‘Free to Deal as He May Choose’: The Displacement of ‘Freedom of Commerce’ as a Necessary Condition to the Creation of Canadian Multiculturalism

Abstract

In the 1940s the Canadian legal system was one which seemed incapable of recognizing racial discrimination as a problem worthy of jurisprudential attention. The 1939 Supreme Court of Canada decision in Christie v York Corporation confirmed that the owners of a tavern were entitled to refuse to serve a black man; in the infamous case of Viola Desmond, the courts held that a theatre owner was within its rights to segregate seating on the basis of skin colour. Excepting marginal voices expressing concern, no significant protest was raised against the court decisions. Sixty years later, facts virtually identical to those found in the Christie case resulted in a large monetary penalty being levied against the offending bar owner—like an inversion of Christie before it, the decision was so congruent with contemporary sensibilities that it occasioned virtually no comment. Using the Christie and Desmond cases and the introduction of the Charter of Rights and Freedoms as focal points, this paper traces the linguistic and legal changes which help explain such radically different responses from the legal system.