Minority Rights Before the Charter of Rights and Freedoms

Minority Rights Before the Charter of Rights and Freedoms

By Emily Bradley

Today, equality is constitutionally protected by the Charter of Rights and Freedoms. Before the Charter’s enactment however, the legal treatment of minority groups was heavily influenced by the constitutional distribution of powers between the provincial and federal governments. Between 1872 and 1922, the British Columbia legislature passed over one hundred acts or bills containing provisions discriminating against Chinese and Japanese individuals. While many of these laws were challenged on the grounds that they were beyond the province’s legislative power, laws depriving Asian residents of the right to vote or hold public office were uniformly allowed to stand.

In 1900, Tomekichi Homma, a naturalized Japanese Canadian, challenged a BC law which deprived Asian and First Nation residents of the right to vote. The law in question, the Provincial Elections Act, provided that no Japanese individual, whether naturalized or not, would be permitted to vote at the provincial level. After being unable to add his name to the register of voters, Mr. Homma filed suit against the Vancouver Collector of Votes, Mr. Cunningham. The resulting case, Cunningham v. Homma, would set the path for legal discrimination against Asian Canadians.

Mr. Homma’s claim initially appeared likely to succeed as the Judicial Committee of the Privy Council, the highest court in Canada at that time, had recently struck down a law which prohibited mining companies from employing “Chinamen”. The case, known as Union Colliery Co. v. Bryden, offered hope for ending other discriminatory practices against Asian Canadians. In Union Colliery, the Privy Council noted that the federal Parliament’s power over naturalization included the power to determine the “rights and privileges pertaining to residents in Canada after they have been naturalized.” As the BC legislature’s prohibition on Chinese miners interfered with such rights and privileges, the court concluded that it intruded upon the federal Parliament’s authority over immigration and naturalization.

Given the verdict in Union Colliery, Mr. Homma argued that the BC Provincial Elections Act similarly restricted the rights of Asian residents and thus interfered with the federal Parliament’s power over naturalization. He further argued that the Naturalization Act of Canada, a federal statute, entitled naturalized citizens to the same rights, privileges, and responsibilities as natural-born British subjects. Both the trial judge and the full BC Supreme Court agreed with Mr. Homma and struck down the law. In 1902 however, the BC government appealed the case to the Privy Council, arguing that the federal power over naturalization only gave the federal government power over the “mode in which naturalization is to be conferred, not the rights which may or may not follow.”

In a surprising turn of events, the Privy Council upheld the law, concluding that the Act did not necessarily have implications on naturalization since its restrictions applied to all Japanese persons whether naturalized or not. Moreover, the court concluded that the federal statute upon which Mr. Homma relied simply guaranteed naturalized citizens “broad political rights” which did not include the right to vote in a particular province. The Privy Council also acknowledged a historical precedent in Britain of denying individuals the right to vote based on particular traits, such as religion, and that doing so did not affect one’s citizenship.

The Privy Council’s judgment in Cunningham appears to fully contradict its judgment rendered just four years earlier in Union Colliery. To reconcile the verdicts, the Privy Council stressed that the right that Mr. Homma was being deprived of was not “of the ordinary rights of the inhabitants of British Columbia” and that unlike the Chinese miner prohibition, the BC Provincial Elections Act did not seek to drive Asian citizens out of the province by depriving them of the ability to earn a living. Still, some critics assert that this contradiction strongly suggests that the Privy Council was likely more sensitive to business concerns than minority rights as Asian residents were seen as a valuable source of low-cost labour.

BC’s disenfranchisement of First Nation, Chinese, and Japanese individuals was extended in 1907 to “Hindus” and all South Asians. Exclusion from provincial voters’ lists had far-reaching consequences for individuals such as Mr. Homma since the ability to vote at the federal level required inclusion on provincial registries. Furthermore, many professions required candidates to be eligible voters.

On April 1, 1949, Japanese residents of BC were at last given full citizenship rights, including the right to vote. However, no formal right to vote existed in Canada before the adoption of the Charter in 1982. The loss of fundamental rights experienced by Mr. Homma and other minority Canadians exemplifies the importance in constitutionally safeguarding basic human rights for all Canadian citizens, regardless of ethnicity.

This content has been updated on 22 January 2017 at 13 h 47 min.