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

Preface

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 Canadian 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 definition of racism, in legal and in popular parlance, becomes all the more urgent. That is why James Walker’s cool, complex, vivacious reconstruction 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 examination 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 Judicial Committee of the Privy Council were not. Each dramatically illustrated 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 context ,’’ all around us in the forms of explicit rules, judgments and habituated 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 malice , 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 condoned racism as relatively right for that era, and about the presentist who recognizes those past laws as wrong because present laws and values 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, especially 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 ...