Searching for Fred Christie, the Jamaican immigrant who tried to end legalized racism in Canada

Part of our history:

Fred Christie was no stranger to the York Tavern, a popular watering hole in the old Montreal Forum.

As a season ticket holder, Christie often dropped by the tavern during hockey season.

But this was the summer of 1936, boxing season, and unbeknown to Christie, the rules at the York were different in boxing season.

He walked in with two friends one Saturday night. The tavern was crowded. Christie slapped 50 cents on the table and asked for three beers.

The waiter said no. He explained that he’d been told not to serve black people. Christie went to the bar. The bartender told him the same thing. So did the manager.

So Christie, a private chauffeur, went to court. Eighty years ago this week, the Supreme Court of Canada delivered its ruling.

In a 4-1 decision, the court recognized that staff at the York Tavern had refused to serve Christie “for the sole reason that they had been instructed not to serve coloured persons.”

However, the court concluded, merchants are free to serve who they please, and in turning Christie away, the York “was strictly within its rights.”

And with that, the highest court in the country enshrined racial discrimination in law.

It wasn’t until Quebec passed its Charter of Human Rights and Freedoms in 1975 that Christie vs. York ceased to have effect in the province — and seven years later in the rest of Canada when the federal charter was passed.

Black community rallies

The case has not surfaced in news coverage much since then.

As for Christie, he moved to Vermont not long after the decision and little is known about his life in the U.S.

But a prominent civil rights group in Montreal is using the anniversary of the 1939 Supreme Court decision to seek more recognition for Christie and the legal fight he mounted with the help of Montreal’s black community.

“It’s of major historical importance to the laws of this country and the fight for racial equality — as important as the battle of Viola Desmond in Nova Scotia,” said Fo Niemi, who heads the Center for Research-Action on Race Relations (CRARR).

Niemi is hoping to persuade the federal government to issue a stamp in Christie’s honour or have him declared a person of national historical significance.

In the meantime, local historians are talking to parishioners at Union United Church, Montreal’s oldest black congregation, to gather more details about Christie.

It’s known he arrived in Montreal from his native Jamaica in 1919, settling in Verdun. According to one scholar, that neighbourhood might have appealed to Christie because it was not far from the Forum arena , and he was an avid sports fan.

Legalized racism differed from the U.S.

When Christie decided to take the York Tavern to court, Montreal’s black community rallied behind him. A young doctor, Kenneth Melville, chaired a committee that raised money to cover his legal costs.

Melville, also a Jamaican immigrant, was the first black medical student at McGill University and went on to chair the university’s pharmacology and therapeutics department.

The committee raised enough money by collecting nickels and dimes at barbershops, newsstands and churches.

“The black community was quite concerned about trying to acquire rights at a time when human rights legislation didn’t exist,” said Dorothy Williams, a historian who teaches black Montreal history at Concordia University.

“They were trying to set up an environment where they would have the same liberties and privileges that their white neighbours had.”

Legalized racism operated differently in Canada than in the United States, where a whole regime of segregation was spelled out in the so-called Jim Crow laws.

“Much of the legalized racism in Canada was enabled through private means,” said University of Alberta law Prof. Eric Adams, who has researched the Christie vs. York decision.

By invoking legal principles such as freedom of commerce, Canadian courts chose not to intervene in areas of social life where racial discrimination was occurring.

“The freedom and rights that mattered to the Supreme Court of Canada were the freedoms to conduct yourself in a racist manner,” Adams said.

In the absence of legal principles ensuring equality, which institutions chose to turn away black people at which time fluctuated in a seemingly arbitrary manner.

This helps explain why Christie would have been served at the York Tavern during hockey season but not during boxing season.

“We didn’t have written laws of segregation,” said Williams. “In Montreal, certain customs and mores were in place that made it very clear that certain people were not welcome in certain establishments.”

Law as a double-edged sword

The decision, which only runs 15 pages, was delivered just days after the start of the Second World War.

Writing for the majority, Justice Thibaudeau Rinfret claimed the York’s rule of not serving black people did not violate “good morals or public order.”

Adelle Blackett, a professor of labour law at McGill University, recalled how reading the decision as a first-year law student left her unsettled.

Blackett, who teaches the case regularly, read the decision again on Monday, 80 years to the day after it was delivered.

“I still found it painful, frankly, to read,” she said.

Even the dissent is “not exactly a strong articulation of the importance of human rights,” said Blackett, a former commissioner of Quebec’s Human Rights and Youth Rights Commission.

The lone dissenting judge, Henry Davis, argued the freedom of commerce principle shouldn’t apply because the York was benefiting from the provincial government’s control of the sale of liquor.

“It’s not rights language,” said Blackett. “It’s not: Mr. Christie, by virtue of being a human being deserving of dignity, has the right to be served and not discriminated against.”

“That’s the kind of specific language that comes through a charter of rights.”

The decision helps illustrate the ways in which human rights codes, which began to emerge after the Second World War, contributed to how Canadians interact with each other.

But for legal scholars, Christie vs. York is also a reminder that the law can be a double-edged sword — a source of protection and of oppression.

And that hasn’t changed.

“There is no monopoly on wisdom in our legal order,” said Adams.

Source: Searching for Fred Christie, the Jamaican immigrant who tried to end legalized racism in Canada

Supreme Court says migrants can bring detention challenge to judge

A reminder of legal constraints regarding immigration policy:

Refugee claimants have the right to challenge their prolonged incarceration before a Superior Court judge, the Supreme Court of Canada has ruled.

In a 6-1 decision released Friday, justices ruled in favour of Tusif Ur Rehman Chhina, a Pakistani national who challenged his prolonged detention in a maximum-security remand centre in Calgary. He was detained because he was deemed a security risk.

His case was reviewed regularly by an immigration tribunal, which repeatedly ordered him detained as a flight risk.

The majority of the justices found the tribunal process does not provide for a review that is “as broad and advantageous” as a hearing before a Superior Court.

Chhina had been stripped of his refugee status and ordered deported because he misrepresented his identity to Canadian officials and was involved in serious criminality, including possession of a prohibited weapon, forgery and fraud.

Chhina was removed from Canada in September, 2017 but his legal case carried on, to determine whether the current detention regime is constitutional.

He had argued his charter rights to liberty and freedom from arbitrary detention were violated.

Human rights groups praise ruling

The ruling focused on the legal principle of habeas corpus, which allows someone in custody to go before a judge to challenge a detention. The ruling sets aside an exception that compelled migrants without Canadian citizenship to challenge immigration detention only through immigration tribunals or a federal judicial review.

Human rights groups and refugee advocates welcomed the decision.

Amnesty International said Canada has an international legal obligation to guarantee immigration detainees are able to exercise the right to a Superior Court hearing.

“The right to liberty is a fundamental human right. This decision vindicates immigration detainees who have been denied their liberty for years on end with no meaningful way to challenge that injustice and regain their freedom,” said Amnesty International Canada’s secretary general Alex Neve. “They can now seek justice in superior courts and have their Charter rights protected and enforced.”

‘Devastating impacts’

The Canadian Council for Refugees said detainees don’t always get a fair hearing and incarcerating them can have serious repercussions.

“Detention often has devastating impacts, even when it is only for a short period, particularly for children, refugee claimants, trafficked persons and individuals suffering from mental health issues,” reads a statement.

Swathi Sekhar, lawyer for the advocacy group End Immigration Detention Network, said the high court delivered an “important tool” for migrants to challenge their detentions. In a habeas corpus application, the onus is on the government to prove the detention is lawful, but in a detention review the onus is usually on the migrant to prove they should be released.

“This is one more tool, but more importantly this is one more large step on the road to the abolition of immigration detention,” she said.

Risks for LGBT migrants

There were 11 interveners in the case.

One of them, Egale Canada, said migrants often suffer homophobic violence, while transgender migrants are often detained in facilities that don’t align with their gender identities.

“LGBT people who are detained for immigration purposes face life-threatening conditions and, prior to this ruling, there was no tangible way to challenge these conditions under the current system,” said Egale’s executive director Helen Kennedy.

The ruling may not affect a large number of detainees. According to the recent statistics, just 122 migrants were detained for longer than 99 days over the last quarter.

The decision comes as the federal government takes steps to improve the system in response to sharp criticism of harsh detention conditions and policies.

Scott Bardsley, a spokesman for Public Safety Minister Ralph Goodale, said the government has made improvements to infrastructure and mental and medical health services, while expanding alternatives to detention and the use of provincial jails and reducing the number of minors in detention.

The recently tabled Bill C-98 would create an expanded, independent oversight body to review the CBSA. Bardsley said the bill will allow migrants to file complaints before that body about detentions and the conduct of CBSA employees.

Source: Supreme Court says migrants can bring detention challenge to judge

Sharry Aiken and Stephanie Silverman make the case that A world without immigration detention is possible.

Jehovah’s Witnesses can shun members as they see fit, just like any old bridge club: Supreme Court

Reasonable decision, although I expect some interesting commentary arguing against it:

A new Supreme Court ruling that Jehovah’s Witnesses are free to banish and shun any member they wish, regardless of how they decide to do it, offers a powerful precedent for religious independence in Canada.

It follows years of uncertainty of just how deeply into the waters of faith and doctrine Canada’s judges are willing or able to wade.

Now the limits are clear, thanks to the case of Randy Wall, a Calgary real estate agent and longtime Jehovah’s Witness whose “disfellowship” destroyed his client base and led him to seek redress in the courts. He did not dispute the right of the Highwood Congregation to banish him, but claimed they did so unfairly, without telling him detailed allegations, or whether he could have counsel or a record of proceedings.

The top court’s decision rejects that view, bluntly refers to his “sinful” behaviour, and says it has no business making legal decisions about it.

At issue were two episodes of drunkenness, one in which Wall “verbally abused” his wife, for which he was not “sufficiently repentant,” according to court records. The family was under great stress, stemming from the emotional troubles of their teenage daughter, who had similarly been disfellowshipped, leaving the parents in the strange position of being required by their religion to shun their own daughter. Wall said he was even pressured to evict her from their home.

He convinced a lower court it had the jurisdiction to hear his complaint, because it engaged his civil and property rights. The Alberta Court of Appeal agreed. But the Supreme Court has now said once and for all that the courts ought not to interfere in religious discipline.

To borrow an analogy used by a lower court judge in his case, a church is less like a public company that has to act fairly and more like a “bridge club” that can pick and choose its members — or boot them out — at its own discretion.

Supreme Court Justice Malcolm Rowe borrowed this analogy in his reasons on behalf of the unanimous nine-judge court, one of the last cases under former Chief Justice Beverley McLachlin: “By way of example, the courts may not have the legitimacy to assist in resolving a dispute about the greatest hockey player of all time, about a bridge player who is left out of his regular weekly game night, or about a cousin who thinks she should have been invited to a wedding.”

The discipline panels of voluntary religious groups do not exercise state authority like, for example, a professional regulatory tribunal for doctors or dentists. They are not “public decision makers” whose actions must be subject to judicial review, the court decided.

In this case, Wall has no fundamental right to be a member of the Highwood Congregation, so he does not have a right to procedural fairness in the decision whether to shun him. The group has no constitution or bylaws it must obey. The “disfellowship” may have spoiled his real estate business when other Jehovah’s Witnesses refused to do business with him, but that is likewise not a matter for the courts.

Lastly, and most crucially, this was a dispute over ecclesiastical issues, the court ruled. These cannot be decided by judges. How, for example, could a court of law evaluate the Highwood Congregation’s finding that Wall was not repentant enough for his sins? There is no common law on this, and rightly so, the court found.

“Even the procedural rules of a particular religious group may involve the interpretation of religious doctrine, such as in this case. The courts have neither legitimacy nor institutional capacity to deal with contentious matters of religious doctrine,” Rowe’s decision reads.

The limits of court intervention in religious affairs have not always been so clear.

In 1992, the Supreme Court said churches must show procedural fairness, like any tribunal, and not just issue edicts from on high. That precedent, in which the top court sided with a man expelled from a Hutterite colony, is part of the reason, for example, why the United Church of Canada last year gave up its push to defrock the popular atheist minister Greta Vosper.

Courts are always reluctant to tread on religious freedoms, and have typically intervened in church disputes only after the complainant has exhausted all internal processes.

But once they have, the courts have often heard the appeals, sometimes finding that the internal processes are unfair. Courts have intervened, for example, over the unfair discipline of United Church ministers.

But now the bar is very much higher.

“The Supreme Court’s ruling provides clarity to Canadians that neither courts nor governments can legally compel citizens to associate together unwillingly,” said John Carpay, president of the Justice Centre for Constitutional Freedoms.

Wall could not be reached for comment. The case attracted many intervenors, representing Muslims, Sikhs, various Christian groups, and civil liberties advocates.

Source: Jehovah’s Witnesses can shun members as they see fit, just like any old bridge club: Supreme Court

Insistence on French for SCC judges could block historic appointment of first Indigenous judge – The Lawyer’s Daily

Hard one to balance:

The Trudeau government’s pledge to fill the Supreme Court of Canada’s impending western vacancy with a bilingual jurist who can function in French is liable to block the historic appointment of its first Indigenous judge, lawyers say.

The Indigenous Bar Association (IBA) has pressed Ottawa for years to make an Indigenous appointment to the 142-year-old court and will do so again for the spot that is opening  up when Chief Justice Beverley McLachlin retires Dec. 15, said IBA president Koren Lightning-Earle of Maskwacis, Alta.

However the Trudeau government’s insistence that all its Supreme Court appointees be able to read and understand French, without translation, is an additional and unfair hurdle for Indigenous candidates and a “detriment to Canada,” Lightning-Earle told The Lawyer’s Daily.

If the government “starts to think outside the box on what the language prerequisite actually means to Indigenous people, and [to] truly understand history and reconciliation … then they’ll understand why the [French] language prerequisite is ridiculous,” she explained. “Our first language is our Indigenous language. And then we were sent to residential school where we were told we were not allowed to speak our language, and we were forced to speak a colonial language [English]. And now we have to speak another colonial language — just to get a seat at the table!”

The Trudeau government vowed during the election to appoint only Supreme Court judges able to function in both English and French. This was in response to concerns expressed by Quebecers, Acadians and other francophones outside Quebec that it does a disservice to their appeals when the top court’s anglophone judges can’t understand nuanced French oral argument (because interpretation is not always perfect) or read French written briefs and supporting materials (which are usually not translated).

However Lightning-Earle points out the prime minister and his government have also committed to reconcile with Indigenous peoples, as a top priority. “You don’t just get to put up a barrier and say ‘Well this is our requirement’ — without acknowledging the history — which is the spirit and intent [of] the reconciliation that the government supposedly signed on to,” she remarked.

Certainly the language prerequisite is a major obstacle for Indigenous candidates. There are, at most, a handful of Supreme Court-calibre Indigenous jurists in the west who are able to understand and read French without translation. Saskatchewan provincial court judge Mary Ellen Turpel-Lafond, who is Cree, is one, as is Vancouver litigator and Indigenous law expert Jean Teillet, who is Métis.

“There are barriers that Aboriginal lawyers and judges face that non-Aboriginal people don’t face,” Teillet told The Lawyer’s Daily. “And language is always one of those things. And so putting that kind of qualification on a Supreme Court appointment … will mean, as a fact, that we will have not an Aboriginal judge on the Supreme Court of Canada for a very long time. It won’t be because there are not really excellent Aboriginal lawyers and judges who are capable — more than capable — of doing the job. It will be because of the language barrier.”

Among those who appear to be affected is internationally acclaimed Indigenous law scholar John Borrows, 54 — who many see as a star candidate.

A member of the Chippewas of the Nawash First Nation on Georgian Bay, Borrows is currently in immersion French studies in Montreal. He is a visiting professor at McGill University’s faculty of law where he is learning about the civil law while on sabbatical leave from his post as Canada research chair in Indigenous law at the University of Victoria’s faculty of law, where he is co-developing the first joint program in Canadian common law/Indigenous law, expected to start up in 2018.

Osgoode Hall Law School dean Lorne Sossin believes Borrows “would be an outstanding choice to join the court.” He should not be blocked as he gets his French up to speed, Sossin opined.

Source: Insistence on French for SCC judges could block historic appointment of first Indigenous judge – The Lawyer’s Daily

Supreme Court of Canada appeal on expatriate voting rights – February 16 schedule

Will be interesting to see if the SCC accepts federal government arguments that the case is now moot given the provisions in Bill C-33. Unlikely that their will be any change due to the Cabinet Cabinet shuffle and the replacement of Maryam Monsef by Karina Gould, the new Minister for Democratic Institutions:

A federal law barred Canadians from voting in federal elections if they have lived abroad for more than five years. In Gillian Frank, et al. v. Attorney-General of Canada, two Canadian academics at Ivy League universities say that law violated the constitutional right of all citizens to vote. One judge of the Ontario Court of Appeal agreed, saying the law turned them into second-class citizens, and that even federal prisoners have a constitutional right to vote; but two judges said the government had put a reasonable limit on that right, because expatriates don’t live with the daily consequences of their voting decision. The Liberal government has since introduced a law to repeal the legislation barring voting from abroad, but it has not passed yet. The government argues the case is now moot; the court has not decided yet whether it is.

Source: A preview of the Supreme Court of Canada’s winter session – The Globe and Mail