Did the Supreme Court pass the buck on Viola Desmond?

Background

It is well known that, on November 8, 1946, Viola Desmond was convicted and fined for defrauding the government for sitting in the wrong place at the Roseland Theatre in New Glasgow, Nova Scotia. Although she offered to pay the difference between the upstairs and downstairs tickets, she was still arrested and detained. In an interview with the Toronto Daily Star, Henry MacNeil, the manager of the Roseland Theatre, later admitted that there was no explicit rule that black persons were prohibited from sitting in the downstairs area.

Ms. Desmond’s stand against racism and injustice has made her a symbol of heroism in the fight against inequality. What is not well known, however, is that she started two civil actions for personal injury damages following her fateful incident at the Roseland Theatre. Her civil actions were short lived, eventually being abandoned after an unsuccessful attempt to have her conviction set aside. Although her civil actions faded into the backdrop of history, they show that Ms. Desmond’s dignity was not the only thing affected by her forceful ejection and discrimination by the Roseland Theatre.

It is possible that at the time our Courts passed the buck on Ms. Desmond. Perhaps they felt more comfortable dismissing her attempt to set aside her conviction based on a technical issue rather than assessing the merits of her conviction. The technical issue was that Ms. Desmond’s lawyer, Frederick Bissett, missed the 10-day timeline for appealing her conviction. When Mr. Bissett realized he missed the deadline, he still tried to set aside the decision by filing an application for certiorari. In an application for certiorari, a higher court reviews the record of a lower court decision to determine whether it should be set aside or “quashed” on the basis of a procedural or substantive error. In our opinion, the Supreme Court’s equitable jurisdiction would have allowed it to set aside Ms. Desmond’s conviction even though the appeal timelines were not met. The Supreme Court’s equitable jurisdiction empowers it to make decisions based on general principles of fairness, rather than strictly adhering to the rigid rules of the common law.

Why did the Supreme Court refuse to do this? It is possible that the court was sympathetic to Ms. Desmond and the black community. But it is also possible, and more likely, that they did not want to issue a decision that would upset conservative members of the white community in Nova Scotia. Rather than render a decision that may have caused political upset one way or the other, the Court said they had to dismiss Ms. Desmond’s case because her lawyer did not file the proper paperwork within the prescribed timelines.

The Story

Ms. Desmond received injuries as a result of her forceful removal from the Roseland Theatre in New Glasgow on November 8, 1946. A few days after the incident, Ms. Desmond visited a doctor in Halifax to receive treatment for her bruises and an injured knee and hip. After examining her injuries, the doctor advised Ms. Desmond to see a lawyer. Ms. Desmond followed this advice and retained the legal services of Frederick W. Bissett, a sole practitioner in Halifax. She also received support from the executive of the Nova Scotia Association for the Advancement of Coloured People.

On November 14, 1946, Mr. Bissett commenced a civil action against the Roseland Theatre Company Limited and Henry MacNeil, the manager of the theatre, for personal injury damages arising from false imprisonment, assault, and malicious prosecution. This was only an action for monetary compensation. Mr. Bissett did not an attempt to set aside Ms. Desmond’s conviction until December 27, 1946, when he filed an application in the Supreme Court for a writ of certiorari to have Ms. Desmond’s conviction set aside. The conviction was challenged on two grounds: (1) that there was no evidence to support the conviction; and (2) that there was evidence showing that Ms. Desmond was innocent.

Ms. Desmond’s civil actions and appeal of her conviction were featured in The Clarion, a newspaper published by Carrie Best. The Clarion started as a one page newspaper covering events within Carrie’s community and the Second Baptist Church in New Glasgow, and eventually progressed into a black rights advocacy newspaper. Its famous article on Ms. Desmond is seen below.

Ms. Desmond’s application for certiorari was heard by Mr. Justice Maynard Brown Archibald of the Nova Scotia Supreme Court. Mr. Justice Archibald dismissed the application in his decision dated January 20, 1947, on the basis that a writ of certiorari was not the proper procedure for a review of the evidence. Mr. Justice Archibald went on to hold that an appeal of the conviction was the proper procedure and that this was no longer available to Ms. Desmond because the 10-day time period for filing appeals had already passed.

Mr. Bissett admitted that he missed the 10-day time period due to his own inadvertence. Even so, he continued to fight for Ms. Desmond and appealed Mr. Justice Archibald’s decision. The appeal was heard by four Supreme Court Justices: John Doull; Henry Graham; William Lorimer Hall; and William Francis Carroll.

The four justices rendered their decision on May 3, 1947, dismissing the appeal. Each justice provided separate reasons for their decision. Mr. Justice Carroll and Mr. Justice Hall both agreed that Ms. Desmond did in fact pay the tax required when purchasing a theatre ticket. However, they both held that only a person in “confinement or restraint” could succeed on a writ of certiorari, and that Ms. Desmond did not meet this requirement when the application was filed on December 27, 1946. Mr. Justice Doull agreed with the reasons of Mr. Justice Archibald, stating that the proper procedure for a review of the evidence is by way of appeal. Mr. Justice Graham also agreed with Mr. Justice Archibald, emphasizing on the fact that Ms. Bissett’s inadvertence was the only reason for not filing an appeal of the conviction.

Only one of the four justices, Mr. Justice Hall, mentioned race in their decision. Mr. Justice Hall wrote the following remarks in his decision:

“One wonders if the Manager of the Theatre who laid the complaint was so zealous because of a bonafide belief there had been an attempt to defraud the Province of Nova Scotia of the sum of one cent, or was it a surreptitious endeavor to enforce a Jim Crow rule by misuse of a Public Statute.”

Mr. Justice Hall’s use of the words “Jim Crow rule” is a reference to the laws that enforced racial segregation in the American South between 1877 and 1950.

Mr. Bissett did not send Ms. Desmond a bill for his legal services after losing the appeal. The record does not contain any information on the fate of her civil actions against Henry MacNeil and the Roseland Theatre. It is likely that these actions were abandoned. The reason, however, remains a mystery. Did Ms. Desmond lose hope in using the court system to seek justice against those who had wronged her? Perhaps. Another explanation is that Ms. Desmond decided to move on and focus on improving the future, rather than receiving compensation for past wrongdoings. Through it all, one thing is clear: the courts did not go to any great lengths to rectify the injustices committed against Ms. Desmond. They denied her application for certiorari on points of law and procedure, despite having equitable jurisdiction to make decisions based on general principles of fairness. Instead, they punished Ms. Desmond for the inadvertence of her solicitor. They did not give any credence to the Magistrate’s failure to inform Ms. Desmond of her procedural rights, such as the right to retain a lawyer or seek legal advice before trial. These injustices went unheard and forgotten. This is especially significant since these rights are now constitutionally protected under our Charter of Rights and Freedoms.

Author: Madison Veinotte, Lawyer