘Foucault and History,’’ Social Research, 49 (1982): 128; Larry
Shiner, ‘‘Reading Foucault: Anti-Method and the Genealogy of Power-
Knowledge,’’ History and Theory, 21 (1982): 382-97; Patricia O’Brien, ‘‘Michel
Foucault’s History of Culture,’’ in Hunt, ed., New Cultural History, 23-46.
113 Foucault Live, 139.
114 Michel Foucault, ‘‘Nietzsche, Genealogy, History,’’ in Donald Bouchard, ed.,
Language, Counter-Memory, Practice. Selected Essays and Interviews (Ithaca:
Cornell University Press, 1977), 139-64.
115 Local Knowledge,3,6.
116 Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973),
29.
117 Local Knowledge, 4, 19-35.
118 Ibid., 186-87, 232-33.
119 Ibid., 4.
120 Ibid.,233; Interpretation of Cultures, 18-19.
121 Ibid.,14.
122 Ibid.,27.
123 Ibid.,24.
124 Local Knowledge,6.
125 Interpretation of Cultures, viii.
126 Ibid.,21, 23.
127 Local Knowledge, 186-87.
128 Interpretation of Cultures,5.
129 Kramer, ‘‘Literature, Criticism, and Historical Imagination,’’ 100.
130 Lawrence W. Levine, ‘‘The Unpredictable Past: Reflections on Recent Ameri-
can Historiography,’’ American Historical Review 94 (1989): 677.
Notes to pages 38-40 355
131 Irmline Veit-Brause, ‘‘Paradigms, Schools, Traditions – Conceptualizing
Shifts and Changes in the History of Historiography,’’ Storia Della Storiogra-
fia, 17 (1990): 50-65; Hunt, ‘‘History Beyond Social Theory,’’ 102-3; Elizabeth
Fox-Genovese and Eugene Genovese, ‘‘The Political Crisis of Social History,’’
Journal of Social History, 10 (1976): 216; Himmelfarb, ‘‘Reflections on the New
History,’’ 669.
132 Natalie Zemon Davis, ‘‘The Shapes of Social History,’’ Storia Della Stori-
ografia, 17 (1990): 28, 31.
133 Karin J. MacHardy, ‘‘Crises in History, or: Hermes Unbounded,’’ Storia Della
Storiografia, 17 (1990): 5-27; Davis, ‘‘The Shapes of Social History,’’ 28; Veit-
Brause, ‘‘Paradigms, Schools, Traditions,’’ 53; Hunt, ‘‘Introduction,’’ New
Cultural History, 12; Jean-Luc Nancy, ‘‘Finite History,’’ in Carroll, ed., The
States of ‘Theory’, 149.
134 See, for example, the special issues of the American Historical Review,94
(1989), and Storia Della Storiografia, 17 (1990), and the publications by Him-
melfarb, The New History and the Old (1987), Hunt, ed., The New Cultural His-
tory (1989), and Carroll, ed., The States of ‘Theory’ (1990). One observer,
noting that the participants are clearly enjoying themselves, has labelled the
current historiographical debate a ‘‘tournament’’ (Caroline Walker Bynum,
Fragments and Redemption: Essays on Gender and the Human Body in Medieval
Religion [New York: Zone Books, 1992], 21, 24).
135 Herbert Butterfield, The Whig Interpretation of History, rev. ed. (London: Bell,
1976).
136 This background is described most thoroughly in Robert W. Gordon,
‘‘J. Willard Hurst and the Common Law Tradition in American Historiogra-
phy,’’ Law and Society Review, 10 (1976): 9-55. See also Ernst-Wolfgang Bock-
enforde, State, Society and Liberty: Studies in Political Theory and Constitutional
Law (New York: Berg, 1991), especially chap. 1, ‘‘The School of Historical
Jurisprudence and the Problem of the Historicity of Law,’’ 1-25; H. L.
A. Hart, ‘‘Positivism and the Separation of Law and Morals,’’ Harvard Law
Review, 71 (1958): 593-629; Graham Parker, ‘‘The Masochism of the Legal
Historian,’’ University of Toronto Law Journal, 24 (1974): 279-317; W. Wesley
Pue and Barry Wright, Canadian Perspectives on Law and Society: Issues in Legal
History (Ottawa: Carleton University Press, 1988), especially chaps. 1 and 2;
Barry Wright, ‘‘Towards a New Canadian Legal History,’’ Osgoode Hall Law
Journal, 22 (1984): 349-74.
137 Gordon, ‘‘Hurst and the Common Law Tradition,’’ 11, 20.
138 Parker, ‘‘Masochism of the Legal Historian,’’ 284.
139 The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950),
Law and the Conditions of Freedom in the Nineteenth Century United States
(Madison: University of Wisconsin Press, 1956), Law and Economic Growth:
The Legal History of the Lumber Industry in Wisconsin 1836-1915 (Cambridge,
MA: Belknap Press, 1964). Gordon, ‘‘Hurst and the Common Law Tradi-
tion,’’ is an altogether admiring account of Hurst’s contribution. Flaherty,
356 Notes to pages 41-43
‘‘Writing Canadian Legal History,’’ 6-7, and ‘‘An Approach to American His-
tory: Willard Hurst as a Legal Historian,’’ American Journal of Legal History,
14 (1970): 222, matches Gordon. Parker’s awe is more restrained in
‘‘Masochism of the Legal Historian,’’ 313-16.
140 For a thorough and often amusing critique of this theoretical school see
Robert W. Gordon, ‘‘Historicism in Legal Scholarship,’’ Yale Law Journal,90
(1981): 1017-56, and ‘‘Critical Legal Histories,’’ Stanford Law Review,36
(1984): 57-125. One particularly vapid example of ‘‘adaptationism’’ quoted
by Gordon explains that ‘‘the evolution of the right of privacy was a re-
sponse to the increasing complexity and interdependence of modern soci-
ety’’ (‘‘Critical Legal Histories,’’ 64).
141 Morton Horwitz, Transformation of American Law (Cambridge, MA: Harvard
University Press, 1977). Horwitz’ work is discussed in D. G. Bell, ‘‘The Birth
of Canadian Legal History,’’ UNB Law Journal, 33 (1984): 318; Flaherty, ‘‘Writ-
ing Canadian Legal History,’’ 13-14; Gordon, ‘‘Critical Legal Histories,’’ 98ff.;
Wright, ‘‘New Canadian Legal History,’’ 363-65.
142 ‘‘The Historical Contingency of the Role of History,’’ Yale Law Journal,90
(1971): 1082.
143 ‘‘The Conservative Tradition in the Writing of American Legal History,’’
American Journal of Legal History, 7 (1973): 276.
144 Local Knowledge, 215.
145 Ibid.,173.
146 Ibid.,16.
147 Ibid.,216-18, 230-32.
148 Ibid.,232.
149 Ibid.,182.
150 Ibid.,218-19, 232.
151 Ibid.,215.
152 Discipline and Punish: The Birth of the Prison (London: A. Lane, 1977), 23. Fou-
cault was referring specifically to the criminal law and to forms of punish-
ment, but his compatibility with Geertz is apparent.
153 The Poverty of Theory (New York: Monthly Review Press, 1978), 96.
154 For example, see Alan Hunt, ‘‘The New Legal History: Prospects and Per-
spectives,’’ review essay, Contemporary Crises, 10 (1986): 201-8.
155 Gordon explains that his title ‘‘Critical Legal Histories,’’ 57, is intended to
suggest that the label covers several different historiographical practices.
156 There is a lively and growing literature describing and debating Critical
Legal Studies. Some of the more accessible items informing the present dis-
cussion, besides those already mentioned in footnotes, would include
Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton: Prince-
ton University Press, 1990); Richard Delgado, ‘‘The Ethereal Scholar: Does
Critical Legal Studies Have What Minorities Want?’’ Harvard Civil Rights –
Civil Liberties Law Review, 22 (1987): 301-22; Ronald Dworkin, Law’s Empire
(Cambridge, MA: Belknap Press, 1986); William Ewald, ‘‘Unger ’s Philoso-
Notes to pages 43-45 357
phy: A Critical Legal Study,’’ Yale Law Journal, 97 (1988); P. Fitzpatrick and
A. Hunt, eds., Critical Legal Studies (London: B. Blackwell, 1987); Robert
W. Gordon, ‘‘Critical Legal Studies as a Teaching Method, Against the Back-
ground of the Intellectual Politics of Modern Legal Education in the United
States,’’ Legal Education Review, 1 (1989): 59-83; Alan Hunt, Explorations in
Law and Society: Toward a Constitutive Theory of Law (New York: Routledge,
1993); Allan C. Hutchinson and Patrick J. Monahan, ‘‘Law, Politics, and the
Critical Legal Scholars: The Unfolding Drama of American Legal Thought,’’
Stanford Law Review, 36 (1984): 199-245; David Kairys, ed., The Politics of Law
(New York: Pantheon Books, 1982), especially Robert Gordon, ‘‘New Devel-
opments in Legal Theory,’’ Elizabeth Mensch, ‘‘The History of Mainstream
Legal Thought,’’ and Kairys’ own introduction; Mark Kelman, A Guide to
Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987);
David Trubek, ‘‘Where the Action Is: Critical Legal Studies and Empiricism,’’
Stanford Law Review, 36 (1984); Mark Tushnet, ‘‘Critical Legal Studies: An
Introduction to Its Origins and Its Underpinnings,’’ Journal of Legal Educa-
tion, 36 (1986): 505-17; Tushnet, Red, White and Blue: A Critical Analysis of Con-
stitutional Law (Cambridge, MA: Harvard University Press, 1988); Roberto
Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard Uni-
versity Press, 1986); see also Unger, ‘‘Critical Legal Studies Movement,’’ Har-
vard Law Review 96 (1982): 561-675; Cornell West, ‘‘Critical Legal Studies and
a Liberal Critic,’’ Yale Law Journal, 97 (1988).
157 Gordon, ‘‘Critical Legal Histories,’’ 109, 111. See also Bockenforde, State, Soci-
ety and Liberty; Hunt, Explorations in Law and Society, esp. chap. 13, ‘‘Law as a
Constitutive Mode of Regulation.’’
158 Gordon, ‘‘Critical Legal Histories,’’ 75, 118.
159 Ibid.,114.
160 The most convenient entry to Critical Race Theory is offered by Richard Del-
gado, ed., Critical Race Theory: The Cutting Edge (Philadelphia: Temple Uni-
versity Press, 1995). Delgado has also produced, with Jean Stefancic,
‘‘Critical Race Theory: An Annotated Bibiography,’’ Virginia Law Review,79
(1993): 461, and an early update, ‘‘Critical Race Theory: An Annotated Bibli-
ography – 1993, a Year of Transition,’’ University of Colorado Law Review,66
(1995): 159. Other useful compilations are in symposia in the California Law
Review, 82 (1994): 741, and the University of Illinois Law Review (1992): 945.
Most of the journal articles are written by proponents of the theory, but see
Douglas E. Litowitz, ‘‘Some Critical Thoughts on Critical Race Theory,’’
Notre Dame Law Review, 72 (1997): 503.
161 For example, Viscount James Bryce, The Relations of the Advanced and Back-
ward Races of Mankind (Oxford: Clarendon Press, 1902).
162 For example, Oliver Cox, Caste, Class and Race: A Study in Social Dynamics
(New York: Doubleday, 1948).
358 Notes to pages 45-46
163 For example, A. Davey, Learning to Be Prejudiced (London: Edward Arnold,
1983).
164 Michael Banton, Racial and Ethnic Competition (Cambridge: Cambridge Uni-
versity Press, 1983), 75, 136.
165 For example, John Rex and David Mason, eds., Theories of Race and Ethnic
Relations (Cambridge: Cambridge University Press, 1986).
166 M. G. Smith, The Plural Society in the British West Indies (Berkeley: University
of California Press, 1965); M. G. Smith and L. Kuper, eds., Pluralism in Africa
(Berkeley: University of California Press, 1969); Leo Kuper, Race, Class and
Power: Ideology and Revolutionary Change in Plural Societies (London: Duck-
worth, 1974). A concise statement of the theory can be found in M. G. Smith,
‘‘Pluralism, Race and Ethnicity in Selected African Countries,’’ in Rex and
Mason, eds., Theories of Race and Ethnic Relations, 187-225.
167 Robert Blauner, Racial Oppression in America (New York: Harper & Row, 1972).
168 Internal Colonialism: The Celtic Fringe in British National Development,
1536-1966 (Berkeley: University of California Press, 1975), 30.
169 ‘‘The Past, Present, and Future of Split Labor Market Theory,’’ in C. B. Mar-
rett and C. Leggon, eds., Research in Race and Ethnic Relations (Greenwich,
CN: JAI Press, 1979), Vol. 1, 18.
170 Edna Bonacich, ‘‘A Theory of Ethnic Antagonism: The Split Labor Market,’’
American Sociological Review, 37 (1972): 547-59.
171 Davis, ‘‘The Shapes of Social History,’’ 28-34.
172 One of the most influential demonstrations of this technique is Natalie
Zemon Davis, The Return of Martin Guerre (Cambridge, MA: Harvard Uni-
versity Press, 1983).
2 QUONG WING V . THE KING
1 Statutes of Saskatchewan (SS) 1912 c. 17.
2 Regina Morning Leader, 5 March 1912.
3 Moose Jaw Evening Times, 29 April 1912.
4 Regina Morning Leader, 14 May 1912. The 1894 Tr eaty of Commerce and Naviga-
tion between Britain and Japan was given effect in Canada by the Japanese
T r eaty Act, SC 1907 c. 50. Article 1 guaranteed British and Japanese subjects
‘‘full liberty to enter, travel or reside in any part of the dominions and pos-
sessions of the other Contracting Party, and . . . full and perfect protection for
their person and property.’’
5 SS 1912-13 c. 18; Census of Canada, 1911, Vol. 2; National Archives (NA), RG
25 Vol. 1142, file 308, Pope to Borden, 10 March 1914; Saskatchewan Archives
Board (SAB), Scott Papers, Hori to Scott, 30 April 1914, reply, 1 May, Hori to
McLeod, 7 May 1914; Saskatoon Daily Star, 14, 15 and 21 August 1912. Two
other prosecutions were reported in the Daily Star, of restaurant owners
identified only as ‘‘a Jap and a Chinaman,’’ who like Mr. Yoshi were fined
$10 plus $10 costs by Saskatoon’s Magistrate Brown (15 and 21 August).
Notes to pages 46-52 359
6 Moose Jaw Evening Times, 1 May 1912; Regina Leader, 13 May 1912; NA, RG
25 Vol. 1142, file 308, Yang Shu-Wen to Charles Doherty, 4 February 1914,
Pope to Borden, 28 February, Newcombe to Pope, 6 March, Pope to Borden,
10 March; Yang Shu-Wen to Borden, 22 June 1914, E. Blake Robertson,
memo, 29 June 1914, Canada, Department of External Affairs, Documents on
Canadian External Relations, Vol. 1, 1909-18 (Ottawa, 1967), 651-53.
7 SS 1918-19 c. 85; SAB, Scott Papers, J. A. Allens to Martin, 5 December 1918,
Yang Shu-Wen to Martin, 31 January 1919; Regina Daily Post, 17 and 18 Jan-
uary 1919.
8 For example, see Mark Berlin and William Pentney, Human Rights and Free-
doms in Canada (Toronto: Butterworths, 1987), 11-13; Douglas Schmeiser, Civil
Liberties in Canada (London: Oxford University Press, 1964), 259-60; Walter
Tarnopolsky, ‘‘The Supreme Court and Civil Liberties,’’ Alberta Law Review,
14 (1976): 61; Walter Tarnopolsky, Discrimination and the Law in Canada
(Toronto: R. de Boo, 1982), 9-14; ‘‘The Control of Racial Discrimination,’’ in
R. St.J. MacDonald and John P. Humphrey, eds., The Practice of Freedom:
Canadian Essays on Human Rights and Fundamental Freedoms (Toronto: Butter-
worths, 1979) 292.
9 For a thorough discussion of the Chinese ‘‘problem,’’ and of Quong Wing’s
lower-court experiences, see Constance Backhouse, ‘‘White Women’s Labour
Laws: Anti-Chinese Racism in Early 20th Century Canada,’’ Law and History
Review, 14 (1996): 315-68.
10 Census of Canada, 1911, Vol. 2; Moose Jaw Evening Times, 8 August 1911; Sas-
katchewan, Royal Commission on Immigration and Settlement, 1930, Report.
11 Moose Jaw Evening Times, 6 September 1913; SAB, Project Integrate, ‘‘An
Ethnic Study of the Chinese Community of Moose Jaw’’ (1973), 8, 9, 17, 18,
22, 24, 26; W. S. Chow, ‘‘The Chinese Community in Canada Before 1947 and
Some Recent Developments,’’ in Frances Henry, ed., Ethnicity in the Americas
(The Hague: Mouton, 1976), 128; Peter S. Li, ‘‘Chinese Immigrants on the
Canadian Prairie, 1910-47,’’ Canadian Review of Sociology and Anthropology,19
(1982): 533; Peter S. Li, The Chinese in Canada (Toronto: Oxford University
Press, 1988), 53; Edgar Wickberg, ed., From China to Canada: A History of the
Chinese Communities in Canada (Toronto: McClelland and Stewart, 1982), 79,
91.
12 Quoted in James Gray, Red Lights on the Prairies (Toronto: Macmillan, 1971),
77. Another contemporary observer quoted by Gray remarked: ‘‘Moose Jaw
isn’t a city or a municipality or even a geographic location! Moose Jaw is a
goddam virus that has permanently afflicted Regina and for which there is
no known cure!’’ (76).
13 Ibid., 75-80; James Gray, The Roar of the Twenties (Toronto: Macmillan, 1975),
269. There were frequent newspaper accounts of raids and arrests in China-
town, e.g., Evening Times 31 October 1911, 18 December 1911, 14 March 1912.
An allegation that Chief Johnson personally appropriated the gambling
stakes during such raids was reported in the Evening Times, 11 May 1912.
360 Notes to pages 52-55
14 Regina Morning Leader, 27 February, 2 and 5 March 1912.
15 Project Integrate, ‘‘Chinese Community of Moose Jaw,’’ 10; Wickberg, From
China to Canada, 120; David Chuenyan Lai, Chinatowns: Cities within Cities in
Canada (Vancouver: University of British Columbia Press, 1988), 93-94. Lai is
apparently inaccurate in alleging that ‘‘The case was widely publicized by
local newspapers.’’ There was one report of an alleged assault on a school-
girl in a Chinese restaurant in Moose Jaw, but the charge was quickly dis-
missed following evidence that the child’s aunt had prompted her to lay a
false complaint (Evening Times, 1 and 30 September 1911).
16 NA, RG 25 Vol. 1142, file 308, Yang Shu-Wen to Doherty, 4 February 1914.
Misspelling is in the original.
17 Statutes of Manitoba (SM) 1913 c. 19.
18 Statutes of Ontario (SO) 1914 c. 40, s. 2(1).
19 NA, RG 25 Vol. 1142, file 308, Pope to Borden, 28 February 1914; SAB, Scott
Papers, Allan to Martin, 5 December 1918.
20 Porcupine Advance, 2 July 1915, quoted in Kwok B. Chan and Lawrence Lam,
‘‘Chinese in Timmins, Canada, 1915-1950: A Study of Ethnic Stereotypes in
the Press,’’ Asian Profile, 14 (1986): 573.
21 Statutes of British Columbia (SBC) 1919 c. 63.
22 Provincial Archives of British Columbia (PABC), Attorney General’s Papers,
file 2060, 1181, copy in NA, MG 31 E55, Tarnopolsky Papers, Vol. 43, file 5,
Parsons to Attorney General, 16 August 1922.
23 SBC 1923 c. 76.
24 Chuen-Yan Lai, ‘‘The Chinese Consolidated Benevolent Association in Victo-
ria: Its Origins and Functions,’’ BC Studies, 15 (1972): 53; W. Peter Ward,
White Canada Forever: Popular Attitudes and Public Policy Toward Orientals in
British Columbia (Montreal: McGill-Queen’s University Press, 1978), 16, 23;
W. E. Willmott, ‘‘Some Aspects of Chinese Communities in British Columbia
Towns,’’ BC Studies, 1 (1968-69): 28-29; W. E. Willmott, ‘‘Approaches to the
Study of the Chinese in British Columbia,’’ BC Studies, 4 (1970): 44. The most
thorough account of Chinese in British Columbia during this period is to be
found in Patricia Roy, A White Man’s Province: British Columbia Politicians and
Chinese and Japanese Immigrants, 1858-1914 (Vancouver: University of British
Columbia Press, 1989), esp. chap. 1.
25 Gunter Baureiss, ‘‘Ethnic Resilience and Discrimination: Two Chinese Com-
munities in Canada,’’ Journal of Ethnic Studies, 10 (1982): 73; Gunter Baureiss,
‘‘Discrimination and Response: The Chinese in Canada,’’ in Rita Bienvenue
and Jay Goldstein, eds., Ethnicity and Ethnic Relations in Canada (2nd ed.;
Toronto: Butterworths, 1985), 243; Elizabeth Comack, ‘‘‘We Will Get Some
Good Out of This Riot Yet’: The Canadian State, Drug Legislation and Class
Conflict,’’ in Stephen Brickey and Elizabeth Comack, eds., The Social Basis of
Law: Critical Readings in the Sociology of Law (Toronto: Garamond Press, 1986),
70-71; Lai, ‘‘Chinese Consolidated Benevolent Association,’’ 54; Li, ‘‘Chinese
Immigrants on the Canadian Prairie,’’ 530, 532-33; Li, Chinese in Canada, 51;
Notes to pages 55-58 361
Paul L. Voisey, ‘‘Two Chinese Communities in Alberta: An Historical Per-
spective,’’ Canadian Ethnic Studies, 2 (1970): 17-18; Ward, White Canada For-
ever, 15-16, 36; Willmott, ‘‘Approaches to the Study of the Chinese,’’ 38-39,
42.
26 Anthony B. Chan (‘‘Orientalism and Image Making: The Sojourner in Cana-
dian History,’’ Journal of Ethnic Studies, 9 [1981]: 37-46) argues that the Chi-
nese workers really intended to settle permanently in Canada, and that the
‘‘sojourner myth’’ is a later invention by Euro-Canadians. His chief evidence
is that contemporary Chinese-language sources did not use the Chinese
characters for ‘‘sojourners’’ or ‘‘temporary migrants’’ in referring to these
men. J. A. Chapleau, one of the Royal Commissioners examining Chinese
residents in 1884-85, offered some contrary evidence, claiming that the
Consul-General of China told him ‘‘we are laborers who have come out here
to work, and when it is done, we go back to our own country’’ (Hansard,
2 July 1885, 3010).
27 The Victoria Gazette for 31 March 1859 is cited in Ward, White Canada Forever,
25, and Anderson, V ancouver ’ s Chinatown, 37. For a full discussion of the
anti-Chinese measures taken in the other British colonies see Robert A. Hut-
tenback, Racism and Empire: White Settlers and Colored Immigrants in the British
Self-Governing Colonies, 1830-1910 (Ithaca and London: Cornell University
Press, 1976).
28 Hansard, 12 May 1882, 1477.
29 Andrew L. March, The Idea of China: Myth and Theory in Geographic Thought
(New York: Praeger, 1974); Edward W. Said, Orientalism (New York: Pan-
theon, 1978).
30 Lai (Chinatowns, 55) suggests that the young Chinese worker could earn 10
to 20 times more in Canada than in China.
31 Gillian Creese, ‘‘Working Class Politics, Racism and Sexism: The Making of a
Politically Divided Working Class in Vancouver, 1900-1939,’’ PhD disserta-
tion, Carleton University, 1986, 63-75; Bruce Ryder, ‘‘Racism and the Consti-
tution: The Constitutional Fate of British Columbia Anti-Asian Immigration
Legislation, 1884-1909,’’ Osgoode Hall Law Journal, 29 (1991): 638; Vic Satze-
wich, ‘‘Racisms: The Reactions to Chinese Migrants in Canada at the Turn of
the Century,’’ International Sociology, 4 (1989): 312-19.
32 Senate, Debates, 21 May 1886, 680.
33 Cited in John A. Munro, ‘‘British Columbia and the ‘Chinese Evil’: Canada’s
First Anti-Asiatic Immigration Law,’’ Journal of Canadian Studies, 6 (1971): 42.
See also Ward, White Canada Forever, 33.
34 Comack, ‘‘Drug Legislation and Class Conflict,’’ 73; Mary E. Hallett, ‘‘A Gov-
ernor-General’s Views on Oriental Immigration to British Columbia,
1904-1911,’’ BC Studies, 14 (1972): 56.
35 For example, Gillian Creese, ‘‘Exclusion or Solidarity? Vancouver Workers
Confront the ‘Oriental Problem,’ ’’ BC Studies, 80 (1988-89): 24-51.
36 Cited in ibid., 33-34.
362 Notes to pages 58-60
37 Donald Avery and Peter Neary, ‘‘Laurier, Borden and a White British
Columbia,’’ Journal of Canadian Studies, 12 (1977): 31; Peter S. Li, ‘‘A Histori-
cal Approach to Ethnic Stratification: The Case of the Chinese in Canada,
1858-1930,’’ Canadian Review of Sociology and Anthropology, 16 (1979): 325; Li,
Chinese in Canada, 46; Ward, White Canada Forever, 38; Willmott, ‘‘Approaches
to the Study of the Chinese,’’ 45; Hansard, 2 July 1885, 3008.
38 SBC 1884 c. 2, 3 and 4.
39 SBC 1884 c. 4.
40 CPR contractor Andrew Onderdonk and the railway’s president, George
Stephen, warned the federal government that unless the BC legislation was
‘‘ p romptly disallowed’’ completion of the railway would be delayed for a
year. Patricia Roy, ‘‘A Choice between Evils: The Chinese and the Construction
of the Canadian Pacific Railway in British Columbia,’’ in H. A. Dempsey, ed.,
The CPR West: The Iron Road and the Making of a Nation (Vancouver: Douglas
and McIntyre, 1984), 32; Ryder, ‘‘Racism and the Constitution,’’ 654-55.
41 Canada, Parliament, Sessional Papers, 1885, Vol. 18, No. 54A, Royal Com-
mission on Chinese Immigration, Report, 1885, ‘‘Statement of the Knights of
Labor, Nanaimo,’’ Minutes of Evidence, 156. Each of the commissioners sub-
mitted a separate report. Chapleau’s was paginated i-cxxxiv, and Gray’s i-
cii. Minutes of Evidence were appended in pages numbered 1-487. In subse-
quent references the Chapleau and Gray reports will be identified with the
commissioner ’s name.
42 Ibid., Evidence, 75.
43 Ibid., 103.
44 Ibid., Gray,lxix.
45 Ibid., Evidence, 97.
46 Ibid., Chapleau, cxxx.
47 Ibid., Gray,lxix.
48 Hansard, 2 July 1885, 3009.
49 Report, 1885, Chapleau, xciv; Hansard, 2 July 1885, 3006.
50 Hansard, 2 July 1885, 3010.
51 Report, 1885, Evidence, 72.
52 Statutes of Canada (SC) 1885 c. 71. Exempted from the head tax were diplo-
mats, tourists, merchants and students, none of whom would expect to stay
in Canada. According to Commissioner Chapleau, the head tax device was
adopted from the Australian colony of Queensland (Hansard, 2 July 1885,
3004).
53 Hansard, 4 September 1891, 5059.
54 Hansard, 7 July 1899, 6846.
55 Canada, Parliament, Sessional Papers, 1902, Vol. 13, No. 54, Royal Commis-
sion on Chinese and Japanese Immigration, Report, 1902, 97-127.
56 Ibid., 79.
57 Satzewich, ‘‘Reactions to Chinese,’’ 319.
58 Report, 1902, 278.
Notes to pages 60-64 363
59 The Canadian Annual Review, 1902, 335, cited in K. Paupst, ‘‘A Note on Anti-
Chinese Sentiment in Toronto Before the First World War,’’ Canadian Ethnic
Studies, 9 (1977): 55.
60 Saturday Night, 8 September and 27 October 1906. Certain classes did con-
tinue to argue for access to Chinese labour. In 1907 a petition was submitted
by wealthy Vancouver women seeking repeal of the $500 tax because it
made it difficult to find Chinese house-servants. This brought a response
from the Vancouver TLC that reverberated with assumptions concerning
class, ‘‘race’’ and gender in that era: ‘‘The women of the working class do
their own work and when they need help, they employ their own race. Let
these ladies who now waste their time... [in] useless functions emulate the
example of their poorer sisters and do a little of their own domestic work. If,
however, they claim immunity from work, let them pay the price, or modify
the conditions of service in such a manner as will secure for them girls of
their own race. It is, we think, absurd that the working class of Canada
should run the risk of having its standard of living degraded to the level of a
Chinese coolie merely to gratify the whim of an aristocratic lady for a Chi-
nese servant’’ (Vancouver TLC Minutes, 21 March 1907, cited in Creese,
‘‘Vancouver Workers Confront the ‘Oriental Problem,’ ’’ 33).
61 EmilyMurphy, The Black Candle (Toronto: T. Allen, 1922), 109.
62 H. Glynn-Ward, The Writing on the Wall (Vancouver, 1921; rpt. Toronto: Uni-
versity of Toronto Press, 1974); Robert E. Wynne, ‘‘Reaction to the Chinese in
the Pacific Northwest and British Columbia,’’ PhD dissertation, University of
Washington, 1964, 182.
63 Calgary Herald, 4 October 1910, cited in Gunter Baureiss, ‘‘The Chinese Com-
munity in Calgary,’’ Alberta Historical Review, 22 (1974): 6.
64 Vancouver World, 10 February 1912, cited in Anderson, V ancouver ’ s China-
town, 97.
65 T. L. Chapman, ‘‘The Anti-Drug Crusade in Western Canada, 1885-1925,’’ in
D. J. Bercuson and L. A. Knafla, eds., Law and Society in Canada in Historical
Perspective (Calgary: University of Calgary, 1979), 91-109; Voisey, ‘‘Two Chi-
nese Communities,’’ 21.
66 Valverde, Light, Soap and Water, 57; Regina Morning Leader, 28 May 1912.
67 Chapman, ‘‘Anti-Drug Crusade,’’ esp. 91-94, 97, 98, 101, 109; Voisey, ‘‘Two
Chinese Communities,’’ 21.
68 Valverde, Light, Soap and Water, 97-98.
69 Quotedin Globe and Mail, 11 June 1994.
70 Murphy, Black Candle; Glynn-Ward, Writing on the Wall. Each devoted an
entire chapter to the theme of entrapment.
71 Cited in Paupst, ‘‘Anti-Chinese Sentiment,’’ 58.
72 Citedin Huttenback, Racism and Empire, 137-38.
73 Chapman, ‘‘Anti-Drug Crusade,’’ 103; Shirley J. Cook, ‘‘Canadian Narcotics
Legislation, 1908-1923: A Conflict Model Interpretation,’’ Canadian Review of
Sociology and Anthropology, 6 (1969): 43.
364 Notes to pages 65-67
74 Murphy, Black Candle, 188-89.
75 Baureiss, ‘‘Chinese in Calgary,’’ 8; Baureiss, ‘‘Discrimination and Response,’’
251, 257-58; Li, ‘‘Chinese on the Prairie,’’ 534; Patricia E. Roy, ‘‘British
Columbia’s Fear of Asians, 1900-1950,’’ Histoire sociale/Social History,13
(1980): 161-72; Roy, White Man’s Province, 13-36; Ward, White Canada Forever,
49, 62-64; Edgar Wickberg, ‘‘Chinese and Canadian Influences on Chinese
Politics in Vancouver, 1900-1947,’’ BC Studies, 45 (1980): 53; Anderson, Van-
couver ’ s Chinatown, 90-91; David Chuenyan Lai, ‘‘The Issue of Discrimination
in Education in Victoria, 1901-1923,’’ Canadian Ethnic Studies, 19 (1987): 47-67;
Timothy J. Stanley, ‘‘White Supremacy, Chinese Schooling, and School Segre-
gation in Victoria: The Case of the Chinese Students’ Strike, 1922-1923,’’ His-
torical Studies in Education/Revue d’histoire de l’éducation, 2 (1990): 287-305.
76 Baureiss, ‘‘Chinese in Calgary,’’ 3; Chan and Lam, ‘‘Chinese in Timmins,’’
580; Howard Palmer, ‘‘Anti-Oriental Sentiment in Alberta 1880-1920,’’ Cana-
dian Ethnic Studies, 2 (1970): 31; Patricia E. Roy, ‘‘The Preservation of the
Peace in Vancouver: The Aftermath of the Anti-Chinese Riot of 1887,’’ BC
Studies, 21 (1976): 44-59. For a thorough analysis of the American pattern in
this same period see John R. Wunder, ‘‘Anti-Chinese Violence in the Ameri-
can West, 1850-1910,’’ in John McLaren et al., eds., Law for the Elephant, Law
for the Beaver. Essays in the Legal History of the North American West (Regina
and Pasadena: Canadian Plains Research Centre and Ninth Judicial Circuit
Historical Society, 1992), 212-36.
77 NA, MG 26 G1(A), Laurier Papers, Vol. 477, correspondence and reports on
the riots; Canada, Royal Commission to Investigate Losses Sustained by the
Japanese Population of Vancouver, Report, 1908; Canada, Royal Commission
to Investigate Losses Sustained by the Chinese Population of Vancouver,
Report, 1908; Comack, ‘‘Drug Legislation and Class Conflict,’’ 79-83; Hallett,
‘‘Governor-General’s Views on Orientals,’’ 57, 63; Roy, White Man’s Province,
185-226; Howard Sugimoto, ‘‘The Vancouver Riots of 1907: A Canadian
Episode,’’ in H. Conroy and T. Miyakawa, eds., East Across the Pacific: Histori-
cal and Sociological Studies of Japanese Immigration and Assimilation (Santa Bar-
bara: American Bibliographical Center-Clio Press, 1972), 92-126; Howard
Sugimoto, Japanese Immigration, the Vancouver Riots, and Canadian Diplomacy
(New York: Arno Press, 1978); Ward, White Canada Forever, 67-74.
78 The phrase is from Ryder, ‘‘Racism and the Constitution,’’ 631. Constance
Backhouse offers a detailed canvas of immigration restrictions and other
anti-Chinese legislation produced across Canada in ‘‘Gretta Wong Grant:
Canada’s First Chinese-Canadian Female Lawyer,’’ Windsor Yearbook of Access
to Justice, 15 (1996): 3-46.
79 BNA Act s. 95 states: ‘‘any law of the Legislature of a Province relative to...
Immigration shall have effect in and for the Province as long and as far only
as it is not repugnant to any Act of the Parliament of Canada.’’
80 Confirmed by the Canadian government in SC 1907 c. 50.
81 Hansard, 27 March 1903, 603.
Notes to pages 67-69 365
82 See chap. 1, sec. 1.
83 Ryder, ‘‘Racism and the Constitution.’’
84 SBC 1872 c. 37, s. 13; SBC 1872 c. 26, s. 22. As their numbers came to warrant
the attention, Japanese and East Indians were disfranchised in 1895 and 1907
respectively. SBC 1895 c. 20; SBC 1907 c. 16.
85 SBC 1903-4 c. 17, s. 3.
86 Hansard, 4 May 1885, 1582.
87 SS 1908 c. 2, s. 11.
88 H. F. Angus, ‘‘The Legal Status in British Columbia of Residents of Oriental
Race and their Descendants,’’ in Norman MacKenzie, ed., The Legal Status of
Aliens in Pacific Countries (London, 1937; rpt. New York: Kraus, 1975), 77-88.
89 SBC 1877 c. 15, s. 46(33).
90 SBC 1890 c. 33, s. 4. Restrictions on the employment of women and children
in mining were becoming commonplace in Canada at that time. Ontario’s
Mines Act, for example, stated ‘‘No boy under the age of 15 shall be em-
ployed . . . below ground; and no girl or woman shall be employed at min-
ing work or allowed to be for the purpose of employment at mining work in
or about any mine.’’ SO 1892 c. 9, s. 54. For discussion of the context in
which such restrictions were developed see below, sec. 5, ‘‘Defending the
Family.’’ The addition of a racial restriction was unique to British Columbia.
91 SBC 1897 c. 1; SBC 1898 c. 28; SBC 1900 c. 14; SBC 1902 c. 38; SBC 1903 c. 14;
SBC 1905 c. 30.
92 PABC, Attorney-General’s Papers, file 2060-17-18, 27, Orders-in-Council 245
and 275, 26 May and 16 June 1902, copies in NA, Tarnopolsky Papers,
Vol. 43, file 4; In Re The Japanese Treaty Act 1913, (1920) BCR 136.
93 SBC 1902 c. 39.
94 SBC 1908 c. 50.
95 (1904) 10 BCR 408, at 424-26.
96 Edmonton Journal, 27 March 1918.
97 SBC 1885 c. 21, s. 11; Baureiss, ‘‘Chinese in Calgary,’’ 5; Huttenback, Racism
and Empire, 277-78; Palmer, ‘‘Anti-Orientalism in Alberta,’’ 37; Lee Wai-Man,
‘‘Dance No More: Chinese Hand Laundries in Toronto,’’ Polyphony, 6 (1984):
33; Edgar Wickberg, ‘‘Some Problems in Chinese Organizational Develop-
ment in Canada, 1923-1937,’’ Canadian Ethnic Studies, 11 (1979): 94.
98 SM 1916 c. 4.
99 (1878)1BCR 101.
100 Ibid.,at 104.
101 Ibid.,at 110-12.
102 (1885) 1 BCR 150, at 151. The case was brought on a writ of certiorari.
103 Ibid., at 157 and 162. The preamble to the 1884 Act is quoted in sec. 2 above.
104 Ibid., at 163. Alan Grove and Ross Lambertson (‘‘Pawns of the Powerful: The
Politics of Litigation in the Union Colliery Case,’’ BC Studies, 103 [1994]:
3-31) point out that Judge Crease was identified with the business class who
had an interest in the continued immigration and exploitation of Chinese
366 Notes to pages 69-74
labour. Before the Royal Commission just months previously, Crease had
claimed that Chinese competition with white labour was healthy and their
exclusion would ‘‘create the worst of all monopolies, next to that of capital:
the tyranny of labour.’’ (Report, Evidence, 143.) It is possible therefore that
the judge was simply being consistent with a business bias in his Wing
Chong decision. On the other hand, attorney Drake, who introduced the
question of Chinese rights into the argument, had spoken against Chinese
immigration to the Royal Commissioners (Report, Evidence, 153-54) and was
known as an exclusionist (Grove and Lambertson, 12-13). Class was appar-
ently not the only consideration for the parties in this case. It may be noted
that Crease could have overturned the Act without elaborating upon its
injustice; his denunciation of discrimination therefore has a ring of convic-
tion. John P. S. McLaren discusses Tai Sing and Wing Chong along with three
other cases decided between 1878 and 1886 in the BC courts. While he con-
firms the class interest of the judges involved, McLaren demonstrates that
Chief Justice Begbie and Justices Gray and Crease had an interpretation of
the ‘‘rule of law’’ which incorporated the right of all subjects to equality
before the law, including Chinese in Canada, and this right had to be pro-
tected by the courts even against encroachment by the legislature. McLaren
argues as well that they had a pro-federalist inclination and a distrust of
mass democracy which prompted them to disallow discriminatory acts
passed by the BC legislature. In the absence of Canadian or English prece-
dents dealing with comparable legislation, they followed examples set by
‘‘activist’’ judges in the United States, until the Privy Council established a
pattern favouring provincial jurisdiction and a narrower role for judicial cre-
ativity (John P. S. McLaren, ‘‘The Early British Columbia Supreme Court and
the ‘Chinese Question’: Echoes of the Rule of Law,’’ Manitoba Law Journal,20
[1991]: 107-47, and ‘‘The Early British Columbia Judges, the Rule of Law and
the ‘Chinese Question’: The California and Oregon Connection,’’ in
McLaren, et al., eds., Law for the Elephant, Law for the Beaver, 237-73).
105 (1897)5BCR 306.
106 Ibid.,at 316.
107 Ibid.,at 317.
108 Ibid., at 318-19. Emphasis added. Grove and Lambertson (‘‘Pawns of the
Powerful,’’ 23) comment: ‘‘The exclusionist politicians had now become
exclusionist judges.’’
109 [1899] AC 580. Justice Drake heard the case first, and his decision in favour
of Bryden was appealed to the full BC Supreme Court in August 1898 where
Drake again delivered the judgment. Since the purpose in this entire strategy
was for Bryden to lose, and thus permit Union Colliery to continue employ-
ing Chinese, Bryden’s victory necessitated an appeal to the Privy Council.
For a thorough discussion of the background of this case and its surround-
ing issues as it worked its way through the BC courts, see Grove and Lam-
bertson, ‘‘Pawns of the Powerful.’’
Notes to pages 74-75 367
110 AC, at 581.
111 Ibid., at 585.
112 Ibid., at 587.
113 Grove and Lambertson, ‘‘Pawns of the Powerful,’’ 31.
114 RSBC 1897 c. 67.
115 (1901) 7 BCR 368.
116 Ibid., at 372. Once again, a BC judge was including a statement not entirely
necessary to the decision at hand, but which suggested the propriety of rec-
ognizing equal rights for all British subjects in Canada regardless of ‘‘race.’’
117 (1901) 8 BCR 76.
118 [1903] AC 151.
119 Ibid., at 155-56.
120 Ibid.,at 157.
121 Ibid.,at 156.
122 Ibid.
123 Ibid.,at 157.
124 Constance Backhouse, ‘‘‘Pure Patriarchy’: Nineteenth-Century Canadian
Marriage,’’ McGill Law Journal, 31 (1986): 312; Catherine L. Cleverdon, The
Woman Suffrage Movement in Canada (2nd ed.; Toronto: University of Toronto
Press, 1974), Introduction by Ramsay Cook, xiii; John McLaren, ‘‘The Cana-
dian Magistracy and the Anti-White Slavery Campaign 1900-1920,’’ in
W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law and Soci-
ety: Issues in Legal History (Ottawa: Carleton University Press, 1988), 329-53;
James G. Snell, ‘‘ ‘The White Life for Two’: The Defence of Marriage and Sex-
ual Morality in Canada, 1890-1914,’’ Histoire sociale/Social History, 16 (1983):
111-13.
125 Murphy, Black Candle, 235.
126 Veronica J. Strong-Boag, The Parliament of Women: The National Council of
Women of Canada, 1893-1929 (Ottawa: National Museums of Canada, 1976), 7;
Alison Prentice et al., Canadian Women: A History (Toronto: Harcourt, Brace
Jovanovich, 1988), 179-80, 211; Graeme Decarie, ‘‘Something Old, Something
New . . . : Aspects of Prohibitionism in Ontario in the 1890s,’’ in Donald
Swainson, ed., Oliver Mowat’s Ontario (Toronto: Macmillan, 1972), 166-67;
Cook, Introduction to Cleverdon, xii.
127 Quotedin Strong-Boag, Parliament, 81.
128 Veronica Strong-Boag, ‘‘‘Setting the Stage’: National Organization and the
Women’s Movement in the Late 19th Century,’’ in Susan Mann Trofimenkoff
and Alison Prentice, eds., The Neglected Majority: Essays in Canadian Women’s
History (Toronto: McClelland and Stewart, 1977), 103.
129 Prentice, Canadian Women, 180-84; Decarie, ‘‘Prohibitionism’’; Snell, ‘‘Defence
of Marriage’’; Karen Van Dieren, ‘‘The Response of the WMS to the Immigra-
tion of Asian Women 1888-1942,’’ in Barbara K. Latham and Roberta J. Paz-
dro, eds., Not Just Pin Money: Selected Essays on the History of Women’s Work in
British Columbia (Victoria: Camosun College, 1984), 80-89, Valverde, Light,
368 Notes to pages 75-78
Soap and Water, 116; Naomi Griffiths, The Splendid Vision: Centennial History of
the National Council of Women of Canada 1893-1993 (Ottawa: Carleton Univer-
sity Press, 1993).
130 Murphy, Black Candle, 17; Carol Lee Bacchi, Liberation Deferred? The Ideas of
the English-Canadian Suffragists, 1877-1918 (Toronto: University of Toronto
Press, 1983), 112-13; Constance B. Backhouse, ‘‘Nineteenth Century Prostitu-
tion Law Reflection of a Discriminatory Society,’’ Histoire sociale/Social His-
tory, 18 (1985): 387-423; Judy Bedford, ‘‘Prostitution in Calgary 1905-1914,’’
Alberta History, 29 (1981): 1-11; Graham Parker, ‘‘The Legal Regulation of
Sexual Activity and the Protection of Females,’’ Osgoode Hall Law Journal,21
(1983): 187-244.
131 In ‘‘White Women’s Labor Laws,’’ Constance Backhouse explores the ten-
sions generated by the women’s reform movement and majority Canadians’
racial identity, and their impact upon the Chinese immigrant community. On
this issue more generally, see Valverde, Light, Soap and Water, chap. 5; Pren-
tice, Canadian Women, 193; Bacchi, Liberation Deferred, 52-53, 104; Strong-
Boag, Parliament, 247. The National Council of Women convention in Lon-
don, Ontario, in 1912, for example, passed resolutions on child welfare, pre-
vention of tuberculosis, pure milk, playgrounds, training of women teachers,
Chinese and Japanese ‘‘houses of ill-fame,’’ and the international white slave
traffic (Regina Morning Leader, 28 May 1912).
132 Strong-Boag, ‘‘Setting the Stage,’’ 90.
133 Decarie,‘‘Prohibitionism,’’164.
134 Ibid.;Prentice, Canadian Women, 173.
135 Strong-Boag, Parliament, 247-48; Bacchi, Liberation Deferred, 53; Carol Bacchi,
‘‘Race Regeneration and Social Purity: A Study of the Social Attitude of
Canada’s English-Speaking Suffragists,’’ Histoire sociale/Social History,11
(1978): 461.
136 Backhouse, ‘‘Prostitution Law’’; Bedford, ‘‘Prostitution in Calgary’’; Snell,
‘‘Defence of Marriage’’; Strong-Boag, Parliament, 429-31.
137 Backhouse,‘‘Prostitution Law,’’395.
138 Cook, Introduction to Cleverdon, xiii.
139 In Times Like These (rpt. ed.; Toronto: University of Toronto Press, 1972), 48.
140 Prentice, Canadian Women, 150.
141 Valverde, Light, Soap and Water, 109.
142 Prentice, Canadian Women, 227; Ruth Frager, ‘‘No Proper Deal: Women Work-
ers and the Canadian Labour Movement, 1870-1940,’’ in Linda Briskin and
Lynda Yanz, Union Sisters. Women in the Labour Movement (Toronto: Women’s
Press, 1983), 46; Janice Acton et al., eds., Women At Work: Ontario, 1850-1930
(Toronto: Canadian Women’s Educational Press, 1974), 5.
143 Frager, ‘‘No Proper Deal,’’ 51-52.
144 Quoted in Susan Wade, ‘‘Helena Gutteridge: Votes for Women and Trade
Unions,’’ in Barbara Latham and Cathy Kess, eds., In Her Own Right: Selected
Essays on Women’s History in BC (Victoria: Camosun College, 1980), 193.
Notes to pages 79-81 369
145 Quoted in Marie Campbell, ‘‘Sexism in British Columbia Trade Unions,
1900-1920,’’ in Latham and Kess, In Her Own Right, 175-76.
146 Campbell, ‘‘Sexism in British Columbia,’’ 177.
147 The Ontario Factories Act, SO 1884 c. 39, for example, set a 10-hour day and
60-hour week for women factory workers, insisted that they be allowed a
full hour for lunch in a suitable room away from the machinery, prevented
women from being assigned to clean machinery while it was in motion, and
stated generally that ‘‘It shall not be lawful to employ in a factory any child,
young girl or woman, so that the health... is likely to be permanently
injured.’’
148 NA, RG 25 Vol. 1524, file 867, ‘‘Canadian Laws Governing the Employment
of Women,’’ enclosed in H. H. Ward, deputy minister of Labour, to
L. Beaudry, Department of External Affairs, 28 September 1928.
149 Forexample, Ontario Shops Regulation Act, SO 1888 c. 33.
150 ‘‘Canadian Laws Governing the Employment of Women.’’ This Canadian
legislation evolved in a continental context, as American states passed simi-
lar laws. See Alan Brinkley, ‘‘For Their Own Good,’’ New York Review of
Books, 26 May 1994, 42. The Canadian background is given in Margaret
E. McCallum, ‘‘Keeping Women in Their Place: The Minimum Wage in
Canada, 1910-25,’’ Labour/Le Travail, 17 (1986): 29-56, and Gillian Creese,
‘‘Sexual Equality and the Minimum Wage in British Columbia,’’ Journal of
Canadian Studies, 26 (1991-92): 120-40.
151 Snell, ‘‘Defence of Marriage,’’ 121. Again, a parallel process was apparent in
the United States. For example in 1910 Congress passed the Mann Act,pro-
viding a five-year federal jail term for any man who intended to commit an
immoral act with a woman who had crossed a state line either with him or to
visit him. See David J. Langum, Crossing Over the Line: Legislating Morality
and the Mann Act (Chicago: University of Chicago Press, 1994).
152 Saturday Night, 15 August 1925. In the absence of explicit laws the responsi-
ble authorities often followed their ‘‘common sense’’ in preventing marriage
between members of different ‘‘races.’’ Magistrate Emily Murphy recounted
the story of a Chinese man ‘‘whose morals were as oblique as his eyes’’
brought before her by some nuns who wanted him deported to stop a mar-
riage to a white domestic servant (Black Candle, 236-37). The Regina Morning
Leader, 5 September 1912, told of a clergyman who had abruptly refused to
marry a Chinese man and white woman. Stories commenting upon inter-
marriage, always negatively, frequently appeared in the Canadian press dur-
ing this period. See also the terrifying case of Ira Johnston and Isabella Jones
in chap. 3, sec. 2. One interesting aspect of their dilemma was their extreme
difficulty in finding a clergyman willing to marry them.
153 Strong-Boag, Parliament, 186.
154 For example, Van Dieren, ‘‘Response of the WMS.’’
155 Lai, Chinatowns, 54; Stanley, ‘‘White Supremacy, Chinese Schooling, and
School Segregation in Victoria,’’ 290.
370 Notes to pages 81-83
156 W. L. Mackenzie King, Report on the Need for the Suppression of the Opium Traf-
fic in Canada, 1908; SC 1908 c. 50; Chapman, ‘‘Anti-Drug Crusade,’’ 93-95;
Comack, ‘‘Drug Legislation and Class Conflict,’’ 67-89; Cook, ‘‘Canadian
Narcotics Legislation,’’ 37, 39; Melvyn Green, ‘‘A History of Canadian Nar-
cotics Control: The Formative Years,’’ University of Toronto Faculty of Law
Review, 37 (1979): 42-43; G. E. Trasov, ‘‘History of the Opium and Narcotic
Drug Legislation in Canada,’’ Criminal Law Quarterly, 4 (1962): 276; Neil
Boyd, ‘‘The Origins of Canadian Narcotics Legislation: The Process of Crimi-
nalization in Historical Context,’’ in R. C. Macleod, ed., Lawful Authority.
Readings on the History of Criminal Justice in Canada (Toronto: Copp Clark Pit-
man, 1988), 192-218; Anderson, V ancouver ’ s Chinatown, 99; C. Mosher, ‘‘The
Legal Response to Narcotic Drugs in Five Ontario Cities, 1908-1961,’’ PhD
dissertation, University of Toronto, 1992; C. Mosher and J. Hagan, ‘‘Consti-
tuting Class and Crime in Upper Canada: The Sentencing of Narcotics
Offenders circa 1908-1953,’’ Social Forces, 72 (1994): 613-41.
157 Hansard, 26 January 1911, 2518-2553; SC 1911 c. 17; Boyd, ‘‘Origins of Cana-
dian Narcotics Legislation,’’ 205; Chapman, ‘‘Anti-Drug Crusade,’’ 95, 96,
104; Comack, ‘‘Drug Legislation and Class Conflict,’’ 86; Cook, ‘‘Canadian
Narcotics Legislation,’’ 37-39; Hallett, ‘‘Governor-General’s Views on Orien-
tals,’’ 70; Huttenback, Racism and Empire, 188. Discussing the 1923 Opium
Bill, Senator Wellington B. Willoughby of Moose Jaw declared that he knew
‘‘personally’’ of opium being planted on a Chinese suspect with police con-
nivance (Senate, Debates, 27 April 1923, 347).
158 TLC, Reports of the Proceedings of the Annual Convention.
159 TLC, Report, 1912, 107.
160 Glen Makahonuk, ‘‘Craft Unionism and the 1912 Strike Wave,’’ Saskatchewan
History, 44 (1992): 59-67.
161 TLC, Report, 1912, 30-32; Regina Morning Leader, 7 February 1912.
162 Regina Morning Leader, 5 September 1912.
163 Moose Jaw Evening Times, 6 September 1913, 21 and 24 February 1914.
164 TLC, Report, 1912, 32-34, 107.
165 TLC, Report, 1914, 22-24, 33-36, 76, 119. British Columbia was at first unre-
sponsive, and Alberta hinted that it would act after the Quong Wing case
was settled in the courts. TLC, Report, 1915, 41-46, 110.
166 For example, Chan and Lam, ‘‘Chinese in Timmins,’’ 579; Miriam Yu, ‘‘Hu-
man Rights, Discrimination, and Coping Behaviour of the Chinese in
Canada,’’ Canadian Ethnic Studies, 19 (1987): 114-24.
167 Census of Canada, 1921.
168 RoyalCommission, Report, 1885, Gray, xi.
169 Census of Canada, 1911.
170 RoyalCommission, Report, 1902, 236.
171 Ibid.,65.
172 Wickberg, From China to Canada, esp. chaps. 3, 6, 8 and 12, gives a very thor-
ough description of Chinese organizations in Canada. For further elaborations,
Notes to pages 84-88 371
not always in agreement, see Gunter Baureiss, ‘‘Chinese Organizational
Development – A Comment,’’ Canadian Ethnic Studies, 12 (1980): 124-30;
Gunter Baureiss and Leo Driedger, ‘‘Winnipeg Chinatown: Demographic,
Ecological and Organizational Change, 1900-1980,’’ Urban History Review,10
(1982): 11-24; Anthony B. Chan, ‘‘‘Orientalism’ and Image Making: The
Sojourner in Canadian History,’’ Journal of Ethnic Studies, 9 (1981): 37-46;
Chan and Lam, ‘‘Chinese in Timmins’’; Peter S. Li, ‘‘Immigration Laws and
Family Patterns: Some Demographic Changes among Chinese Families in
Canada, 1885-1971,’’ Canadian Ethnic Studies, 12 (1980): 58-73; Li, Chinese in
Canada, esp. part II; Wickberg, ‘‘Chinese Organizational Development’’;
Wickberg, ‘‘Chinese Politics in Vancouver ’’; Edgar Wickberg, ‘‘Chinese Orga-
nizations and the Canadian Political Process: Two Case Studies,’’ in Jorgen
Dahlie and Tissa Fernando, eds., Ethnicity, Power and Politics in Canada
(Toronto: Methuen, 1981); W. E. Willmott, ‘‘Some Aspects of Chinese Com-
munities in British Columbia Towns,’’ BC Studies, 1 (1968-69): 27-36.
173 Representative of this perspective is the work of Peter S. Li, particularly
‘‘Historical Approach to Ethnic Stratification,’’ ‘‘Chinese on the Prairie,’’ and
Chinese in Canada, chap. 3, ‘‘Occupations and Ethnic Business.’’ A non-‘‘victim’’
interpretation of the same phenomenon, attributing it rather to the tradition
of entrepreneurism and upward mobility in Chinese peasant society, is given
by Paul Yee, ‘‘Business Devices from Two Worlds: The Chinese in Early Van-
couver,’’ BC Studies, 62 (1984): 44-67.
174 Yee, ‘‘Business Devices from Two Worlds,’’ 45-47.
175 Most of the items mentioned in the three preceding footnotes contain refer-
ences to the CBA. In addition see Lai, ‘‘Chinese Consolidated Benevolent
Association,’’ and Chuen-Yan Lai, ‘‘Chinese Attempts to Discourage Emigra-
tion to Canada: Some Findings from the Chinese Archives in Victoria,’’ BC
Studies, 18 (1973): 33-49.
176 Baureiss, ‘‘Chinese in Calgary,’’ 5; Baureiss, ‘‘Discrimination and Response,’’
256-57; Ivan L. Head, ‘‘The Stranger in Our Midst: A Sketch of the Legal Sta-
tus of the Alien in Canada,’’ Canadian Yearbook of International Law, 2 (1964):
131; Lai, ‘‘Chinese Consolidated Benevolent Association,’’ 59; Stanley,
‘‘White Supremacy, Chinese Schooling, and School Segregation in Victoria,’’
289; Ward, White Canada Forever, 33; Wickberg, ‘‘Chinese Organizational
Development,’’ 94-95; Wickberg, ‘‘Chinese Politics in Vancouver,’’ 47, 53;
NA, Tarnopolsky Papers, Vol. 43, file 5. A special issue of Canadian Ethnic
Studies, 19, 3 (1987) is devoted to the topic ‘‘Coping with Racism: The Chi-
nese Experience in Canada.’’ Of particular interest to the discussion here are
Gunter Baureiss, ‘‘Chinese Immigration, Chinese Stereotypes, and Chinese
Labour,’’ Gillian Creese, ‘‘Organizing Against Racism in the Workplace: Chi-
nese Workers in Vancouver Before the Second World War,’’ David Chuenyan
Lai, ‘‘The Issue of Discrimination in Education in Victoria, 1901-1923,’’ and
Jin Tan, ‘‘Chinese Labour and the Reconstituted Social Order of British
Columbia.’’
372 Notes to pages 88-90
177 Moose Jaw Evening Times, 1 and 28 May 1912; Regina Morning Leader,
10 May 1912; Regina Daily Province, 13 and 16 May 1912.
178 SAB, Collection R 1267, file #474, docket 192/12, ‘‘R. v. Quong Wing,’’ Infor-
mation and Complaint of W. P . Johnson, 21 May 1912.
179 SAB, Naturalization Certificate, Quong Wing, 7 December 1905. The name of
the restaurant appears variously in different sources: CER, C and R, CNR,
CPR. The form ‘‘CER’’ was used in the local magistrate’s court documents,
and is the one adopted here.
180 Census of Canada, 1911; Moose Jaw Evening Times, 5 July 1913.
181 SAB, Examination of Witnesses, 27 May 1912; Docket 191, ‘‘R. v. Quong
Sing,’’ Naturalization Certificate, Quon Sing [sic], 6 December 1901.
182 SAB, ‘‘R. v. Quong Wing,’’ Naturalization Certificate; Deposition of Wit-
nesses; Conviction.
183 MooseJaw Evening Times, 28 May 1912.
184 The discussion of who or what was ‘‘white’’ received more attention in the
trial of the restaurant owner Yoshi in Saskatoon less than three months later.
In that case the three waitresses involved were not English but Russian and
German, and the defence asked whether they should be included in the cate-
gory ‘‘white woman or girl’’ set out in the statute. The Crown attorney asked
the magistrate to ‘‘give these words the meaning which is commonly applied
to them; that is to say the females of any of the civilized European nations.’’
Magistrate Brown however decided to adjourn the trial while he considered
the issue. It took him a week to decide that while ‘‘he did not think it neces-
sary to go into the classification of the white race,’’ still it was possible to
include ‘‘Germans and Russians’’ as ‘‘members of the Caucasian race.’’ Mr.
Yo s h i was thereupon convicted, along with two other Saskatoon restaurateurs,
one Japanese and one Chinese, whose names and circumstances were not
r e p o r t e d . See above chap. 2, sec. 1; Saskatoon Daily Star, 14, 15, 19 and
21 August 1912. The Yoshi case is discussed in Constance Backhouse, ‘‘White
Female Help and Chinese-Canadian Employers: Race, Class, Gender and
Law in the Case of Yee Clun, 1924,’’ Canadian Ethnic Studies, 26 (1994): 37-38.
185 The Canadian Parliamentary Guide (Ottawa: Mortimer, 1919) described Mr.
Willoughby as a bencher of the Law Society of Saskatchewan, Opposition
leader from 1912 to 1917, prominent Anglican layman and Masonic Past
Grand Master. In 1917 he was appointed to the Senate of Canada.
186 SAB, ‘‘R. v. Quong Wing,’’ Affadavit and Receipt.
187 SAB, Affadavit, 1 November 1912; Order to Magistrate, 5 November and
reply, 9 November 1912.
188 SAB, Judgment Roll, No. 191 (Quong Sing) and 192 (Quong Wing), 9 July
1913.
189 (1913) 12 DLR 656; (1913) 4 WWR 1135; 21 CCC 326; 49 CLJ 593. Subsequent
references are to DLR.
190 DLR, at 657. By ‘‘coloured’’ the chief justice obviously meant anyone of
Asian or African descent or a native Canadian.
Notes to pages 90-98 373
191 Ibid., at 660, 661.
192 Ibid.,at 662.
193 Ibid.,at 666.
194 Ibid.,at 667.
195 Ibid.,at 668-69.
196 F. W. G. Haultain sat in the Saskatchewan legislature as Leader of the
Opposition from 1905 to 1912. Following his Conservative party’s
re s o u n d i n g defeat in the July 1912 election, Haultain was appointed chief
justice of Saskatchewan. His close association with Wellington
W i l l o u g h b y , his successor as Conservative leader , may have made him
more attentive to the arguments put on behalf of Quong Wing and
against the Act passed by his political opponents. Regina Morning Leader,
12 July 1912; Stanley Gordon, ‘‘Sir Frederick Haultain,’’ The Canadian Ency-
clopedia (2nd ed.; Edmonton: Hurtig, 1988), 967. (Haultain was knighted
in 1916.)
197 That is, not recorded in the Saskatchewan or National Archives.
198 NA, RG 125 Vol. 340, file 3389, Registrar’s Certificate; Lai, ‘‘Chinese Consoli-
dated Benevolent Association,’’ 59.
199 TLC, Report, 1912, 30-32.
200 TLC, Report, 1914, 76.
201 SAB, Affadavit, 13 August 1913.
202 NA, RG 125 Vol. 340, file 3389, Case on Appeal.
203 Ibid., Case File 3389, Appellant’s Factum.
204 Ibid.,Respondent’s Factum.
205 (1914) 39 SCR 440 at 444. Other reports are found in (1914) 18 DLR 121;
23 CCC 113; (1914) 6 WWR 270. Subsequent references are to SCR.
206 SCR,at 445.
207 Ibid.
208 Ibid.,at 448-49.
209 Ibid.,at 447-48.
210 Ibid.,at 449-50.
211 Ibid., at 465-66.
212 Ibid., at 463-65. Emphasis added.
213 Ibid.,at 451.
214 Ibid.,at 452.
215 Ibid.,at 453-54.
216 Ibid.,at 456.
217 Ibid., at 440, and Case File. The application was made on 16 April and
rejected on 19 May 1914.
218 SCR,at 457.
219 TLC, Report, 1915, 56.
220 Tarnopolsky, Discrimination and the Law, 14-16; Tarnopolsky, ‘‘Supreme Court
and Civil Liberties,’’ 68-70.
374 Notes to pages 98-106
221 ‘‘1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.’’
222 Wickberg, From China to Canada, 120.
223 Project Integrate, ‘‘Chinese Community of Moose Jaw,’’ 10; Lai, Chinatowns,
93-94.
224 Moose Jaw Evening Times 5 March 1912.
225 Ibid., 1 and 30 September 1911.
226 Sec.8above.
227 Wickberg, From China to Canada, 120, acknowledges the ‘‘moral concern’’ but
concludes that ‘‘economic reasons were paramount’’ and the true aim was to
exclude Chinese from the restaurant business.
228 TLC, Report, 1915, 56.
229 This explanation has virtually become standard among analyses of the Chi-
nese situation in BC. For a particularly effective articulation see Ryder,
‘‘Racism and the Constitution.’’ A sophisticating nuance has, however, been
inserted into the debate by Ross Lambertson: ‘‘The state is not so much an
instrument of class rule as an arena of class struggle, a struggle without any
preordained outcome, although the dice are heavily weighted in favour of
the interests of Capital’’ (‘‘After Union Colliery: Law, Race, and Class in the
Coalmines of British Columbia,’’ in H. Foster and J. McLaren, eds., Essays in
the History of Canadian Law, Vol. 6: British Columbia and the Yukon [Toronto:
Osgoode Society and University of Toronto Press, 1996], 405).
230 Makahonuk,‘‘Craft Unionism.’’
231 In February 1914, two years after the Female Labour Act was introduced,
owners of two steam laundries in Regina asked for a $500 annual tax on all
laundries in the city, with the intention of forcing the small Chinese opera-
tors out of competition (Moose Jaw Evening Times, 21 February 1914).
232 Backhouse writes: ‘‘Although the legislation did not directly bar Asian
entrepreneurs from operating restaurants, laundries or other businesses, it
enjoined them from hiring white women, something which was intended to
have significant economic consequences’’ (‘‘Yee Clun,’’ 35, emphasis added).
233 Quoted in (1922) 65 DLR 577, at 582.
234 [1920] 3 WWR 997; (1920) BCR 136.
235 (1922) 63 SCR 293; (1922) 65 DLR 577.
236 DLR,at 586-87.
237 [1923]AC 450.
238 Hansard, 8 May 1922, 1509.
239 SC 1923 c. 38.
240 Senate, Debates, 26 June 1923, 1121.
241 Ibid.,1123.
242 SC 1923 c. 22.
243 Murphy, Black Candle, 138.
244 Ibid.,96.
Notes to pages 107-12 375
245 Regina Daily Post, 17 January 1919.
246 Regina Morning Leader, 8 August 1924. For a scholarly account of this case
see Backhouse, ‘‘Yee Clun.’’
247 Regina Morning Leader, 12 and 13 August 1924.
248 Ibid., 13 August, 24 September 1924.
249 Ibid., 20 August 1924.
250 Ibid.,8October 1924.
251 Ibid., 22 October 1924; [1925] 3 WWR 714.
252 Ibid.,at 715-16.
253 Ibid.,at 716-17.
254 Ibid.,at 717-18.
255 It is tempting to discern a mischievous motive in Justice Mackenzie’s inter-
pretation of the 1919 amendment. Or perhaps he was conscientiously apply-
ing the canons of statutory construction to infer the intent from the text of
the law rather than from the minds of the legislators.
256 SS 1925-26 c. 53.
257 NA, Tarnopolsky Papers, Vol. 43, file 5.
258 Ibid.
259 Ibid.
260 SO 1914 c. 40, s. 2(2).
261 TLC, Report, 1914, 24 and 76.
262 Backhouse, ‘‘Yee Clun,’’ Appendix B, reports a deliberate proclamation of
the Act by an unpublished order-in-council dated 2 November 1920 ‘‘upon
the recommendation of the Honourable the Minister of Labour.’’ Since it was
not published there was no program to enforce the law.
263 NA, RG 25 Vol. 1524, file 867, Chow Kwo Hsien to Ferguson, 31 August
1928.
264 Ibid., Chow to Ernest Lapointe, acting prime minister of Canada, 2 October
1928.
265 Ibid., Chow to W. Stuart Edwards, deputy minister of Justice, 7 September
1928.
266 Ibid., Edwards to Edward Bayly, deputy attorney general of Ontario,
7 September 1928.
267 Ibid., Bayly to Edwards, 15 September 1928.
268 Ibid., G. N. Gordon to Lapointe, 24 September 1928.
269 8 September 1928.
270 2 October 1928.
271 Anne Elizabeth Wilson, ‘‘A Pound of Prevention – or an Ounce of Cure? A
Plea for National Legislation on a Growing Problem,’’ Chatelaine, December
1928, 12, 13, 55.
272 NA, RG 25 Vol. 1524, file 867, Memorandum initialled ‘‘JC’’ to Edwards,
5 October 1928. Premier Ferguson apparently would have welcomed federal
interference, but Mr. Lapointe was reluctant to do so (memorandum ini-
tialled ‘‘HLK’’ to O. D. Skelton, 27 February 1929).
376 Notes to pages 112-16
273 Ibid., W. C. Chen to Sir Austen Chamberlain, British foreign secretary, 11 Jan-
uary 1929, forwarded without comment to Ottawa, 4 February 1929.
274 Ibid., H. H. Ward, deputy minister of Labour, to Laurent Beaudry, External
Affairs, 28 September 1928.
275 Ibid., Chow to Lapointe, 2 October 1928.
276 SO 1929 c. 72, s. 5.
277 NA, RG 25 V ol. 1524, file 867, O. D. Skelton to Chen Kwong Gow, 23 May 1929.
278 Ibid., Li Tchuin to D. C. Draper, 24 October 1929, and to H. W. Walker,
30 October 1929.
279 Gray, Roar of the Twenties, 267-73; Robert Moon, This Is Saskatchewan (Toronto:
Ryerson Press, 1953), 45-47. The Klan did accomplish the dismissal of Chief
Walter Johnson, whose River Street connections were widely known. The
chief returned to public life at the age of 77 in 1939, elected as mayor of
Moose Jaw on a platform of financial reform (Gray, Roar of the Twenties,
270-71; Red Lights, 85). For background on the KKK in the Canadian West,
see Patrick Kyba, ‘‘Ballots and Burning Crosses – The Election of 1929,’’ in
Norman Ward and Duff Spafford, eds., Politics in Saskatchewan (Toronto:
Longmans, 1968), 105-23; Tom M. Henson, ‘‘Ku Klux Klan in Western
Canada,’’ Alberta History, 25 (1977): 1-8.
280 Census of Canada, 1931. Tables 49 and 69 in Vol. 7 give a detailed breakdown
for the gainfully employed in 1921 and 1931.
281 SAB, Charter and Act to Incorporate the Eastern Club, 1915.
282 NA, Case File, Affidavit sworn by Jasper Fish, 31 May 1916. Quong Wing
did, however, pay the respondent’s costs in the Supreme Court of Canada,
amounting to $482.94.
283 Quoted in Anderson, V ancouver ’ s Chinatown, 113; Patricia E. Roy, ‘‘British
Columbia’s Fear of Asians, 1900-1950,’’ Histoire sociale / Social History,13
(1980): 171.
284 Report, 193.
285 [1920] 3 WWR 937; (1922) 65 DLR 577; (1922) 63 SCR 293.
286 Regina v. Millar, (1953-54) 10 WWR (NS) 145.
287 Morgan et al. v. Attorney-General for Prince Edward Island, (1973) 42 DLR (3d),
603; Richard Alan Morgan and Alan Max Jacobson and The Attorney General for
the Province of Prince Edward Island, [1976] 2 SCR 349.
288 McNeil v. Nova Scotia Board of Censors and Attorney General of Nova Scotia,
(1978) 25 NSR (2d) 128.
289 R. v. Thrifty Foods Limited et al., (1981) 3 WWR 626.
290 Corporation professionelle des médecins du Québec c. Richard Riverin, [1984] CSP
1124.
291 R. v. Laybolt and Laybolt, (1985) 54 Nfld & PEIR 51.
292 [1976] 2 SCR 349, at 363. The American appellants in the PEI property case
had cited Bryden as a precedent to deny the provincial government authority
to pass a law restricting aliens.
293 SM 1940 c. 35; SO 1947 c. 102, s. 1; SBC 1968 c. 53, s. 29; SS 1969 c. 24, s. 73.
Notes to pages 116-21 377
3 CHRISTIE V . YORK CORPORATION
1 [1940] SCR 139; [1940] 1 DLR 81.
2 Interviews: Mr. Edward Packwood and Mrs. Ann Packwood, Montreal,
13 June 1988; Dr. Harold Potter, Montreal, 14 June; Mrs. Ann Packwood,
15 June.
In court Mr. Hazen Hansard, counsel for the York Tavern, entered a curi-
ous exchange with Mr. Christie.
Q. Of course, I want you to understand, as far as my personal feelings in
this matter are concerned, they do not count, but it is the fact that you,
Mr. Christie, and Mr. King, are of the coloured race?
A. Yes. . . .
Q. Are you a full blooded negro?
A. Yes.
Q. I notice your complexion is not extraordinarily dark. That is the reason I
ask you?
A. Well, that is a question.
Q. I just merely want it on the record that you are not extraordinarily black?
A. As far as I know.
Q. And similarly I notice Mr. King is not extraordinarily black, is he?
A. No.
(Supreme Court, Case File #6684, ‘‘Evidence on Discovery.’’)
3 Ibid.; interview: Dr. Harold Potter.
4 Supreme Court, Case File #6684, ‘‘Deposition of René St. Jean,’’ waiter. Fred
Christie insisted that he had been served in the new location, but the waiter
claimed that African Canadians had not been admitted since the York
opened in the Forum.
5 Supreme Court, Case File #6684, ‘‘Evidence on Discovery.’’
6 Interviews: Mrs. Martha Griffiths, Montreal, 13 June 1988; Mr. and Mrs.
Packwood.
7 Supreme Court, Case File #6684.
8 J. Cleland Hamilton, ‘‘Slavery in Canada,’’ Magazine of American History,25
(1891): 238.
9 Older accounts of Canadian slavery include T. Watson Smith, ‘‘The Slave in
Canada,’’ Collections of the Nova Scotia Historical Society, 10 (1899), entire
issue; W. R. Riddell, ‘‘Slavery in Canada,’’ Journal of Negro History, 5 (1920):
261-377; W. R. Riddell, ‘‘Notes on the Slave in Nouvelle France,’’ Journal of
Negro History, 8 (1923): 316-30; M. J. Viger and L. H. Lafontaine, ‘‘De
l’esclavage en Canada,’’ Mémoires et documents relatifs à l’histoire du Canada
(Montreal: La Société historique de Montréal, 1859), 1-63; F. W. Harris, ‘‘The
Black Population of the County of Annapolis,’’ in C. I. Perkins, ed., The
Romance of Old Annapolis (Annapolis Royal: N.p., 1925), 60-68. The definitive
study of slavery in New France is Marcel Trudel, L’esclavage au Canada
français (Quebec: Presses universitaires Laval, 1960), to which has been
378 Notes to pages 122-24
added his Dictionnaire des esclaves et de leurs propriétaires au Canada français
(Lasalle: Hurtubise, 1990), which contains an entry on almost every slave
and slave owner in French Canada. Other recent discussions are found in
Robin Winks, The Blacks in Canada: A History (Montreal: McGill-Queen’s Uni-
versity Press, 1971), 1-60; James W. St. G. Walker, A History of Blacks in
Canada: A Study Guide for Teachers and Students (Ottawa: Minister of State,
Multiculturalism, 1980), 19-27; David Bell, ‘‘Slavery and the Judges of Loyal-
ist New Brunswick,’’ UNB Law Journal, 31 (1982): 9-42; Bar