'Free to Deal as He May Choose': The Displacement of 'Freedom of Commerce' as a Necessary Condition to the Creation of Canadian Multiculturalism

My friend Bob Tarantino has recently published a really interesting article in Volume 39 of the Common Law World Review titled 'Free to Deal as He May Choose': The Displacement of 'Freedom of Commerce' as a Necessary Condition to the Creation of Canadian Multiculturalism. It's a mouthful of a title, but the article does a great job describing the evolution of how racial discrimination in public accommodations has been treated by the Canadian legal system. Instead of trying to summarize it myself, here's the abstract:

In the 1940s the Canadian legal system was one which seemed incapable of recognizing racial discrimination as a problem worthy of jurisprudential attention. The 1939 Supreme Court of Canada decision in Christie v York Corporation confirmed that the owners of a tavern were entitled to refuse to serve a black man; in the infamous case of Viola Desmond, the courts held that a theatre owner was within its rights to segregate seating on the basis of skin colour. Excepting marginal voices expressing concern, no significant protest was raised against the court decisions. Sixty years later, facts virtually identical to those found in the Christie case resulted in a large monetary penalty being levied against the offending bar owner--like an inversion of Christie before it, the decision was so congruent with contemporary sensibilities that it occasioned virtually no comment. Using the Christie and Desmond cases and the introduction of the Charter of Rights and Freedoms as focal points, this paper traces the linguistic and legal changes which help explain such radically different responses from the legal system.

For one thing, I think the article is a nice corrective to a tendency among Canadians to think that racism and segregation only occurred in the United States. Although Canada was probably never as bad as the American South, the country still had its share of ugly events.

The rest of this post is my free-associating with some half-baked thoughts that came to mind while I read the piece.

Implicit in the article is the fascinating issue of whether the common law (in the absence of statutory guidance) should reflect contemporary moral abhorrence of discrimination. When it comes to racial discrimination in privately-owned and operated pursuits (stores, restaurants, buses, etc.) the article notes that "The initial position, exemplified by the Christie decision, is one where the principle of 'freedom of commerce' not only dominated the legal norms governing the interaction of individuals, but the notion of 'freedom from discrimination' was not articulated, or even articulable, in the language of the law." The article then notes that this paradigm has shifted considerably since that point.

I wonder, however, if the initial position ("freedom of commerce") makes a certain kind of sense even though it leads to morally reprehensible outcomes. The default position for the common law is traditionally one of non-interference with private dealings unless the two parties owe a duty to one another (in contract or a duty of care). The sorts of damages the common law traditionally concerns itself with (economic loss, physical harm, reputational damage, and--at the outer limits and of contested degree, extreme emotional distress) are not necessarily the sorts of damage suffered during discrimination (though they could be, in certain cases). Allowing courts to create a common law cause of action for discrimination seems to stretch the traditional boundaries of what is justiciable (despite the strong public policy interest in deterring discrimination). Of course, since each province and territory has a rigorous regime of civil human rights legislation, the issue of how the common law treats discrimination has become far less pressing in recent decades.

Another related phenomenon I've noticed among courts and commentators is a sort of "retro-fitting" of statutes (even when their constitutionality is never in question) with Charter values like equality, multiculturalism, and freedom of expression. I've even seen discrimination statutes labelled "quasi-constitutional," as if they're somehow immune from repeal or the other vagaries of the legislative process, and the Supreme Court of Canada has worsened this tendency with the Vriend case.

The Charter of course, is a negative rights document--it governs the relationship of what the government can and cannot do to individuals. The trend I've noticed among jurists and scholars, however, is a tendency to stretch the meaning of these laudable Charter values as if they were also mandatory for the way private individuals treat other private individuals, turning the document from a Bill of Rights to a Uniform Guide to Good Citizenship.

At first glance, of course, this seems great--who doesn't want equality or freedom of expression? But a corporation may very well be within its rights to limit the sort of criticism its employees can make about it, a parent doesn't have to treat their kids as innocent until proven guilty, and a church is completely justified when it discriminates on the basis of religion when making leadership determinations.

I'm not sure if what I'm trying to say is at all clear, but I think it comes down to this: the traditional hiearchy of "Constitution trumps statute, statute trumps common law" is becoming blurred in Canadian law. Instead, a fuzzy set of "values" are seen as mandatory and applicable to every legal question and a subset of traditional statutes (those dealing with discrimination) are becoming viewed as equivalent (morally and legally) to the Charter. This may mean that those aspects of the human rights regime we all agree are important (prohibiting discriminatory acts) lend the glow of Charter-compliance to other aspects that many civil libertarians see as quite problematic (those prohibiting "hate speech").