Legal History

Module 8

Professor John Allen

Civil Liberties - Protection of Human Rights
(1) What is the Canadian legal history of discrimination?

(2) Which legal rights need protection?

(3) How does Canadian law protect human rights today?

Discrimination in Canada - First Nations
● Ignored Royal Proclamation 1763
○ See Lecture 2 - All land not ceded or sold by Indians shall be reserved for Indians as their
Hunting Grounds. Indian Nations could choose to make treaties and sell to Crown
○ Indian Reserve - all lands west of the Appalachian Mountains
○ But SCC in 1887 held: the Indian rights are “usufructuary” and only gave Indians the right to
use the land. As a result of conquest, the Crown can extinguish such rights if it wishes to (St.
Catharines Milling and Lumber Co. v. R.) link
● Ignored promises made during War of 1812 (Treaty of Ghent 1814)
○ Had Tecumseh and Shawnee not fought with the British, Ontario would have been conquered
○ After war, as part of compromise, Indian lands given to USA despite promises made. First
Nations not included in the negotiations.
First Nations, continued
● Indian Act, 1867 - bureaucratic control of First Nations
○ Complete control over Indian lives; no private property rights; treated as wards of the State…
discouraged from using labour saving farming machines link
○ Policy of small farms for First Nations, allowing excess land to be sold to White farmers.
● Residential schools - cultural genocide
○ PM MacDonald - “Take the Indian out of the Indian”
○ See Lecture 2 - Report of the Royal Commission on Aboriginal Peoples - 1996
○ Chief Justice McLachlin, comments in 2015: “...'Indianness' was not to be tolerated; rather it
must be eliminated. In the buzz-word of the day, assimilation; in the language of the 21st
century, cultural genocide." Globe and Mail interview
Discrimination in Canada - Anti-Black
● Although the slave trade was abolished in 1807, slavery was still legal in most
of Canada until abolished throughout the British Empire in 1834
● 1793 - Ontario Lieut. Governor Simcoe banned the importation of slaves and
granted freedom to child slaves once they were 25 years old.
● Many White “Loyalists” who left the USA brought their slaves with them as
“property”
● Slavery in Canada continued, on a smaller scale than in Southern USA which
had large plantations. USA Plantation owners feared slave revolts and were
very repressive. They prohibited any education of slaves.
Discrimination in Canada - Anti Chinese
● Chinese workers came to British Columbia in the late 1800s, for mining and to
build the railway.
● Then restrictions and “head” taxes on each immigrant of Chinese descent.
● Voting restrictions for Chinese Canadians until 1947 (link)

● Imprisonment of Japanese during WWII - and their property was never

returned
Discrimination in Canada - antisemitic
● Jewish - treated as a “foreign” threat.
● Antisemitic residential segregation prevalent during the 1930s and 1940s,
through restrictive covenants for the sale of land.
● Between 1930 and 1939, Canada rejected almost all Jewish refugees from
Nazi Europe, taking in only 4,000 of the 800,000 Jews looking for refuge.
Discrimination in Canada - Anti Islam
● Islamophobia
● Face covering bans in Quebec
● Notion of liberating “their” women
● Attacks on mosques
Discrimination in Canada - more examples
● Anti-2SLGBTQIA+
● Homosexual acts were a crime
● In 1969, de-criminalized if 21 years, but must be in private/hidden
● Not legal in public

● Anti-Feminist
● Women were not “persons” who could become a senator until 1929

● Why has there been systemic discrimination in Canada?

Women’s rights - Review Lecture 3
● Common law doctrine was that, upon marriage, a woman's legal rights were
subsumed by her husband. (Two people “joined into one” - “Man and wife” -
she to: “love honour and obey”)
● An unmarried woman had the right to own property and make contracts in her
own name.
● But a married woman? “Coverture” - husband and wife became one person.
Wife could not separately own property, make a contract, or make a will.
● Coverture was enshrined in the common law of England for several centuries
and throughout most of the 19th century.
Old English Common Law
● Under OLD English common law, "the husband cannot be guilty of a rape
committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given herself up to her husband, consent
which she cannot retract". (link)
● By consenting to marriage, a wife had given her body to her husband and
also gave irrevocable consent to sexual intercourse with her husband.
Property Rights - Are they important?
● Women were often limited in what they could inherit.
● Eldest son was most likely to receive real property (land), while the rights of
women and younger sons were limited.
● If there was no will, the English law of primogeniture automatically gave the
eldest son the right to all real property, and the daughter only inherited real
property in the absence of a male heir.
● The law of intestate primogeniture remained on the statute books in Britain
until the 1925 property legislation simplified and updated England's law of real
property.
Property Rights
● In 1897, Ontario adopted the Married Women’s Property Act, which allowed
married women to own their own property and make contracts.
● In 1980s, Family Law property legislation required the equal division of the
gain in value of family property during the marriage.
● Why did the law change at that time? What caused the change in attitude?
These are questions for the historian.

● DEBATE: Should property be a protected Charter right?

Christie v. York Corporation - 1940 - Supreme Court
● Christie entered a tavern in Quebec
● Refused service because of the colour of his skin
● Supreme Court:
○ The general principle of the law of Quebec is that of complete freedom of
commerce.
○ Any merchant is free to deal as he may choose with any individual member of
the public.
○ It is not a question of motives or reasons for deciding to deal or not to deal:
he is free to do either.
● Whose freedom is at stake?
Second World War
● Holocaust - 6 million Jews murdered by the Nazis
● Nazi genocide against Jews, the Roma, and other minorities
● Canada and the United States had concentration camps for Japanese “aliens”
● Japanese property was taken as part of their incarceration
● Soviet Union collectivization - millions imprisoned without a charge
● Millions in Russia and Ukraine died of starvation during the 1930s
● 70-85 million died in WWII
● 1948 - Universal Declaration of Human Rights
Post WW2
Legislation After WW2

● Ontario passed Racial Discrimination Act in 1944

● Ontario Humans Rights Code - the first in Canada, was enacted in 1962.

Federal - Canadian Human Rights Act - 1977

● Applies to federal government and private sector matters under section 91 of

the BNA - for example, banking law
Switzman v. Eibling (1956)
● Quebec statute prohibited any person to make use of property to propagate
communism or bolshevism by any means whatsoever.
● The Quebec Attorney General closed a house, and it raised the issue
regarding the cancellation of a lease.
● Supreme Court: It was in pith and substance a criminal law statute - not a
private matter or civil law regarding defamation, but “the aim of the statute is,
by means of penalties, to prevent what is considered a poisoning of men’s
minds.”
Switzman v. Eibling (1956) cont’d
● The opening words of the preamble of the Constitution of 1867, reciting a
constitution “similar in principle to that of the United Kingdom”
● “Whatever the deficiencies in its workings, Canadian government is in
substance the will of the majority expressed directly or indirectly through
popular assemblies. This means ultimately government by the free public
opinion of an open society…”
● “But public opinion, in order to meet such a responsibility, demands the
condition of a virtually unobstructed access to and diffusion of ideas.”
1982 Canadian Charter protections
Fundamental freedoms…

● Conscience, religion, thought, belief, opinion, expression, freedom of the

press
● Peaceful assembly
● Freedom of association
● Life, Liberty and Security of the Person

Equality rights

● Not just equal protection of the law, but equal BENEFIT of the law
● Permits affirmative action programs
Ontario Human Rights Code and Tribunal
● “Whereas recognition of the inherent dignity and the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world and is in accord with the Universal Declaration of
Human Rights as proclaimed by the United Nations” (Preamble)

● After WWII, the Universal Declaration of Human Rights was drafted by

representatives with different legal and cultural backgrounds from all regions
of the world, and proclaimed by the United Nations on 10 December 1948
Ontario Human Rights Code and Tribunal
● Every person has a right to equal treatment with respect to services, goods
and facilities, without discrimination because of race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender
identity, gender expression, age, marital status, family status or disability. (s.1)

● Equal treatment for accommodation, contracts, and employment.

● Equal treatment for those with a disability.

● More expansive protections than 1982 Charter of Rights - why?

Constructive discrimination
s.11 A right of a person under Part I is infringed where a requirement,
qualification or factor exists that is not discrimination on a prohibited ground but
that results in the exclusion, restriction or preference of a group of persons who
are identified by a prohibited ground of discrimination and of whom the person is a
member, except where,

a. the requirement, qualification or factor is reasonable and bona fide in the

circumstances; or
b. it is declared in this Act, other than in section 17, that to discriminate because of
such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1).
Duty to accommodate
1. The Tribunal or a court shall not find that a requirement, qualification or factor
is reasonable and bona fide in the circumstances unless it is satisfied that the
needs of the group of which the person is a member cannot be
accommodated without undue hardship on the person responsible for
accommodating those needs, considering the cost, outside sources of
funding, if any, and health and safety requirements, if any.
Exemptions
1. A right under Part I is not infringed by the implementation of a special program
designed to relieve hardship or economic disadvantage or to assist disadvantaged
persons
2. A right is not infringed for the reason only that the person is incapable of performing or
fulfilling the essential duties or requirements attending the exercise of the right because
of disability.
3. No tribunal or court shall find a person incapable unless it is satisfied that the needs of
the person cannot be accommodated without undue hardship on the person
responsible for accommodating those needs, considering the cost, outside sources of
funding, if any, and health and safety requirements, if any.

KAHOOT