Silent All These Years: Public Policy, Expressive Harm, and the Legacy of Christie v York Corporation.

• Author: Thomson, Jane

1. Introduction

   Twenty years ago, Chief Justice Beverly McLachlin (as she then was) wrote of the vital role played by judges in preventing discrimination and building a society rooted in dignity and respect for all. (1) She sketched out three phases in the evolution of law's relationship to racism in Canada. In the first phase, from the start of colonialism to the mid-twentieth century, Canadian law actively supported and enabled the subordination of non-white racialized social groups, and the courts applying those laws largely followed suit. As a case in point from this era she cited Christie v York Corporation, (2) in which the Supreme Court of Canada upheld the right of business owners to engage in race discrimination on the grounds of freedom of commerce. The next two eras she identified (of equal opportunity and then substantive equality) sought to undo the legacy of decisions like Christie by developing an increasingly muscular approach to race discrimination, one that saw a closer link between de jure and de facto equality. (3) Notably, these eras saw the introduction of robust public law measures such as provincial, territorial, and federal human rights legislation and the entrenchment of Canada's Charter of Rights and Freedoms, (4) Her account explains how the Supreme Court was instrumental in not only applying these tools but interpreting them in a fashion that encouraged substantive rather than formal equality in Canada.

   Chief Justice McLachlin's account of public law's evolution and the Supreme Court of Canada's role in dismantling systemic inequality is heartening, but it tells only half of the story. It fails to account for the very different trajectory-one of failure, avoidance, and silence-that the Supreme Court has followed when faced with instances of discrimination in the private law. Indeed, an early and egregious example of its failure to recognize and uphold basic principles of equality through the application of private law doctrine occurred in Christie. While this case was referenced by Justice McLachlin as a relic of a bygone time that preceded the Charter and human rights legislation, the fact remains that even in 1937 the Supreme Court of Canada possessed the necessary legal tools to censure the discrimination at issue. A central argument advanced by Fred Christie's legal team was that race discrimination was contrary to Quebec's "good morals or public order," the province's codified version of the common law doctrine of public policy. The Supreme Court held that it was not.

   Remarkably, Christie represents the last time the Supreme Court of Canada considered the issue of public policy and discrimination within the private law, despite several opportunities to do so over the 80+ years since the decision was handed down. While lower courts in Canada have since used the doctrine as a means of voiding discriminatory provisions in wills, trusts, and restrictive covenants, the Supreme Court, when presented with the opportunity to rule on this area of law, has remained silent.

   The substantive harms of Christie have been well documented by other scholars. The primary focus of this paper is on the expressive harm caused by that decision and by the Supreme Court of Canada's subsequent avoidance of the question of public policy's application to discrimination in the private law. "Expressive harm" is the injury stemming from the expression of a negative or inappropriate attitude that is distinct from its subsequent, material consequences. (5) The harm lies in the expression itself and the message it sends. Canadian courts have implicitly recognised the concept of expressive harm before. For instance, the Supreme Court has been willing to limit state action on the grounds that it sends a harmful message impairing the status of vulnerable groups in society, without requiring evidence of further material harms. (6)

   This paper begins with a brief overview of the doctrine of public policy and its role in curbing discriminatory private law arrangements in Canada. We then provide a counter-narrative of sorts to that proposed by the former Chief Justice. We adopt her same starting point: the era of judicially sanctioned racism, marked by the Christie decision in 1939. We review Christie in detail, explaining how and why the Court could and should have found that the discrimination at issue contravened public policy. We then discuss the expressive harm of the decision, contrasting the messages conveyed by both the majority and dissenting reasons in Christie with contemporaneous judgments condemning discrimination.

   Next, we consider "the era of avoidance," characterized by the case of Noble and Wolf v Alley in 1950 (7) and later Seneca College v Bhadauria (8) in 1981, in which the Supreme Court of Canada avoided any pronouncement on the doctrine of public policy's application to discrimination. We explain that although these cases are separated by over 30 years, they both represent a missed opportunity to overturn the Court's decision in Christie. We highlight the expressive dimension of the judgments and the somewhat ironic coincidence of Chief Justice Bora Laskin's involvement in both cases.

   In the final part of this paper, we examine the post-Charter "era of silence", in which the Supreme Court has declined to grant leave in cases involving the application of public policy to instances of discrimination in private law. (9) We argue that its decision not to hear the cases in this area at all fosters a harmful silence on the propriety or legitimacy of discrimination in the private law.

   Through this counter-narrative we demonstrate that the expressive harm from the Supreme Court's judgment in Christie, which condoned and legitimized racist behaviour by private establishments in Canada, is rivalled by the Court's subsequent failures to overturn that decision or to directly address the issue of public policy's application to discrimination in the private law. Of course, not every instance of discrimination in the private law will, if challenged, be voided for reasons of public policy. (10) However, when faced with future cases concerning discriminatory wills, scholarships, and trusts, the Court must take the opportunity to acknowledge that the discrimination faced by Fred Christie in 1937 was contrary to public policy then, just as it is today. We maintain that the reversal of Christie is not simply about redressing the harms of that decision; it is about the Supreme Court acknowledging and engaging with the problem of discrimination in both public and private law and, in doing so, upholding the values of Chief Justice McLachlin's era of substantive equality in Canada.

2. The Doctrine of Public Policy and Discrimination in the Private Law

   The practice of voiding otherwise legal operations of the common law that contravene public policy dates back centuries." Some of the doctrine's earliest applications involved the voiding of contracts that sought to restrain trade, (11) or clauses in wills that contained restrictive conditions concerning a beneficiary's ability to marry. (13) In the 18th century jurists began to refer to it as a doctrine of public policy aimed at ensuring the common good of the community, its power rendering void that which is against the public good. (14)

   Judicial determination of what constitutes "the public good" is a contextual exercise without clear or consistent legal parameters. (15) As a result, most courts treat the doctrine as something to be used sparingly and cautiously. (16) Indeed, there have been some historical attempts to limit the development of the doctrine or even eradicate it completely. (17) Nevertheless, the doctrine has endured and evolved, and has been applied by all levels of court in Canada. (18)

   What is considered in keeping with public policy is informed by a variety of sources including, chiefly, other existing laws and policies of a given jurisdiction. As Bruce Ziff has noted, "[c]ourts look to legislation in pari materia for guidance as to the current state of public policy. It operates to complement extant statutory and other provisions: to fill gaps where necessary." (19) Public policy decisions by Canadian courts have been informed by Canada's Constitution (20) and its democratic system of government, (21) federal and provincial statutes, (22) principles of the common law and previously established heads of public policy, (23) political speeches, (24) and, after its adoption in 1982, Canada's Charter of Rights and Freedoms, (25)

   One of the doctrine's contemporary and for many years uniquely Canadian applications (26) is its use to censure discrimination within private law. Over the past half century, Canadian lower courts have invoked the common law doctrine in the areas of estate law, the law of trusts, and property law to void conditions on a testamentary gift, a trust, or a land covenant that discriminated on grounds such as race, religion, or ethnicity. (27) Absent from the jurisprudence, however, is any contemporary Supreme Court of Canada ruling on how the doctrine of public policy should be applied to discrimination in the private law. Indeed, the last time the Court opined on the subject at all was to hold that the policy of a Montreal tavern not to serve Black patrons was in keeping with public policy.

3. The Era of Judicially Sanctioned Racism: Christie v York Corporation

   While the Supreme Court of Canada had heard and pronounced on challenges to other racist laws both before and after 1940, (28) the majority decision in Christie has become emblematic of judicially sanctioned racism against Black Canadians.

   Fred Christie was a Black resident of Montreal who was refused service by the York Tavern in 1936 because of his race. On the night in question Christie was accompanied by two of his friends, one White and the other Black. After being refused service by their waiter, a bartender, and an assistant manager, Christie called the...