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Calling Power to Account

Calling Power to Account: Law, Reparations, and the Chinese Canadian Head tax

David Dyzenhaus
Mayo Moran
Copyright Date: 2005
Pages: 450
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  • Book Info
    Calling Power to Account
    Book Description:

    Courts today face a range of claims to redress historic injustice, including injustice perpetrated by law. In Canada, descendants of Chinese immigrants recently claimed the return of a head tax levied only on Chinese immigrants.Calling Power to Accountuses the litigation around the Chinese Canadian Head Tax Case as a focal point for examining the historical, legal, and philosophical issues raised by such claims.

    By placing both the discriminatory law and the judicial decisions in their historical context, some of the essays in this volume illuminate the larger patterns of discrimination and the sometimes surprising capacity of the courts of the day to respond to racism. A number of the contributors explore the implications of reparations claims for relations between the various branches of government while others examine the difficult questions such claims raise in both legal and political theory by placing the claims in a comparative or philosophical perspective.

    Calling Power to Accountsuggests that our legal systems can hope to play a part in responding to their own legacy of past injustice only when they recognize the full array of issues posed by the Head Tax Case.

    eISBN: 978-1-4426-7166-9
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Preface and Acknowledgments
    (pp. xi-xii)
  4. Contributors
    (pp. xiii-xvi)
  5. Context and History

    • Mack v. Attorney General of Canada: Equality, History, and Reparation
      (pp. 3-19)

      ‘Out, damned spot’, said Lady Macbeth, vainly seeking to wash away the stain of Duncan’s murder. But then she sought, with equal vanity, to comfort herself by saying: ‘What need we fear who knows it, when none can call our power to account?’

      In a case that came to be known asMack v. Attorney General of Canada,the Chinese Canadian community attempted to call the government of Canada to account for the racially discriminatory head tax that it imposed on Chinese immigrants nearly a hundred years before. In its decision in that case, the Ontario Court of Appeal described...

    • Litigating Injustice
      (pp. 20-23)
      AVVY GO

      The story of the Redress Campaign for the Chinese Head Tax and Exclusion Act began in 1983, when a man by the name of Mack went to see his Member of Parliament, Margaret Mitchell, in Vancouver. At the time, theCanadian Charter of Rights and Freedomshad just come into force. Mr Mack had gone into Ms Mitchell’s office and asked her how theChartermight be able to help him obtain justice. You see, Mr Mack was a head tax payer. He had paid $500 back in the early 1920s for the right to come to Canada. He was...

    • Legal Discrimination against the Chinese in Canada: The Historical Framework
      (pp. 24-59)

      The head tax that spawned the Chinese Canadian Head Tax case,Mack v. Attorney General of Canada,originated in 1885, after the completion of the Canadian Pacific Railway reduced the demand for low-waged Chinese construction crews. In an overtly discriminatory racial enactment, the federal government placed a head tax of $50 on all Chinese immigrants.¹ In 1900, the tax was doubled,² and in 1903 increased to $500.³ Between 1885 and 1923, the federal government collected over $23 million from more than 81,000 Chinese immigrants in payment of this head tax. The collection of the head tax was an unconscionably racist...

    • Can We Do Wrong to Strangers?
      (pp. 60-91)

      Mr Deasy halted, breathing hard and swallowing his breath.

      – I just wanted to say, he said. Ireland, they say, has the honour of being the only country which never persecuted the jews. Do you know that?

      – No.

      – And do you know why?

      He frowned sternly on the bright air.

      – Why, sir? Stephen asked, beginning to smile.

      – Because she never let them in, Mr Deasy said solemnly.

      A coughball of laughter leaped from his throat dragging after it a rattling chain of phlegm. He turned back quickly, coughing, laughing, his lifted arms waving in the air....

    • The Head Tax Case and the Rule of Law: The Historical Thread of Judicial Resistance to ‘Legalized’ Discrimination
      (pp. 92-112)

      From a legal historian’s viewpoint it is an intriguing and disappointing feature of the trial and Ontario Court of Appeal decisions inMack v. Attorney General of Canada¹that there is a lack of any explicit reference to the rule of law as an animating principle of common law reasoning. It is almost as if Canadian law existed in a moral vacuum prior to 1982 and the advent of theCharter of Rights and Freedoms,²or, on a more charitable view, prior to the end of the Second World War. The omission is doubly troubling when it is considered that the...

  6. Limits on Institutional Capacity to Address Injustice

    • The Limits of Constitutionalism: Requiring Moral Behaviour from Government
      (pp. 115-146)

      For me, being co-counsel, with Avvy Go, in the Head Tax Redress case¹ is an instance of the wheel coming full circle. My first mentor in law was Gretta Wong Grant, the Legal Aid Area Director in London, Ontario, and daughter of Lem Wong, who was featured in the film which Constance Backhouse showed in her presentation at the conference for which this paper was produced, ‘Achieving Human Rights in a Multicultural Society: Reparations, Human Rights and the Limits of Law.’² An exemption to theChinese Immigration Actpermitted Mr Wong and his family to enter Canada, but the Chinese...

    • Delivering the Goods and the Good: Repairing Moral Wrongs
      (pp. 147-164)

      Few Canadians today would believe, much less endorse or condone, such racially prejudiced remarks, especially from a public official. Yet such sentiments were common among Canadians less than a century ago. Racial discrimination in Canadian society, law, and politics reflected the ideology of race that first found articulation with the publication of the Comte de Gobineau’sEssai sur I’lnegalité des Races Humainesin 1854. Subscribers to the idea of racial inequality believed that humans are divided by apparently fixed biological differences into races capable of different levels of moral, intellectual, and cultural achievements. As contemporary scholars have noted, race is...

    • Rights and Wrongs, Institutions and Time: Species of Historic Injustice and Their Modes of Redress
      (pp. 165-195)

      People come to governments, courts, and legislatures with claims of justice. Those claims are not expressed in philosophical terms. People simply believe deeply that a wrong has been done and they want redress.

      There, they encounter an institutional structure, composed of an assortment of entities, each with its own distinctive composition, its own patterns of appointment, its own jurisdiction, and its own sense of what determines that jurisdiction. The people’s claims are run through an institutional grid that has little to do with the claims of wrong and remedy that brought them there.

      Some of what they encounter may be...

    • Redress for Unjust State Action: An Equitable Approach to the Public/Private Distinction
      (pp. 196-230)

      Several contributors to this volume examine the Ontario Court of Appeal’s analysis of constitutional and international law doctrines inMack v. Attorney General of Canada.¹Others explore the doctrinal boundaries of unjust enrichment as applied in the case. Still others seek to analyse this decision in light of the historical, political, and sociological dimensions of human rights development in Canada. I viewMackas a point of departure to explore a different and somewhat broader question – when and in what manner should the courts remedy unjust public policies? In this sense,Mackis an example of a wider trend – the...

  7. Legal Theory and Gross Statutory Injustice

    • Gross Statutory Injustice and the Canadian Head Tax Case
      (pp. 233-255)

      Quite apart from the debate about what Coke C.J. meant when he uttered those memorable words in Dr Bonham’s case, they are almost invariably cited to be refuted. A.V. Dicey’s insistence is equally memorable: ‘Parliament... has ... the right to make or unmake any law whatever, and ... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’²

      Of course, in a world in which constitutions grant the judiciary the power to pass judgment on ordinary legislation according to human rights standards,³ and (at any rate...

    • The Jurstic Force of Injustice
      (pp. 256-284)

      In 1885 Canada enacted theChinese Immigration Act,¹which required immigrants of Chinese origin to pay a tax which was equivalent to two years’ wages for a Chinese Canadian worker at the time. There was no equivalent statute aimed at other groups and the motives in enacting it were explicitly racist. Because Chinese immigrants continued to come, in 1923 a newChinese Immigration Actwas passed which excluded Chinese immigration with narrow exceptions, thus preventing some of the immigrants from bringing their families to Canada.² This Act was repealed in 1947.³ The Canadian government has refused to extend any redress...

  8. Private Right and Public Wrong

    • The Timing of Injustice
      (pp. 287-306)

      Mack v. Attorney General of Canada¹arises out of a blatantly discriminatory chapter in Canadian history. Under theChinese Immigration Act 1885,²Chinese immigrants were required to pay a ‘head tax,’ which became increasingly burdensome during the period until 1923. At that time, Chinese immigrants were effectively excluded.³ The discriminatory legislation was repealed in 1947. The plaintiffs were a person who paid the head tax, and the widow and son of another person who paid the tax; they brought the action on behalf of the class of all payers, and their descendants, although it appears that a class had never...

    • Mack v. Attorney General of Canada and the Structure of the Action in Unjust Enrichment
      (pp. 307-340)

      In 1885 the government of Canada enacted theChinese Immigration Act,which imposed a head tax of $50 on immigrants of Chinese origin.¹ There were no equivalent statutes aimed at other groups. As was made explicit in its preamble,² the tax was meant to serve as a deterrent. Finding that it failed to do so, Parliament first amended the Act to raise the tax to $100 in 1900 and to $500 three years later, and then replaced it in 1923 with a newChinese Immigration Actthat imposed an outright prohibition on immigration.³ The second act was repealed in 1947.⁴...

    • A Brief History of Mass Restitution Litigation in the United States
      (pp. 341-377)

      For American audiences, the case ofMack v. Attorney General of Canadafits into a familiar narrative about civil rights. It appears, at first glance, to be similar to many cases brought in the post-war period in the United States by minorities seeking redress for the denial of their civil rights. The fact that the plaintiffs lost before the courts does not change the fit of the case into the basic narrative; after all, while there have been extraordinary victories for civil rights plaintiffs such asBrown v. Board of Education,¹there have also been great disappointments, such asSan...

    • Time, Place, and Values: Mack and the Influence of the Charter on Private Law
      (pp. 378-412)

      Contemporary courts are facing a whole new category of cases that seek redress for widespread historic wrongdoing. These ‘reparations’ cases are forcing a number of difficult questions including issues concerning the scope of sovereign and other immunities, the passage of time, and the like. Because such cases almost inevitably involve widespread historic wrongdoing, this litigation tends to press the ordinary limits of legal arguments and resources. The consequence is that courts are increasingly asked to consider the significance of the passage of time, the problem of widespread moral ignorance, and the complicity of law in mass dehumanization. Venerable legal doctrines,...

  9. Appendix I: Appellants’ Factum
    (pp. 413-449)
  10. Appendix II: Mack v. Attorney General of Canada: Judgment of the Ontario Court of Appeal
    (pp. 450-468)
  11. Index
    (pp. 469-471)