Supreme Court of Canada – , 68 D.L.R. (2d) 766
This case is not related to aboriginal law per se, but shows how the social context surrounding aboriginal people was particular only not so long ago. A man was forbidden to engage in a relationship with an Aboriginal woman or he would lose his job – he did anyway, and lost his job, and lost his case.
Did the disposition prohibiting fraternizing and associating with Inuit and Crees in Whitfield’s contract violated his right to liberty and his freedom of assembly and association both protected by the Canadian Bill of Right?
No. He freely chose to sign that contract, and to engage in a relationship he knew would cost him his job (unanimous decision).
And: Canadian Marconi Company
Whitfield was an employee of the Canadian Marconi Compagny who worked on a Royal Canadian Air Force secret air base about half a mile from the Inuit settlement of Great Whale River, now Kuujjuarapik, and the Cree village of Poste-de-la-Baleine, now Whapmogoostui. He was employed as an electrician and his contract contained a provision prohibiting the personnel from fraternizing and associating with the Inuit and the Crees living in the area. Not obeying this directive was ground for discharge.
Whitfield made several visits to the Inuit settlement where he met Annie Wiltatuk and started a relationship with her. Despite receiving warnings, he continued visiting her. His employment was terminated. He then sued his ex-employer for the termination of his contract and asked $25,000 in damages for wrongful dismissal.
Whitfield: The relevant clause of his employment contract was invalid because Quebec’s Civil Code provides that no contract can be contrary to the laws of public order and good morals. His contract was contrary to the right to freedom of assembly and association as expressed in the Canadian Bill of Rights.
Canadian Marconi Company: Whitfield agreed to the terms of the contract and knew that visiting the native settlements was susceptible of causing Marconi to terminate his contract.
Quebec Superior Court (1965): Whitfield’s claim is dismissed.
Quebec Court of Queen’s Bench (1967): Whitfield’s claims of wrongful dismissal are also rejected. His right to liberty was not infringed, because he had accepted freely work for his employer in exchange of considerate remuneration. Also, the right to freedom of assembly and association does not apply since a romantic relationship with another person is not considered as an association in the meaning of the Bill of Rights.
The appeal is dismissed orally on the bench, agreeing with Quebec Court of Appeal’s decision.
Carthwright held that the provision of the contract did not go against any law of public order or good morals and that was ground to reject the appeal.
The Court also was in complete agreement with the reasons of Quebec’s Court of Appeal which said that the clause, regardless of its objective, did not limit Whitfield’s liberty since he chose voluntary to work for Marconi.
Whitfield petitioned the Supreme Court in 1968 for a new hearing, which was dismissed by the same court on the ground that it lack jurisdiction in the matter (Whitfield v. Canada Marconi Co., 1968). At the time the events of this case took place, the Canadian Labour Code protected against discrimination in hiring practices, but not in the other employment’s conditions (Fisher, 1978: 76).
Since 1975, the individual right to liberty and respect for his private life are protected by Quebec’s Charter of Human Rights and Freedoms, to which the government and private parties are subject (Charter of Human Rights and Freedoms, s. 1-5). In 1997, the Supreme Court decided in Godbout that the requirement to reside within the city boundaries for all municipal employees violates their right to respect for their private life. The right for individual to decide on fundamentally private matters must be free from unjustified external interference, such as from one’s employer. This is covered by the scope of the Quebec Charter (Godbout, par. 99). If this reasoning was to be apply to a situation similar to the one in Whitfield v. Canadian Marconi, the courts would have found the prohibition for employees to fraternize with Aboriginal locals to infringe upon their right to respect for their private life.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12
Fisher Hugo. 1978, The Human Rights Covenants and Canadian Law, in Bourne Charles B. (ed.), The Canadian Yearbook of International Law: 42-83. Vancouver: University of British Columbia Press.
Godbout v. Longueuil (City),  3. S.C.R. 844