Saturday, November 12, 2016

#WS3330F Blog Post #15: Nancy Turner - Racial Segregation and Litigation in Canadian History

Racial Segregation and Litigation in Canadian History.
Nancy Turner

When many think of racial segregation, most would probably think of Brown v. Board or Rosa Parks in the US rather than the history of Canadian racial segregation. Racism in Canada is severely overlooked, Judge John Sprott Archibald argued in 1899 “Slavery never had any wide influence in this country […] All men are equal before the law and each has equal rights as a member of the community”. Revisionist history like this has helped to hide the very real influence of racism present in Canada from the country’s inception. Walker Barrington’s book The African-Canadian Legal Odyssey reveals this secret past, bringing to the surface the stories and legal battles of those who questioned the discrimination they faced in Canada.

The first case I explored was that of Viola Desmond outlined by Constance Backhouse in Chapter 5. On the 8th November 1946, Black Business Woman Viola Desmond decided to watch a film at the Roseland Theatre in New Glasgow, Nova Scotia. When attempting to take up a downstairs seat in the theatre she was told by the ticket attendant that these seats were reserved for white people and she must sit on the balcony section of the theatre. Viola refused to move and was forcefully ejected, arrested, detained over night, and fined. Viola’s case is arguably the most well known in Canadian history and has been given some acknowledgment in Canadian culture for example the incident was made into a Canadian Heritage minute on TV (; however, clips such as these oversimplify the dynamics of Viola’s case.

Firstly, while the Heritage Minute creates the impression that the community stood behind Viola completely, Constance Backhouse’s chapter complicates this. Viola did have some support from the community, for example her friend Pearleen Oliver convinced the Nova Scotia Association for the Advancement of Coloured People (NSAACP) to provide legal support in Viola’s appeal case. However, there were still many who were reluctant to support Viola’s case fearing racial backlash, questioning the use of law to stop segregation and generally questioning if segregation in theatres was a pressing matter.

Secondly, although Pearleen Oliver argues the case touched a nerve in the Black community and enhanced the prestige of the Black community throughout the province; as a matter of legal precedent the case was a complete failure. The case and verdict were clouded by technicalities and refused to explicitly discuss the racial discrimination at hand.  Viola’s Lawyer (William Bisset) framed his legal review in racially neutral terms and the case was thrown out by the judge due to wrong use of legal review – the fact that Viola was Black was never even mentioned on the official record. As a result, to many it appeared clear that courts were not willing to defend individuals from racial discrimination or even acknowledge its existence and there was subsequently an increase in racist attacks in New Glasgow.  

Chapter 7 and 8 go on to discuss the case of Christie v. York. In 1938 the York Tavern in Montreal moved from its old location to the Montreal forum and with this move created a policy of refusing to serve Black people. Fred Christie had frequented the York Tavern in its original location but when Christie attempted to order himself and two friends a beer in the new location he was informed that he could not be served. Outraged Christie took this incident to court. Christie was initially successful in court winning his case on the basis that the tavern had violated section 33 of the Quebec Licence Act - No licensee for a restaurant may refuse without reasonable cause, to give food to travellers". However, the verdict was successfully appealed in 4-1 vote in the Supreme Court that found the Quebec Licence act not applicable. Just as in the Viola Desmond case, the court set a precedent that the freedom of commerce was more important than the freedom from discrimination.

One of the most interesting aspects of the Christie v. York case is the way in which Christie was introduced throughout the case that Eric Adams explores in Chapter 8. Justice Davis described Christie as a gentleman that had lived in Canada for 20 years, rooted him in a province a city and a suburb The fact that Christie had white friends was also deemed important and it was even made clear on the record that Christie was “not extraordinarily black”. Moreover, the fact that Christie was a Hockey fan and possessed a hockey season ticket was repeatedly mentioned and the entire case incident was understood as having happened after a hockey game – even though evidence shows that there were no hockey games on that day. Hockey became a shorthand way of understanding Christie as Canadian and a part of white Canadian culture. In the words of Adams the case implied “He deserves equal treatment not because of any free-standing abstract individual right to equality, but because, in a very real and practical sense, he is already a functional and accepted member of the city. Hockey tells us so.”

In the same way as Christie was repeatedly understood as a gentleman, Viola’s case was repeatedly framed as the injustice of a respectable lady being mistreated by thuggish, hostile men. It appears clear that throughout Canadian history if cases of racial discrimination are to be taken seriously enough to get to court the Black victims of discrimination must “act white”. The defence of the York Tavern even argued that part of the reason that Christie had been served in the past was because he had been mistaken for being white. It is clear therefore that that racial equality is not understood as a human right but instead as a right that is allowed if individuals “pass” as white.

Has this changed?

When you look at the demonization of movements such as Black Lives Matter movement by many that see it as too violent and aggressive it is clear that there is still a greater respect given to those that protest against their discrimination in a way that is quiet, restrained and put simply: “white”.

Interesting speech about “acting white”:

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