Calling Power to Account: Law, Reparations, and the Chinese Canadian Head tax 9781442671669

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CALLING POWER TO ACCOUNT: LAW, REPARATIONS, AND THE CHINESE CANADIAN HEAD TAX CASE

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 Account uses 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 Account suggests 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. DAVID DYZENHAUS is a professor in the Faculty of Law and the Department of Philosophy at the University of Toronto. MAYO MORAN is an associate professor in the Faculty of Law at the University of Toronto.

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CALLING POWER TO ACCOUNT

Law, Reparations, and the Chinese Canadian Head TaxCase

Edited by David Dyzenhaus and Mayo Moran

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

www.utppublishing.com ©

University of Toronto Press Incorporated 2005 Toronto Buffalo London Printed in Canada ISBN 0-8020-3872-7 (cloth) ISBN 0-8020-3808-5 (paper)

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Calling power to account: law, reparations, and the Chinese Canadian head tax case / edited by David Dyzenhaus, Mayo Moran. ISBN 0-8020-3872-7 (bound)

ISBN 0-8020-3808-5 (pbk.)

1. Chinese Canadians - Legal status, laws, etc. - History. 2. Chinese Canadians - Civil rights - History. 3. Chinese Canadians Government policy - History. 4. Chinese Canadians - Government relations - History. 5. Canada - Race relations. I. Dyzenhaus, David II. Moran, Mayo, 1960KE4479.C34 2005 KF4845.C34 2005

342.710873

C2005-900163-1

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

To the memory of the first and the second Mr Mack

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Contents

Preface and Acknowledgmentsxi Contributors xiii Context and History Mack v. Attorney General of Canada: Equality, History, and Reparation 3 DAVID DYZENHAUS AND MAYO MORAN

Litigating Injustice 20 AVVY GO Legal Discrimination against the Chinese in Canada: The Historical Framework 24 CONSTANCE BACKHOUSE

Can We Do Wrong to Strangers?

60

AUDREY MACKLIN

The Head Tax Case and the Rule of Law: The Historical Thread of Judicial Resistance to 'Legalized' Discrimination 92 JOHN MCLAREN

viii Contents Limits on Institutional Capacity to Address Injustice The Limits of Constitutionalism: Requiring Moral Behaviour from Government 115 MARY EBERTS

Delivering the Goods and the Good: Repairing Moral Wrongs 147 CATHERINE LU

Rights and Wrongs, Institutions and Time: Species of Historic Injustice and Their Modes of Redress 165 JEREMY WEBBER

Redress for Unjust State Action: An Equitable Approach to the Public/Private Distinction 196 LORNE SOSSIN

Legal Theory and Gross Statutory Injustice Gross Statutory Injustice and the Canadian Head Tax Case 233 JULIAN RIVERS

The Juristic Force of Injustice 256 DAVID DYZENHAUS

Private Right and Public Wrong The Timing of Injustice 287 LIONEL SMITH

Mack v. Attorney General of Canada and the Structure of the Action in Unjust Enrichment 307 DENNIS KLIMCHUK

A Brief History of Mass Restitution Litigation in the United States 341 ANTHONY J. SEBOK

Contents ix Time, Place, and Values: Mack and the Influence of the Charter on Private Law 378 MAYO MORAN

Appendix I: Appellants' Factum

413

Appendix II: Mack v. Attorney General of Canada - Judgment of the Ontario Court of Appeal450 Index

469

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Preface and Acknowledgments

This collection canvasses the complex legal, moral, and political issues that arose out of the litigation in which Chinese Canadians unsuccessfully sought help from the Canadian courts in procuring an apology and reparations for the discriminatory head tax imposed by the Canadian government on Chinese immigrants between 1885 and 1923. All the papers were presented at a conference at the Faculty of Law, University of Toronto in May 2003. The conference was made possible by the generosity of Mr and Mrs John Yaremko, who have established a fund at the Law Faculty for conferences on multiculturalism and human rights. We thank them for providing this wonderful resource. In addition, we would like to thank the people in the Law Faculty who made organizing the conference seem easy: Jennifer Tarn, Dylan Reid, and Marylin Raisch. Finally, we thank our dean, Ron Daniels, for his enthusiastic support.

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Contributors

Constance Backhouse is professor of law at the University of Ottawa, where she holds a University Research Chair. She is the author of Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (1991) andColour-Coded: A Legal History of Racism in Canada, 1900-1950 (1999). David Dyzenhaus is professor of law and philosophy at the University of Toronto. His work focuses on the rule of law in legal and political philosophy. He edited the collection The Unity of Public Law (2004). Mary Eberts has practised law in Ontario for thirty years, acting as counsel in a variety of pathbreaking human rights and Charter cases, including the head tax case. She speaks, writes, and teaches about constitutional litigation and equality rights. Awy Go is the clinic director, Metro Toronto Chinese and Southeast Asian Legal Clinic, and was co-counsel in the head tax case. She is the recipient of 2002 President's Award (Women's Law Association of Ontario). Dennis Klimchuk is associate professor of philosophy and law at the University of Western Ontario. His principal research interests are in private law theory and the history of legal philosophy. His current work focuses on the law of unjust enrichment, in particular on the justification of liability in unjust enrichment and on its use as a means to secure reparations for historical injustices.

xiv Contributors

Catherine Lu is assistant professor of political science at McGill University, and is a faculty fellow at the Center for Ethics and the Professions at Harvard for the 2004-5 academic year. She has published articles on the idea of justice, cosmopolitanism as an ethical perspective, and problems of moral accounting after violence, oppression, and atrocity, in the Journal of Political Philosophy, Ethics and International Affairs, and International Studies Review. Her current book project is entitled Great Transformations; Moral Regeneration in World Politics. Audrey Macklin is associate professor at the Faculty of Law, University of Toronto. Her research interests include migration and citizenship law, administrative law, criminal law, and human rights. She was formerly a member of Canada's Immigration and Refugee Law Board. John McLaren is Lansdowne Professor of Law at the University of Victoria. His research interests lie in the fields of Canadian and colonial legal history including the history of the law and racial and ethnic discrimination. Among the books he has coedited are Law for the Elephant, Law for the Beaver (1993); Essays in the History of Canadian Law, Volume 6, British Columbia and the Yukon (1995); Religious Conscience, the State and the Law (1998), andRegulating Lives(2002). Mayo Moran is associate professor at the Faculty of Law, University of Toronto. She has published in comparative constitutional law, private law, and legal and feminist theory. Her book Rethinking the Reasonable Person was published by Oxford University Press in 2003. Her work focuses on how our practices and theories of responsibility come to terms with discrimination. She is currently engaged in a project on reparations theory and transitional justice that examines the limits and possibilities of law, particularly private law, in redressing widespread historic wrongdoing. Julian Rivers is senior lecturer in law at the University of Bristol. His recent translation of, and introduction to, Robert Alexy's Theory of Constitutional Rights was published by Oxford University Press in 2002. Anthony Sebok is professor of law at Brooklyn Law School in New York City. He writes about jurisprudence and tort law. He recently coedited a symposium for the Chicago-Kent Law Review entitled 'Private Law, Punishment and Disgorgement.'

Contributors

xv

Lionel Smith is James McGill Professor of Law at McGill University. His research is mainly in private law, especially unjust enrichment and the law of trusts. Lome Sossin is associate professor with the Faculty of Law at the University of Toronto, where he teaches courses in administrative law, legal process, and social policy. He is the author of Boundaries of Judicial Review: The Law of Justiciability in Canada (1999) and the coauthor (with Michael Bryant) of Public Law (2002). Jeremy Webber holds the Canada Research Chair in Law and Society in the Faculty of Law, University of Victoria, and is Visiting Professor of Law at the University of New South Wales. He has published widely on constitutional law, legal theory, and indigenous rights. His principal publication is Reimagining Canada: Language, Culture, Community and the Canadian Constitution (1994).

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Context and History

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Mack v. Attorney General of Canada: Equality, History, and Reparation DAVID DYZENHAUS AND MAYO MORAN

Introduction '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 as Mack 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 the head tax imposed by Canada on Chinese immigrants between 1885 and 1923 as 'one of the more notable stains' on Canada's 'minority rights tapestry.'1 But the Court, following the trial court,2 did not think it had any role in removing that stain. Indeed, it would not even give a full hearing to the claim that it had such a role. Instead, when the community which had suffered from Canada's legislated racism claimed reparations, the Court struck out that claim on the ground that it disclosed no reasonable cause of action. The result was that the full record of the head tax was never presented in court. The Supreme Court then assented to this peremptory response to the claim by refusing to grant leave to appeal.3 The Chinese Canadian National Council made a subsequent application to the United Nations Human Rights Committee, which issued an opinion in their favour. The Chinese Canadian community would not, of course, have ended up in court had they received an appropriate response from the federal government, when the issue of reparations was brought to the

4 David Dyzenhaus and Mayo Moran

government's attention. The courts were invoked only when the government refused to accept accountability for the racism of the past. Now that the courts, despite their recognition of the stain, have refused to take a role in holding power to account, the government might like Lady Macbeth seek to comfort itself with the thought that it doesn't matter who knows of the stain. Deep down, Lady Macbeth knew better. She knew that 'all the perfumes of Arabia will not sweeten this little hand/ and none of the contributors to this collection of essays on the head tax case thinks differently. Where we divide is on the question whether the courts were right to say, as did the doctor observing Lady Macbeth's torment, 'This disease is beyond my practice.' Equality, Constitutionalism, and the Past In 1982, Canada brought its constitution home from Britain and in the process enacted the Charter of Rights and Freedoms, which proclaimed the centrality of constitutionalized human rights to the Canadian national project. The Charter contains a wide range of rights and freedoms, but even in 1982 it was clear that its most dramatic aspect was found in its equality guarantee. Indeed, the projected effects were such that that guarantee alone was suspended for three years until 1985 to give governments time to bring their legislation into line with the demands of equality. And Canada had good reason to be concerned. Canadians are rightly proud of a political tradition that has embraced more substantive notions of equality than has our neighbour to the south. Yet on grounds of history alone, Canada is open to criticism concerning our treatment of many groups - criticisms that are uncomfortably similar to the ones we level against others. Indeed, even a brief examination of our history reflects a sorry tale of discrimination, violation, and mistreatment of the vulnerable groups that are now the primary concern of the constitutional equality guarantee. We dispossessed the Aboriginal people of their land. We also dispossessed them of their culture by forcibly taking their children and forbidding them to speak their languages. We locked those Aboriginal children up in 'schools' that all too often did little to educate them. Instead, they were often used as unpaid labour, malnourished, mistreated, and assaulted. Many of the children died. We incarcerated Japanese Canadian citizens during the Second World

Mack: Equality, History, and Reparation

5

War, confiscating their property and depriving them of their freedom in the process. And after the war, we sought to strip those who remained in camps of their citizenship by 'repatriating' on the grounds of disloyalty the adults (with their families) who had 'consented' to 'repatriation' when faced with a 'choice' between continued internment or displacement to a province where they knew they were unwelcome. Mass institutionalization, forced sterilization, and other abuses were also visited on people with disabilities, children without family support, and many others. They too were often mistreated and assaulted in the process. Church, state, and important public and private institutions all participated in these activities. It is no overstatement to say that our history is replete with such incidents. When we enacted the equality guarantee (s.15) of the Charter, we expressed our collective commitment henceforth to draw out the best and avoid the worst of our tradition. The essence of that commitment, like other constitutional commitments, was forward-looking rather than retrospective. Our courts like others have generally affirmed this prospective understanding of the Charter. Yet the very act of expressing our commitment to the centrality of equality as a core component of who we take ourselves to be as a nation has inevitably brought to the fore difficult questions about how we ought to judge the profoundly inegalitarian wrongs of our history. Prospective justice cannot avoid an introspective inquiry into the injustices of our own past. Like other post-Second World War constitutional regimes, our commitments draw their inspiration at least in part from the determination not to repeat the wrongs of the past - wrongs that the Holocaust most dramatically exemplifies. And the lessons of the Holocaust are complex ones - directing us forward into the future and backward into the past. Not only did that atrocity inspire a reconfiguration of constitutionalism that gave pride of place to human dignity, but the extent of the violations of that core human ideal also fuelled demands for accountability for past wrongs. Past, present, and future thus find themselves in a complex relation. The so-called Holocaust template has come to hold deep significance in the construction of a more egalitarian community, for it has suggested that such a construction is not possible without both a promise for a better future and the attempt to come to terms with the past. Perhaps, then, it should be no surprise that constitutional democracies that are now committed to equality have increasingly come to face questions about the terrible violations of that principle that have all too

6 David Dyzenhaus and Mayo Moran

often characterized their own histories. Democracies like Great Britain, the United States, and Canada have urged countries with 'evil pasts' such as Germany, South Africa, former communist countries, and dictatorships around the world to adopt constitutional regimes with entrenched rights including the right to equality. But this has also been accompanied by the recognition that some form of accounting for past wrongs is also vital to the construction of a more just future. Thus we see, within the scholarly world and beyond, interest in and support for the processes of 'truth and reconciliation' that characterize 'transitional justice' efforts to build a better society. In all of this, there is no surprise. The surprise has rather come in terms of what the ramifications are for us. When the survivors of the Holocaust began to seek restitution for the value of their stolen labour and the return of their confiscated property, the parallels with, for example, the history of slavery in the United States were unavoidable. Thus, the contemporary reparations movement came into being and began to raise questions about the massive historic wrongs that also characterize the pasts of countries like the United States of America and Canada, among others. The consequence is that demands for accounting similar in nature and structure to those that face failed dictatorships and evil states around the world are beginning to make themselves heard in the heart of the stable egalitarian democracies. The Head Tax Case In this context, the Chinese Canadian head tax case, Mack v.AG Canada, holds important lessons. Almost alone among contemporary reparations claims, the decisions in Mack address the substance of the claim for reparation of historic injustice and in so doing they raise profound questions about past and future, democracy and equality, as well as about the nature and role of law. Like many reparations cases, the facts that gave rise to the litigation in Mack took place long ago. The litigation arose out of the Chinese Immigration Act, which was first enacted by the federal parliament in 1885. That Act and its successors required immigrants to Canada who were of Chinese origin to pay a 'head tax.' hi 1885 the tax was set at $50 and by 1903 it had been raised to $500. Though that amount may not sound significant now, it was approximately two years' wages for a Chinese Canadian worker at the time. The head tax was directed to Chinese immigrants and did not apply to any other groups. Under the

Mack: Equality, History, and Reparation 7

terms of the head tax, the federal government collected approximately $23 million from roughly 81,000 Chinese immigrants. The House of Commons debates from that time make it clear that the point of the tax was to prevent the Chinese from immigrating. The comments of Prime Minister Wilfrid Laurier, who was lobbying for the increase of the head tax from $50 to $500, are characteristic of the tenor of the debate more generally: In my opinion there is not much room for the Chinaman in Canada. He displaces a good Canadian, or, a good British subject. Increase of the tax from $50 to $100 will be totally inadequate ... Not only are they monopolizing the laundry business and the growing of vegetables in British Columbia, but they are driving skilled miners out of employment in the coal mines.4

In fact, in 1903 a government commission recommended an increase in the head tax to $500 as an interim measure to stop the 'flood' of Chinese immigration that continued despite the $50 head tax. Noting the ineffectiveness of the head tax even at $500 as a means of preventing Chinese immigration, in 1923 the federal government repealed the head tax legislation. In its place it enacted the Chinese Exclusion Act, which precluded virtually all Chinese immigration. That prohibition on Chinese immigration remained in place until 1947. And it was only in 1947 that earlier Chinese immigrants who had paid the head tax finally became eligible for Canadian citizenship. But the repeal of the head tax did not erase the discrimination and privation that the regime imposed on Chinese immigrants. Indeed, it is testimony to this that Dominion Day, the day on which the Chinese Exclusion Act was proclaimed in force, has long been considered a day of humiliation in the Chinese Canadian community. The sense of injustice persisted though decades passed. And the quest for some form of rectification of that injustice found a new meaning when Canada enacted the Charter in 1982. In her contribution to this volume, Avvy Go, one of the lawyers who acted for the Chinese Canadians, recounts how Mr Mack (the 'first Mr Mack'), a head tax payer, was inspired by the enactment of the Charter to ask his Member of Parliament how the Charter might help him obtain justice for that enduring wrong represented by the head tax.5 The judicial decisions in the litigation that arose out of the claim for restitution of another Mr Mack respond to that poignant question with the blunt insistence that the Charter has

8 David Dyzenhaus and Mayo Moran

nothing to contribute to our understanding of the wrongs of our own past. Litigation, however, was not the tool of choice of the Chinese Canadian community. Mr Mack's question was raised in Parliament by Margaret Mitchell but received no reply. Go outlines the national campaign for redress that followed this event. Frustrated by the refusal of the federal government to countenance any redress for historic wrongs, the Chinese Canadian National Council (CCNC) finally launched the class action that began the litigation in Mack. The representative plaintiffs were a head tax payer, Mr Shack Jang Mack (the 'second Mr Mack'), a widow of a head tax payer, and a descendant of a head tax payer. As representative plaintiffs, they brought the action on behalf of all head tax payers, their surviving spouses and defendants claiming the return of the amounts paid as head tax under the principles of unjust enrichment. They also alleged a right of redress that arose out of violations of the equality guarantee of the Charter and of international human rights principles. The federal government responded to this claim by bringing a motion to strike it out as disclosing no reasonable cause of action. In July 2001, Gumming J. of the Ontario Superior Court of Justice granted the government's motion on the ground that there was no plausible legal basis for the plaintiff's claims. With regard to the right of redress under the Charter, Gumming J. noted that the Charter could not apply retroactively. Gumming J. candidly acknowledged that the effects of past discrimination may well last a lifetime. But he also pointed out that if continuing effects were sufficient to invoke the Charter, every act of past discrimination could be reviewed under s.15. So to invoke the Charter, the plaintiffs had to do more than point to persistent discriminatory effects of a past law, they had to establish that there was a contemporary application of the relevant law. But the fact that the law was repealed in 1947 effectively precluded them from doing so. The plaintiffs had also argued that various covenants and norms under international law supported their claim for redress. Gumming J. accepted the plaintiffs' submission that the various international law documents and treaties did evince an international law norm prohibiting racial discrimination. Indeed, he held that those sources may even support a positive duty on the part of the state to redress those wrongs. However, he insisted that this was a very different thing from showing a positive legal duty to provide redress for historical wrongs that oc-

Mack: Equality, History, and Reparation 9

curred prior to the development of the international law norm. And in the case of the head tax claim, he noted that many of the sources on which the plaintiffs relied were not in existence until well after 1947. Consequently, the plaintiffs' argument in his view necessarily required the application of norms and principles that did not exist at the material times; under international law, even incorporated treaties will have no retroactive effect unless they explicitly provide for such effect. These same defects, in Gumming J.'s view, afflicted the unjust enrichment argument. He had no trouble finding that the payment of the head tax enriched the federal government at the expense of the head tax payers. The difficulty, however, lay in establishing that the enrichment was unjust. Normally, a statute that authorizes a transfer will provide a legal justification that prevents finding the relevant enrichment 'unjust.' So since the payment of the head tax was mandated by statute, it would not count as unjust unless it could be established that the statute was either unconstitutional or ultra vires - beyond the formal limits on Parliament's legislative authority. But as with the direct Charter and international law arguments, this would necessarily involve the retrospective application of constitutional and international law principles that did not exist at the time. Thus, the unjust enrichment argument necessarily also failed. Gumming J. therefore dismissed the plaintiffs' legal claim on the ground that they had not alleged a reasonable cause of action. However, he was not content with a straightforward dismissal. He closed by noting that the dismissal must not be read as an acceptance of the actions of the Canadian government with regard to the head tax. Those actions, he noted, were patently discriminatory and would most certainly be unconstitutional today. He also pointed to the importance of Canadians' acknowledging that much of our past is at odds with our contemporary commitment to equality and diversity. True equality, he insisted, 'will only be possible if all Canadians take on the challenge of eradicating racism and other forms of intolerance.'6 He also accepted the plaintiffs' submission concerning the enduring harm of discriminatory laws that are simply repealed without repairing their effects. It is presumably for this reason that he suggested that Parliament should consider providing redress for Chinese Canadians who paid the head tax. Ultimately, however, his view was that the court could not usurp Parliament's role and so was limited to adjudicating claims based on their legal merit within the framework of Canadian constitutional law. The plaintiffs appealed this ruling to the Ontario Court of Appeal. In

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September 2002, the Ontario Court of Appeal affirmed Gumming J.'s dismissal of the head tax claim. On both the independent right of redress and the unjust enrichment arguments, the Court of Appeal agreed with the thrust of Gumming J/s reasoning. Neither the constitutional nor the international arguments could ground a right of redress because the constitutional and international law norms needed to invalidate the legislation were not in existence at the time of the head tax. The unjust enrichment claim therefore also failed for related reasons. Since the unjust enrichment claim required constitutional or international principles that existed at the time to invalidate the head tax legislation, and since those principles could not be established, it too must fail. The decision of the Ontario Court of Appeal also echoes that of Gumming J. in another important respect. For these judges were also unequivocal in their condemnation of the head tax legislation. As we have seen, they said that the head tax was one of the 'more notable stains' on Canada's 'minority rights tapestry.' The plaintiffs sought leave to appeal to the Supreme Court of Canada but the Supreme Court denied leave on 24 April 2003. Notwithstanding the failure of the redress claims in Mack, the decisions in that case stand as a particularly important episode in the contemporary reparations movement. In most of the reparations litigation, the reparations claims are either settled or disposed of by courts on technical or procedural grounds. The fact that the courts which adjudicated the head tax claim in Mack actually considered the historic redress arguments on their merits thus provides very important insight into the treatment of such claims by contemporary egalitarian democracies. This is particularly so given Canada's robust commitment to equality and the reputation that Ontario courts have for their progressive approach to equality. In light of this, it is unsurprising that a number of the contributors to this volume consider the significance of the Mack case for the reparations movement and beyond. The head tax case also shares another important feature with other reparations cases - the centrality of understanding history. This too forms a major focus of this volume, as contributors consider the nature and complexity of historical narratives, both within law and beyond, and ponder their significance for the reparations claim. Perhaps the most pressing question that reparations claims raise is the question of the institutional competence of the courts to adjudicate such issues. Here Jeremy Webber's chapter sharply contrasts with several others, as he presents a powerful case for the institu-

Mack: Equality, History, and Reparation 11

tional incompetence of courts in such matters. The reader is best placed to decide this issue by comparing Webber's argument to that advanced in other chapters. But we would like to note that the courts in Mack explicitly struggled with the issue of the limits of their institutional powers in responding to the injustice that they clearly identified and perceived. So too in this volume, contributors consider both the limits and the implications of the decision for adjudication and legal theory more generally. History and Law One of the most dominant characteristics of reparations cases is the extent to which they implicate history and often historical controversy. Of course, almost all adjudication must in some sense grapple with history. But the task is rendered far more complex and more central in a reparations case because of two of its dominant features - the considerable distance between the relevant events and the litigation, and the breadth of the history involved. Not only is relatively distant history relevant, but also a complex interweaving of individual lives and interactions with institutions and events. This is amply demonstrated by the Mack case itself, and a number of the contributors to this volume consider the meaning and implications of this feature of the case. Constance Backhouse, for instance, considers how the invidious history made visible by cases like Mackcuts against the standard Canadian multicultural story. Thus, she juxtaposes two very different readings of the immigrant's life. In one such narrative we see the televised 'story' of an immigrant's life created by the federal government. But the triumphalist nature of the immigrant's story begins to appear more complex when set against the social and legal reality that Backhouse recounts. Indeed, the ironies she points to are deep, since the federal government now devotes its resources to praising the resilience of the immigrant even though its predecessors put in place the very burdens and hurdles which demanded such resilience. Backhouse's thoughtful rendering of legal history thus reminds us of the distance between our national myths and the darker reality that underpins them. Audrey Macklin's chapter also considers the meaning of history for the Mack case and beyond. She reminds us that the events that play a central role in that litigation are anything but isolated. Instead, we see that the treatment of the migrant has long been, and continues to be, characterized by just the kind of discrimination played out in Mack. But

12 David Dyzenhaus and Mayo Moran

Macklin also calls our attention to the fact that this 'history' is continuous with contemporary immigration practices. Most commentators view the distance between our contemporary practices and those impugned in the redress case as one of the core difficulties involved in such claims. But Macklin's argument may point in another direction. It may well make us wonder whether what most unsettles us about Mackis actually not its distance from our current immigration practices but rather its proximity to them. Our ability to preserve the discretion we continue to insist on in such cases may therefore well drive us towards reluctance to condemn a past that looks, on closer inspection, all too familiar. In addition, Macklin highlights the paradox created by the legislative history of the statutes which regulated Chinese immigration. Those who were able to make an argument about the injustice done to them as a condition of entry to Canada, an injustice that persisted in continuing discrimination, were within the legal space that permitted them to make this argument. Whatever one thinks about the merits of this argument, one has to take into account the inability of those who could not even begin to make such an argument because the injustice of the 1947 statute completely excluded them from entry. While Macklin does not want to underestimate the potential to use arguments about justice to destabilize our sense of what is legally and morally appropriate now, or what was appropriate from the past's own perspective, she also wants to point out that the injustice of the status quo, whether past or present, often vastly overshadows that potential. If Macklin's paper rightly warns us against a simple progressivist reading of history, so~John McLaren warns against a reading of history which is altogether bleak. For such a reading may not only induce (unjustified) complacency about the superiority of present practices to those of the past, but it may also lead one to overlook the richness of the contribution of the past to our moral and legal deliberations. McLaren's fascinating account of the early adjudication of a number of racist laws in British Columbia responds to this latter danger. McLaren thus excavates our legal past and uncovers resources whose insight and moral complexity challenge the orthodox reading of the past in cases like Mack. As he shows, the way that judges in later nineteenth-century British Columbia dealt with analogues to the head tax statute preserved their sense both that Canada is a society committed to the rule of law and that the idea of the rule of law includes the principle of nondiscrimination or equality, whether or not these commitments are explicitly announced in a bill of rights. The standard assumption is that

Mack: Equality, History, and Reparation 13

the past has little insight and few resources to offer as we approach these issues, and one of the important contributions of McLaren's chapter is to raise our unease about this unnuanced depiction of the unjust past in the Mack decisions. This analysis reminds us of the extent to which the courts in Mack need to assume the most invidious and regressive readings of past decisions and norms in order to support their conclusion that the laws suffered from no legal infirmity at the time. But McLaren enables the past to speak with its own voice and it is a voice that, in contrast with the depiction in the contemporary Ontario courts, often startles us with its insight and humanity. Remedying Inequality Mary Eberts's chapter also suggests that the rendering of the present in the Mack decision may similarly obscure important possibilities that the Charter seemed to hold out, at least until recently. Eberts, who was the lead lawyer for the plaintiffs, traces the important influence of ideals of human dignity in the drafting and early years of s.15 of the Charter. It was these ideals, linked as they were to a history of transformative constitutionalism aimed at responding to the wrongs of the past, that infused the early robustness of the equality guarantee of the Canadian Charter. But Eberts also traces how the contemporary Supreme Court of Canada has made paradoxical use of the ideal of human dignity, using it to restrict rather than inform the meaning of equality. Given this vision of equality as essentially non-disruptive rather than transformative, she argues, it is hardly surprising that other courts show similar reticence when faced with a claim of a dignitary violation that threatens to disrupt our very conception of ourselves and our history. Too simple a reading of the past might also lead us to view as novel the struggles to remedy the discriminatory wrongs of the past of the kind undertaken in Mack. Several contributions to this collection warn us against this view, however. Awy Go's chronicling of the longstanding efforts of Chinese Canadian community to vindicate the wrong of the head tax is an important illustration of this. Tony Sebok's history of the waves of the movement of reparations for slavery and the extent to which it drew inspiration from other struggles for legal accounting, past and present, importantly reminds us of the historical depth of the movement. But Sebok's examination of the nature of such mass litigation also suggests reasons for caution. The lessons from other cases point to a larger worry about the nature of the reparations strategy in

14 David Dyzenhaus and Mayo Moran

cases of massive dehumanization such as slavery, the Holocaust, and similar cases. The danger exists, as he points out, that the very wrong that the legal system is most able to capture and remedy may actually be among the least important of the many wrongs that characterize reparations cases. In a similar vein, Catherine Lu focuses on what she regards as the inappropriate nature of the remedy sought. She takes her inspiration from John Rawls in diagnosing the problem of racial discrimination faced by Chinese Canadians as a denial of the social bases of selfrespect. But these bases cannot be supplied, she argues, by the money remedy sought by the Chinese Canadians. Indeed, she regards the reduction of the problem to a monetary amount pegged to the head tax as a move that potentially undermines what has to be sought if discrimination is to be properly addressed. It is not, in her view, the case that financial reparations are in themselves inappropriate. Rather, it is that where they are appropriate, they are only a small part of a much larger package which includes public education, social programs to combat racism, and institutions capable of monitoring both discrimination and the attempts to deal with it. Furthermore, she argues that financial reparations claims should be consistent with a framework of distributive justice. Above all, she wants to avoid a competition between oppressed groups for reparations through ad hoc legal claims, as the results of such competition will, she thinks, create a hierarchy of victims and undermine rather than support mutual respect. Institutional Questions Reparations cases also raise difficult questions that extend beyond the complexities of history and into the heart of institutional competences, especially in the legal context. For this reason, a number of contributors focus on the specific problem of the institutional competence of courts in addressing the kind of injustice created by the head tax. Jeremy Webber subtly draws out the institutional implications that seem to underlie the oft-articulated view that these kinds of problems of the past are essentially political problems that are thus not properly addressed through choice of litigation. Webber does not deny that courts have an important institutional role in remedying injustice, but he argues that this role is properly limited to correcting the past injustice of wrongfully ruptured relationships. Prospective justice is concerned with the health of the relationship into the future. It requires a weighing of all

Mack: Equality, History, and Reparation 15

relevant considerations - for example, in the head tax case, the discriminatory consequences of the past for Chinese Canadians today. But that process has also to take into account discrimination against other communities and the question of reparations for them. Thus, while Webber does not in any way deny that judges can play a useful role in addressing injustice, his view is that in the circumstances of the head tax case, the only appropriate institutional response is a legislative one. Lome Sossin asks a related but rather different question about institutional competence by stepping back and examining the variety of routes that might seem open in these cases. He particularly focuses our attention on Mack's continuity with a series of cases about the relationship between public law duties and private law doctrines. He analyses decisions in which courts have begun to articulate the idea that a fiduciary relationship exists between citizen and state such that the state can be called to account for its betrayal of the trust which citizens repose in it. While these cases, with the exception of the jurisprudence on Aboriginal claims, have generally been about constraints on executive and not legislative decisions, Sossin shows that the distinction between these categories is problematic. Undistracted by the formalism of categories, he argues that we should see the complex blend of equitable and legal considerations in these cases, perhaps even how equity and legality are mutually constitutive. As the same considerations were in play in Mack, his analysis invites the question whether the constraints of legality shut the door as firmly on the Chinese Canadians' claim as the courts wanted to suggest. Implications for Legal Theory Sossin's chapter thus provides a direct bridge to the contributions which insist on the appropriateness of the judicial forum, both for the response to past injustice itself and for the institutional integrity of the courts and the progressive development of the law. Again the past provides important models both positive and negative on this point. Julian Rivers's discussion of the approach of German legal philosophy and German courts to the problem of legal injustice serves as a useful counterpoint to the decisions of the Canadian courts in Mack. Rivers's defence of the use by the German courts of the 'Radbruch Formula' - that extreme injustice is not law - is particularly pointed because the Ontario courts in Mack summarily rejected any parallel between the head tax case and the legal injustice that faced the German courts in post-Nazi and post-

16 David Dyzenhaus and Mayo Moran

reunification cases. And according to Rivers, the limitations that the Radbruch Formula places on what judges can give effect to as law because of the injustice wrought through the legal form may well have the same force in modern liberal democracies as in post-totalitarian regimes. Rivers and David Dyzenhaus join issue on the question of the theoretical underpinnings of the Radbruch Formula. While Rivers argues that the Formula is best understood in non-positivist terms, Dyzenhaus traces its links to legal positivism, the legal theory which claims that there is no intrinsic relationship between law and morality. And for Dyzenhaus, this has pragmatic as well as theoretical significance. This can be seen by tracing the implications of the different models of the rule of law implicit both in the Ontario court judgments and in the legal arguments made by the plaintiffs in Mack. Dyzenhaus distinguishes between a positivist model and one that draws on Lon L. Fuller's claim that there are moral principles internal to or inherent in law and tries to show that the Canadian courts' resistance to the argument for reparations rests on the positivist model. And if the Radbruch Formula ultimately rests on a positivist conception of the rule of law, then the plaintiffs' invocation of the Radbruch Formula in the legal arguments made in the head tax case may have had a paradoxical effect of giving the court the resources to resist the argument put to them. By, that is, invoking the Radbruch Formula and with it a positivist conception of the rule of law, the plaintiffs may have actually cut against the very conception of the rule of law that their argument demanded of the court. Dyzenhaus concludes that the true force of the plaintiffs' argument in the Mack case can only be grasped in terms of a model of the rule of law which draws on the internal morality of law, a model which relies on resources inherent in law rather than on an external moral standard. Legal theory also plays an important role in the construction of the unjust enrichment argument which lies at the heart of the claim in Mack. Lionel Smith and Dennis Klimchuk address the complexities of this aspect of the Mack case. Smith notes that unjust enrichment may seem promising because recovery in unjust enrichment has never required the plaintiff to establish that the defendant's conduct was legally wrongful. The fact that recovery is in this sense independent of wrongdoing may seem to respond to a central worry about the case - that by most accounts, the government that enacted the head tax legislation was acting legally at the time, however much we now view its acts as

Mack: Equality, History, and Reparation 17

wrong. But unjust enrichment does demand that the transfer of wealth which is now called into question was normatively flawed at the time of the transfer. And where the transfer is effected by a statute, as in the head tax case, this means that restitution cannot be granted unless the statute is itself somehow impugned. Smith suggests that although the problem is in a certain sense novel, the law of unjust enrichment does provide fruitful analogies. In particular, he suggests that through bringing the cases on failure of basis together with the public law imperatives that arise out of the Charter, we might find a solution to these cases that draws on and develops established principles in the law of restitution. The law of unjust enrichment is rapidly evolving and the reparations claim is undoubtedly its most controversial application. With this context in mind, Klimchuk considers two pressing unjust enrichment implications of the Mack decision. He suggests that the courts in Mack misconstrued the elements of unjust enrichment when they held that the plaintiffs could not establish unjust enrichment unless they could impugn the legal validity of the head tax legislation at the time of its application. Instead, Klimchuk argues, the fact that the legislation could not withstand Charter scrutiny now is sufficient to establish the unjust factor. Klimchuk then goes on to examine the deeper implications of understanding unjust enrichment in this way. In particular, he notes how this approach may seem to entrench the very understanding of unjust enrichment that many Canadian commentators have recommended abolishing. But Klimchuk develops a way of reading the claim in Mack that responds to these worries. Ultimately, he argues that understanding the Mack claim in the way he advocates would not only realize the commitment to equality contained in the Charter, but would also vindicate the long-standing common law commitment to ensuring that those responsible for wrongs set them right. Smith and Klimchuk both point to the interrelationship between the principles of unjust enrichment and larger principles that draw at least in part on public law and Charter values. This is the aspect of cases like Mack that Mayo Moran takes up. She suggests that while attentiveness to the non-retrospectivity of the Charter is worthy of respect, the Mack courts' deference to past legislatures is inconsistent with the judicial obligation to develop the common law in accordance with Charter values. In fact, an examination of the long tradition of the common law that pre-dates the Charter suggests that courts have a variety of ways of ensuring that they will not be put in the position of giving effect to

18 David Dyzenhaus and Mayo Moran

legal acts that undermine the courts' own fundamental values. This estoppel-like effect, she suggests, could well have been employed in the Mack case to preclude the government from asserting a legal justification that profoundly contradicted the values of the very court being asked to give its legal imprimatur to the transfer of resources involved in the head tax. Conclusion Readers of this collection might find that they are left with more questions than answers at the end. The contributors are so deeply divided about the appropriateness of recourse to the courts to address the kind of injustice created by the head tax that it would be a wholly appropriate reaction to regard the head tax as a stain which only the federal government and legislature can properly address. However, those who take this position are immediately confronted with the problem that it was the obdurate refusal of the government to respond appropriately to Chinese Canadians who took the equality promise of the Charter seriously, perhaps too seriously, that led to recourse to the courts. Perhaps a compromise position might lie in the thought that it was appropriate to use the courts, though not in the hope of getting a remedy from them. Rather, the courts would be used to raise political awareness, thus embarrassing the government into action. But that embarrassment has not happened, and the reasons here go beyond Lady Macbeth's point that those with power have nothing to fear as long as they are unaccountable. The fact is the courts' decisions have not only let the government off the hook, but have inevitably helped to legitimize the government. While the courts were anxious to suggest_that the tax was unjust - a stain - they also sought to distance the present from the past in order to avoid confronting the question of their responsibility when the law they serve is the source of injustice. And precisely this tactic of distancing, the thought that Moran evokes when she notes how the past can be regarded as another country, is adopted by governments who wish to avoid responsibility for past injustice. The question of judicial responsibility in the face of the injustice of the law is complex. But as soon as one starts to investigate the complexities from the inside, as it were, by looking at the resources the law offers judges minded to deploy them, it becomes harder for judges in circum-

Mack: Equality, History, and Reparation 19

stances such as the head tax case to claim with conviction that the law offered nothing - that there was no reasonable cause of action. In order to assist the reader to form her or his own opinion on this issue, we have included in appendixes to this volume the Ontario Court of Appeal's decision as well as the factum or written argument put by the plaintiffs to the Court. In the opinion of the editors of this volume, Canadian judges should be disposed to deploy all the available legal resources. This is particularly so given that they take seriously the promise of equality that is arguably the promise of the rule of law and unarguably the substantive commitment of Canadian legal order since the adoption of the Charter. One can consistently hold both that ultimately the law was not on the side of the Chinese Canadians and that the judges - including the panel of the Supreme Court which refused leave to appeal - abdicated their responsibility to stare squarely into the face of the injustice of the head tax case. That the Chinese Canadians did not get to present at trial the full record of the discrimination they suffered, a record which would have contextualized and given body to the complex legal arguments put by their lawyers, might well be a stain on the record of the Canadian judiciary. NOTES 1 Mack v. AG (Canada) (2002), 217 D.L.R. (4th) 583 (C.A.), para. 1. 2 Mack v. AG (Canada) (2001), 55 O.K. (3d) 113 (S.C.). See Appendix 2. 3 Leave to appeal denied Mack v. Canada (AG) (2002), 100 C.R.R. (2d) 375 (S.C.C.). 4 House of Commons Debates, 5th Sess., 8th Parl., at p. 7411 (Sir Wilfrid Laurier - Liberal Majority Government, 1900) cited in Factum of the Appellants, Ontario Court of Appeal. See Appendix I. 5 He was also known as Mr Mark. 6 Mack v. AG (Canada), supra note 2,128.

Litigating Injustice 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 the Charter might 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 one of over 81,000 Chinese immigrants who had to pay the head tax between 1885 and 1923 just to enter Canada, a measure that was imposed only on persons of Chinese descent. Like all the other head tax payers, Mr Mack had endured years of discrimination, economic hardship, and separation from his family because of the head tax and the Chinese Exclusion Act, and he wanted his government to pay for what it had done to him and his family. Touched by his story of hardship and convinced by the merits of his case, Margaret Mitchell took Mr Mack's demand to the House of Commons. There, for the first time in Canadian history, a question was raised in the House as to when the Government of Canada would redress the Chinese Head Tax and Exclusion Act issue. Twenty years later, we are still waiting for the answer. Mr Mack's quest for justice sparked a national campaign for redress, headed by the Chinese Canadian National Council (CCNC). The issue of Head Tax and Exclusion Act redress was quickly identified by the CCNC as a matter of great significance, not only to the individual head tax payers themselves but to the Chinese Canadian community as a whole. It is an outstanding wrong that speaks to the struggle of Chinese Canadians for their recognition as full and equal citizens in a country

Litigating Injustice 21 that takes pride in its humanitarian traditions, yet continues discriminatory practices towards minorities. Within a short period of time, CCNC registered over four thousand head tax payers, widows, and their descendants, who overwhelmingly demanded redress for the wrongs that had been committed against them and their forbears by the Canadian Government. For many years, CCNC worked together with other minority communities who had also suffered from historical injustices to lobby the Canadian Government for redress. Among these communities were the Japanese Canadians, the Ukrainian Canadians, the German and Italian Canadians. All of these communities had been victims of internment during either the first or the second world war. The Japanese Canadian community was the first to obtain redress in 1988, when Prime Minister Brian Mulroney followed the example of Ronald Reagan in the United States of America and provided both individual and community redress to the Japanese Canadian community in the amount of $430 million. Shortly thereafter, there was a change in federal government and a corresponding change in the official policy with respect to reparations. The head tax redress campaign was almost brought to a standstill on 14 December 1994, when Minister Sheila Finestone, then Secretary of State for Multiculturalism, announced in the House of Commons that the Liberal Government would not entertain redress for any community for any historical wrong. But the campaign for Redress of the Chinese Head Tax and Exclusion Act survived. In 1998, CCNC received case development funding from the Court Challenges Program to explore the possibility of using the Charter, particularly s.15, to make a case for redress. Two years later, three individuals, Mr Shack Jang Mack, Ms Quan Ying Lee, and Mr Yew Lee, came forward to become representative plaintiffs in a class action suit filed on behalf of the surviving head tax payers, widows, and their descendants. The Metro Toronto Chinese and Southeast Asian Legal Clinic was retained by the plaintiffs, and the clinic quickly enlisted the help of one of Canada's foremost constitutional lawyers, Ms Mary Eberts, to act as lead counsel in the matter. Now several years have passed since the law suit was first launched and four judges from two different levels of the courts have acknowledged that the laws in question were racist and reprehensible, and that they represented a stain on our history. Gumming J. of the Superior Court went so far as to suggest in his ruling that Parliament should

22 Avvy Go

provide redress to the head tax payers and their families. Despite their sympathy, none of the judges have allowed the legal case to go forward. Most recently, on 24 April 2003, the Supreme Court of Canada put the final nail in the proverbial coffin of the law suit by dismissing the plaintiffs' leave to appeal from the Ontario Court of Appeal decision. The legal strategy may have fallen short, but the struggle for justice remains. As the number of surviving head tax payers and widows continues to dwindle, the need for a speedy resolution becomes more urgent. About a month before the fateful decision from the Supreme Court of Canada, Mr Shack Jang Mack, the lead plaintiff, passed away at the age of ninety-four. His death did not come as a great surprise as he was already quite frail when two years earlier he had agreed to take on the role as the lead plaintiff in the class action suit. But his death is still hard to accept, made especially poignant by the fact that he died without ever having received the apology from Canada for having subjected him and his family to decades of legislated racism. He died without ever seeing justice done. I keep asking myself as I mourn for Mr Mack, why has the goal of redress proven to be so elusive, when virtually every single person who knows anything about Canadian history acknowledges that something terribly wrong was done to this particular group of people for no reason other than their race? Why can we not get the Government to make even this most modest of gestures, as an act of reconciliation by offering symbolic compensation to those whose lives were torn apart for over sixty years by an overtly racist legal regime? Could it be the curse of the 'Chinaman's luck' that forbade the Chinese from ever getting justice in a white man's world? Are we still haunted by the ghosts of the Gold Mountain - the Chinese men who perished in the Rockies as they built a nation-unifying railway for a notso-grateful nation, and whose spirits have never been allowed to rest in peace? Or is it because of the Liberal policy, formulated by Pierre Trudeau, which says that no present-day government should be held responsible for wrongs committed in the past? And yet the exceptions to this policy seem to be as abundant as the rule: the Aboriginal veterans and merchant marines from the two world wars who had been denied pensions got their compensation, as did the Japanese Canadians who had been interned during the Second World War, and the list goes on. Perhaps it is a simple matter of mathematics: the longer we wait, the fewer the head tax payers and widows who remain alive, hence the

Litigating Injustice 23

smaller the amount that needs to be paid. If that indeed is the tactic of the government, then it is obviously working. Sooner or later, all the remaining head tax payers will have passed on, along with their widows and their first-generation descendants. Eventually there will be no one left to compensate. As I continue on with others along the journey towards redress, I would like to pay a special tribute to the two Mr Macks who have played such a significant role in the redress movement: to Mr Mack in British Columbia, who first raised this issue in 1983, and to Mr Shack Jang Mack, whose name is now synonymous with Chinese Head Tax and Exclusion Act Redress. If nothing else, these two head tax payers and others like them have left with us a legacy - one that honours truth and justice, while challenging our society to continuously and collectively confront the mistakes it has made so as to help ensure a better future for all of us. I can only hope that their efforts and sacrifices will indeed not be in vain.

Legal Discrimination against the Chinese in Canada: The Historical Framework CONSTANCE BACKHOUSE

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 action that cries out for legal redress. However, the discriminatory head tax was not an isolated or aberrational policy in Canadian legal history. It was one of the first planks in what would become a wide-ranging framework of racially discriminatory legal measures designed in conception and implemented in practice to disadvantage Chinese Canadians. In immigration, employment, entrepreneurship, education, social access, and suffrage, Chinese Canadians were racially categorized as the 'other' and disentitled from rights and opportunities routinely enjoyed by other Canadians.4 The enormity of historical discrimination is sometimes lost in the recitation of seemingly endless legal provisions. Understanding how such a web of racially specific statutes and practices affected a single individual and his family may provide a more meaningful explanation. I have chosen to present information about the historical framework of anti-Chinese discrimination through the life experience of Lem Wong, who immigrated to Canada at the end of the nineteenth century. Lem Wong has come to historical attention because he was selected for a historical documentary video, The Road Chosen: The Story of Lem Wong,

Legal Discrimination against the Chinese in Canada 25 which became part of the series A Scattering of Seeds: The Creation of Canada.5 A summary of his life has found its way into Ontario high school history textbooks, as history teachers struggle to incorporate racially diverse material into the public school curriculum.6 He has also been the subject of historical inquiry because his daughter, Gretta Wong Grant, became the first Chinese Canadian woman lawyer.7 Documentary films are powerful educational vehicles for conveying Canadian history. The blurb on the back of the video cover indicates that the series 'celebrates the grit and character of unsung immigrants ... who staked their families and future on a second chance in Canada.' It highlights Lem Wong's 'dogged determination,' noting that his 'diligence and entrepreneurship prevailed' over what was a 'less than welcoming Canada back then.' The video admits that popular culture historically evidenced 'fear and misunderstanding' of the Chinese, that 'bruising stereotypes' demeaned Chinese Canadians, and that 'humiliation' was meted out to those of Lem Wong's generation. It pauses briefly to itemize some of the legal barriers: the 'malicious legislation that disenfranchised Chinese-Canadians and demanded head taxes/ the impediments to immigration, and the provincial law that prevented white women from working in Chinese restaurants. The voice-over does not discuss these or other discriminatory laws any further, but perhaps it is not fair to ask for more detailed treatment within a visual medium. The main focus is on Lem Wong's ability to achieve ultimate business success by dint of unbelievably hard work and entrepreneurial acumen. The professional careers of Lem Wong's children, who obtained distinction as some of the first Chinese Canadian doctors, lawyers, and scientists, are lauded. The back cover finishes its promotional text by quoting from the Toronto Star, which extolled the 'evocative' story of such 'unsung heroes/ who 'helped build a great nation.'8 This is Canadian nationalist myth-making at its best. We admit that the country has not been free from racial stereotypes and misbegotten measures, in the finest 'honest Canadian' tradition. Then we celebrate the multicultural narrative that we claim distinguishes us from the universalizing American culture south of the border. We relegate the evils of a discriminatory society to the past, and eulogize the efforts of the hardy immigrants who overcame adversity without bitterness or rancour. We note with quiet pride their multiple achievements and those of their children. Only in Canada, a social democracy with a strong egalitarian tradition, could such triumphs occur, we think. The images and ideas fit seamlessly with the sorts of questions and

26 Constance Backhouse

comments raised during argument by the Honourable Mr Justice James MacPherson, of the Ontario Court of Appeal, before that appellate court dismissed the Mack plaintiffs' class action for redress. The Chinese head tax payers were happy to be here, Mr Justice MacPherson asserted. Some of them may even have been happy to pay the tax, because they knew their lives would be better here. Or alternatively, they had already received redress because they had been allowed to remain in Canada. They and their children and grandchildren all became successful. The fact that they and their descendants were still here was redress enough.9 This paper is an effort to go one step further than the documentary video has done. It is an attempt to put the details of the discriminatory legal framework that enveloped Lem Wong's life more fully on the record. As a result, the endnotes of the paper will, by necessity, overwhelm the text. Even a cursory recounting of the numbingly numerous federal and provincial statutes that were enacted and enforced during Lem Wong's lifetime takes vastly more space than anything that historians have been able to elicit regarding his personal life. Lem Wong may have become a Canadian immigration success story, but like his countrymen, he was subject to multiple levels of legally enforced racism in his chosen country. Lem Wong was born in 1881 in a small village near Canton. After the early death of his father, he was employed as a woodcutter while still a child. China's fragile economy was disintegrating under the pressure of penetration from foreign industrializing powers, and like many other young Chinese men, Lem Wong sought to emigrate to seek a better living. He travelled in steerage class during the three-week voyage from Hong Kong to Vancouver in 1896, at the age of fifteen.10When Lem Wong arrived in Canada, he was advised that five groups of Chinese immigrants were exempt from the eleven-year-old head tax: diplomats, tourists, men of science, students, and merchants.11 Since he qualified for none of these exemptions, he paid the $50 levy, along with 1,761 other Chinese immigrants in 1896, generating tax revenues of over $88,000 for the federal government that year.12 Most of the Chinese immigrants to Canada at the end of the nineteenth century were in their late teens or early twenties, with little formal schooling and practically no linguistic facility in English. Lem Wong was no exception. He never obtained more than a grade 4 education. He set about learning the English language through the assistance of classes offered by local church groups. His first job was with a Vancouver laundry.13 The earliest Chinese arrivals had been employed

Legal Discrimination against the Chinese in Canada 27

in mining, railway construction, canning, and manufacturing, but racist hiring practices soon squeezed the Chinese out of the core labour market. They sought refuge in laundries, restaurants, and domestic service, occupations of low social status for which there was little white competition.14 Although the majority of Chinese immigrants remained in Vancouver, some thought job opportunities would improve if they spread out geographically. Lem Wong was one who travelled by train across Canada looking for employment. He left Vancouver after five months, and worked his way eastward, obtaining employment at various laundries in London, Montreal, Springhill, and Cape Breton Island. Eventually he stopped in Sydney, Nova Scotia, as far east as he could get, on the shore of the Atlantic Ocean. There he obtained employment working fourteen-hour-a-day shifts, washing the clothes of steel-mill workers, for wages of $4 per week, less than half the salary of an unskilled white male labourer.15 Like many of his countrymen, Lem Wong's objective was to move from the position of employee to entrepreneur, something he managed to do within several years. His first business ventures, usually in partnerships with other Chinese Canadian men, were all confined to laundries. Hand-wash laundries were businesses that were highly labour-intensive and required little in the way of initial capital investment. Although profits were generally low, a combination of long hours, steady consumer demand, and low wages produced a reliable source of income for their owners.16 After five years in Sydney, Lem Wong relocated to London, in southwestern Ontario, the city in which he settled permanently. He opened a new laundry partnership in London on 469 Dundas Street in 1903. Lem Wong's laundries were relatively unsuccessful, but he kept changing locations and reorganizing the business in hopes of improving profits. Eventually he switched from laundries to restaurants, which required relatively higher start-up costs but had the potential to generate higher profits.17 It was no accident that Lem Wong restricted his business ventures to laundries and restaurants. Most Chinese Canadian entrepreneurs were concentrated in the laundry and restaurant sectors. Racist employers and trade unionists who refused job opportunities to Chinese employees were buttressed in their anti-Asian sentiments by a welter of Canadian legal provisions that barred Chinese Canadians from many other occupational avenues. The province of British Columbia, with the largest concentration of Chinese workers, had enacted sweeping prohibi-

28 Constance Backhouse

tions against their employment in mines,18 in the public sector,19 and in private companies incorporated by the legislature.20 A series of British Columbia statutes and by-laws impeded the Chinese from obtaining licences for such activities and businesses as liquor, mining, pawnbroking, building, and hand-logging.21 Professions such as law and pharmacy were closed to Asians in British Columbia.22 Entitlement to unemployment relief was also affected by race, and jobless applicants in both British Columbia and Alberta were denied assistance provided to whites.23 Even in the laundry business, there was discrimination in law. Licensing statutes passed in Quebec were designed to impose cumbersome inspection fees on Chinese laundries, while leaving their competitors untouched.24 Various municipalities across the country, Hamilton and Lethbridge being among the leaders, passed other by-laws intended to constrict business opportunities for Chinese laundries.25 Shortly before his move to London, Lem Wong resolved to marry and begin a family. There were considerable barriers to interracial marriage in Canada at the time,26 and few Chinese Canadian women from which to choose. Women made up only 2.9 per cent of the Chinese population in Ontario in 1911, and 3.5 per cent of the Chinese population across Canada.27 Like most Chinese men, Lem Wong returned to China to seek a bride. Given the racial intricacies of Canadian immigration law, the return visit had to be carefully arranged. In order not to attract another Chinese head tax assessment himself, Lem Wong would have had to register with immigration officials at the port of departure, return within twelve months, and be able to establish his identity upon return 'to the satisfaction of the Controller.'28 This provided only a short interlude in which to find a wife, but Lem Wong returned to his home village and transacted marriage with Toye Chin, a young peasant woman, through the services of a Chinese marriage broker. Their first son, Victor Wong, was born in 1907. Lem Wong was unable to savour parenting, for he had to return to Canada to avoid the expiry of the twelve-month immigration period.29 Lem Wong struggled with the question of whether to bring his family to Canada, a decision he was reluctant to make in the first instance. Racist violence had erupted sporadically throughout Canada, culminating in the anti-Asian Vancouver Riot in 1907. White mobs wreaked damage upon Chinese businesses, destroying property and injuring the owners.30 And there was the considerable financial barrier of the head tax, which now stood at $500 per person. It was not until his son was

Legal Discrimination against the Chinese in Canada 29

due to turn five years old that Lem Wong had weighed all of the factors and decided to set up a permanent family home in London. Aware that the intricacies of immigration law were problematic for Asians, he consulted a London lawyer named J.W.G. Winnett for assistance. Winnett advised him that in order to avoid a payment of $1,000 in head tax for his wife and son, he could try to obtain exemption as a 'merchant/ whose wives and children were entitled to enter tax-free.31 The definition of 'merchant' under the Chinese Immigration Act was quite complex, and there was apparently some concern that Lem Wong's proprietorship of a restaurant might not qualify.32 On the advice of his lawyer, Lem Wong temporarily opened a stall in the London Market. His first foray into poultry failed abjectly. His second, a store with fruit, vegetables, butter and eggs, seems to have passed muster. In 1911, Toye Chin and her son were reunited with Lem Wong in London.33 It was fortunate that Toye Chin and her son came when they did. In 1914, the number of Chinese immigrants admitted dropped dramatically,34 and with the passage of the Chinese Exclusion Act in 1923, Parliament virtually eliminated all further entry.35 Merchants continued to be an admissible class, although their wives and children were no longer allowed in, but the government constructed a definition of 'merchant' that was so narrow that only eight individuals managed to attain entry in this manner36 until the repeal of the statute in 1947.37 Toye Chin's half-brother, who came to London after she did, was one of those caught by the restrictive laws, unable to bring his wife and family over to Canada for decades.38 In 1923, an Order-in-Council added further insult by requiring that all Chinese people living in Canada be registered. Lem Wong and Toye Chin would have been among the many Chinese Canadians forced to accede to this demeaning racially specific requirement.39 Toye Chin, who spoke no English, must have found living in London a very lonely existence. There was a small Chinese community in London, composed exclusively of men, but the Wongs formed the only family of Chinese origin in the city for many decades.40 Toye Chin gave birth to seven more children within the first years of her arrival: Mary, Clara, Norman, George, Bill, Gretta, and Esther. Although all of the children were given Chinese names, they found that it 'wasn't very popular' to use these names with non-Chinese people, and so each was also given an Anglicized name, chosen in honour of people in the church that the family attended. The family lived above the restaurant only briefly, and resided at a succession of houses on Hyman, Fullarton,

30 Constance Backhouse

and Waterloo Streets. Toye Chin's days and evenings were taken up with child care, sewing, shopping, and the endless laundry generated by the family and the restaurant.41 Having his family around him seems to have helped Lem Wong's business fortunes. The restaurant he opened in 1914, Wong's Cafe on Richmond Street, finally paid off with years of financial success.42 Wong's Cafe was an unusual restaurant for its time. Most Chinese restaurants were small, poorly decorated, and open from first thing in the morning until well into the night. Most specialized in simple, non-Asiatic fried food at rock-bottom prices.43 Lem Wong established a restaurant that was well above a simple neighbourhood cafe. He invested in linen table cloths, linen serviettes, silver-plate serving dishes, silver cutlery and teapots, and finger bowls. His menu specialized in lobster, shrimp, scallops, and Winnipeg gold-eye. Wong's Cafe was the first in the city to introduce supper music and Saturday night dancing, featuring another Londoner, Guy Lombardo, and his five-man band. The band broadcast its dance repertoire live on channel CJGC, every Friday night, from Wong's Cafe. Lem Wong's restaurant became the most elegant dining facility in London, where it catered to a wealthy, powerful, predominantly professional class of diners. As the proud owner, Lem Wong worked extraordinarily long hours, greeting all the dinner patrons by name at the door, and personally escorting them to their tables. His children recall that he was almost never free to be with the family, and that there were no vacations ever.44 Despite his comfortable income and flourishing business, Lem Wong was not immune from anti-Chinese legal infringements. A particularly scurrilous statute, popularly known as the 'White Women's Labour Bill,' had been enacted in Ontario in 1914.45 Modelled upon a Saskatchewan statute passed in 1912,46 and an identical Manitoba measure passed in 1913,47 it provided in s.2(l) that 'No Chinese person shall employ in any capacity or have under, his direction or control any female white person in any factory, restaurant or laundry.' A similar statute was enacted in British Columbia in 1919,48 and other provisions considered in Alberta,49 Quebec,50 and Nova Scotia.51 Such statutes were the result of efforts by an all-white coalition of labour organizations, small businessmen, Protestant moral reformers, and women's groups, who had forged common ground to attack interracial mixing and reduce the competitive position of Chinese businessmen. Proponents of the law were worried that the predominantly male Chinese population might seek social and sexual access to white women, par-

Legal Discrimination against the Chinese in Canada 31

ticularly those who worked under their direction in restaurants, laundries, and other businesses. They also knew that the labour of female employees was considerably cheaper than that of male workers, and since the Chinese had few women of their own nationality to hire, and little access to other racialized women, they believed that this law would force Chinese entrepreneurs to hire more expensive male employees. Chinese protest resulted in a challenge to the constitutionality of the laws that was ultimately resolved against the Chinese in the Supreme Court of Saskatchewan and the Supreme Court of Canada.52 Asian resistance to the 'White Women's Labour Bill' seems to have prevented the province of Ontario from proclaiming the statute until 1920,53 but the measure had a serious impact upon Chinese businessmen long before that. From the outset, Lem Wong hired only Chinese men to work as waiters in his restaurant. Whether this was a deliberate choice to avoid the spectre of the enacted but unproclaimed statute is unknown. Lem Wong would certainly, however, have been advised of the measure by his lawyer. The restrictive laws that burdened Chinese individuals and businesses were such that Lem Wong had concluded early on that he needed to consult with a lawyer regularly. Other families had 'family doctors/ but the Wong family had a 'family lawyer' as well. Lem Wong's children recall that he had to consult with London lawyer J.W.G. Winnett so regularly about various aspects of running the restaurant, immigration rules, and other Asian-specific legal barriers, that they grew up regarding Winnett as their 'family lawyer.'54 Despite the framework of racist legislation that affected so many aspects of Lem Wong's life, he was determined that his family be integrated as completely as possible within the white community of London, Ontario. Some public school districts in British Columbia made a practice of segregating Chinese from white students,55 but the Wong children enrolled side by side with their white neighbours. There they stood out as one of the 'only visible minorities' in the London school system, overwhelmed statistically by white students. The Wong children recalled their status of being a racial oddity as problematic at times. The older children, in particular Victor, bore the brunt of the stigma associated with difference. There were incidents of racist namecalling and some social activities to which some of the Wong children were not invited.56 This sort of social isolation occurred throughout Canada during the first half of the twentieth century, when many theatres, dance halls, public pools, restaurants, and other places of

32 Constance Backhouse

public accommodation discriminated in admissions and seating practices on the basis of race.57 But the Wongs also experienced their minority status as 'the only Chinese family' in London to be protective in some ways. The children found London to be a 'secluded space' where they were rarely singled out. 'Everybody got used to us in a sense ... because we were the only family. ... There wasn't the fear of us taking over/ explained Gretta Wong Grant, Lem's second-youngest daughter.58 Lem Wong's insistence upon integration also paved the way for the social acceptance of his family. He actively pursued membership in the First St Andrews United Church, which had set up a Chinese Sunday school on Sunday afternoons. At their father's insistence, all eight children were present at church service every Sunday morning, the regular Sunday school classes after the service, and the special Chinese Sunday school classes in the afternoon. At the latter, Toye Chin and Lem Wong joined their eight children. Gretta Wong Grant remembered the attention that London's only Chinese family attracted at church: 'We were the little heathen kids/ she laughs. 'They took us in... and they embraced us.'59 Sports were another avenue of acculturation, and Lem Wong encouraged all of his children to play on local community teams. The family's successful assimilation seems to have been furthered by their participation on football, basketball, soccer, hockey, and volleyball teams. Athletic success bolstered the Wong children's sense of pride in their family, and gave them a sufficient sense of acceptance that the younger children objected when they experienced incidents of social exclusion. When one of the Wong daughters was refused admission to the Wonderland dance hall one night during the early 1940s, she challenged the gatekeeper with great dignity. 'She drew herself up (and she was barely five feet tall), and said "I am one of the Wongs of London. Why can't I come in?'"60 Lem Wong was gregarious by nature, and determined to make a secure place for his family within the predominantly white southwestern Ontario community. Some of the other members of the Chinese community used to criticize him for that, claiming that he had 'gone Canadian.' According to Francis Wong, a close friend of the family, some of the others didn't like it that Lem Wong would 'go to church, eat Canadian food, read their newspapers. He just fit in with the Canadians, shaking their hands and patting them on the back, just like a Westerner would do.'61 Convinced that his business success required him to make as many contacts in the community as possible, Lem Wong

Legal Discrimination against the Chinese in Canada 33 eventually joined all three political parties in Ontario, 'because he felt this was the thing he should do, [that] he shouldn't insult anybody.'62 His political caution may have reflected the highly uncertain position that Chinese Canadians faced within the country's wider political framework. Those who lived in Ontario had a more secure foundation than many others. As a resident of Ontario, Lem Wong was eligible to vote after obtaining naturalization status. Toye Chin would have been eligible to vote in 1917, when Ontario women obtained the franchise. The only people then excluded from the Ontario franchise by race were Aboriginal men and women.63 By contrast, British Columbia restricted the Chinese, Japanese, 'Hindu/ and 'other Asiatics,' along with Aboriginal peoples, from exercising the vote for decades.64Saskatchewan excluded the Chinese expressly,65 while Manitoba impeded their ability to exercise the franchise by way of a more indirect 'language' test.66 Between 1885 and 1898, the federal government explicitly denied the right to vote to anyone of 'Mongolian or Chinese race.' Subsequently the federal government piggy-backed on racist provincial statutes through the adoption of provincial voters' lists for federal elections.67 Lem Wong's business fortunes reflected the economic temper of the times. He made a good income during the heyday of the Roaring Twenties, although the opening of the Hotel London, with its new liquor licence in the latter part of that decade, put a dent in profits. The onset of the Depression in the 1930s devastated many of the clientele accustomed to dining in Wong's Cafe, and caused a serious downturn in business. The Wong children were pressed into service at the restaurant, waiting tables part-time and taking cash. They struggled through their university education during these years, often unable to pay their fees until well after the end of the academic year.68 The Wong children credited their father for their academic and professional success. Recalling that he had warned them they would be 'noticed,' they took to heart his caution that they should try to do things 'a little better' than others if they could. Lem Wong had also advised his children to obtain high levels of education and enter the professions, as this would allow them to work on their own 'in case there was discrimination.'69 All but one of the Wong children attended university. Victor, the eldest, was sent back to China to study at a university there. He subsequently returned to Canada, married a French Canadian woman in Toronto, and took up cooking in his father's restaurant. Norm was sidetracked into the Canadian army during the Second World War, where he served with a special Chinese unit trained to conduct secret

34 Constance Backhouse

missions behind Japanese lines. He later took business training and worked for General Motors. Mary and Clara graduated in medicine from the University of Western Ontario, where Mary won the gold medal in medicine in 1937, and was also the first woman to win an Athletic Letter at UWO. She practised obstetrics for ten years in London. Clara practised chest surgery in Hamilton. Bill became an internist, practising in Sarnia. Esther became a professor of biochemistry at the University of Manitoba. George went into business. Gretta graduated from the University of Western Ontario, and obtained her law degree from Osgoode Hall Law School. Called to the bar in Toronto in 1946, she became the first Chinese Canadian woman lawyer.70 It was a new generation to be proud of, one that justly marked the Wong family out for acclaim and distinction. The video that chronicles Lem Wong's life emphasized that the difficulties that beset his life never left him 'bitter or twisted by anger.' Instead, the barriers and discrimination 'only served to heighten his sense of principle.' He was 'completely unwavering' in his 'determination to better himself/ He looked for the 'best of both worlds/ whether 'Chinese or Western,' and believed 'what mattered was what was right or wrong/ The documentary concludes on a note of congratulation and pride. Lem Wong and Toye Chin both lived out their senior years in London, until their deaths at age ninety-eight, 'doted on' by their loving children and grandchildren.71 The celebration of Lem Wong's successful immigration narrative is well justified. The Wong family's many achievements in the face of so many hardships are most remarkable. This is, undeniably, a story of which Canadians can be very proud. It should not, however, be told without a full rendition of the barriers - legal, political, economic, and social - that impeded the settlement of Lem Wong and other Chinese Canadian immigrants. And it should not be told as the signature narrative for Chinese Canadian history. Those of us who value racially inclusive Canadian history ought not to be attempting to construct shadow 'grand narratives of Canada' in a vain attempt to respond to the complaints of J.L. Granatstein in his misconceived lament Who Killed Canadian History?72 Equally prominent paradigms should include the immigres who were met by stern immigration officials, interned in fortified 'detention hospitals/ and deported back to China on the next available ship. Other narratives might chronicle the lives of some of those who did not possess the durability, resilience, and good luck to withstand the racism. Robert Menzies's research into

Legal Discrimination against the Chinese in Canada 35 the lives of sixty-five Chinese Canadian men forced to take passage in 1935 on the Empress of Russia back to Hong Kong, because they were deemed lunatics/ is poignant testimony to the torturous impact Canada had upon some aspiring immigrants, 'broken down in body and mind/ whose 'sad and damaged' lives paid homage to 'bleak Canadian sojourns and untold travails/73 Canadians need to read history to be reminded not only of the triumphs of racialized communities, but also of the toll taken by our past and continuing racism. We need to remind ourselves that just as the federal government unjustly retains the head taxes paid by Chinese Canadians so many years ago, the stain of discriminatory legal treatment also continues to live on. The racist laws and practices that confronted Chinese Canadians created a legacy upon which the rest of Canadian society was constructed. It is a discriminatory foundation upon which our society continues to rest.

NOTES I would like to thank Raquel Chisholm, who worked with me on this paper as my research assistant. I am indebted to the Social Sciences and Humanities Research Council of Canada and the Law Foundation of Ontario for financial assistance with the larger research project of which this is a part. 1Chinese Immigration ActS.C. 1885, c.71, s.4. 2 Act respecting and restricting Chinese Immigration S.C. 1900, c.32. 3 An Act respecting and restricting Chinese immigration S.C. 1903, v.I, c.8. Similar legislation applied in Newfoundland, which was at this time a separate and independent colony: An Act respecting the Immigration of Chinese Persons S.Nfld. 1906, c.2; An Act to amend 6 Edward VII, Cap. 2, entitled 'An Act respecting the Immigration of Chinese Persons' S.Nfld. 1907, c.14; Of the Immigration of Chinese Persons C.S.Nfld. 1916, c.79; An Act Respecting Immigration S.Nfld. 1926, c.29. The British Columbia legislature enacted eight additional statutes between 1900 and 1908, all designed to eliminate Asian immigration by barring entry for immigrants who could not complete a 'European language test.' An Act to Regulate Immigration into British Columbia S.B.C. 1900, c.ll, s.3 made it unlawful for individuals to immigrate into British Columbia if they could not write out and sign an application 'in the characters of some language of Europe.' Section 2(f) provided that the Act did not apply to 'any persons the terms of whose entry into Canada have already been fixed ... by any act of the Parliament of Canada/ and so the

36 Constance Backhouse Chinese were potentially immune because Parliament had already passed two Chinese immigration statutes. However, Bruce Ryder 'Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Immigration Legislation, 1884-1990,' Osgoode Hall Law Journal 29 (1991), has noted that immigration officers apparently continued to expel Chinese immigrants who could not meet the language test until it was disallowed on 11 September 1901: Canada Gazette, vol. xxxv at 455, as reported on 5 January 1901 and 4 September 1901, and noted in Table of Provincial Acts Disallowed and Bills Reserved, 1867-1920, S.C. 1922 at 255. An Act to Regulate Immigration into British Columbia S.B.C. 1902, c.34, s.4 reenacted the 'European language test' with a new dimension. Now an immigrant could be required to fill out an application 'in the characters of some language of Europe' as well as 'read any test submitted to him' by any officer appointed under the Act. Despite its disallowance (Canada Gazette, vol. xxxvi at 1046, as reported on 14 November 1902, Table of Provincial Acts Disallowed and Bills Reserved 1867-1920, S.C. 1922 at 255) the entire statute was passed again in 1903. An Act to Regulate Immigration into British Columbia S.B.C. 1903, c.12 attracted yet another disallowance from the federal government: Canada Gazette, vol. xxxvii at 1919, as reported on 1 October 1903, Table of Provincial Acts Disallowed and Bills Reserved 1867-1920, S.C. 1922 at 255. In 1904, British Columba enacted a new version of the 'European language test.' An Act to Regulate Immigration into British Columbia S.B.C. 1903^1, c.26, s.3 (given royal assent 10 February 1904) prohibited the immigration of any person who could not 'write out at dictation, in the characters of some language of Europe, and sign in the presence of the officer, a passage of fifty words in length, in a European language directed by the officer.' This too was disallowed: Canada Gazette, vol. xxxviii at 1538, as reported 16 November 1904, Table of Provincial Acts Disallowed and Bills Reserved 1867-1920, S.C. 1922 at 255, as was a 1905 version of similar provisions: An Act to regulate Immigration into British Columbia S.B.C. 1905, c.28, disallowed Canada Gazette, vol. xxxix at 835, as reported on 30 March 1905, Table of Provincial Acts Disallowed and Bills Reserved 1867-1920, S.C. 1922 at 255. A1907 statute added the ability to read 'in the English language or any language of Europe' to the list: An Act to Regulate Immigration into British Columbia S.B.C. 1907, C.21A, s.4. It was also disallowed: Table of Provincial Acts Disallowed and Bills Reserved 1867-1920, S.C. 1922 at 255. This process was duplicated again in 1908: An Act to Regulate Immigration into British Columbia S.B.C. 1908, c.23, disallowed Canada Gazette, vol. xlii at 2469, as reported on 19 November 1908, Table of Provincial Acts Disallowed and Bills Reserved 1867-1920,

Legal Discrimination against the Chinese in Canada 37 S.C. 1922 at 255. The time lag between enactments and disallowance meant that in practice, the anti-Asian legislation was in force in British Columbia more often than not during the years from 1900 to 1908. Nor was the federal government averse to passing explicitly racial immigration rules during this period. An Order-in-council passed in 1908 singled out 'Asiatic immigrants/ requiring them to be in possession of $200 spending money upon entry: Order-in-Council 3 June 1908, Canada Gazette, vol. xii at 3276. An Act respecting Immigration and Immigrants S.C. 1906, c.19, s.20 explained the motivation: 'And whereas Canada is looking primarily for immigrants of an agricultural class to occupy vacant lands, and as immigrants from Asia belong as a rule to laboring classes, and their language and mode of life render them unsuited for settlement in Canada where there are no colonies of their own people to insure their maintenance in case of their inability to secure employment, it is necessary that provision be made so that such immigrants may be possessed of sufficient money to make them temporarily independent of unfavourable industrial conditions when coming into Canada.' Section 30 of the 1906 statute also authorized the Governor in Council, by order or proclamation, to prohibit the landing in Canada 'of any specified class of immigrants' whenever it was considered 'necessary or expedient.' 4 For a more comprehensive analysis of the legal, political, social, and economic discrimination against the Chinese, see Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press, 1999); Constance Backhouse, 'Gretta Wong Grant: Canada's First Chinese-Canadian Female Lawyer,' Windsor Yearbook of Access to Justice 15 (1996), 3-46; W. Peter Ward, White Canada Forever: Popular Attitudes and Public Policy toward Orientals in British Columbia, 2nd ed. (Montreal and Kingston: McGill-Queen's University Press, 1990); Patricia Roy, A White Man's Province: British Columbia Politicians and Chinese and Japanese Immigrants, 1858-1914 (Vancouver: UBC Press, 1989); Stanislaw Andracki, Immigration of Orientals into Canada, with Special Reference to Chinese (New York: Arno Press, 1978); Peter S. Li, 'Immigration Laws and Family Patterns: Some Demographic Changes among Chinese Families in Canada 1885-1971,' Canadian Ethnic Studies 12:1 (1980), 58-73; Peter S. Li, 'Chinese Immigrants on the Canadian Prairie 1910-1947,' Canadian Review of Sociology and Anthropology 19 (1982), 527; F.J. McEvoy, 'A Symbol of Racial Discrimination: The Chinese Immigration Act and Canada's Relations with China, 1942-1947,' Canadian Ethnic Studies 14:3 (1982), 24-42; Henry F. Angus, 'Canadian Immigration: The Law and Its Administration/ in Norman MacKenzie, ed., The Legal Status of Aliens in Pacific Countries (London:

38 Constance Backhouse

5

6

7

8

Oxford University Press, 1937), 58-75; Victor Lee, The Laws of Gold Mountain: A Sampling of Early Canadian Laws and Cases That Affected People of Asian Ancestry/ Manitoba Law Journal 21 (1992), 301-24; Bruce Ryder, 'Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Immigration Legislation, 1884-1909,' Osgoode Hall Law Journal 29 (1991), 619; Bruce Ryder, 'Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Legislation, 18721922,' unpublished manuscript, copy on file at Osgoode Hall Law School Law Library; Shin Imai, 'Canadian Immigration Law and Policy: 18671935,' LL.M. Thesis (York University, 1983); Freda Hawkins, Canada and Immigration: Public Policy and Public Concern, 2nd ed. (Montreal and Kingston: McGill-Queen's University Press, 1988); B. Singh Bolaria and Peter S. Li, Racial Oppression in Canada, 2nd ed. (Toronto: Garamond, 1988) at 105-6. Other racialized groups, such as African Canadians, South Asians, the Japanese, Eastern Europeans, Jews, and Aboriginal peoples also experienced legal discrimination. See Backhouse, Colour-Coded; James W. St. G. Walker, 'Race,' Rights and the Law in the Supreme Court of Canada (Waterloo, ON: Osgoode Society and Wilfrid Laurier University Press, 1997). The Road Chosen: The Story ofLem Wong, White Pine Pictures, directed by Keith Lock, produced by Peter Raymont, Lindalee Tracey, and Maria Pimentel in association with History Television, Reseau de I'lnformation de la Societe Radio-Canada, Vision TV, and SCN. The video is distributed in Canada by McNabb and Connolly, [email protected]. I was reminded of this by my son, Mark Feldthusen, as we spoke about the article I was writing during dinner conversation. 'Lem Wong,' he retorted with enthusiasm, 'I remember him. He was in my history book. Wasn't he the Chinese man who worked on the railroad and then ran a restaurant in London, Ontario?' Although Mark had the employment on the railroad factually wrong, his comment reminded me that I had seen the entry in his grade 10 Canadian history text, John Fielding et al., Canada: Our Century, Our Story (Scarborough: Nelson, 2001) at 12-13, from Glebe Public High School in Ottawa. See Constance Backhouse, 'Gretta Wong Grant: Canada's First ChineseCanadian Female Lawyer.' The first Chinese Canadian lawyer, a male who was called to the bar in Ontario in 1945 one year earlier than Gretta, was Kew Dock Yip; see 'First Chinese Called to Bar,' Toronto Star, 20 September 1945; Osgoode Society Oral History Transcript of Kew Dock Yip, 22 May and 29 June 1990, on file with the Osgoode Society, Osgoode Hall, Toronto. The same tenor characterizes the entry in the high school text. The brief biographical entry describes the conditions of Lem Wong's move to

Legal Discrimination against the Chinese in Canada 39

9

10

11 12 13 14

Canada, and mentions the head tax, the discriminatory immigration laws, and the restriction of the franchise. It documents Lem Wong's harsh working conditions, his business success, and the accomplishments of his children. It emphasizes that Lem Wong 'didn't fight back' when he was called 'humiliating names': 'Instead, he studied his customers. He remembered their names. He asked them questions about their homes; sometimes they asked him questions about his. Lem's curiosity got the best of his customers and they grew to like him ... His friendly manner made customers feel welcome and his business grew, as did his family ... Lem and Toye Wong's legacy to their chosen country was their children: three doctors, a professor of chemistry, a draftsperson, and a lawyer.' Fielding, Canada: Our Century, Our Story at 12-13. The full description of the questions asked and comments made by MacPherson J. is contained in the Complaint Made Against Mr. Justice James MacPherson for Comments Made in Mack et al. v. Attorney General of Canada, Court File No.: C36799 (Ont.C.A.) During the Hearing, 10 June 2002. The letter of complaint, which was filed with the Canadian Judicial Council, is on file with the author. The complaint was subsequently dismissed. Backhouse, 'Gretta Wong Grant: Canada's First Chinese-Canadian Female Lawyer,' 4-5; The Wong Family of London' Citizenship Branch, Department of Citizenship and Immigration, Ottawa, pamphlet in collection of Gretta Wong Grant. It is difficult to be certain about the complete accuracy of dates, since other sources give Lem Wong's age on arrival at Canada as 'fourteen or sixteen': The Osgoode Society Oral History Transcript of Gretta Grant, 30 November 1990, on file with the Osgoode Society, Osgoode Hall, Toronto. The Road Chosen documentary video gives the arrival date in Vancouver as 1897, with Lem Wong aged sixteen. Chinese Immigration Act S.C. 1885, c.71, s.4. In 1896, only twenty-four Chinese immigrants were exempted from the head tax. See Roy, White Man's Province, table 2 at 270. The Road Chosen documentary video. For discussion of the racial stratification in the late nineteenth- and early twentieth-century Canadian labour market, see Gillian Creese, 'Organizing against Racism in the Workplace: Chinese Workers in Vancouver before the Second World War/ Canadian Ethnic Studies 19:3 (1987), 35; Gillian Creese, 'Exclusion or Solidarity? Vancouver Workers Confront the "Oriental Problem/" EC Studies 80 (1988-9), 24; Gunter Baureiss, 'Chinese Immigration, Chinese Stereotypes and Chinese Labour/ Canadian Ethnic Studies 19:3 (1987), 15; Peter S. Li, The Economic Cost of Racism to Chinese-Canadians/ Canadian Ethnic Studies 19:3 (1987), 102.

40 Constance Backhouse 15 'The Wong Family of London' at 4. The Osgoode Society Transcript notes that Lem Wong had an uncle working in a Nova Scotia laundry, which was one of the factors drawing him eastward. See also The Road Chosen documentary video. 16 Peter S. Li, "The Economic Cost of Racism to Chinese-Canadians/ 102-13; Peter S. Li, 'Chinese Immigrants on the Canadian Prairie 1910-1947,' 527. 17 The Wong Family of London'; Backhouse, 'Gretta Wong Grant: Canada's First Chinese-Canadian Female Lawyer/ 9-10; Li, 'The Economic Cost of Racism to Chinese-Canadians/ 102-13; Li, 'Chinese Immigrants on the Canadian Prairie 1910-1947,' 527. 18 Some provisions barred the Chinese (and Japanese) specifically, while others used more indirect language requirements. See various enactments relating to coal mines, metalliferous mines, quarries, metallurgical works, and placer mines: S.B.C. 1877, c.15, s.46, Rule 33; S.B.C. 1888, c.84, s.7; C.S.B.C. 1888, c. 84, s.79, Rule 34; S.B.C. 1890, c.33, s.4; S.B.C. 1894, c.5, s.2; S.B.C. 1895, c.38; S.B.C. 1897, c.27, s.12 and 14; R.S.B.C. 1897, c.138, s.82, Rule 34; R.S.B.C. 1897, c.134, s.12; S.B.C. 1899, c.46, s.1-2 (disallowed by the federal government); S.B.C. 1899, c.50 (disallowed); S.B.C. 1901, c.36, s.2; S.B.C. 1902, c.48, s.2, Rule 34 (disallowed); S.B.C. 1903, c.17, s.2, Rule 34 (disallowed); S.B.C. 1903-1, c.39, s.2; S.B.C. 1905, c.36, s.2, Rule 34 (disallowed); S.B.C. 1911, c.33, s.87, Rule 42; R.S.B.C. 1911, c.160, s.91, Rule 42; R.S.B.C. 1911, c.164, s.15, Rules 13 and 15; R.S.B.C. 1924, c.171, s.101, Rule 42; R.S.B.C. 1936, c.188, s.2 and 6, Rule 42; S.B.C. 1948, c.55, s.!5(5). See also In re The Coal Mines Regulation Amendment Act, 1890 (1896), 5 B.C.R. 306 (S.C.); R. v. Little (1897), 6 B.C.R. 78; R. v. Little (1898), 6 B.C.R. 321; Union Colliery Co. v. Bryden, [1899] A.C. 583; A.-G. v. Wellington Colliery Co. (1903), 10 B.C.R. 397 (C.A.); In re the Coal Mines Regulation Act and Amendment Act, 1903 (1904), 10 B.C.R. 408 (C.A.); Re the Coal Mines Regulation Act (1904), 10 B.C.R. 408; R. v. Priest (1904), 8 C.C.C. 265; 10 B.C.R. 436 (S.C.). See Alan Grove and Ross Lambertson, 'Pawns of the Powerful: The Politics of Litigation in the Union Colliery Case/ EC Studies 103 (1994), 3-32.1 am indebted to Bruce Ryder for sharing his detailed legislative research on the province of British Columbia with me. For more detailed analysis of the British Columbia legislation and its reception in the courts, see Ryder, 'Racism and the Constitution.' 19 British Columbia passed some of the earliest 'contract compliance' legislation in the country, in this case designed not to reduce racial discrimination against minority populations but to enhance it. Various statutes prohibited the employment of Asian workers by companies or persons that received 'any property, rights or privileges' from the legislature.

Legal Discrimination against the Chinese in Canada 41 Others barred provincial assistance to businesses hiring workers unable to read in a language of Europe. See S.B.C. 1878, c.35; S.B.C. 1897, c.l (assent reserved); S.B.C. 1898, c.28 (disallowed); S.B.C. 1900, c.14 (disallowed); S.B.C. 1902, c.38 (disallowed); S.B.C. 1903, c.14 (disallowed); S.B.C. 1905, c.30 (disallowed). Orders-in-Council stipulated that in all contracts, leases, and concessions entered into by the government, provision must be made barring the employment of Chinese or Japanese workers: see Resolution, 15 April 1902, reproduced in the schedule to Oriental Orders-in-Council Validation Act S.B.C. 1921, First Session, c.49 (disallowed). These affected timber licences, mining leases, railway contracts on public lands, public works contracts affecting roads, telegraphs, telephone lines, harbours, canals, and dams, and all instruments issued under the Land Act, Coal Mines Act, Water Clauses Consolidation Act, and the Placer Mining Act. See also In re the Japanese Treaty Act, 1913, [1920] 3 W.W.R. 937, (1920), 56 D.L.R. 69, 29 B.C.R. 136 (C.A.); In re Oriental Orders in Council Validation Act (1922), 63 S.C.R. 293; 65 D.L.R. 577 (S.C.C.); appealed [1923] 4 D.L.R. 698; 3 W.W.R. 945 (P.C.); Attorney-General for British Columbia v. BrooksBidlake and Whittall Ltd. (1922), 63 S.C.R. 466,66 D.L.R. 475, [1922] 3 W.W.R. 9 (S.C.C.); appealed [1923] 1 W.W.R. 1150,2 D.L.R. 189 (P.C.); A.-G. B.C. v. A.-G. Can. (Japanese Treaty Case), [1924] A.C. 203. For more details see Ryder, 'Racism and the Constitution.' 20 For a thorough analysis see Ryder, 'Racism and the Constitution/ who noted at 125 that between 1885 and 1907, the British Columbia Legislature inserted a clause prohibiting the hiring of Asian labour in fifty-seven acts incorporating private companies, of which only a few were disallowed. See S.B.C. 1885, c.30, s.32; S.B.C. 1885, c.31, s.38; S.B.C. 1886, c.16, s.4; S.B.C. 1886, c.22, s.8; S.B.C. 1886, c.25, s.27-30; S.B.C. 1886, c.26, s.8,11-14; S.B.C. 1886, c.27, s.16-19; S.B.C. 1886, c.29, s.19-22; S.B.C. 1886, c.30, s.10-13; S.B.C. 1886, c.31, s.16-19; S.B.C. 1886, c.33, s.35-8; S.B.C. 1886, c.34, s.3-6; S.B.C. 1886, c.35, s.36-9; S.B.C. 1890, c.50, s.27-30; S.B.C. 1891, c.48, s.58-61; S.B.C. 1891, c.69, s.20-3; S.B.C. 1894, c.3, s.2; S.B.C. 1894, c.19, s.2, S.B.C. 1895, c.59, s.3-6; S.B.C. 1896, c.56, s.4; S.B.C. 1896, c.51, s.6; S.B.C. 1896, c.6, s.3; S.B.C. 1897, c.l (assent reserved); S.B.C. 1898, c.10, s.30; S.B.C. 1898, c.30, s.7; S.B.C. 1898, c.46, s.21; S.B.C. 1898, c.47, s.29; S.B.C. 1898, c.48, s.17; S.B.C. 1898, c.50, s.39; S.B.C. 1898, c.51, s.10; S.B.C. 1898, c.52, s.35; S.B.C. 1898, c.53, s.20; S.B.C. 1898, c.54, s.25; S.B.C. 1898, c.55, s.49; S.B.C. 1898, c.56, s.27; S.B.C. 1898, c.57, s.ll; S.B.C. 1898, c.58, s.39; S.B.C. 1898, c.59, s.43; S.B.C. 1898, c.60, s.34; S.B.C. 1898, c.61, s.44; S.B.C. 1898, c.62, s.23; S.B.C. 1898, c.63, s.12; S.B.C. 1898, c.64, s.24; S.B.C, 1898, c.44, s.7 (disallowed); S.B.C. 1898, c. 28 (disallowed); S.B.C. 1899, c.44, s.6 (disallowed);

42 Constance Backhouse S.B.C. 1899, c.78, s.35; S.B.C. 1899, c.79, s.15; S.B.C. 1899, c.80, s.38; S.B.C. 1899, c.81, s. 39; S.B.C. 1899, c.83, s.18; S.B.C. 1899, c.84, s.7; S.B.C. 1899, c.85, s.5; S.B.C. 1899, c.86, s.5; S.B.C. 1899, c.87, s.31; S.B.C. 1899, c.88, s.22; S.B.C. 1899, c.89, s.37; S.B.C. 1900, c.14 (disallowed); S.B.C. 1901, c.65, s.2; S.B.C. 1901, c.69, s.27; S.B.C. 1901, s.70, s.2; S.B.C. 1901, c.71, s.21; S.B.C. 1901, c.72, s.21; S.B.C. 1901, c.73, s.23; S.B.C. 1901, c.77, s.24; S.B.C. 1901, c.78, s.22; S.B.C. 1901, c.79, s.20; S.B.C. 1901, c.81, s.23; S.B.C. 1901, c.83, s.32; S.B.C. 1901, c.84, s.22; S.B.C. 1901, c.85, s.25, S.B.C. 1901, c.86, s.26; S.B.C. 1901, c.87, s.24; S.B.C. 1902, c.57. TheCompanies ActS.B.C. 1897, c.2, s.145 prohibited any Chinese company from doing business in British Columbia. 21 Some required higher licensing fees from Chinese applicants than from others. Some expressly denied licences to the Chinese, while still others did so indirectly through a discriminatory application of facially neutral policies. Others operated by restricting licences to persons on the voters' list, from which Asians were excluded. See, for example, S.B.C. 1881, c.16, s.104, s.HO(lO); S.B.C. 1884, c.4, s.14 and 16; S.B.C. 1885, c.21, s.ll; S.B.C. 1894, c.29, s.5; S.B.C. 1899, c.39, s.22-3,36 (disallowed); S.B.C. 1902, c.40, s.2; S.B.C. 1909, c.28, s.7; S.B.C. 1910, c.30, s.26; R.S.B.C. 1911, c.129, s.!08(2); R.S.B.C. 1911, c.142, s.25; S.B.C. 1912, c.17, s.31(b); S.B.C. 1915, c.50 (assent reserved); S.B.C. 1919, c.27, s.2; S.B.C. 1922, c.25, s.3; S.B.C. 1923, c.17, s.22(l)(b); R.S.B.C. 1924, c.84, s.3(2), s.4(2); S.B.C. 1928, c.49. See also Tai Sing v. Macguire, [1878] 1 B.C.R. 101; Wing Pong's Case, [1885] 1 B.C.R. 150; R. v. Gold Commissioner of Victoria District, [1886] 1 B.C.R. 260; R. v. Mee Wah, [1886] 3 B.C.R. 403 (Co.Ct.); In re Glover and Sam Kee (1914), 20 B.C.R. 219; R. v. Corporation of Victoria, [1888] 1 B.C.R. 331; In re Kanamura (1904), 10 B.C.R. 354 (S.C.); In re the Municipal Clauses Act and in re Wah Yung & Co. (1904), 11 B.C.R. 154 (S.C.); Sing Kee v. Johnston (1902), 5 C.C.C. 454 (B.C.Co. Ct); Loo Gee Wing v. A.F. Amor (1909), 10 W.L.R. 383 (B.C. Co. Ct.); Rex v. Sang Chong (1909), 11 W.L.R. 231; 14 B.C.R. 275 (B.C.S.C.); Glover v. Sam Kee, [1914] 5 W.W.R. 1276; (1914), 20 B.C.R. 219; 27 W.L.R. 886 (B.C.S.C.); Rex v. Low Chung (1919), 27 B.C.R. 469 (B.C.S.C.). In the township of Richmond, a Chinese farmer was convicted of violating the Lord's Day by working on a Sunday: Rex v. Sam Bow, [1919] 3 W.W.R. 315; (1919), 31 C.C.C. 269; 27 B.C.R. 234 (B.C.S.C.); appealed Rex v. Lam Joy; Rex v. Sam Bow, [1920] 2 W.W.R. 1006; (1920), 28 B.C.R. 253 (B.C.C.A.). See also attempts to convict Chinese laundrymen under factory legislation: Rex v. Chow Chin, [1920] 2 W.W.R. 997 (B.C.S.C.); Rex v. Chong Kee et al. (1920), 37 C.C.C. 22; 29 B.C.R. 165 (B.C.C.A.); Wong Sam et al v. Hamilton (1929), 52 C.C.C. 357; 42 B.C.R. 133 (B.C.Co. Ct.). In this context, it is perhaps not surprising that Chinese businessmen were some of the first to challenge

Legal Discrimination against the Chinese in Canada 43 provincial marketing board schemes: see Rex v. Chung Chuck, [1928] 4 D.L.R. 659; 3 W.W.R. 129; (1928), 50 C.C.C. 235, 40 B.C.R. 352 (B.C.S.C.); (1929), 42 B.C.R. 116 (B.C.S.C.); Rex v. Wong Kit, [1928] 3 W.W.R. 401,4 B.C.R. 424 (B.C.S.C.); reversed on appealsub nom. Chung Chuck v. The King; Wong Kit v. The King, [1929] 1 D.L.R. 756; 1 W.W.R. 394; (1929), 51 C.C.C. 260; 40 B.C.R. 512; (1930), 54 C.C.C. 174; 43 B.C.R. 125 (B.C.C.A.); [1930] 2 D.L.R. 97; 1 W.W.R. 129; (1929), 53 C.C.C. 14 (P.C.); Rex v. Wong York, [1929] 3 W.W.R. 199; (1929), 52 C.C.C. 196; 42 B.C.R. 64 (B.C.S.C.); reversed [1930] 2 D.L.R. 552; 1 W.W.R. 388; (1930), 53 C.C.C. 68; 42 B.C.R. 246 (B.C.C.A.); Mainland Potato Committee of Direction v. Tom Yee (1931), 43 B.C.R. 453 (B.C.C.A.); Chung Chuck and Mah Lai v. Gilmore et al, [1937] 1 D.L.R. 119; [1936] 3 W.W.R. 575; (1936), 67 C.C.C. 264; 51 B.C.R. 189 (B.C.C.A.); Rex v. Chin Hong, [1936] 3 D.L.R. 307; 1 W.W.R. 711; (1936), 65 C.C.C. 334; 50 B.C.R. 423 (B.C.S.C.); Lowe Chong et al. v. Gilmore et al., [1937] 1 W.W.R. 410; 3 W.W.R. 406; (1936), 51 B.C.R. 157 (B.C.S.C.); (1937), 51 B.C.R. 559 (B.C.C.A.); Rex v. Lee Sha Fong, [1939] 3 W.W.R. 459; (1939), 54 B.C.R. 380 (B.C.S.C.); reversed on appeal [1940] 3 D.L.R. 317; 2 W.W.R. 160; (1940), 73 C.C.C. 375; 55 B.C.R. 129 (B.C.C.A.). See also discussion of the decision of the Vancouver board of licence commissioners to exclude Chinese workers from all liquor-licensed premises in 1916 as well as the requirement in 1935 for Chinese cooks in Western restaurants to undergo a physical examination for infectious diseases: Kay }. Anderson, Vancouver's Chinatown: Racial Discourse in Canada, 1875-1980 (Montreal and Kingston: McGill-Queen's University Press, 1991) at 116 and 164. 22 The barriers that prohibited Chinese Canadians from exercising the franchise are discussed below. Enrolment as a student-at-law and articled law clerk, and registration as a certified pharmacist's apprentice, were both limited to those entitled to be placed on the voters' list under the Provincial Elections Act: Rule 39 of the Law Society of British Columbia, passed pursuant to the Legal Professions Act S.B.C. 1895, c.29, s.37; s.15 of the Pharmacy By-Laws, passed pursuant to the Pharmacy Act S.B.C. 1891, c.33. The law society rule resulted from a petition in 1918 by Vancouver law students seeking to prohibit 'Asiatics' from becoming lawyers: see Lee, 'Laws of Gold Mountain' at 312, citing A. Watts, Lex Liberorum rex: History of the Law Society of British Columbia 1869-1973 (Vancouver: Law Society of British Columbia, 1973) at 36; Ryder, 'Racism and the Constitution'; Angus, 'The Legal Status in British Columbia of Residents of Oriental Race and Their Descendants/ in The Legal Status of Aliens in Pacific Countries, ed. Norman MacKenzie (London: Oxford University Press, 1937), 83; Joan Brockman, 'Exclusionary Tactics: The History of Women and Visible Minorities in the Legal Profession in British Columbia/ in

44 Constance Backhouse Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: British Columbia and the Yukon, v.6 (Toronto: Osgoode Society, 1995), 508 at 519-25. 23 In some cases the rates afforded to the Chinese were less, and in other cases Chinese workers were ruled completely ineligible. See Howard Palmer, Patterns of Prejudice: A History ofNativism in Alberta (Toronto: McClelland and Stewart, 1982) at 145-8; Creese, 'Exclusion or Solidarity?' at 44. But see also early legislative attempts to eliminate race discrimination in unemployment relief: S.B.C. 1932, c.58; S.B.C. 1933, c.71; S.B.C. 1945, c.62, s.8. 24 In Quebec, An Act to amend the Quebec License Law relating to public laundries S.Q. 1915, c.22 increased licence and inspection fees for public laundries. While laundries operated by charitable organizations or corporate enterprises and those run by 'a laundress ... alone or with members of her family' were exempt, others (including those of Chinese men) were subject to fees as high as $50: Joseph F. Krauter and Morris Davis, Minority Canadians: Ethnic Groups (Toronto: Methuen, 1978). There was an unsuccessful attempt to challenge a Quebec city by-law that required Chinese laundries to obtain a licence of $75, while other laundries paid only $50: Sun Ling v. Recorder's Court (1921), 37 C.C.C. 117 (Quebec Superior Ct.) See also Turn Sing v. La Cour de Recorder de la Cite de Quebec et al. (1921), 23 R.P. Que. .104 (C.S.). For further discussion of discrimination against the Chinese in Quebec, see Denise Helly, Les Chinois de Montreal 1877-1951 (Quebec: Institut quebecois de recherche sur la culture, 1987). 25 Hamilton by-laws prohibited the Chinese from operating laundries, stores, or factories in the central business district, and required them to take out licence renewals annually. Renewals could be denied if residents objected, and in 1913, fifteen Chinese laundry proprietors were refused the right to relocate after Hamilton residents objected. See David C. Lai, Chinatowns: Towns within Cities in Canada (Vancouver: UBC Press, 1988) at 90; Palmer, Patterns of Prejudiceat 32-4; Gao Wenxiong, 'Hamilton: The Chinatown That Died,' Asianadian: An Asian Canadian Magazine1 (Summer 1978), 15-17. In 1911, some of the white proprietors of laundries in Lethbridge complained that Chinese laundries were operating too close to the town centre, and the City Council enacted by-law no. 83 to restrict them to less commercially attractive areas. Earlier attempts in 1904 to prohibit more Chinese laundries in Calgary resulted in discriminatory by-laws, but due to the resistance of the Chinese community, these were never enforced. In 1913, it was proposed that all the Chinese in Calgary should be photographed and fingerprinted for identification purposes, and that there should be widespread boycotts and refusals to sell them land or buildings.

Legal Discrimination against the Chinese in Canada 45 White Albertans debated in the early twentieth century whether the Chinese should be subjected to special business licences restricting their ability to compete, and whether there should be boycotts and special taxes for Chinese laundries. Palmer, Patterns of Prejudiceat 20, 32-4; J. Brian Dawson, "The Chinese Experience in Frontier Calgary 1885-1910,' in A.W. Rasporich and Henry Klassen, eds., Frontier Calgary: 1875-1914 (Calgary: University of Calgary Press, 1975) at 124; Baureiss The Chinese Community in Calgary/ Alberta Historical Review 22, 2 (1974). Other racially discriminatory regulation in Alberta may have come under An Act to License, Regulate, and Control Restaurants and Other Places where Refreshments are Sold S.A. 1922, c.7, which required that all restaurants be licensed by the Attorney General. Licences were banned for one year if the applicant was convicted of gaming, gambling, or narcotics offences. See also An Act to amend The Restaurant Act S.A. 1930, c.10, and An Act to Provide for the Registration and Licensing of Trades, Businesses and Occupations S.A. 1936, c.67. See also In re Song Lee and the Town of Edmonton (1903), 5 T.L.R. 466 (Alta. S.C.), quashing a by-law that imposed a licence fee of $25 per annum on laundries; Re Pang Sing and City of Chatham (1909), 1 O.W.N. 238, on appeal (1910), 1 O.W.N. 1003,16 O.W.R. 338 (Divisional Court) discussing a Chatham by-law impeding the operation of Chinese laundries; In re By-Law No. 304 of Town ofMinnedosa; Wong Sing v. Minnedosa, [1918] 3 W.W.R. 181 (Man. K.B.), upholding a licensing by-law that forced the Chinese plaintiff to close one of his two restaurants; Rex v. Wah Kee, [1920] 3 W.W.R. 656; (1920), 35 C.C.C. 101 (Alta. S.C.) quashing a conviction of a Chinese laundry under an Edmonton early closing by-law; Rex v. Lee (1921), 66 D.L.R. 492; 36 C.C.C. 189; 31 Man. R. 375; [1922] 1 W.W.R. 126 (Man. C.A.) dismissing charges against a Chinese shop owner under early closing laws; Re Lem Yuk and City of Kingston (1926), 31 O.W.N. 14; confirmed on appeal (1926), 31 O.W.N. 159 (Ont. Divisional Ct.), upholding the refusal of Barrie City Council to issue a laundry licence to a Chinese proprietor; McCorquodale v. Wong, [1937] 1 D.L.R. 347; (1936), 67 C.C.C. 288 (Man. K.B.), upholding the conviction of a Chinese businessman who permitted dancing in his restaurant for failing to obtain a 'dance hall licence/ reversed on appeal [1937] 1 W.W.R. 552; (1937), 68 C.C.C. 236; 45 Man. R. 137 (Man. C.A.). See also Lee Yee v. Durand, [1939] 2 D.L.R. 167 (N.S.S.C.) at 169 in which the court suggests that it might have been fraudulent, as a matter of law, for a landlady to represent to a tenant that the Halifax City Health Board would treat Chinese and English applicants for laundry licences on an equal footing. Clayton James Mosher, Discrimination and Denial: Systemic Racism in Ontario's Legal and Criminal Justice Systems, 1892-1961 (Toronto: University of Toronto Press, 1998), noted at

46 Constance Backhouse 74 that facially neutral by-laws were often disproportionately enforced against Asian businesses, providing as an example data showing that 40 per cent of the charges laid for snow-removal violations in 1903 in Toronto were directed against the Chinese. 26 For discussion on social and quasi-legal impediments to interracial marriage in Canada in the early twentieth century, see Constance Backhouse, 'Mesalliances and the Menace to White Women's Virtue: Yee Clun's Opposition to the White Women's Labour Law, Saskatchewan, 1924,' and Constance Backhouse, 'It Will Be Quite an Object Lesson: R. v. Phillips and the Ku Klux Klan in Oakville, Ontario, 1930,' both in Backhouse ColourCoded at 132-225. 27 By 1921, the proportion had increased modestly to 4.6 per cent, but not until the 1960s did the sex ratio begin to reach a balance: Roy, White Man's Province at xi, Dora Nipp, 'But Women Did Come: Working Chinese Women in the Interwar Years/ in Jean Brunet, ed., Looking into My Sister's Eyes(Toronto: Multicultural Historical Society of Ontario, 1986), 179. 28 Initially, Chinese residents of Canada had the right to return to Canada from a temporary sojourn abroad, without payment of the head tax: Chinese Immigration Act, S.C. 1885, c.71, s.14. After 1892, S.C. 1892, c.25, s.13 provided that any Chinese person wishing to re-enter the country would have to register at the port of departure and give full particulars to facilitate identification. On returning, provided that the re-entry took place within six months, the Chinese individual had the head tax of $50 refunded if s/he satisfactorily proved to the controller that s/he was the person who had registered on leaving. Prior to the 1892 amendment, the possession of a certificate of return was considered as prima facieproof of the right to re-enter without the payment of the tax. Under the new law, the right of return depended upon proving identity 'to the satisfaction of the Controller' and on the basis of the register kept by the controller. An Act respecting and restricting Chinese Immigration, S.C. 1903, v.I, c.8 permitted the re-entry of Chinese persons from a visit abroad, without payment of tax, so long as they registered before leaving and returned within twelve months of the date of registration. The period of return to Canada without payment of head tax was increased to two years in 1921: An Act to amend the Chinese Immigration Act, S.C. 1921, c.21, s.4. In 1923, Ah Act respecting Chinese Immigration, S.C. 1923, c.38 provided that failure to return within the specified time period completely forfeited the Chinese person's right to re-enter Canada. In 1931, the time period was extended to four years from the date of 'registering out': Order-in-Council P.C. 3173, 29 December 1931. See Stanislaw Andracki, Immigration of Orientals into

Legal Discrimination against the Chinese in Canada 47

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30

31 32 33

Canada, with Special Reference to Chinese at 56,66-9, and 164-6. For some examples of cases in which re-entry was denied to Chinese individuals, see Yuk v. Chinese Immigration Act (1901), 8 B.C.R. 118 (B.C.S.C.); Foo et al. (1925) 56 O.L.R. 669 (Ont. C.A.); Chin Chee (1905), 11 B.C.R. 400 (B.C.S.C.); Brown (1910), 8 E.L.R. 137 (N.B.S.C.); Him (1910), 16 C.C.C. 383; Him (No.2) (1910), 17 C.C.C. 19 (B.C.C.A.); R. v. Soon (1919), 45 D.L.R. 78 (B.C.C.A.); R. v. Sack (1927), 39 B.C.R. 223 (B.C.C.A.); Chinese Immigration Act v. Sack (1931),45B.C.R.3(B.C.S.C). Osgoode Society Transcript; Interview with Gretta Grant conducted by Constance Backhouse and Anna Feltracco, 11 July 1991 and 17 September 1991, copy on file with author. For a discussion of the Vancouver Riot, see Roy, White Man's Province at 185-226. Physical violence was directed against several Chinese laundries in Calgary in 1892, and against a Chinese restaurant in Lethbridge in 1907: Palmer, Patterns of Prejudiceat 20,32-4; J.B. Dawson, "The Chinese Experience in Frontier Calgary 1885-1910,' in A.W. Rasporich and H. Klassen, eds. Frontier Calgary: 1875-1914,124; Baureiss, 'The Chinese Community in Calgary.' For an account of the psychological cost of leaving behind families in China, see Denise Chong, The Concubine's Children: Portrait of a Family Divided(Toronto: Penguin, 1994). Interview with Gretta Grant, 1991; An Act respecting and restricting Chinese immigration, S.C. 1903, v.I, c.8, s.6(c). S.C. 1903, c.8, s.6(5) expressly excluded 'any merchant's clerk, or other employee, mechanic, huckster, pedlar or person engaged in taking, drying or otherwise preserving fish for home consumption or exportation/ Date of immigration given by Gretta Wong Grant in personal communication with the author, 16 February 1993; Osgoode Society Transcript. In 1911, 805 of the 5,320 Chinese immigrants admitted fell within the exempt categories; Roy, White Man's Province at 270. In 1917, the federal government passed An Act to amend the Chinese Immigration Act S.C. 1917, c.7, which provided in s.2 that any Chinese person who had been admitted as exempt from the tax 'who ceases to belong to one of the exempt classes' was then liable to forfeit the tax or become subject to deportation. Although Lem Wong did not continue his market endeavour, there seem to have been no further difficulties in this regard. This was fortunate, since the 1917 statute added stringent deportation sections: 'Whenever any officer appointed under the Act or under The Immigration Act has reason to believe that any person of Chinese origin is illegally in Canada, he may without a warrant apprehend such person, and, if such person is unable to prove to the satisfaction of the officer that he has been properly admitted

48 Constance Backhouse into and is legally in Canada, the officer may detain such person in custody and charge him before a magistrate with being illegally in Canada.... and the burden of proof of such person's right to be in Canada shall rest upon such person/ See also An Act to amend the Chinese Immigration Act S.C. 1921, c.21. 34 The numbers admitted were 5,512 in 1914; 1,258 in 1915; 88 in 1916; 393 in 1917; 769 in 1918; 4,333 in 1919; 544 in 1920; 2,435 in 1921; 1,746 in 1922; 711 in 1923 and 674 in 1924: Bolaria and Li, Racial Oppression in Canada at 115. Order-in-Council, P.C. 1202 (1919) 52 Canada Gazette at 3824 prohibited the landing in British Columbia of 'any immigrant of the following classes or occupations, viz., skilled and unskilled labour.' 35 An Act Respecting Chinese Immigration S.C. 1923, c.38. All Chinese immigrants were barred except those classes listed in s.5: (a) The members of the diplomatic corps, or other government representatives, their suites and their servants, and consuls and consular agents; (b) The children born in Canada of parents of Chinese race or descent, who have left Canada for educational or other purposes, on substantiating their identity to the satisfaction of the controller at the port or place where they seek to enter on their return; (c)(l) Merchants as defined by such regulations as the Minister may prescribe; (2) Students coming to Canada for the purpose of attendance, and while in actual attendance, at any Canadian university or college authorized by statute or charter to confer degrees, who shall substantiate their status to the satisfaction of the Controller at the port of entry subject to the approval of the Minister, whose decision shall be final and conclusive; provided that no Chinese person belonging to any of the two classes referred to in this paragraph shall be allowed to enter or land in Canada, who is not in possession of a valid passport issued in and by the Government of China and endorsed (vise) by a Canadian Immigration Officer at the place where he was granted such passport or at the port or place of departure. Section 19 provided that no vessel carrying Chinese immigrants to any port in Canada could carry 'more than one such immigrant for every two hundred and fifty tons of its tonnage.' The Act was so effective an exclusionary device that only forty-four Chinese individuals entered Canada over the next two dozen years, causing Chinese populations to age, and Chinatowns across the country to wither and decline: Jean Barman, The West beyond the West: A History of British Columbia (Toronto: University of Toronto Press, 1991) at 233.

Legal Discrimination against the Chinese in Canada 49 36 P.C. 1276,10 July 1923, s.5(c) provided the definition of 'merchant' as constructed by the Department of Immigration and Colonisation: 'Merchants as used in this Act shall not include any person who does not devote his undivided attention to mercantile pursuits and who has less than $2,500 invested in a business dealing exclusively in goods grown, produced or manufactured in China or in exporting to China goods grown, produced or manufactured in Canada, and who has not conducted such business for a period of at least three years; any merchant's clerk or other employee; tailor; mechanic; huckster; pedlar or person engaged in taking, drying or otherwise conserving fish for home consumption or exportation, or having any connexion whatever with a restaurant, laundry or rooming house.' A critical observer, Henry F. Angus, noted: 'As an exercise in logic this definition is not very good, but as an exclusionist measure it is effective. Not many Chinese have carried on, as their sole occupation, with a capital exceeding $2,500 for a period of three years or more, a purely exporting or a purely importing trade with Canada, refraining from any dealings in goods which are not of Chinese origin in the first case or Canadian origin in the second.' See 'Canadian Immigration: The Law and Its Administration' in Norman MacKenzie, ed., The Legal Status of Aliens in Pacific Countries, 64. Between 1923 and 1946, only eight Chinese merchants were admitted to Canada under s.9 of the Chinese Immigration Act of 1923: Andracki, Immigration of Orientals at 162. 37 An Act to amend the Immigration Act and to repeal the Chinese Immigration Act S.C. 1947, c.19. For discussion of the rationale behind the repeal, see F.J. McEvoy, 'A Symbol of Racial Discrimination: The Chinese Immigration Act and Canada's Relations with China, 1942-1947,' 24. Discriminatory immigration rules continued to impede Chinese entry even after 1947. Until 1956, Chinese individuals had to be Canadian citizens to bring in dependent wives and children, whereas other Canadians only had to qualify as residents. See Ward, White Canada forever at 165; Edgar Wickberg, et al., From China to Canada: A History of the Chinese Communities in Canada (Toronto: McClelland and Stewart, 1982) at 212. 38 Toye Chin's half-brother, who lived in London, Ontario, went back to China every two or three years. Forced to return to Canada after brief visits in order not to lose his own status, he was unable to bring his family to Canada until the early 1980s. See Interview with Gretta Grant, 1991. 39 Order-in-Council P.C. 1923-1272, Canada Gazette 1923, LVII at 277,10 July 1923 40 Lai, Chinatozvns: Towns within Cities in Canada, noted at 97 and 116 that

50 Constance Backhouse

41 42 43 44 45 46

47

Ontario's major Chinatowns were in Toronto, Ottawa, and Hamilton. In 1971, London still had only 820 Chinese residents. For more detailed discussion of the experience of the first Chinese women in Ontario, see Dora Nipp, 'But Women Did Come' at 179-94. Osgoode Society Transcript; Interview with Gretta Grant, 1991. 'The Wong Family of London'; Backhouse, 'Gretta Wong Grant: Canada's First Chinese-Canadian Female Lawyer' at 9-10. For a more detailed description of the early Chinese restaurants on the prairies, see Li, 'Chinese Immigrants on the Canadian Prairie' at 534. The occasional day trip for fishing was the sole family recreation. Osgoode Society Transcript; 'The Wong Family of London.' An Ad to amend The Factory, Shop and Office Building Act S.0.1914, c.40. An Act to Prevent the Employment of Female Labour in Certain Capacities S.S. 1912, c.17. The statute was amended to disguise the focus with racially neutral language due to expressions of protest from the Chinese community in Saskatchewan and international concern from China in 1919: An Act to prevent the Employment of Female Labour in Certain Capacities S.S. 1918-19, c.85. The government announced that it intended no substantive alteration in policy, but simply wished to achieve the same ends without 'singling out' the Chinese. For a detailed description of the genesis of the Saskatchewan provision, which was the first such statute in Canada and apparently in the Anglo-American world, see Backhouse, Colour-Coded at 132-72. The statute was not repealed until 1969: Labour Standards Act, 1969 S.S. 1969, c.24, s.73. An Act to prevent the employment of Female Labor in certain capacities S.M. 1913, c.19. The Manitoba statute stipulated that it was only to come into force 'upon proclamation of the Lieutenant-Governor-in-Council.' All indications are that it was never actually proclaimed. R.S.M. 1913, Schedules B and C, listed the statute as unproclaimed, and there was no reference to it in the listing of proclaimed statutes in the yearly volumes of legislation between 1913 and 1940. Lai, Chinatowns, claimed at 94 that the failure to proclaim resulted from the opposition mounted by the Chinese communities, who united to fight these statutes throughout the late 1910s. The statute was expressly repealed in An Act to repeal certain Enactments which have become Obsolete S.M. 1940, c.35. See also 'Canadian Laws Governing the Employment of Women/ an undated memorandum prepared by the federal Department of Labour, appended to correspondence dated 28 September 1928, Public Archives of Canada RG25, v.1524, file 867, 'Employment of Women by Chinese in Canada, correspondence and memoranda,' which stated that 'at the last session of the Legislature of

Legal Discrimination against the Chinese in Canada 51 [Manitoba], [in 1923] a clause was added to the Winnipeg City Charter enabling that city to pass by-laws prohibiting the employment, except by special license of any female person in any hotel, restaurant, refreshment or entertainment room or laundry, owned, managed or conducted by a Chinese person.' 48 Municipal Act Amendment Act S.B.C. 1919, c.63, s.13. Patterned after the Saskatchewan act, the statute prohibited the employment of 'any white woman or girl' in restaurants, laundries, places of business or amusement owned, kept, or managed by 'any Chinese person.' In 1923, the B.C. legislature deleted all reference to Chinese employers, leaving it to the discretion of police officials whether white women were to be allowed to work in restaurants and laundries, in a move that was patterned after the racially neutral revisions to the Saskatchewan statute. 'White' women and girls were still expressly protected by the 1923 act, but for the first time 'Indian women and girls' in British Columbia were specifically included. An Act for the Protection of Women and Girls in certain Cases S.B.C. 1923, c.76. The British Columbia statute remained in force until repealed in 1968: An Act to Amend and Repeal Certain Provisions of the Statute Law S.B.C. 1968, c.53, s.29. 49 Albertans never appear to have debated or enacted a measure like the 'White Women's Labour Bill/ but in 1911, some of the white proprietors of laundries in Lethbridge complained that Chinese laundries were operating too close to the town centre, and the City Council enacted by-law no. 83 to restrict them to less commercially attractive areas. See note 25, above. 50 See note 24, above. 51 White alderman W.J. O'Toole spoke enthusiastically to a Progressive Club luncheon in 1929 about a proposed bill to prohibit the employment of white women in Chinese restaurants, insisting that the 'guardians of the race' had to be kept out of the 'clutches of the Chinese'; Halifax Chronicle, 10 April 1929. Although it was stated in Edgar Wickberg et al., From China to Canada: A History of the Chinese Communities in Canada at 152 that Nova Scotia had such a law in the late 1920s and early 1930s, there is no record of a provincial enactment. Lai, Chinatown, noted at 101 that there were no Chinatowns in the Atlantic provinces during these years, and that the Chinese communities in the east were very small. However, there was severe racial discrimination against the Chinese in the Atlantic provinces in the first half of the twentieth century. Michael S. Boudreau, 'Crime and Society in a City of Order: Halifax 1918-1935,' Ph.D. Thesis (Queen's University, 1996), noted at 450 that the Halifax Herald, 6 July 1918 pub-

52 Constance Backhouse lished an article captioned 'Chinese Restaurant Cubby Holes of Unsavoury Reputation/ quoting Dr W.H. Hattie, the Provincial Health Officer, who was mounting a campaign to wipe out immorality. Boudreau recounted at 427-30 that six Chinese restaurants sustained serious damage following a rampage by a group of returned soldiers and civilians in 1919. There were unprovoked attacks by customers on Chinese proprietors in 1919-20. A gang of hoodlums went on a spree of vandalism to wreck Chinese laundries in 1921. In 1928, several whites attacked two Chinese men simply for speaking Chinese on the street. Boudreau described at 462-7 an interview with two white Halifax policewomen, published in the Evening Echo, 14 December 1923, in which they castigated Chinese restaurants as the site of 'booths where women associated with men and indulged in liquor/ the headquarters for street-walkers, and the genesis of 'more than fifty per cent of the crime/ The report of the Moncton, New Brunswick, chapter of the National Council of Women of Canada Yearbook of the National Council of Women of Canada 1931 stressed at 112 the importance of 'safeguarding' young immigrant women 'from seeking employment in Chinese restaurants/ See also Women's Book Committee, Chinese Canadian National Council, Jin Guo: Voices of Chinese Canadian Women (Toronto: Women's Press, 1992) at 69. 52 In Rex v. Quong Wing (1913), 12 D.L.R. 656 (Sask. S.C.), the majority held that the statute was within the legislative competence of the province. In Quong Wing v. The King (1914), 18 D.L.R. 121 (S.C.C.) the majority of the Supreme Court of Canada held that although it affected the civil rights of the Chinese, the act was primarily directed to the 'protection of white women and girls/ something well within provincial jurisdiction. The Privy Council refused leave to appeal on 19 May 1914. See Constance Backhouse, 'The White Women's Labor Laws: Anti-Chinese Racism in Early Twentieth-Century Canada/ Law and History Review 14:2 (Fall 1996), 315. 53 Section 2(2) provided that 'subsection 1 shall not come into force until a day to be named by proclamation of the Lieutenant-Governor in Council/ Apparently the intention was to wait until the question of constitutionality was resolved in the pending Quong Wing case. The Toronto Globe noted on 8 April 1914,1: 'Hon. James Duff's bill to amend the factory, shop and office building act passed through Committee and it was agreed to proclaim the clause regarding employment of women by Orientals should Privy Council decision in Saskatchewan case be favourable/ Despite the fact that the courts upheld the Saskatchewan act as constitutional, actual proclamation in Ontario did not occur until 2 November 1920, with the

Legal Discrimination against the Chinese in Canada 53 provision to come into effect 1 December 1920. A copy of the unpublished Order-in-Council is held by the Ontario Cabinet Office; see also the Consolidated Indexes to Orders in Council formerly titled the Journals of Executive Council Ontario Consolidated Index No. 6,1 Nov. 1919 to 15 July 1923, at 193, which listed the section as proclaimed: 'Proclamations: Bringing into force section 31. Factory & Shops Act (re employment of white women by Chinese).' A lobby from organized labour seems to have been central to the proclamation. The Ontario Cabinet Order-in-Council noted that the proclamation was 'upon the recommendation of the Honourable the Minister of Labour.' 'Law Prohibits Working of White Girls with Chinese/ Labour, 8 September 1928, notes: 'Labour has long sought this regulation and it expects the Ontario government to enforce the law.' When the act was reprinted in the Revised Statutes of Ontario 1927, as The Factory, Shop and Office Building Act R.S.0.1927, c.275, s.30, the proclamation subsection was no longer included. This seems to have caused some surprise, since few authorities appear to have been aware of the proclamation: see PAC RG25, v.1524, file 867, 'Employment of Women by Chinese in Canada, correspondence and memoranda/ where provincial and federal officials, newspapers, and agents of the Chinese consulate stated that no proclamation was ever given; see also Journals of the Legislative Assembly of the Province of Ontario v.57 (1923) at 28 where the Minister of Labour incorrectly advised that the statute had never been proclaimed; Legal Status of Women in Canada (Ottawa: Canada Department of Labour, 1924); Walker, 'Race,' Rights and the Law at 55; Anne Elizabeth Wilson, 'A Pound of Prevention - or an Ounce of Cure/ Chatelaine, December 1928 at 12. Based on the belief that the subsection making proclamation a prerequisite had been inadvertently left out, campaigns were initiated for its reinsertion. In 1929, owing to strenuous representations from the Chinese Consulate General in Ottawa, the Ontario legislature passed an amendment, S.0.1929, c.72, s.5, reinserting the proclamation requirement and making it retroactive to 31 December 1927, the day in which the Revised Statutes of 1927 came into force. 'End This Stupid Statute/ Toronto Globe, 2 October 1928; 'White Girls Cannot Work for Orientals/ Toronto Star, 22 August 1928. The provisions continued in this form under S.0.1932, c.35, s.29 and R.S.0.1937, c.194, s.28, unproclaimed: H.L. Cartwright, The Ontario Statute Citator, 1927-37 (Toronto: Canadian Law List, 1938) at 117; R.M. Willes Chitty, The Ontario Statute Citator, 1950 (Toronto: Cartwright, 1950) at 152; Table of Public Statutes: Table B, Acts or Parts Thereof Unproclaimed' S.0.1946, at 928. They were repealed in S.0.1947, c.102, s.l. It is not yet clear to what extent this provision was enforced while in effect. The 1923 Journals of the Legisla-

54 Constance Backhouse

54

55

56

57

live Assembly v.57 at 28 reported that 126 white women were employed in 121 Chinese restaurants in Toronto. Correspondence from the Ontario Deputy Attorney General suggested that the provincial government made no efforts at enforcement, but that the Mayor and Board of Control of Toronto may have done so indirectly, by refusing to issue licences to Chinese businessmen who employed white women: 'Employment of Women by Chinese in Canada/ PAC file. Newspaper reports indicated that some city councils refused to issue licences to Chinese cafes employing white women: 'Refuse Woman License to Run Chinese Cafe/ Sudbury Star, 6 October 1926,16. Gretta Wong Grant, Lem Wong's daughter, recalled: T would just remember my father, whenever he needed something, he would always call Mr. Winnett, even if he was going across the border or something like that.... So, I think it was because my dad had needed something like that. I thought it was a good profession to go into.' Interview with Gretta Grant, 1991. The decision to hire only Chinese waiters (all of them chosen because they were proficient in English) may ultimately have proven felicitous, as Lem Wong appears to have counted upon them to elevate the tone of the dining experience. He sent his waiters to New York City to train in elaborate methods of service, and they developed a stylish practice of carrying the dishes on large serving trays above shoulder level. Osgoode Society Transcript; Interview wi'th Gretta Grant, 1991, 'The Wong Family of London' at 4. Timothy J. Stanley, 'Carrying into the Schools What Already Exists in Every Other Institution of Society: Colonialism and the Discourse on Chinese School Segregation in British Columbia in the Early Twentieth Century/ International Journal of Educational Policy, Research and Practice 1:4 (2000), 453; Timothy J. Stanley, 'Schooling, White Supremacy and the Formation of a Chinese Merchant Public in British Columbia/ BC Studies 19 (1995), 3; David Chuenyan Lai, "The Issue of Discrimination in Education in Victoria, 1901-23,' Canadian Ethnic Studies 19:3 (1987), 47; Roy, White Man's Province, noted at 24-7 consideration of segregated schools in Nanaimo and Vancouver. The eldest Wong son, Victor, seems to have experienced the bulk of the social discrimination. Although he played hockey alongside white teammates, he was not 'welcomed at his teammates' homes nor included in team social functions.' See 'Gretta Grant: A Front-Row Spectator/ London Free Press, Encounter Magazine, 24 August 1986 at 3-4. Barman, The West beyond the West, noted at 233 that it was common knowledge that Vancouver's White Lunch restaurants 'didn't allow Orientals to

Legal Discrimination against the Chinese in Canada 55

58 59

60

61 62

eat there.' Vancouver's Parks Board imposed policies of racial segregation at city-owned pools until 1945: C.F. Lee, The Road to Enfranchisement: Chinese and Japanese in B.C./ BC Studies 30 (1976), 44. Baureiss's 'Chinese Community in Calgary' noted that some barbers would refuse to cut the hair of Chinese patrons. Women's Book Committee, Jin Guo, noted at 31 that a Halifax hotel refused to rent rooms to a Chinese family in the 1940s, at 107 that the Chinese were barred from purchasing property in the Shaughnessey area of Vancouver up to the 1930s, at 206 that a restaurant in Dresden, Ontario, refused service to a Chinese woman who came in with a group of Blacks, and at 209 that Chinese customers were charged higher entrance fees than whites at a disco bar in Vancouver in 1980. See also Gunter Baureiss, 'Discrimination and Response: The Chinese in Canada,' in Rita M. Bienvenue and Jay E. Goldstein, eds., Ethnicity and Ethnic Relations in Canada, 2nd ed (Toronto: Butterworths, 1985), 241; Victoria Colonist, 23 February 1904; Ward, White Canada Forever at 49. Veronica Strong-Boag and Katherine McPherson, The Confinement of Women: Childbirth and Hospitalization in Vancouver, 1919-1939,' in Katherine Arnup et al., eds., Delivering Motherhood: Maternal Ideologies and Practices in the 19th and 20th Centuries (London: Routledge, 1990), 75 at 102 noted that there was some evidence that Asian Canadian women were treated differently during childbirth: 'For some years, Oriental maternity patients were regularly released some days sooner after childbirth than their sisters of European origin.' Osgoode Society Transcript; Interview with Gretta Grant, 1991. She explained further: "They used to give you a pin if you had gone for seven years and then a bar for each ... a gold bar and then they gave you a gold medal after you had been in all those years. And every year there would be one of the Wongs go up to get their bars or medals. I remember one of the chaps that I went to school with, he said to me later on, "so what did you do with all that gold you got?" Because we all had these gold bars and they were supposed to be ten carat gold.' The children were apparently less enamoured of the double Sunday school attendance than their father: 'We were getting quite rebellious because we had the same lesson twice ... on the same day.' Osgoode Society Transcript, Interview with Gretta Grant, 1991. Osgoode Society Transcript. Gretta Wong Grant noted that this incident took place during the Second World War, when discrimination was frequently displayed towards the Japanese, Germans, and Italians. Women's Book Committee, Jin Guo at 166. Gretta Wong Grant advised that her father's concerns about declaring

56 Constance Backhouse himself for one party over the others continued for years. 'In the recent past he once put up an NDP sign on his lawn/ she stated, 'and then he worried that the neighbours wouldn't speak to him.' Osgoode Society Transcript; Interview with Gretta Grant, 1991. 63 An Act respecting Elections of Members of the Legislative Assembly S.0.1908, c.3, s.ll provided that 'any male person, of the full age of twenty-one years and a British subject by birth or naturalization resident in Ontario ... shall be qualified to be a candidate.' Section 22 provided: 'An unenfranchised Indian of whole or part Indian blood residing or having his domicile among Indians or on an Indian Reserve, shall not be entitled to have his name entered on the voters' list or to vote.' 64 In its first session in 1872, the British Columbia legislature amended the Qualification and Registration of Voters Act S.B.C. 1872, c.39, s.13 to exclude 'Chinese' and 'Indians' from the provincial vote. See also An Act relating to an Act to make better provision for the Qualification and Registration of Voters S.B.C. 1875, c.2, s.l and 2; An Act to Regulate Immigration into British Columbia S.B.C. 1900, c.ll, s.5; S.B.C. 1902, c.34, s.6; S.B.C. 1903, c.12, s.6; S.B.C. 1907, C.21A, s.6; S.B.C. 1908, c.23, s.6. 'Japanese' and 'Hindu' individuals were added to the excluded classes by the Provincial Voters' Act Amendment Act S.B.C. 1895, c.20, s.2; Provincial Elections Act S.B.C. 1903-4, c.17, s.6; Provincial Elections Act Amendment Act S.B.C. 1907, c.16, s.3; Provincial Elections Act S.B.C. 1920, c.27, s.5(l)(a); R.S.B.C. 1924, c.76; S.B.C. 1931, c.20; R.S.B.C. 1936, c.84; Provincial Elections Act S.B.C. 1939, c.16, s.5. The Provincial Elections Act Amendment Act S.B.C. 1947, c.28 gave the franchise to all except the Japanese and 'Indians,' but took it from the Doukhobors, the Hutterites, and the Mennonites, unless they had been in the Armed Forces. The same statute also barred from suffrage every person who did not have 'an adequate knowledge of either the English or French language.' This may have affected many Chinese persons. See also R.S.B.C. 1948, c.106. Provincial Elections Act Amendment Act, 1949 S.B.C. 1949, c.19 finally repealed the law prohibiting the Japanese and First Nations from voting. The Chinese, Japanese, 'other Asiatics/ and First Nations were also excluded from the municipal franchise: see Municipality Amendment Act S.B.C. 1876, c.l, s.9; Vancouver City Incorporation Act S.B.C. 1886, c.32, s.8; New Westminster Incorporation Amendment Act S.B.C. 1895, c.65, s.3; Municipal Elections Act S.B.C. 1896, c.38, s.7; Vancouver Incorporation Act S.B.C. 1900, c.54, s.7; Municipal Elections Act S.B.C. 1908, c.14, s.!3(l); Municipal Elections Act R.S.B.C. 1911, c.71, s.4; R.S.B.C. 1924, c.75; R.S.B.C. 1936, c.83; R.S.B.C. 1948, c.105. Asians and First Nations people were denied the right to vote in elections for school trustees: Public Schools Amendment Act S.B.C.

Legal Discrimination against the Chinese in Canada 57 1884, c.27, s.10; Public Schools Act S.B.C. 1885, c.25, s.19; Public Schools Act R.S.B.C. 1897, c.170, s.19; Public Schools Act S.B.C. 1905, c.44, s.25; Public Schools Act R.S.B.C. 1911, c.206, s.31; S.B.C. 1922, c.64; R.S.B.C. 1924, c.226; R.S.B.C. 1936, c.253, s.93(4). See also An Act to amend the 'Public Schools Act' S.B.C. 1948, c.80, s.31, and R.S.B.C. 1948, c.297, s.92(4), which removed 'Hindus' from the list, but continued to disqualify 'Chinese, Japanese and Indians.' Chinese, Japanese, 'other Asiatics/ and First Nations people were also barred from voting in elections of trustees for an improvement district under the Water Act: Water Act S.B.C. 1914, c.81, s.!87(l); S.B.C. 1920, c.102, s.7; R.S.B.C. 1924, c.271, s.199. Similar restrictions applied to signing petitions regarding liquor licences: An Act to amend the 'Municipal Clauses Act' S.B.C. 1908, c.36, s.26-7; An Act Respecting Liquor Licences and the Traffic in Intoxicating Liquors S.B.C. 1910, c.30; R.S.B.C. 1911, c.142; R.S.B.C. 1911, c.170. Since the right to hold public or professional office was limited to those on the provincial voting list, these groups were consequently barred from jury service: Jurors' Act S.B.C. 1883, c.15, s.5. They were also denied the right to run for election to the provincial legislature: Qualification and Registration of Voters Act S.B.C. 1876, c.5, s.3; Constitution Act C.S.B.C. 1888, c.22, s.30; or for municipal government: Municipal Clauses Act S.B.C. 1896, c.37, s.14-18; Municipal Clauses Act S.B.C. 1906, c.32, s.14-18; Municipal Act S.B.C. 1914, c.52, s.16-19; Municipal Election Act S.B.C. 1896, c.38, s.36; or for school trustee: Public Schools Act S.B.C. 1885, c. 25, s.19 and 30; Public Schools Act S.B.C. 1891, c.40, s.19 and 40; Public Schools Act R.S.B.C. 1897, c.170, s.19,24 and 28; Public Schools Act S.B.C. 1905, c.44, s.25 and 32; Public Schools Act R.S.B.C. 1911, c.206, s.31 and 38; Public Schools Act S.B.C. 1922, c.64, s.37. Chinese and South Asian men and women received the right to vote in 1947: Provincial Elections Act Amendment Act S.B.C. 1947, c.28, s.14. Japanese and First Nations men and women did so in 1949: Provincial Elections Act Amendment Act S.B.C. 1949, c.19, s.3. 65 In Saskatchewan, An Act respecting Elections of Members of the Legislative Assembly S.S. 1908, c.2, s.ll excluded 'persons of the Chinese race.' See also R.S.S. 1909, c.3, s.ll; R.S.S. 1920, c.3, s.12; R.S.S. 1930, c.4, s.12; R.S.S. 1940, c.4, s.12. An Act to amend The Liquor License Act S.S. 1909, c.38 prohibited the Chinese from voting on local by-law options. The electoral disqualification of the Chinese was removed by S.S. 1944, c.2, s.2. See also An Act to amend the Saskatchewan Election Act S.S. 1946, c.3, s.l; An Act to protect Certain Civil Rights S.S. 1947, c.35, s.7 and An Act to amend the Saskatchewan Election Act S.S. 1948, c.4, s.13. For comparable details regarding restrictions on the First Nations franchise, see Backhouse, Colour-Coded, chapter 4. 66 Manitoba resorted to a language test to retard access to the franchise. An

58 Constance Backhouse

67

68 69 70 71 72

73

Act respecting Elections of Members of the Legislative Assembly S.M. 1901, c.ll, s.!7(e) disqualified 'any person not a British subject by birth who has not resided in some portion of the Dominion of Canada for at least seven years ... unless such person is able to read any selected portion or portions of 'The Manitoba Act' in one of the following languages, that is to say, English, French, German, Icelandic or any Scandinavian language.' Since those who could meet the language test could vote after one year of residence (s.16), this meant a potential delay of six years. See also R.S.M. 1902, c.52, s.!9(e). This test was deleted by An Act to amend "The Manitoba Election Act' S.M. 1904, c.13, s.2. For comparable details regarding restrictions on the First Nations franchise, see Backhouse, Colour-Coded, chapter 4. An Act respecting the Electoral Franchise S.C. 1885, c.40, s.2. The Franchise Act 1898 S.C. 1898, c.14, s.5(a) stated: "The qualifications necessary to entitle any person to vote thereat shall be those established by the laws of that province as necessary to entitle such person to vote in the same part of the province at a provincial election.' See also Dominion Elections Act S.C. 1900, c.12; Dominion Elections Act R.S.C. 1906, c.6, s.6 and 10; Dominion Elections Act S.C. 1920, c.46, s.30(g); Dominion Elections Act R.S.C. 1927, c.53, s.30(g); Dominion Elections Act S.C. 1938, c.46, s.!4(2)(i). The federal government removed its provincial piggy-backing race provisions in 1948, providing that provincial disqualification would no longer constitute a reason for disqualification from the federal franchise: Dominion Election Act S.C. 1948, c.46, s.6. For a discussion of the federal legislation denying the suffrage to Aboriginal peoples, see Backhouse, Colour-Coded, chapter 4. Osgoode Society Transcript; Interview with Gretta Grant, 1991, The Road Chosen, documentary video. Interview with Gretta Grant, 1991. On the importance of economic selfsufficiency, see Women's Book Committee, Jin Guo at 129. Backhouse, 'Gretta Wong Grant: Canada's First Chinese-Canadian Female Lawyer' at 20,34. The Road Chosen, documentary video. J.L. Granatstein, Who Killed Canadian History? (Toronto: HarperCollins, 1998). For cogent critiques of Granatstein, see Timothy J. Stanley, 'Why I Killed Canadian History: Towards an Anti-Racist History in Canada/ Social History 33:65 (2000), 79-103; A.B. McKillop, 'Who Killed Canadian History? A View from the Trenches/ Canadian Historical Review 80:2 (1999), 269-99. Robert Menzies, 'Race, Reason, and Regulation: British Columbia's Mass Exile of Chinese "Lunatics" Aboard the Empress of Russia, 9 February 1935' in John McLaren, Robert Menzies, and Dorothy E. Chunn, eds., Regulating

Legal Discrimination against the Chinese in Canada 59 Lives: Historical Essays on the State, Society, the Individual and the Law (Vancouver: UBC Press, 2002), 196. Menzies noted at 200: 'Against the grain of these multiple privations, abuses, and interdictions, it is not surprising that some of those within the Chinese-born community simply did not prevail. Nor is it a revelation that those who fell by the wayside became the targets of especially fervent efforts to secure their segregation and removal... When even the most tractable and sane of Chinese failed to measure up, the mad, bad, and feeble-minded among them were seen to breach all apparent thresholds of state, professional, and public tolerance.'

Can We Do Wrong to Strangers? AUDREY MACKLIN

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. - She never let them in, he cried again through his laughter as he stamped on gaitered feet over the gravel of the path. That's why. On his wise shoulders through the checkerwork of leaves the sun shone spangles, dancing coins. James Joyce, Ulysses (Middlesex: Penguin Modern Classics, 1960), 42 Of course we can do wrong to strangers. We do it all the time - even when our actions chafe against our moral intuitions. At any given moment, foreigners are detained, interrogated, bullied, and exploited in ways that violate any reasonable conception of human dignity. Invoking the diminished legal status of the non-citizen can hardly condone it from a moral perspective. Yet as soon as we transfer the question from the ethical realm to the domain of political or legal theory, the case grows murkier. For now it is not so apparent whether 'they' are entitled to the same rights as 'we/ that is to say, we who are already members of

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the relevant political community. From this point of departure, debate typically devolves into which (if any) rights strangers may claim from a state that is not theirs by citizenship. No one doubts that the Chinese head tax was morally reprehensible. Even (or especially) those who disclaim legal responsibility, most notably the Ontario judges who denied the cause of action in Mack, are at great pains to emphasize the iniquity of the Chinese head tax. But what exactly made the Chinese head tax wrong? An obvious and incontrovertible answer is that it was racist, but I will argue here that racism does not encapsulate all that is objectionable about the head tax. In pursuing this claim, I ask whether a head tax that penalizes all migrants equally would pass moral muster. Taking this inquiry seriously leads almost inexorably to the ultimate no-man's-land for rights - the border. Beneath the surface of the judicial resistance to allowing Mack to proceed is a seemingly unattractive and atavistic position that exerts virtually the same gravitational pull today as it did a century ago: The boundary of justice is coterminous with the border of the nation-state. Those outside the border are, by definition, strangers to rights. The state can harm them, but it cannot treat them unjustly. I develop my argument in several stages. I begin by situating the Chinese head tax as one instrument among many deployed against Asian migrants during the same era.1 One objective is to reveal how the specificity of the head tax enables its targets to engage the Canadian legal system in a manner unavailable to the targets of other exclusionary instruments. Another is to elicit threads of continuity between past and present regulation of migrants. Next, I explore a contemporary analogue to the Chinese head tax as a means of provoking the specific question of whether racism exerts sufficient explanatory force to capture the wrong of a head tax. Finally I use judicial commentary made during the proceedings before the Ontario Court of Appeal to expose the contemporary limits of our normative horizons. Chinese Migration2 Prior to Confederation in 1867, Canadian colonies eagerly promoted settlement by British farmers, domestics, and labourers, in that order. Canada's priorities and preferences did not change after Confederation. Indeed, the need for settlers grew all the more pressing as the Fathers of Confederation dreamt of a Dominion stretching from the Atlantic to

62 Audrey Macklin

the Pacific. Geographic expansion required agricultural, mineral, and industrial development to consolidate Canada as a political and economic unit. Human capital would bridge the gap between potential and reality. By their physical presence, settlers would provide a bulwark against American expansion northward. By their labour, they would convert the riches of the land into material wealth; by their consumption, they would generate and sustain industry; by their reproduction, they would furnish the labourers and the consumers of the next generation. Canada needed people. It was apparent from the outset that only certain people would be cast into both the economic and the demographic roles in the nationbuilding project. The remainder would be recruited for the economic construction phase, then discarded when the work was done. Canada wanted some people more than others, and only wanted some for limited, temporary purposes. It is a singular feature of all migrant groups constructed as 'good enough to work' but not 'good enough to stay' that the array of legal constraints on their entry and presence is designed to ensure that employers can exploit immigrant labour as effectively as possible without state interference. The desire to attract certain people as settlers, tolerate others as workers, while prohibiting the entry of still others, spawned various incentive and deterrent schemes. Since Aboriginal peoples were already present within the Dominion, they could not be physically excluded. Instead, they were socially, legally, economically, and culturally alienated through the myriad processes of colonization. The first Chinese immigrants to Canada arrived from California around 1858 and moved into domestic service and gold mining.3 Soon, wealthy British Columbia families recruited Chinese servants to supplement the chronic dearth of suitable white females.4 The population of British Columbia when it joined Confederation in 1871 was estimated at 36,000, comprising 10,000 white residents, 3,000 Chinese, and 23,000 Aboriginal people.5 Before joining Confederation, British Columbia extracted from the federal government a binding commitment to build a transcontinental railway. During this period, most Chinese carried on market gardening, manual labour, placer mining, domestic service, and vending. They also moved into the nascent canning and coal-mining industries as manual labourers. But it was their indispensable role in completing the Pacific leg of the Canadian Pacific Railway (CPR) that symbolized the contribution of Chinese migrants to the nation-building enterprise.

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Labour agencies in Hong Kong contracted with Canadian employers and United States middlemen for a specified number of labourers known as 'coolies.' The agency hired the workers and paid their passage to the North America. Local representatives of the agencies extracted repayment from the workers' wages, and employers also deducted the cost of board. The worker was obliged to work for his Canadian employer until his debt to the agency was discharged. In short, he was an indentured labourer. Resistance to the presence of Chinese labour in British Columbia followed a predictable pattern of class conflict interwoven with racism. Employers wanted a pool of cheap, exploitable labour. White labour objected to competition from Chinese workers, accusing them of driving down wages and working conditions. Employers and labour more or less agreed on the inherent inferiority of the Chinese migrant. They did not deserve equal treatment with white workers, or recognition as permanent settlers. Thus, employers felt entitled to underpay and overwork Chinese workers relative to white workers, and organized labour did not consider recruiting the Chinese into their ranks in order to preclude the use of Chinese workers as a weapon to defeat organized labour. Employers and politicians occasionally defended Chinese migration by invoking free trade in labour as a corollary to free trade in goods, and sometimes even objected to the more rancid racist invective, but one is hard pressed to interpret these infrequent appeals to principle as anything other than transparently instrumental ploys. That the virtue of Chinese migrants lay in their utility was made clear by Mr Justice Gray, a member of the 1884 Royal Commission on Chinese Immigration. His enthusiastic endorsement of Chinese workers as 'living machines' speaks to their essential character as commodities: The argument that [the Chinese] presence here cheapens labour, to the detriment of the white man, is simply the argument that has been used against every labour saving machine, and every improvement that science has ever made, tending to the advancement of the human race. The grass cutting, reaping, sowing and planting machines interfered with the labour of hundreds of labouring men in every agricultural country where they were introduced ... Who now propose to do without these scientific aids? The Chinese in British Columbia as affecting the rapid development of the country are as living machines in this, that while working and conducing to the same end with the latter, they are consuming the productions and

64 Audrey Macklin manufactures of the country, contributing to its revenue and trade, and at the same time expanding and developing its resources.6

The conflict between capital and labour over Chinese migrants played out politically in the form of a federal-provincial power struggle: As long as the CPR remained unfinished, the federal government did not wish to interfere with the supply of cheap labour demanded by the various railway barons as a precondition to timely completion. Opposition to Chinese migration was more or less confined to British Columbia, whereas a transcontinental railway was a matter of national concern. British Columbia politicians could scarcely afford to ignore the demands of their electorate - which did not include the disenfranchised Chinese. They started passing anti-Chinese laws that were obviously and extravagantly beyond the constitutional competence of British Columbia in the hopes of embarrassing the federal government into action. The laws ranged from imposing a language requirement on migrants, to forcing Chinese to buy a 'licence' to remain in the province, to prohibiting the entry of Chinese persons into British Columbia. Predictably, these laws were struck down by the courts or disallowed by the federal government, yet the British Columbia government persevered. The conduct of the provincial legislature could best be described as civil disobedience writ legislative: British Columbia deliberately flouted constitutional law by legislating outside its jurisdiction as a means of protesting federal inertia. As the last spike was being driven on the western leg of the CPR, the federal government finally responded to British Columbia's protests by appointing a Royal Commission to examine the issue of Chinese migration. The Royal Commission on Chinese Immigration reported its findings within a year, and was resolutely ambivalent. On the one hand, the presence of cheap Chinese labour was undoubtedly beneficial to industrial growth; allegations of immorality, lack of sanitation, and immorality were false; and the prospect of future trade with China militated against taking any action that might antagonize the Chinese government. On the other hand, the Chinese were obviously inferior, unassimilable, and unworthy of citizenship. Rejecting calls to adopt the recent United States policy of absolute exclusion, one of the Commissioners tentatively endorsed laws that deterred but did not exclude Chinese migrants outright. This had been the Australian strategy since the early 1880s. One of these was policy instruments was a head tax.7

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In 1885, the federal government passed the Chinese Immigration Act,3 which imposed a $50 head tax on each Chinese migrant, and a passenger/tonnage ratio of 1:50 on ships carrying Chinese. The (nonChinese) Immigration Act imposed no head tax and the passenger/ tonnage ratio during the same period was 1:2. Institutional arrangements mirrored the normative premises of the legislation: the Department of the Interior administered the Immigration Act, while customs officers collected the tax under the Chinese Immigration Act, just as they collected customs and duties for the other, non-human, commodities imported into Canada. The head tax caused a temporary dip in the rate in Chinese migration, but the flow rebounded as agents paid the tax and added it to the debt payable by the labourers under the terms of their indenture. In response to another flurry of unconstitutional provincial legislation, Prime Minister Laurier raised the tax to $100 in 1900, and appointed a Royal Commission on Chinese and Japanese Immigration, which reported in 1902.9 In 1903, the government raised the head tax one final time to $500. Students and merchants were exempted from the tax on the premise that their admission served Canada's long-term interest in fostering trade relations with China. Chinese migration dropped to a trickle for the next few years, but revived by 1907.10 Once again, part of the increase was due to the fact that the cost of admission was extracted from workers. In addition, allegations arose that the exemptions were being abused by labourers posing as merchants or students.11 Meanwhile, the federal government increased from 25 to 50 per cent the share of head tax revenue pouring into BC coffers.12 In the years preceding the First World War, the head tax was the third largest source of revenue in the BC Budget.13 Between 1891 and 1920, the federal government spent approximately $23.5 million on general (nonChinese) immigration (including the promotion of immigration from Britain and Europe), and reaped $20.6 million from the head tax.14 By 1923, the demand for cheap Chinese labour had diminished. The interests that had supported Chinese immigration in the past lost their enthusiasm. In 1923, the federal government passed a law prohibiting Chinese from entering Canada, including the spouses and children of those already in Canada. Curiously, outright exclusion was portrayed as more ethical than the head tax, though Mackenzie King was anxious to avoid offending the sensibilities of the Chinese government by using the term 'exclusion/ preferring instead the euphemism 'effective re-

66 Audrey Macklin

striction.' According to King, the head tax was not merely inefficient, it was positively unchristian: I think we might well say that the imposition upon the peoples of another country of a head tax by a nation professing a Christian civilization is somewhat of a contradiction in terms. ... Certainly the heathen and the pagan mind must find itself somewhat confused when it seeks to appreciate the Christian ethics that lead a Christian people to make money for their country out of a tax imposed upon persons coming from an other country to follow a livelihood in the country which is to profit by them... The Government is anxious to bring about an effective restriction of this Oriental immigration in a manner serviceable to all parts of this Dominion. We believe that we cannot do that if a resolution passes this House using the word 'exclusion.'15

One consequence of this 'effective restriction' was that the 'bachelor husbands' who had toiled in Canada for years to retire their debt could henceforth never bring their families over. The only option for family reunification was to return to China. The profits reaped by the government from the head tax and by employers from the exploitation of cheap Chinese labour should give one pause in assessing whether the head tax worked. If the goal was to exclude or deter Chinese migrants, the head tax failed. If the goal was to deliver symbolic benefits to the British Columbia electorate by demonstrating that the government was 'doing something' about Chinese immigration, while simultaneously ensuring that industrial elites continued to reap the financial rewards of Chinese immigration, the policy was a resounding success. It could have been otherwise. Had the government been serious about barring the entry of Chinese migrants, it could have acted sooner than 1923. To better understand the constellation of factors in addition to racism and economic exploitation that gave shape to Canadian immigration policy towards the Chinese, it is useful to examine the policy instruments deployed towards other racialized migrants, particularly Japanese and South Asians. Japanese Immigration16 Japanese immigration into British Columbia began around 1891. Three years later, Japan and Britain entered into a Treaty of Commerce and

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Navigation which granted citizens of each 'state 'full liberty to enter, travel or reside in any part of the dominions and possessions of the other contracting party [and] full and perfect protection for their persons and property.'17 Canada declined to adhere to the treaty precisely out of concern about the impact on its immigration policies. Like the Chinese migrants, Japanese migrants were overwhelmingly male, and were confined to certain labour niches. Unlike the Chinese, they competed directly with white labour in fishing and boat-building, and as a community took a greater interest in integrating. This produced a racist construction of Japanese that differed slightly from the depiction of Chinese: if the latter were objectionable because they would not assimilate, the former were objectionable precisely because they would. Japanese were perceived as more willing to adopt a 'Western' lifestyle, to learn English, and to venture into income-generating activities previously reserved to whites. They also had a comparatively high rate of naturalization. Perhaps it was no coincidence that naturalization papers were required to take out fishing licences. Of course, since white Canadians ultimately viewed non-whites as inherently unassimilable, there was little that either Chinese or Japanese migrants could do that would quell the antagonism. What distinguishes Japanese from Chinese immigration policy is probably not the intensity or form of racism levelled against the two groups, but the wider political context and its impact on the choice of governing instrument. The British government viewed Japan as an important military and political ally and potential trading partner. China's political and economic heft was comparatively slight. Japan was also quick to take umbrage at any measure adopted by a foreign government that denigrated the status of its citizens. A flurry of correspondence between the Dominion Office, the Colonial Office in London, and Japanese Consuls in London and Vancouver at the turn of the twentieth century indicates that the Japanese and British governments regularly objected to the latest racist anti-Asian measure taken by the British Columbia legislature, and urged the federal government to disallow the offending law. From 1901 to 1904, the government of Japan voluntarily suspended emigration of its nationals to Canada, motivated in part by sensitivity to the reception of its citizens abroad. This led to an almost total cessation of Japanese immigration. In 1905, Canada became a party to the 1894 Treaty between Britain and Japan. Within a year, the volume of Japanese immigration increased significantly, though later evidence

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revealed that less than a quarter were actually new immigrants from Japan.18 By 1907, anti-Asian sentiment erupted into violence, and on 7 September, a volatile white mob rampaged through the Chinese and Japanese district of Vancouver, terrorizing the residents and destroying property. The international embarrassment felt by the Canadian government precipitated an investigation and payment of compensation to the victims.19 It also led to intensified efforts to restrict future Japanese immigration. As arrangements for compensation were being finalized in late 1907, Canada dispatched Minister of Labour Rodolphe Lemieux to Japan. His mandate was to negotiate a halt to Japanese immigration while maintaining friendly relations with Japan. He returned to Canada with a 'Gentlemen's Agreement/ wherein Japan pledged to limit the emigration of its subjects to four hundred annually, but only if the agreement was portrayed publicly as voluntary, self-imposed, and consistent with Japan's sovereign rights under the Treaty of Commerce and Navigation. Most importantly, the quota was to remain confidential. Remarkably, Parliament gave its imprimatur to the Gentlemen's Agreement in early 1908 without disclosure of the numerical limit. Lemieux appealed to Parliament's respect for the integrity of a secret agreement as an instrument of diplomacy, and stressed that the only alternative to his Agreement was abrogation of the Treaty, which would cost Canada a trading market of 50 million people. Many Japanese nationals who migrated to Canada actually resided in Hawai'i, which Japan did not control. Therefore, the Gentlemen's Agreement did not regulate the emigration of Japanese from Hawai'i. The volume of Japanese migration from Hawai'i to Canada actually exceeded the migration arriving directly from Japan. In order to stem that flow, Cabinet passed a regulation under the Immigration Act requiring immigrants to possess a minimum sum of money on landing. The money would not be seized (unlike the head tax), but was required in order to demonstrate that the migrant would not become a public charge. A second regulation prohibited the landing of any person who did not make a direct journey from the country of his or her nationality, which would preclude Japanese nationals travelling from Hawai'i. This 'continuous journey' provision became the cornerstone of Mackenzie King's strategy for excluding South Asians, and will be discussed in greater detail below. The combined impact of the Gentlemen's Agreement, the continuous journey provision, and the minimum landing money requirement was

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swift: In 1907-8, 7,601 Japanese entered Canada. A year later, the number dropped to 495. Between 1909 and 1925, the annual number of Japanese immigrants exceeded 800 only three times. In 1925, the Gentlemen's Agreement was revised to reduce the annual quota to 150.20 The revised Agreement governed Japanese immigration until the Second World War. South Asian Immigration21 The South Asians were the last Asian group to arrive in Canada during this era, and the story of their migration is the shortest: South Asians were virtually unknown in Canada prior to 1905. After 1909, what had been a modest stream waned to a trickle. By 1914, they ceased to enter. The brevity of the flow speaks to the resolve of the Canadian Government in excluding them, and the effect of experience on the efficacy of the instruments chosen to achieve that purpose. In his 1908 Royal Commission Report on the causes of Asian immigration, Mackenzie King cited two incentives for South Asian immigration. First, steamship companies transporting passengers from India to Canada employed agents in India to promote migration. Next, South Asians who had settled successfully in Canada encouraged others to follow suit, partly in order to secure a workforce for their businesses.22 Like their Chinese and Japanese predecessors, South Asians found work as unskilled labourers. Although most intended to return to India, they also invested in real estate in British Columbia. The particular form of racism directed at Indians focused on their religious practices, appearance, and allegedly seditious attitude towards British colonial rule in India. South Asians were also the victims of bad timing: only four days after the anti-Asian riots of 1907, a ship arrived in Vancouver, carrying 900 Indian passengers. Within six months, two more ships arrived. They were not exactly welcomed. Mackenzie King was the architect of the barriers devised to exclude South Asians. Among other things, he contributed a new variant on traditional racist rationale for excluding non-whites: The experience has shown that immigrants of this class, having been accustomed to the conditions of a tropical climate are wholly unsuited to this country and that their inability to readily adapt themselves to surroundings so entirely different inevitably brings upon them much suffering and privation.23

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The myth of racial unsuitability found fertile ground in the age of eugenics, and took root in Canadian immigration legislation. It became a fixture in preambles to legislation and Orders-in-Council stretching into the 1960s. The major impediment to the exclusion of South Asians was not domestic opposition but rather imperial concerns. India was growing restive under the yoke of British colonial rule, and Britain worried about the inflammatory effect of discriminatory legislation enacted against Indians by another Dominion of the Empire. Meanwhile, the British colonial government had disingenuously assured Indians that as British subjects, their status was equal to that of other British subjects throughout the Empire. In principle, this would entail a prima facie right to enter another British possession. The concept of a distinct Canadian nationality had not yet crystallized in law or theory, and the highest status a naturalized citizen could attain was that of Canadian subject of the Crown. The Immigration Act 1910 defined Canadian citizenship (s.2) but did not affect the status or entitlements of British subjects vis-a-vis Canada. Thus, legislation that distinguished between aliens and nationals would not assist in excluding Indians, even though the Secretary of State for India, Lord Crewe, announced at the 1911 Imperial Conference that 'nobody can attempt to dispute the right of the self-governing Dominions to decide for themselves whom, in each case, they will admit as citizens of their respective Dominions.'24 Mackenzie King's task was to devise a method of excluding South Asians without belying 'the myth of equality of all British subjects throughout the Empire.'25 His device was the regulation known as continuous journey provision, described above in reference to Japanese immigrants. Only one shipping line, the Canadian Pacific Company (the maritime division of the CPR), offered a direct passage from India to Canada. On 26 March 1908, the government of Canada issued a directive to the CPR ordering them to cease selling tickets from India to Canada. Not surprisingly, the CPR was dismayed by this directive, and sponsored much of the early litigation challenging the law. One should not underestimate the ingenuity of the continuous journey provision: the cancellation of the Canadian Pacific passenger route meant that Indians departing from India could not make a continuous journey to Canada. Indians attempting to sail to Canada from a port outside India (typically Hong Kong) were caught by the requirement

Can We Do Wrong to Strangers? 71 that they sail from the country of their 'birth or citizenship.' The same net caught Japanese embarking in Hawai'i. The combination of legal regulation and direct state intervention in the operation of the shipping industry created a near-perfect Catch-22. Because the continuous journey provision was contained in regulation passed by Cabinet, it did not require the approval of Parliament. It saw the light of parliamentary scrutiny on one occasion only, necessitated by a judicial ruling that the version passed by Parliamant was ultra vires. Frank Oliver, Minister of the Interior, defended the measure on the basis that it was necessary to facilitate the deportation of immigrants back to their country of nationality, which was obliged to accept them. The fact that the provision was framed in general language troubled opposition MPs, who feared that it might inadvertently catch otherwise desirable white settlers who, for whatever reason, were unable to make a continuous voyage to Canada. Government Members of Parliament assuaged their concerns by clarifying the intent of the provision: 'I think the object of this amendment ... is quite plain.' To exclude Hindus, that is all.' 'Yes, to exclude Hindus and Asiatics and all kinds of undesirable people.'26 In order to avoid any misunderstanding, Oliver followed up with several internal memoranda to immigration officers instructing them on the enforcement of the continuous journey provision. The following excerpt from one of those memoranda would validate any administrative lawyer's cynicism about the exercise of discretionary power: This regulation is rendered necessary by conditions on the Pacific coast. The understanding reached with Japan and the similar understanding which it is hoped to reach with the Government of India would be useless without it. This regulation is therefore intended as a means of excluding those whom it is the policy of the government to exclude, but not those whom the policy is to admit [emphasis added].27

The efficacy of the continuous journey provision and the landing money requirement can be summed up quickly: In 1907-8, the number of Indian immigrants allowed to enter Canada was 2,623. The number permitted to enter in the next three years was 6,10, and 5 respectively. Between 1910 and 1913, the continuous journey provision was chal-

72 Audrey Macklin

lenged successfully in court, setting in motion a recurring cycle of Order-in-Council -judicial review - amended Order-in-Council.28 Only 102 Indians managed to immigrate to Canada during this period, a testament to Cabinet's determination to exclude them. Eventually, a regulation prohibiting the landing of general labourers was added to the government arsenal. In 1914, a Sikh businessman named Gurdit Singh chartered the Komagata Maru. With 376 Indian passengers aboard, it set sail from Shanghai to Vancouver. With the support of the South Asian community of Vancouver, Singh planned to challenge the various measures used to exclude Indians from Canada. Canadian authorities had been notified of the Komagata Mam's arrival, and were awaiting the ship in port when it docked in Vancouver on 23 May 1914. So was the press. The sorry affair became known as the 'Komagata Maru incident.' Over the next two months, government officials subjected the passengers aboard the Komagata Maru to administrative delays and denied them access to food and water. The goal was to wear down the resolve of the passengers and hasten their departure. The local South Asian community retained Vancouver lawyer Edward Bird to represent the passengers in their challenge to the various exclusionary instruments deployed against them, especially the continuous journey provision. Interestingly, counsel for the Komagata Maru passengers presaged contemporary efforts to utilize international law by invoking the Magna Carta as a source of influential authority.29 Given the demise of earlier versions of the continuous journey provision before the courts, the federal government anxiously awaited the outcome of judicial review. They need not have worried. On 6 July, the British Columbia Court of Appeal rendered its decision. In Re Munshi Singh, a unanimous five-man bench upheld the continuous journey provision, and the various other provisions directed at excluding South Asians. Speaking directly to the motive of exclusion, Mr Justice McPhillips declared that "The laws of this country are unsuited to [Hindus] and their ways and ideas may well be a menace to the wellbeing of the Canadian people.'30 He closed his judgment with the following admonition to the passengers: Better that peoples of non-assimilative - and by nature properly nonassimilative - races should not come to Canada, but rather, that they should remain of residence in their country of origin and do their share, as they have done in the past, in the preservation and development of the Empire.31

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The Komagata Maru incident signalled victory for the Canadian policy of exclusion. Between 1914 and 1921, exactly one Indian managed to immigrate to Canada.32 Measured in terms of exclusion, the policy against South Asians was the most successful of all. Race, Empire, and Migration Control That racism motivated the Chinese head tax, the Lemieux Agreement, and the continuous journey provision is beyond dispute. Yet the foregoing historical survey reveals the incompleteness of racism as an explanation. First, racist ideology may explain why the state chose to encumber or exclude non-European migrants, but it does not account for the variation in how the state chose to achieve its objectives. Why a head tax for the Chinese, a quota for Japanese, and complete exclusion via the continuous journey provision for South Asians? These variations can only be explained by examining the particular confluence of federalism, local economic interests, imperial priorities, and the nascent emergence of an autonomous nation-state identity. Second, one ought to view sceptically the claim that the purpose of the head tax was to exclude Chinese migrants. The treatment of Japanese and South Asians, not to mention the 1923 repeal of the head tax, demonstrates the state's capacity to 'effectively restrict' when it chose to do so. Anti-Chinese racism did not lead to the physical exclusion of Chinese until 1923, yet one would be hard pressed to claim that racism against the Chinese was less virulent than racism against other Asians. It is certainly not the case that moral arguments against the head tax were unavailable or unintelligible at the time. Of course, actors with a financial stake in the continued provision of cheap Asian labour, or associates of the employer class, were most likely to invoke classic liberal rhetoric that favoured free trade in both labour and goods. Very few commentators seemed to endorse anti-racism or equality for its own sake, but it would be inaccurate to allege that none did. Although various legal cases dealt with racist legislation, the head tax was never the subject of a direct legal challenge. Perhaps this is because the head tax was considered unassailable under principles of federalism and parliamentary supremacy, or perhaps it was due to the absence of an employer with an interest in sponsoring the litigation, since employers did not pay the head tax. Having said that, jurisprudence dealing with the broader field of anti-Asian legislation yields the impression that the courts were generally sympathetic to the Chinese and Japanese immigrants. Many cases

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struck down BC legislation as unconstitutional or found Orders-inCouncil ultra vires the statutory authority conferred by the enabling act. Because judicial reasoning of the period tends towards arid formalism, the texts of the decisions do not reveal a strong normative thrust: 'Discrimination is not a ground of attack upon an Act of Parliament within its jurisdiction/ declared the Court in Re Munshi Singh,33 just before upholding the continuous journey provision. The court is 'not concerned with questions of expediency or good faith, but only with ... validity and interpretation/ stated another in Re Thirty-Nine Hindus,34 just before striking down an earlier version of the same regulation. It is tempting to mine the jurisprudence for glimmers of concern for rights, liberty, and equality, in order to advance the claim that the head tax violated the principle of legality even at the time of its inception.35 This largely unarticulated normative commitment might account for the generally favourable outcome of cases challenging anti-Asian legislation, while deviations might be discounted as aberrations. A materialist analysis, however, would look to who else benefited from decisions protecting Asians' ability to work and reside in British Columbia. For example, a shareholder initiated the action in the famous case of Union Colliery v. Bryden36 to 'complain' that the company was violating the provincial prohibition on employment of Chinese in underground mines. The company successfully defended itself on grounds that the provincial legislation trenched on the federal power over aliens and naturalization. It was widely suspected that the company colluded with the shareholder to bring the action in order to have trie law struck down before it was prosecuted. Similarly, the Canadian Pacific Railway (CPR) sponsored the initial challenges to the continuous journey regulations excluding East Indians. That judges were sensitive to the impact of anti-Asian law on business interests is revealed in a comment by Mr Justice Crease, in R. v. Wing Chang.37 In his decision striking down a British Columbia law that restricted mobility of Chinese workers, Crease J. remarked that one objectionable feature of the statute was that it would 'impede or prevent that class from being employed in another province ... where railway works may be languishing for want of that very class of labourers.'38 Not every statute that discriminated against Asians adversely affected business interests. The most obvious example was the BC law disenfranchising Asians in provincial elections. In Tomey Homma39 the Privy Council upheld the legislation, despite its apparent irreconcilabil-

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ity with Union Colliery. If the right to seek employment was an incident of naturalization, it is difficult to see how the franchise was not also a right flowing from naturalization. Indeed, the lower courts in Tomey Homma could not distinguish the two cases despite their best efforts, an ironic yet gratifying indication that judges do occasionally feel constrained by legal texts and precedent. Tomey Homma could be isolated as a historical mistake. However, a realist analysis can easily reconcile it with Union Colliery by looking beyond the legal interests to the economic stakes. The CPR and the mines would suffer along with Asians if the latter could not be transported to Canada and exploited as cheap labour. Asians alone would suffer if denied the vote. Perhaps it is too crude to categorize the jurisprudence solely according to whether commercial interests prevailed. Occasionally, Asians did prevail in the absence of a direct business interest.40 However, locating cases where business interests actually lost is more difficult. Only after six long years of CPR-sponsored litigation did the courts finally slam the door on South Asians in Re Munshi Singh. This final defeat arose out of the Komagata Maru incident, which constituted a direct challenge by a group of South Asians to Canadian immigration policy. By this point, the government had demonstrated its resolve on repeated occasions by redrafting provisions to withstand judicial scrutiny, and even the CPR had given up attempts to challenge government policy: the ship chartered by the passengers aboard the Komagata Maru was not owned by Canadian Pacific. My reading of the case law leads me to question the appropriateness of selectively extracting favourable excerpts from judgments as evidence of law's transcendent commitment to principles of equality and human dignity. My concern goes beyond the instrumental and decontextual nature of the exercise, which is understandable in light of the strategic exigencies of litigation. Moreover, one should not neglect the existence of countercurrents to the wave of racism dominating judicial and extra-judicial discourse about migration and race during the late nineteenth and early twentieth centuries. Despite the ulterior motives of certain interlocutors, it remains the case that they drew on forms of legal and moral argumentation that were in circulation at the time, whether liberal or Christian. My deeper anxiety relates to the putative relevance of legal actors' capacity to recognize the immorality of racist legislation at the time of its enactment or operation. Should the test for redress turn on whether

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the legal wrongness of the head tax could have been articulated through an extant conception of the rule of law, or of liberalism, or some other doctrine? In my view, the answer is no. Attaching importance to the availability of normative arguments at a given historical moment presupposes an 'on/off normativity switch. The initial premise is that the norms that we now recognize and hold as fundamental were either absent or present within the polity at a specific moment in the past. Once they can be shown to have existed at the relevant time, we can judge past actions by reference to those norms. Thus, if one can demonstrate strains in the jurisprudence a century ago that could have been deployed to rule the head tax unlawful, one can vindicate that minority view and conclude that the head tax was, in fact, illegal at the relevant time. This, in turn, overcomes the hurdle erected in the Mack decisions however wrong the head tax appears in retrospect, it was a lawful exercise of legislative authority at the time of its enactment. Tempting as this line of argument appears, I contend that the portrait it paints is overly simplistic. At any given moment in Canadian history, there have been a few (perhaps too few) voices articulating the case against oppression, discrimination, and injustice. The existence of these voices belies the claim that actors are utterly imprisoned by the ideological constraints of their time. They remind us that a residue of agency always lurks behind personal, legislative, and juristic manifestations of racist ideology. I suggest that the most significant change over time is not the individual or even institutional capacity to recognize the evil of racism, or even the availability of arguments to advance that claim, although each plays a role. Rather, the most important change is in the willingness to be persuaded. Over time, one can track the gradual transition of racism's status from conventional wisdom (with few dissenters), to a debatable ideology, to a self-evidently pernicious doctrine, but this is not reducible to a question of the presence or absence of a belief in racial equality. Moreover, not all oppositional claims that commence as voices in the wilderness become the dominant narrative - some deservedly and others undeservedly remain in the margins. John McLaren's careful analysis of British Columbia judges' remarks about Chinese immigrants (both inside and outside the courtroom) adds another element of complexity to the project of extracting meaning from the jurisprudence. Like me, McLaren recognizes that principled judicial opposition to discriminatory legislation was often accompanied by the ulterior motive of promoting the interests of indus-

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trialists and the cause of economic nation-building. In addition, McLaren persuasively argues that the apparent decline in judicial sympathy as the years progressed was connected to the entrenchment of a more formalist approach to constitutional interpretation, which in turn yielded a more positivist and pallid vision of the rule of law. If McLaren's thesis is compelling, one implication is that the judgments of the era reveal as much or more about conceptions of the role of judges and the rule of law as they do about particular substantive commitments about equality and human dignity. Ultimately, if one wishes to rely on favourable strains in the jurisprudence to claim that the head tax would have been legally wrong at the time, one must contend with the fact that the later, formalist conception of the rule of law described by McLaren could have easily sustained the head tax as intra vires the federal power over aliens and naturalization. To put my argument slightly differently, speculation about the legality of the head tax at the time in question presupposes that we would feel bound by a judicial decision about the head tax rendered at the time. Yet, had the head tax been challenged during its ignominious lifespan, and had a court in British Columbia - or even the Privy Council for that matter - upheld it as a lawful exercise of federal jurisdiction, I doubt we would concede that Mr Mack had no entitlement to seek compensation today. Echoes of the Past in the Present Canada has long since renounced the racist ideology that informed the head tax, the Lemieux Agreement, and the continuous journey provision. The two main pillars of Canada's contemporary immigration are family reunification and selection of economic immigrants according to a points system that values education and professional or technical skills. The economic class is preferred over the family class, and refugees run a distant third. The majority of Canada's immigrants and refugees are, within the Canadian context, racialized minorities. Of course, this also means that restrictive immigration laws tend to affect non-white people disproportionately. The rejection of racist criteria for entry and a generalized commitment to the rule of law does not add up to an entitlement to immigrate simply because one meets the criteria and follows the rules. In this sense, the messages communicated by the legal rules fit imperfectly with the policies animating those rules. Several instruments of the late

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nineteenth and early twentieth centuries effectively negotiated the slippage. Or, to borrow Frank Oliver's words, they succeeded in 'excluding those whom it [was] the policy of the government to exclude, but not those whom the policy [was] to admit.' These instruments have survived their ignoble pedigree and persist into the present precisely because they convey a benign message on the surface of the text while accomplishing shifting and occasionally contradictory policy objectives at the level of implementation. For example, Canadian immigration law has, unlike its United States counterpart, almost from the outset deferred the substantive content of the rules to the lowest visibility and least democratically accountable modes of regulation and guideline. When introducing the present Immigration and Refugee Protection Act, the Minister of Citizenship and Immigration openly described it as 'framework legislation,' meaning that it set out the general rules governing migration, leaving the Immigration and Refugee Protection Regulations and the Immigration Manual to provide the operational content. Both the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations are replete with explicit and implicit grants of discretion.41 Ironically, the preference for governing through discretion can probably be traced to that transitional moment when the government realized that it was no longer politically viable to exclude certain racialized groups with the bold candour of, say, a Chinese Immigration Act. Instead, they fabricated formally neutral instruments with euphemistic labels that could be easily manipulated through the abuse of discretion in order to achieve the desired - if unarticulated - policy outcome. The continuous journey provision stands as a particularly vivid exemplar, but it is possible to refract the recent case of Baker v. Canada (Minister of Citizenship and Immigration)42 through the same lens. In Baker, the appellant had lived in Canada for over ten years without legal status. During this period, she had worked, borne children, suffered from mental illness, and obtained social assistance. Eventually, she was ordered removed from Canada, whereupon she applied for permanent residence in Canada under a statutory discretion for 'humanitarian and compassionate' consideration. Neither the statute nor the regulations elaborated on the circumstances in an applicant's life that might warrant humanity and compassion. However, the reasons for the immigration officer's decision made it clear that an overarching policy objective was to reserve favourable consideration only to those who

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had not been and would not become financial burdens on the state.43 Whatever the merits of this policy objective, the phrase 'humanitarian and compassionate' does not reveal fiscal considerations as the underlying priority. The Chinese Head Tax also has its contemporary analogue. In 1994, the Canadian government introduced a Right of Landing Fee (subsequently renamed Right of Permanent Residence Fee), whereby every refugee or immigrant seeking permanent resident status is obliged to pay $975. Critics quickly dubbed the fee the new 'head tax.' This head tax is not a cost-recovery device - immigrants pay an additional $550 to offset the cost of processing an application for permanent residence, and members of the family class pay another $550 to process a sponsorship application.44 If and when permanent residents wish to naturalize, they must pay a $100 Right of Citizenship Fee in addition to a $100 processing fee. Like the Chinese head tax, the fees paid by newcomers generate significant revenue for the Canadian government. In 1997-8, immigration and citizenship fees netted over $360 million.45 The Canadian Council for Refugees calculated that the average burden on newcomers from entry to citizenship more than trebled from $460 in 1993 to $1,526 in 1998. According to Sergio Marchi, Minister of Citizenship and Immigration when the head tax was introduced in 1994, the deficit-busting fiscal agenda of the government compelled a choice between 'either [providing] money to the Minister of Finance in terms of basically gutting our settlement services ... or [providing] money to the treasury by a landing fee paid by all newcomers to Canada.'46 The Citizenship and Immigration Canada website dubbed the head tax a privilege fee, and defended it in the following terms: These fees provide partial compensation for the many intangible economic, social and legal rights and privileges that citizenship and permanent resident status confer. They are designed to increase equity in the revenue system by shifting a greater proportion of the financial responsibility from general taxpayers to the principal beneficiaries of the services.47

The rationale for the new head tax is that newcomers impose unique additional costs on the system (language training, skills upgrading, social services, etc.) which the state ought to recover on behalf of existing members. The temporal coincidence of the head tax with acquisition of permanent resident status or citizenship should not obscure the

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fact that it is basically a tax levied on non-citizens qua non-citizens. It could just as easily be administered as a surcharge on every noncitizen's income tax. Available data suggest that in the long run, immigrants as a whole contribute more than the native-born to the public fisc than they draw out of it.48 Over time, they utilize public assistance at a lower rate than native-born Canadians. Moreover, Canada benefits from the education, skills, and experience immigrants acquire in their countries of origin at no cost to Canada. If anything, Canada owes a debt to the countries of origin. These states invested in their children, expecting to recoup their investment as these children matured into adults. Instead, it is Canada that will reap the benefit of this human capital generated abroad. In any event, the head tax is paid into the general revenue fund of the federal government. It is not actually allocated to subsidizing the 'up-front' social costs of integration and settlement, as these have been increasingly downloaded to provincial and municipal governments. The head tax trades on the erroneous proposition that the material burdens of immigration to Canada exceed the benefits. But labelling the head tax a 'privilege fee' also exposes a deep ideological commitment to the principle that the state's right to exclude is unqualified. The corollary is that admission is an act of benevolence. Not only do supplicants lack any entitlement to grace, the few who are selected owe a debt to Canada for the privilege of admission, quite apart from the economic consequences of their presence to them and to Canada. This remains the case even though successive governments and virtually all commentators agree that newcomers contribute to meeting a demographic deficit in Canada: we need immigrants. It remains the case even though by 1923, Mackenzie King publicly acknowledged the ethical bankruptcy of a national policy that attempts to 'make money ... out of a tax imposed upon persons coming from another country to follow a livelihood in the country which is to profit by them.' Imposing a 'privilege tax' on the entry of those whose presence confers economic and social benefits upon the host society seems both anomalous and unfair. Sympathy towards the 5,000 Kosovar refugees airlifted to Canada in 1999 amplified the impact of advocacy efforts to abolish the head tax. The government relented and exempted refugees on the grounds that it was inappropriate to impose an entry tax on those forced to migrate to avoid persecution. Immigrants, however, must still pay. The basis for distinguishing between immigrants and refugees derives from the popu-

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lar understanding that immigrants 'choose' to move, while refugees are 'forced' to flee. Not only is the immigrant presumed to have access to greater resources than the refugee, but the possible impediment imposed on the former's entry evoke less concern. In reality, the legal definition of a refugee is so narrow that it fails to capture various forms of privation and oppression that may characterize the experience of many immigrants. Moreover, many of today's immigrants to Canada are non-white and come from the poorer countries of the South. The added financial burden of the head tax on these immigrants means that some will delay bringing their spouses and children until they can afford to pay the head tax for each family member. In other words, the contemporary head tax, much like the operation of the Chinese immigration regime, exacerbates family separation, especially among those with limited financial means. Ultimately, the main feature that distinguishes the new from the old head tax is that the old head tax explicitly and exclusively targeted Chinese nationals. The new head tax applies to all immigrants. From a normative perspective, does this difference matter? The old head tax discriminated between migrants on the basis of race/national origin. The new head tax discriminates between immigrants and citizens. As the Canadian Council for Refugees argues, the Right of Permanent Residence Fee is a regressive flat tax that disproportionately affects non-white immigrants from the South whose incomes in their countries of origin are more likely to be low in Canadian terms. Despite its facially neutral character, the present head tax has a racialized impact not unlike that of its predecessor.49 Second, the head tax forces all immigrants to pay for the privilege of being able to live in Canada, obtain health care, educate their children, and pay taxes. Yet, at the same time, immigrants arrive with human capital acquired at no cost to Canada, work and contribute to economic growth in Canada, and pay taxes to Canada. In effect, the various taxes imposed on newcomers as a prerequisite to obtaining permanent resident status and citizenship constitute a system that imposes financial burdens on prospective naturalized citizens that birthright citizens will never bear. Why does Canada impose a surcharge on those who enter the national community via migration rather than by birth? After all, both sets of newcomers impose front-end costs on the system. My guess is that the government simply behaves like any other opportunistic rent-seeker: it does it because it can.

82 Audrey Macklin Fast Forward to the Past Return now to the Chinese head tax. Does the injustice lie in the fact that it imposed a burden on Chinese migrants but not other migrants? If the answer is yes, one might consider the contemporary head tax unassailable, since it applies equally to all immigrants, regardless of national origin. This is not necessarily a fatal flaw in the legal argument against the Chinese head tax; it only means that the argument has little to say about the legality of today's head tax. At most, one might object that the head tax imposes a disproportionately severe burden on immigrants from poor countries, who in turn are more likely to be nonwhite. This is a contingent claim, and does not attack the concept of a head tax per se. I suggest that this concession is problematic when viewed in the wider frame of redressing historical injustice. One reason for seeking compensation is to acknowledge and accept responsibility for the harm committed in the past by the political community of which we are members. Yet I worry about encouraging the illusion that injustice is always already in the past. My concern lies not with the persons actually involved as advocates or beneficiaries of a campaign for redress, who are keenly aware of the residue that past injustice leaves on contemporary life, but rather with the audience they seek to educate. The modernist conceit of progress inclines us towards the belief that we are endowed with a moral acuity superior to our ancestors. Thus, we cannot comprehend how the injustice of the Chinese head tax seemed to evade those who enacted it, whereas it fairly leaps out of history and strikes us between the eyes. Every generation indulges in some variation of this self-serving exercise. Meanwhile, the multifarious forms of inequity and oppression that surround us, prop us up, and constitute the world we inhabit today seem less glaring, more ambiguous and more contestable to us - just as the Chinese head tax did to the 'us' of a century ago. I am thinking here of those practices that may be shedding the insulation of conventional wisdom, or are treated as debatable, but do not appear to a critical mass of the population as self-evidently wrong.50 What is the relationship between seeking redress for historical injustice and combating contemporary injustice? One possibility is that educating the public about past injustice casts new light on the causes of present-day inequality in relation to historically disadvantaged groups. Another prospect is that expressing outrage over historic practices that

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now appear self-evidently wrong will simultaneously reassure us of our sensitivity to injustice, while making present injustice pale in significance - as it almost inevitably will because of the latter's debatable quality. My point is to caution against allowing a commitment to justice to be purchased on the cheap, which is what can happen when the 'wrong' of the past is severed from its progeny and treated as discrete and self-contained within a specific legal technology. I do not ascribe this tendency to the actual parties involved in the movement for reparations, but rather describe it as a possible unintended consequence vis-a-vis the wider public. If the wrong of the Chinese head tax consists of discrimination between migrants on account of race/national origin, one invites - and must be prepared to meet - the implicit claim that a head tax that discriminates between migrants may violate principles of equality and dignity, while a head tax that discriminates between migrants and citizens on the basis of citizenship status does not. In other words, a head tax on immigrants is acceptable in principle, as long as all immigrants, regardless of race, national origin, or wealth, must pay.51 I wish to make a stronger claim, one that does bear upon contemporary practices: the Chinese head tax was unjust not only because it discriminated against Chinese migrants, but also because it violated the dignity and equality of Chinese migrants. The fact that the state exercised its discretion not to encumber all migrants with the tax should not distract from the underlying premise of the state's unfettered entitlement to decide whether and under what conditions to admit strangers. In other words, the problem is not just that the Chinese were taxed, but rather that taxing migrants for the 'privilege' of entering Canada was (and is) presumed to constitute a legitimate exercise of state power. In my view, the only way in which a head tax on admission would be genuinely non-discriminatory is if each child born in Canada were also taxed upon delivery.521 do not suggest that taxing all entrants (whether they arrive by plane, overland, or via birth canal) would suffice to make it a wise law, but at least it would not be discriminatory. To conceptualize a head tax on migrants as a wrong in itself is not to deny or minimize the racism animating the Chinese head tax. The two claims are not mutually exclusive. Death-penalty abolitionists in the United States rightly condemn racist patterns in the administration of capital punishment. They emphatically do not mean to suggest by this that the death penalty would be acceptable if it were inflicted more equitably. North American slavery was racist, but slavery is also intrin-

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sically wrong. Of course, it is more than coincidence that oppressive practices tend to descend on marginalized groups, whether defined by race, class, sex, or otherwise. Migration policies and the racialization of identity mutually constituted and legitimated one another, although the former was only one of many instrumentalities contributing to the latter. Any person born in Canada who has faced the question, 'Yes, but where you are really from?' experiences how historic immigration policies have indelibly marked non-whites as foreign right up to the present day. Supplementing the race critique of the Chinese head tax with specific attention to the migration dimension has the added virtue of linking the Chinese head tax to the present head tax. In so doing, it surfaces the continuity between past and present injustice and discourages treating past wrongs as object lessons in how far we have evolved in our moral ascent. The risk inherent in this gambit, however, is precisely that it takes us to the limits of our own normative horizons. And in contemporary law, political theory, and state practice, that limit is the border of the nationstate: aliens have no right to enter, and the state has no correlative obligation to admit. As recently as 1992, the Supreme Court of Canada reiterated that '[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country.'53 To put it in Dworkinian terms, the border circumscribes the ambit of equal concern and respect. Proponents of 'postnational citizenship/ who claim that citizenship is ceding place to personhood as the source of rights, tend to glide over that one intractable and crucial right that citizenship confers, namely the right to enter and remain in a particular country. The international refugee regime does not seriously challenge the mobility restrictions on non-citizens in theory, and definitely fails to do so in practice. Although the principle of non-refoulement prohibits a state from returning a refugee to face a wellfounded fear of persecution, wealthy states expend enormous resources on preventing asylum seekers from ever reaching their borders. As Catherine Dauvergne observes, most scholars writing within the contours of liberal theory tend to assume a pre-existing, bounded political community.54 Justice describes the normative obligations regulating the relationship between the state and those within the state. At best, liberal theorists have nothing to say about the obligation of a state to admit persons into the political community in the first place. At worst,

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the liberal presupposition of a bounded political community is bootstrapped into a justification for closed borders.55 Dauvergne surveys the 'open versus closed borders' debate and makes the compelling claim that while liberalism qua moral theory might incline towards open borders, liberalism qua political/legal theory is inherently incapable of resolving the question. While sympathetic to Joseph Carens's liberal defence of open borders, she concludes that he must ultimately ground his argument outside liberal discourse or slip into silence: Liberalism has its roots in a defence of the emerging nation-state and the new borders that accompanied it. One of its fundamental enterprises is to build identities based on these borders, to create an US and THEM dichotomy. Even if this dichotomy could be theoretically minimized, contemporary immigration law and the public and political discourses which surround it are certainly involved in the construction of others, and correspondingly of ourselves. Carens' solution for theorizing justice across borders relies on erasing the boundary between members and others which is central to liberal thought.56

To the extent that justice prescribes elements of the relationship between a state and those within it, it exceeds its own economy when it tries to expand the analysis to admission into the state itself. That said, this limitation on liberalism's reach need not constrain claims of justice made by those within the state who lack formal citizenship, for two related reasons: first, liberal theory can acknowledge the formation of relationships and identities that approach and approximate membership, even in the absence of legal status. For instance, even the communitarian Michael Walzer, who contends that 'the distribution of membership is not pervasively subject to the constraints of justice/57 concedes that so-called guest workers must eventually be entitled to membership based on their de facto incorporation into the host society. Second, regardless of legal status, people who are physically on the 'inside' are bound by the ordinary laws of the state, and subject to the exercise of state power, regardless of their citizenship status. This obligation in turn grounds a demand for legal responsibility for how the state wields its power.58 Despite the cogency of arguments to the contrary, the actual congruence of law, state practice, and mainstream liberal theory on the legitimacy of closed borders (give or take a few refugees) creates a dilemma

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for cases that are, literally and figuratively, borderline cases. Of the array of instruments of migration control deployed by Canada against racial and ethnic groups, the measures applied to the Chinese were distinctive in the way they penalized persons even as they were admitted into Canada.59 The continuous journey provision, the Japanese quota, the campaign to discourage African American immigration, and the rejection of the Jewish refugees aboard the SS St Louis in 1939 all inflicted harm through physical exclusion. It seems reasonable to assume that the harm of outright exclusion matches or exceeds the harm of a head tax from the perspective of the victims. Yet nothing in the rule of law, in state practice, or in liberal theory currently supplies a 'right' which outright exclusion violates. I do not contend that, because the head tax may constitute a lesser harm than exclusion, seeking redress for the Chinese head tax should be subject to a type of legal triage. In other words, payers of the Chinese head tax should not have to 'wait their turn' behind those who suffered more. The point is rather that those who were excluded do not even count as persons of concern in law or liberal theory for the very reason that they were excluded. The fact of their exclusion renders them beyond the protection of the institutions of justice created by the state that excludes them, thereby rendering exclusion itself unintelligible as a rights violation. With minor exceptions, this anomaly obtains today as much as it did a century ago, when the head tax was law and James Joyce's character delivered his ironic boast. Indeed, it appears that during oral argument before the Court of Appeal, one of the judges invoked this paradox as a possible justification for denying relief. In effect, he suggested that those who were excluded suffered more than those who paid the head tax. It went without saying - and therefore remained unsaid - that those who were denied entry sixty or seventy years ago surely could not come forward now to claim redress against the state that excluded them. Invidious as this reasoning is, it is important to see that its rhetorical punch lies not in the fact that, a hundred years ago, the state could deny entry to South Asians, Japanese, or anyone else for no ethically valid reason, and the law saw no wrong in it. It is not even that the law today denies an entitlement to compensation for the past injury. The punch comes from the fact that people can be denied entry today for no ethically valid reason and the law still sees no wrong in it.60 We may harm outsiders by excluding them, but we do not, by definition, treat them unjustly. In other words, the foreigner outside the border is so

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abject that she has not risen to the status of one who can be treated unjustly: she does not even make it over the starting line. To add insult to injury, what is delivered is really a sucker punch. The disjuncture between harm and injustice allows for the following rhetorical sleight-of-hand: payers of the head tax did not suffer as great a harm as those who were excluded, so the court need not attend to the wrong done to the head-tax payers. Yet those who were never admitted have no claim to justice precisely because they were never admitted, so the court need not attend to them either. In this game, everyone's a loser. Making the wrong of the Chinese head tax legally visible does not technically require making the wrong of exclusion legally cognizable. However, the notion that exclusion is morally wrong - though not unjust - enables a judge to simultaneously trivialize the magnitude of an injury and deny its unjust character when inflicted at the transitional moment of entry. The alternative argument I propose does not resolve this problem; the problem of borders lies beyond the scope of litigation. At most, it takes migrants situated in that liminal space between stranger and member and insists on their recognition as human beings who possess rights that can be violated. As modest a goal as that appears, it has always been and remains contentious inside and outside Canadian courtrooms. Conclusion The Mack litigation reached a dead end in Canada when the Supreme Court of Canada denied leave to hear an appeal from the decision of the Ontario Court of Appeal. However, the United Nations Human Rights Committee, the body that receives communications regarding violation of the International Covenant on Civil and Political Rights (ICCPR) by States Party found against Canada in a subsequent Advisory Opinion. While not inevitable, perhaps it is fitting that an institution detached from a national conception of justice undertake the task of judging how a state treats those stranded at the border of rights. For various reasons, the dominant legal narrative about Mack focuses on the problem of temporality. According to what standards do 'we' judge 'them' who imposed the head tax over a century ago? 'They' are our earlier selves, now separated by the passage of time from 'us' who stand in judgment. But 'we' and 'they' also refer to another binary at play in Mack, that of the member and the stranger. Thus, the problem

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raised by Mack stretches not only over time, but also over space, specifically over territory bisected by borders. The challenge posed by Mack a challenge as yet unmet - is how to address justice across time as well as justice across borders. NOTES The author wishes to thank Constance Backhouse, Catherine Dauvergne, David Duff, Mary Listen, and the editors for their thoughtful comments and suggestions. 1 I do not address Canadian migration policies towards Blacks, the other major racialized group seeking entry to Canada during the period under consideration. A few Blacks were brought to Canada as slaves in the seventeenth and eighteenth centuries. Thereafter, most Black migration in the late nineteenth and early twentieth centuries came from the United States and consisted of Black Loyalists, escaping slaves, former slaves, and descendants of slaves. Canada adopted a variety of strategies to thwart Black migration. Fewer than a thousand African Americans were among the one million Americans who reportedly immigrated to Canada between 1896 and 1911. See discussion and sources cited in Sharryn Aiken, 'From Slavery to Expulsion/ unpublished manuscript on file with author (n.d.). 2 The material in the section draws extensively on material and sources contained in Audrey Macklin, "The History of Asian Immigration,' August 1987 (unpublished, on file with author). 3 James Morton, In the Sea of Sterile Mountains: The Chinese in British Columbia (Vancouver: J.J. Douglas, 1974), 5-8. 4 John Cameron, 'Law Relating to Immigration to Canada' (Ph.D. thesis, University of Toronto, 1943), 2:77. 5 Ramdeo Sampat-Mehta, International Barriers (Ottawa: Harpell's, 1972), 32. 6 Report of the Royal Commission on Chinese Immigration, Sessional Papers, 1885, no. 54, ixx. 7 Ibid. 8 S.C. 1885,48-49 Vic. c.71. 9 Report of the Royal Commission to Investigate Chinese and Japanese Immigration into Canada, Sessional Papers, 1902 no. 54. 10 Stanislaw Andracki, Immigration of Orientals into Canada, with Special Reference to Chinese (New York: Arno Press, 1978) at 123. 11 Macklin, supra note 2 at 103.

Can We Do Wrong to Strangers? 89 12 Ibid. 13 Andracki, supra note 10 at 129. 14 Shin Imai, 'Canadian Immigration Law and Policy: 1867-1935' (L.L.M. Thesis, York University, 1983), 294. 15 House of Commons Debates, 8 May 1922,1556. 16 Macklin, supra note 2. 17 Parliament of Canada, Sessional Papers, 1907-8, 74b, 124). 18 The remainder were either returning residents, or were from Hawaii, held United States passports, and were transiting through Canada. 19 Report of the Royal Commission Appointed to Investigate Losses Sustained by the Chinese Population of Vancouver, British Columbia on the Occasion of the Riots in that City in September, 1907, Parliament of Canada, Sessional Papers 1908, no.74f; Report of the Royal Commission Appointed to Investigate Losses Sustained by the Japanese Population of Vancouver, British Columbia on the Occasion of the Riots in that City in September, 1907, Parliament of Canada, Sessional Papers 1908, no. 74g. 20 Macklin, supra note 2 at 140-1. 21 The material in the section draws extensively on material and sources contained in Macklin, supra note 2. 22 Report of the Royal Commission Appointed to Inquire into the Methods by Which Oriental Labourers Have Been Induced to Come to Canada (Ottawa: Government Printing Bureau, 1908). 23 Mackenzie King, 'Report on Mission to England,' Sessional Papers, No. 362,1907-8, 7. 24 Quoted in Re Thirty-Nine Hindus (1913), 15 D.L.R. 189,192. 25 Andracki, supra note 10, 91. 26 House of Commons Debates 1902, 6435. 27 Quoted in Sampat-Mehta supra note 5,141. 28 Macklin, supra note 2,150-8. 29 Re Munshi Singh (1914), 20 B.C.R. 243,284. 30 Ibid., 290 31 Ibid., 292. 32 Imai, supra note 14, 295. 33 Re Munshi Singh, 275. 34 Re Thirty-Nine Hindus, 191. 35 See John McLaren, this volume. 36 [1899] A.C. 580. 37 (1885) 1 B.C.R. 1 (Pt. II) 150. 38 Ibid., 164. 39 [1903] A.C. 151.

90 Audrey Macklin 40 See, e.g., R. v. Gold Commissioners of Victoria (1886), 1 B.C.R. (Pt. II) 260; In Re Kanamura (1904), 10 B.C.R. 354. 41 By implicit discretion, I mean broadly worded provisions that depend on the exercise of discretion to make them practicable. 42 [1999] 2 S.C.R. 817. 43 Ibid, at para. 5. The officer's notes contained the following conclusion: 'The [Person Concerned] is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity.' 44 The costs vary for dependent children and spouses or common-law partners. The current fee schedule is set out at http://www.cic.gc.ca/ english/applications/fees.html (accessed 8 July 2003). 45 Canadian Council for Refugees, 'CCR Decries Heavy Fees Imposed on Refugees and Immigrants' (Press Release), 15 February 1999. 46 Allan Thompson, 'Head Tax on Refugees a Headache/ Toronto Star, 17 May 1999. 47 http://www.cic.gc.ca/english/info/fees-e.html. The link is no longer active. 48 Ninette Kelley and Michael Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1999), 443-7; Peter Li, Destination Canada: Immigration Debates and Issues (Oxford: Oxford University Press, 2003), 78-99. 49 For an incisive critique of the impact of the head tax (prior to exempting refugees), see Canadian Council for Refugees, 'Impact of the Right of Landing Fee,' February 1997, http://www.web.net/~ccr/headtax2.htm. 50 Eating meat and same-sex marriage are two practices that have moved conspicuously along this continuum in my lifetime. 51 As noted above, this is subject to the empirically contingent claim that the head tax adversely affects racialized minorities. 52 One might object that the birthright citizen's entry into Canada is not voluntary, unlike the migrant's entry. I alluded earlier to the problematic designation of all non-refugee migration as 'voluntary.' Another response is to point out the moral arbitrariness of place of birth as a determinant, especially when we have already conceded the right of the state to select migrants, and the migrant in question has been selected. Moreover, from a practical perspective, the state's justification for the head tax is not predi-

Can We Do Wrong to Strangers? 91

53 54

55

56 57 58

59 60

cated primarily on the choice to migrate, but on compensation for expenses incurred by the migrant in the course of settlement. Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, 714. Catherine Dauvergne, 'Beyond Justice: The Consequences of Liberalism for Immigration Law/ (1997) 10 Can J. L. & Jurisprudence 323; 'Amorality and Humanitarianism in Immigration Law/ (1999) 37 Osgoode Hall L.J. 597. Between these poles reside a few scholars, who debate whether the default liberal position is closed borders (subject to exceptions for refugees) or open borders (subject to exceptions for security or 'overload'). See, e.g., Michael Walzer, Spheres of Justice (New York: Basic Books, 1983); Joe Carens, 'Aliens and Citizens: The Case for Open Borders' (1987) 49 Rev. Pol. 251; Donald Galloway, 'Strangers and Members: Equality in an Immigration Setting' (1994) 7 Can. J.L. & Jurisprudence 149; 'Liberalism, Globalism and Immigration' (1993) 18 Queen's L.J. 266; Loren Lomasky, Toward a Liberal Theory of Territorial Boundaries/ in David Miller and Sohail Hashmi, eds., Boundaries and Justice (Princeton: Princeton University Press, 2001), 45-78. Dauvergne, 'Beyond Justice/ para. 12. Walzer, supra note 55 at 62. Liberal theory does not (yet) fully account for the exercise of state power beyond borders upon non-citizens, with the possible exception of international humanitarian law, which attempts to regulate the actions of a state during wartime towards civilian non-combatants. While the Chinese Immigration Act post-1923 excluded future migrants, it also affected Chinese in Canada by preventing family reunification. It certainly reinforced their second-class status within Canadian society. That is not to suggest that all exclusions occur for unethical reasons, but rather that many exclusions have no ethical (as opposed to instrumental or expedient) basis.

The Head Tax Case and the Rule of Law: The Historical Thread of Judicial Resistance

to 'Legalized' Discrimination JOHN MCLAREN

From a legal historian's viewpoint it is an intriguing and disappointing feature of the trial and Ontario Court of Appeal decisions in Mack v. Attorney General of Canada1 that 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 the Charter of Rights and Freedoms,2 or, 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 Preamble to the Charter of Rights and Freedoms states unequivocally: 'Whereas Canada is founded upon principles that recognize ... the rule of law.'3 One assumes that the rule of law did not mystically descend on the nation in 1982. The analysis employed by the judges in the two decisions betrays an essentially positivist view of the law relating to racial discrimination. While the Chinese head tax was highly discriminatory and from our vantage point regrettable and unacceptable according to today's values, it is impossible to lend any jural significance to that essentially moral evaluation of the legislation. Our tradition of constitutional interpretation, at least since Cunningham v. Tomey Homma* was one that, until the advent of the Charter, precluded any evaluation of the substance of a statute. Under that mode of interpretation the one and only question to be posed and answered was whether the legislation fell within the jurisdiction of the legislative body that brought it into being, the federal Parliament or the provincial legislature. This form of 'sanitized' constitutionalism was further linked with the principle of parliamentary sovereignty to provide an unassailable bulwark against courts nosing into matters of the moral quality, let alone the moral repugnance of the legislation. As a consequence, because the legislation was intra vires at

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the time of its enactment it is shielded from challenge now, even though under the new constitutional order it would be adjudged thoroughly repugnant, and even though its spirit may still be alive in the sense that adverse consequences and impacts continue to flow from it. It follows that no legal remedy is available, notwithstanding that this odious legislation might have unjustly enriched the Canadian state, the situation lacking any definable legal wrong that has been done to the claimants. The result is made to seem preordained by well-established legal principles and doctrines of interpretation. This version of the story tends to rely on well-trodden arguments and a standard canon of judicial decisions that give an aura of irrefutable authority to denial of the claim. It also assumes that, in the absence of a political or legislative solution to the reparations issues, legal determinism dictates that nothing can be done. Appeal to legal history is limited, as in the trial judgment in Mack v. Attorney General, to demonstrating briefly how discriminatory the law was in its conception and application.5 What is missing is the venerable history of the rule of law as a gauge of the legitimacy and justness of initially executive action, and later legislative and administrative action in the common law world. Placing the head tax story in the context of the broader legal culture and drawing upon a wider range of materials, including judicial opinion outside the mainstream as well as archival sources, make possible, I would argue, a rather different view of what is at stake in this litigation and how Canadian law might respond to various examples of racially discriminatory legislation and administrative conduct. An underlying assumption of this analysis is that there is within the Anglo-Canadian legal tradition a stated commitment to the rule of law. The latter, while often used for its rhetorical effect, is not, it is argued, just gaseous rhetoric, but reflects a set of underlying assumptions about the values of justice, the nature of law as the embodiment of reason, and how justice should be equitably administered. Despite the limiting effect of the late nineteenth-century Diceyan theory of the rule of law, which stressed essentially the need for the formal processes of the law to adhere to an ideal of legitimacy and equal treatment,6 the rule of law has a much older pedigree in which the divorcement between law and politics and law and liberty is not nearly as sharply drawn.7 Crafted by seventeenthcentury lawyers and judges who under the claim of 'the Ancient Constitution' were opponents of royal autocracy, it knitted together several medieval features of English political and legal development including Magna Carta, trial by jury, the fashioning of a common law, and the

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establishment of representative government through Parliament to suggest a long-standing commitment to political liberty and justice according to law.8 Strengthened by the emergence during that same century of a right of petition, the crystallization of the writ of habeas corpus, acceptance of the principle of 'no taxation without representation/ the abolition by the Bill of Rights of royal powers of suspension of legislation, and in 1701 the securing of the formal independence of the judiciary under the Act of Settlement, it became a powerful symbolic, and from time to time, substantive force in eighteenth-century legal thinking.9 As John Phillip Reid has noted, liberty was at the core of discourse about law in the eighteenth-century Anglo-American world, reflecting debate about where the balance between an 'ordered liberty' and anarchy should be struck.10 That was something on which political conservatives and liberals or radicals were likely to disagree, with the former hewing to a more formal definition and the latter to a more political definition of the rule of law.11 That concern about basic civil liberty - for instance, freedom of the press, liberty from the search of one's premises and from seizure from those premises of documents, and protection for radical dissent - was not mere political posturing is evident in several judicial decisions during that century. These decisions by both the politically conservative Lord Mansfield and the much more libertarian Chief Justice Pratt (Lord Camden) upheld the law against executive excess, rejecting the use of general warrants issued against the radical populist John Wilkes and his associates to seize 'seditious' news copy.12 The sentiment of liberty as a bulwark against arbitrary state action is also evident in the acquittal by juries of suspected Jacobins in the 1790s at the behest of the remarkable defence advocate Thomas Erskine,13 and perhaps, most surprisingly, in the order by the usually supine Irish judiciary to release the Irish rebel Wolfe Tone from a pending court martial.14 What was true of Britain itself and had been true in the American colonies was also true in the colonies of the second Empire. Both Paul Romney and David Neal have argued persuasively that rule of law discourse was evident from the very earliest days in the new British colonies in North America and the Australian colonies.15 Indeed, given that these colonies were subject to varying degrees of close control by colonial executives, the constraints on liberty were, if anything, more galling to the law's subjects than to those in the metropolitan power. Rule of law discourse was deployed widely inside and outside court in evaluations of the activities of colonial governors, officials, and even the judges themselves. The nineteenth century provides several

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colonial examples of the vindication of the rule of law, even in its more liberal substantive sense, in Chief Justice Francis Forbes's and his colleagues' moves against the arbitrary gubernatorial rule of Ralph Darling in New South Wales in the 1820s,16 and in the jury acquittals of Joseph Howe on a charge of sedition in Nova Scotia in 183517 and of the Eureka Stockade rebels on a charge of treason in the Australian colony of Victoria in 1854.18 Even in colonies such as Upper Canada where a biased judiciary tended to undermine the rule of law, sometimes in its narrow formal sense, there were reformist lawyers such as William Warren Baldwin and Marshal Spring Bidwell on hand to argue vigorously for it.19 However, as in Britain itself, subject to contested interpretations, the rule of law featured in the legal and judicial consciousness and on occasion had purchase in decision-making. Furthermore, in its liberal manifestations it was, at least until the advent of responsible government, a measure of the extent to which the colonial state, including in some colonies the judiciary, was seen as engaging in arbitrary or corrupt practices. A particular problem for the colonial judiciaries was the question of how English law should apply, if at all, to both Aboriginal and nonEuropean immigrants. With Aboriginals the trend was invariably to treat them as British subjects, although this often meant scant protection and did nothing to prevent their exploitation by settlers and their governments.20 With immigrants the rule of law was said by some to offer access to the courts and equal treatment in the administration of justice. As we shall see, there were even colonial and provincial judges who were willing to go further and strike down discriminatory laws which were designed to exclude, force out, or reduce to impoverishment Asian immigrants. Not surprisingly, given that Asian, especially Chinese, immigration to Canada involved entry and settlement in the westernmost colony and province, it was the British Columbia courts in which contention over discriminatory statutes, regulations, and bylaws originally occurred.21 As will also be apparent, while there were other motives behind judicial opposition to racist legislation, there is also evidence that these judges were well aware of the legal heritage from which they came, including an understanding of and an adherence to the rule of law, at least in this context. By the time British Columbia became a province in 1871, responsible government was a fait accompli.22 A consequence was that the focus of the judiciary's rule of law critiques of institutionalized racism was the activities of the legislature, which they saw as centres of caprice and the excesses of the

96 John McLaren democratic spirit, rather than, as previously, the arbitrary or corrupt activities of colonial governors or officials. The earliest Supreme Court of British Columbia, led by Chief Justice Matthew Baillie Begbie, was consistent in its reported decisions in striking down Sinophobic legislation and by-laws and declaring invalid discriminatory actions taken under such authority.23 Although the judges were careful to couch their decisions in terms of what they took to be a reasonable, if purposeful, reading of the division of powers under the British North America Act, sections 91 and 92, they were also ready to assess the instruments or actions in question in terms of their substantive quality and the motives behind their enactment or enforcement. Several examples will demonstrate this blending of constitutional propriety and substantive critique. In the first of the decisions, Tai Sing v. Maguire24 in 1878, Justice John Hamilton Gray struck down the Chinese Taxation Act that applied a discriminatory tax to all Chinese residents of the province, over the age of twelve. While justifying his decision by finding that the Act trenched upon the federal jurisdiction over aliens, trade and commerce, and treaty making, he was ready also to expose the motives of the framers. This was, he said, 'to drive the Chinese from this country.'25 Gray's judgment makes it clear that he recognized that the Dominion parliament had jurisdiction over aliens and the conditions under which they might be admitted to Canada. At the same time his listing of the other federal powers trenched upon indicates that for him there was more at stake than local hatred of the Chinese. 'Social ostracism/ he said, 'the Local Legislature has no power to enforce/26 Justice Gray was to affirm his sentiments about this legislation in more dramatic terms in the Royal Commission Report on Chinese Immigration of 1885, which he coauthored. Such legislation would hardly be tolerated anywhere among a free people, nor in any country in which fanaticism had not usurped the place of reason. It was that Act which led to the Chinese strike in Victoria in 1878, and was disallowed by the Dominion Government as soon as attention was by this judgment called to its provisions.27

The 1884 case of R. v. Wing Chong28 dealt with a further attempt by the British Columbia legislature to regulate or dislodge the Chinese residents of the province by discriminatory taxation, this time with a scurrilous preamble that recited the 'sins' of the Chinese and why they were not welcome. Justice Henry Perring Pellew Crease was waiting for the

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architects of the Chinese Regulation Act. He quashed a conviction under the enactment on the same grounds of interference with federal authority adduced by his brother, Gray, adding that the statute sought to apply direct taxation, a further ground for finding it ultra vires. With calculated irony he noted: On applying to the preamble, we find that it looks like a bill of indictment as against a race not suited to live among a civilized nation, and certainly does not prepare one for legislation which would encourage or tolerate their settlement in the country.29

In commenting on the reverse onus provisions in the Act he saw them as both unfair to the Chinese and as dangerous precedent for discriminatory treatment of other groups whenever the populace demanded it: every Chinese is guilty until proven innocent - a provision which fills one conversant with subjects with alarm; for if such a law can be tolerated against Chinese, the precedent is set, and in time of any popular outcry can easily be acted on for putting any other foreigners or even special classes among ourselves, as coloured people, or French, Italians, Americans or Germans, under equally the same law.30

Crease used the opportunity of giving evidence before the 1885 Royal Commission to inveigh against the architects of this discriminatory legislation for confusing law and politics. He declared with his usual acerbic tone: The outcry against the Chinese takes its rise in great measure in the efforts of persons, who, for political motives, are desirous of posing themselves as the friends of the working classes, through their sweet votes to gain political power and influence. All political parties, the 'ins' as well as the 'outs' aim at this: and through the press and orations, and even no little misrepresentation, exaggerate.31

Chief Justice Begbie, the judge of this era most positive in his attitudes towards the Chinese and their contribution to the economy of the province, was not to be outdone by his colleagues. In R. v. Mee Wah32 he allowed an appeal against the accused's conviction for operating a public laundry without paying the discriminatory licence applied by a City of Victoria by-law to Chinese operators. He wrote that the impost

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amounted to direct taxation and was thus ultra vires of provincial power. He also branded the by-law unconstitutional because it was designed to discriminate against a particular class of persons, the Chinese. The fact that the by-law under challenge made no specific reference to the Chinese, although clearly intended to apply to them alone, prompted the Chief Justice to expose the deceit. He did so by quoting from a judgment of Justice Stephen J. Field, while sitting as a judge on the federal circuit court in California: When we take our seats on the Bench, we are not struck into blindness and forbidden to know as judges what we see as men; and when an ordinance, though general in its terms, only operates against a special race, sect or class, we may justly conclude that it was the intention of the body adopting it should have only such operation and treat it accordingly.33

The Chief Justice was equally direct in his decision in R. v. Corporation ofVictoria34in which he allowed a writ ofmandamusto issue against the city to compel it to renew pawnbroking licences held by Chinese residents. Drawing upon a report of legal developments elsewhere in the Western world he mused: Victoria does not possess a monopoly of race jealousy. In the French colony of Cayenne, the Town Council recently handicapped the superior capacities of Chinamen by imposing on the merchants of that empire an extra tax. ... But on appeal to the courts at Paris ... these impositions were declared null and void on the very same principles as those on which the Courts here insisted ... as being infringements at once of personal liberty and the equality of all men before the law, and also negation of international rights.35

In his evidence to the Royal Commission, Begbie not only echoed the views of his colleagues but also expressed admiration for the general respect for the law and capacity for hard work demonstrated by the Chinese. In a later decision of the Supreme Court, Wong Hoy Woon v. Duncan,36 Justice Crease determined that the defendant Medical Health Officer for Victoria had been guilty of trespass to the plaintiff by detaining him upon landing from a steamer from Hong Kong and subjecting him to cleansing processes designed to neutralize infectious diseases. The judge in awarding nominal damages noted that this was a test case on the

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differential treatment of the Chinese. No white person aboard, said the judge, had been subjected to this treatment, and the evidence was clear that the plaintiff had already passed inspection on board and otherwise satisfied the conditions for landing. All these judgments make blunt statements that legislation which either directly or indirectly selects out particular classes, in these instances the Chinese, as the subjects of discriminatory treatment offends basic concepts of law and justice, and in particular the right to be treated equally by the law. In several of the statements there are strong hints that adherence to this fundamental tenet of the rule of law is essential if law is not to be governed by popular whim or fad. The judges at times also go beyond the formal parameters of Dicey's interpretation of the rule of law by avowing as a reason for striking down or neutralizing discriminatory legislation its denial of equal access to economic activity. It is important that one not become completely starry-eyed about these decisions. We need to consider both the chronological context in which the decisions were rendered and the motives that lay behind them. The period in which the BC court was handing down these decisions was one in which the canons of constitutional interpretation had not yet crystallized, and in which it was only just becoming evident where the balance would be set between federal and provincial powers, in particular by the Judicial Committee of the Privy Council.37 The BC judges were clearly of the view, not without some self-interest, that the dominant player in the constitutional order was the Dominion parliament. Absent any clear guidance on constitutional interpretation from higher Canadian or imperial courts, they relied heavily for inspiration on the spirit of constitutional interpretation as applied to racially discriminatory legislation by state and federal courts in the west coast states of the United States.38 That jurisprudence seemed particularly apposite given the greater experience of American courts in these matters and the fact that despite a constitutional order in which the balance seemed to favour state powers, United States judges were forthright in upholding the rights of Chinese immigrants against local attempts to curb or deny them. This suggested to Chief Justice Begbie and his colleagues that the two countries shared a common 'basic law.' The judges of early British Columbia were not simply motivated by concerns for basic justice, although I believe that was an important consideration in their decisions. These men, most of whom had held important positions during the colonial period whether on the Pacific

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Northwest or elsewhere, and were patrician in their attitudes towards government, had little time for what they saw as the excesses of democratic government, at least as it was practised in British Columbia.39 They rued the day that the franchise had been extended to all white adult males and the adverse effects they saw that having on the legislative process. White workers were seen as so much 'clay' in the hands of political opportunists. To the extent that they felt able, the judges believed that they had a responsibility to curb the provincial power, enhance that of the Dominion parliament, and afford protection to those interests, such as those of the Chinese, which were being jeopardized by dangerous demagoguery and sectional interests in the white community. These judges were, moreover, ideologically committed to the success of big business in the province.40 They were social friends and associates of some of the most powerful industrialists and made no bones about expressing their belief that it was owing to the efforts of these men that the province was making economic headway against tough odds. Moreover, they considered it beneficial that there was a cheap labour pool in the shape of the Chinese ready, willing, and able to work hard for these industrialists at lower wages than their white counterparts. Several of these men were also highly critical of white labour and its challenges to industry. Indeed, in comparisons of white working-class vices, especially drunkenness, with those charged against Chinese labourers, especially opium smoking and gambling, virtue was said, by men like Crease and Begbie, to favour the Chinese.41 The society idealized by these judges was a class-based one in which those of merit, respectability, and wealth governed, directed, or supervised the rest, who were supposed to be industrious and moral, work hard, and practise thrift. In both respects, in their political and economic paternalism, the views of the BC judges coincided with those of their brethren in Oregon and California, which helps to explain why the judicial opinions about discrimination against the Chinese emanating from western United States courts proved so attractive to them.42 Having explored these motives, it is important to stress that for the times the views of the early BC judges on race were remarkable.43 They stood out among the very few white residents of the province who had anything good to say about the Chinese in public. Moreover, they were not simply tied to a credo of political and economic determinism. Particularly in the economic sphere these judges were not only supporters of big business. Within their ideal world, economic liberalism in the sense of encouraging the conditions in which small players could oper-

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ate and compete had a definite place.44 This is why Begbie, for instance, was so upset with attempts by local government in Victoria to displace the Chinese from laundry work and pawnbroking, and why the full court, led in this instance by Justice John McCreight, struck down a clause in the Chinese Regulation Act of 1884 which applied a discriminatory licence to Chinese gold miners or gold field businesses.45 Beyond the purely economic sphere, the judicial challenge to the nasty side of racial politics was inspired in part by principle. As men who supported the colonial project, who were also trained as lawyers and had some sense of the history and culture of the common law, they clearly believed that one of the benefits of the spread of British justice to the imperial world was that it was supposed to adhere to the rule of law.46 Furthermore they believed that judges had some responsibility to ensure that that promise was realized. To that extent theirs was a voice which was distinctive and which clearly ran against the grain of majority sentiment on the west coast, a fact which led to public criticism of the judiciary for their 'pro-Chinese' stand on a number of occasions.47 The views were closer to the substantive strain of rule of law thinking in common law culture that had existed, and from time to time had been invoked by the courts, since the seventeenth century. These decisions of the earliest bench of the Supreme Court of British Columbia stand out because, while understanding the formal constitutional constraints under which they were operating, they dared to believe that there were obligations associated with nationhood and membership in the community of nations that were beyond the power of local sectional interests to deny and which the Dominion authorities could be expected to uphold.48 Secondly, they believed that judges had the power to strike down legislation and invalidate powers exercised under it that were racially discriminatory. Both contemporary and subsequent events were to challenge the thought implicit in these decisions that legislation which was within the powers of the legislative body passing it might be impugned because racist in substance. First, the Dominion Parliament passed the Chinese Immigration Act in 1885, which applied both a head tax and an immigrant-to-tonnage ratio that clearly discriminated against Chinese immigrants on racial grounds.49 This followed recommendations by the Royal Commission on Chinese Immigration of which Justice Gray was co-commissioner.50 Apart from Gray, whose views on the Chinese were less complimentary than those of Begbie and Crease, these judges were never asked to pass upon the validity of the federal legislation which was clearly within the

102 John McLaren federal power. It is entirely possible that that the court's concern with more transcendent values would not have survived that test, had it occurred. Interestingly, in the decision of Justice Crease, already noted, Wong Hoy Woon v. Duncan,51 the judge, while impugning the conduct of the Medical Officer of Health for Victoria in detaining and subjecting the plaintiff to cleansing routines, noted, without comment, that the plaintiff had satisfied the conditions for landing. These conditions included payment of the head tax. Second, the composition and character of the British Columbia Supreme Court changed. The charter members of the Court were replaced by men, some of whom while in government had promoted or espoused racist legislation. In trial decisions, in particular, one finds a strong sentiment that it is not to be assumed that discriminatory provincial legislation is open to challenge, especially where it is clearly within provincial jurisdiction or within what was seen as a shared area of jurisdiction with Ottawa. This attitude is evident, for instance, in the trial decision in the Coal Mines Regulations case.52 This is not to say that discriminatory measures went unchallenged in British Columbia courts after Begbie and Crease had passed on. Several Orders-in-Council issued by the Dominion government in an effort to cut off further immigration from India after 1907 were successfully challenged in the British Columbia courts. The content and tone of these decisions were, however, different from those of the Begbie court, with the emphasis exclusively on technical legal flaws which invalidated the instruments in question.53 These were quickly remedied by the federal Department of Immigration and the revised law survived subsequent court challenge.54 This change in judicial sentiment was not simply the result of new appointments to the bench. It was also attributable to a third and perhaps crucial factor - the sanitization of the process of constitutional interpretation of Canadian legislation by the Judicial Committee of the Privy Council in Union Collieries v. Bryden55 and Cunningham v. Tomey Homma.56 After these cases commentary on the substance of legislation became largely taboo in Canadian courts. This step seems to have exorcised, at least for the first half of the twentieth century, the notion of transcendent constitutional values or an 'unwritten constitution' that might have been invoked to override particularly noxious discriminatory legislation. However, even in this arid moral setting, the occasional judicial voice could be heard which articulated the spirit of equality through the rule of law. The most pointed example is the dissenting judgment of Justice Idington in R. v. Quong Wing.57 In this 1914 decision

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of the Supreme Court of Canada, the Court was faced with a challenge to Saskatchewan legislation which made it an offence for a Chinese male to employ a white woman. Quong Wing was charged with and convicted of hiring two white waitresses in his restaurant. His appeal was denied by the majority of the Supreme Court following the Tomey Homma decision as the statute was found to fall within the regulation of property and civil rights and thus within provincial jurisdiction.58 Idington J. dissented, concluding that as Quong Wing was a naturalized British subject the Saskatchewan act constituted an infringement on the accused's rights and amounted to interference with the federal jurisdiction over naturalization.59 It is not the decision which sought to observe the new constitutional proprieties, as the judge saw them, and depended on a distinction between naturalized subjects and aliens which offered no protection to the latter, but the language of the judge which is instructive. Idington had no compunction about stating his concerns about the discriminatory quality of the legislation. It may well be argued that the highly prized gifts of equal freedom and equal opportunity before the law, are so characteristic of the tendency of all British modes of thinking and acting in relation thereto, that they are not to be impaired by the whims of a legislature; and that equality taken away unless and until forfeited for causes which civilized men recognize as valid. For example, is it competent for legislature to create a system of slavery and, above all, such a system as applied to naturalized British subjects? This legislation is but a piece of the product of the mode of thought that begot and maintained slavery; not so long ago fiercely claimed to be a laudable system of governing those incapable of governing themselves.60

Here in this passage we see the same concern to uphold the rule of law expressed by the earlier decisions of the earliest British Columbia Supreme Court. Occasionally a judge would consciously ignore the racist intent of legislation, where it purported in its terms to make no distinctions on the basis of race. One Saskatchewan judge, Justice Philip Mackenzie, did this. In 1924 he ordered Regina City Council to grant a licence to one Yee Clun, a Chinese restauranteur who wished to employ white women as waitresses under legislation which on the surface was racially netural.61 The judge felt able to do this by a benign interpretation of an amended version of the Saskatchewan legislation aimed at Chi-

104 John McLaren

nese businesses that had been challenged in Quong Wing.62 The Female Employment Act of 1919, unlike its predecessor, contained provisions protecting white women that made no reference to Chinese businesses.63 The statute simply granted a general discretion to municipalities to determine whether licences would be granted to businesses in which white women were to be employed. This iconoclastic and anti-racist decision blithely ignored the fact that the intention of the legislators was to disguise their purpose, which was to continue to discriminate against Chinese businesses.64 There are also hints of judicial concern about interpretations of the common law that ignored the rule of law. Again the primary example in Canadian jurisprudence is a dissenting opinion. In Rogers v. Clarence Hotel Co. Ltd.65 in 1940 a majority of the British Columbia Court of Appeal upheld the right of a hotel operator to exclude the plaintiff, described as a 'Negro/ from her beer parlour.66 In this case the majority followed the decision of the Supreme Court of Canada in Christie v. York Corporation67 which had concluded that a licensed tavern-keeper in Quebec was entitled by virtue of the doctrine of freedom of commerce to exclude whomsoever he wished from his establishment. Justice O'Halloran dissenting opened his judgment by pointing to the 'fundamental importance' of the issues before the court.68 As he put it: 'if a person may be refused on account of race and colour, he may also be refused because of racial extraction, religion, political views or upon any ground according to the caprice, malice, whim, fancy or humour of the beer parlour operator.'69 The judge distinguished Christie on the ground that it dealt with the civil law of Quebec. Under the common law, said the dissenter, things were different: refusal to serve the respondent solely because of his colour and race is contrary to the common law ... founded upon the equality of all British subjects before the law. The respondent is a British subject. All British subjects have the same rights under the common law - it makes no difference whether white or coloured; or of what class, race or religion.70

O'Halloran J. noted that the hotel-keeper had held out the beer parlour to the public without reservation or limitation, and that as beer sales were under legislative control the business of serving beer was affected with a 'public interest.'71 While recognizing that a patron could be ejected from such a public establishment for reasonable cause, O'Halloran went on, 'a person's race or colour does not of itself constitute reason-

The Head Tax Case and the Rule of Law 105 able cause.'72 Again we see in the decision of this judge the belief that the rule of law exists and can and should supply a gauge of the validity of discriminatory conduct in working the common law. The voices of these 'Lone Star' justices proved to be voices 'crying in the wilderness' in the arid wastes of Canadian constitutional interpretation. At another level, however, they are significant in keeping alive a more substantive notion of the rule of law which represents a distinctive strand, albeit at times a slender strand, within British juristic tradition. As Jonathan Swainger has pointed out in a different although associated context, it was the same impulse that induced the Alberta Supreme Court in a series of prosecutions for wartime 'sedition' during the First World War to adopt a narrow definition of that notoriously vague offence as a bulwark against undue interference with freedom of speech.73 As he observes: 'That such a view would in the end be swept away in the wake of the Winnipeg General Strike diminishes neither its existence nor the foresight of the judges who framed its tenets.'74 Where does this legal historian's analysis leave us, when set alongside the neater but much more limited judicial analysis undertaken in the Mack case? I would argue first of all that the much-vaunted commitment of British justice to the rule of law was more than just a set of rhetorical flourishes. From time to time in English and colonial legal history it emerged as a concept which had substantive force for judges and juries and was used to strike down or neutralize arbitrary executive conduct and discriminatory legislation and administrative action that offended it. It had its roots in and continued to represent one device for gauging and critiquing first executive and then both legislative and administrative action. Moreover, some jurists saw it as having its reflection in the common law, the obligations it imposed and the correlative rights it recognized. Despite attempts by some theorists, most notably Alfred Venn Dicey, to limit its application to the realm of formal justice, the rule of law continued in the hands of some judges, such as those in British Columbia in the 1870s and 1880s, in the dissents of Justice Idington and Justice O'Halloran, and in the judgment of Justice Mackenzie to have substantive features and to be used as basis for assessing discriminatory legislation and conduct. I am satisfied that there has been and still is room in the evolution of the culture of the common law for the rule of law to be invoked in judging, even from afar in chronological terms, in legislative and administrative schemes that involve the exercise of discretion, and in interpreting and applying the common law itself.

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What the legal historian's analysis outlined above tells me is that while Canada and Canadians were putting into place the legislative framework for the 'racist state/ there were judicial voices raised in opposition which told a different message about the values of the system, a message much more in tune with the claims made by judges and lawyers over the centuries for the importance of moral imperatives in understandings of the substance and processes of English and Canadian law. It seems to me entirely possible to second-guess much earlier decisions of Canadian courts that used parliamentary sovereignty and the canons of Canadian constitutional interpretation to block out any consideration of transcendent values of British justice reflected in the rule of law and equal access to the law. I do not see why, for instance, it would be impossible under legislation that provided powers to local authorities to grant or withhold business licences designed to discriminate against Chinese or other Asians, without saying so explicitly, to conclude that the power was used for illegitimate reasons under the rule of law and is thus open to remedy. As we have seen too, courtesy of Justice O'Halloran, it is possible to interpret the common law as incorporating within its principles the rule of law in the sense of equal treatment even in substantive terms. In this instance there is some preCharter assistance in the Ontario Court of Appeal decision rendered by Madam Justice Wilson in Bhaduria v. Seneca College?5 That Court, drawing its inspiration in part from the judgment of O'Halloran J. in Rogers v. Clarence Hotel, was ready to acknowledge the existence of a common law tort of discrimination as an alternative to proceeding with a complaint to the provincial human rights commission. Although rejected by the Supreme Court of Canada on appeal, the Court arguing that human rights commissions had exclusive jurisdiction in these matters, there are strong arguments that the latter decision was unfortunate and that of Justice Wilson correct. Moreover, viewed from hindsight, the latter is more in tune with Charter values.76 More problematic is the use of rule of law argumentation to attack legislation such as the head tax acts that discriminated expressly against a particular ethnic group and left no discretion to the administrators of the legislation. Here in most pointed form rule of law reasoning comes up against both parliamentary sovereignty and traditional division of powers constitutional interpretation by Canadian courts. Furthermore, the legislation dealt primarily with aliens, and dealt with them prior to their having established residence in Canada. It is difficult to portray them as British subjects or even landed aliens who were being subjected

The Head Tax Case and the Rule of Law 107 to discriminatory treatment. Actions for harm caused under discriminatory legislation, long since repealed, have been allowed in Canada. In Muir v. Alberta,77 for example, detainment of the plaintiff under legislation on mental incompetents and eugenic sterilization done under the authority of the Sexual Sterilization Act of Alberta were the subjects of a successful claim by the plaintiff. However, in both instances the case proceeded on the argument that the actions of the authorities in question amounted to an abuse of their powers under that particular legislation, which was not itself open to challenge under the retroactivity principle. Within the rule of law reasoning used by the judges whose decisions we have examined there are strong suggestions that discrimination under legislation and the common law is both morally and legally indefensible. None of these opinions, however, provides clear authority for the application of the doctrine in the case of legislation that it is within the jurisdiction of the legislative body passing it, and makes no allowance for discretion in its application. Here is the point at which the appeal has to be to more basic principles of the unacceptability of unjust and discriminatory law, to the invocation of the Charter to address continuing harm from pre-Charter breaches of the rule of law, to the application of equitable and remedial principles, such as fiduciary obligation and unjust enrichment, and to the extent to which the norms of international law may provide guidance. These dimensions of the issue of reparations are dealt with in several other chapters in this volume. I conclude by returning to my opening point that it is surprising that neither court in the Mack case thought it important to consider rule of law reasoning in assessing the justiciability of the head tax claim. Historical contextualization of the sort suggested in this chapter is by no means alien to the common law tradition of legal development and statutory interpretation. Indeed, it is an important element of analysis if courts are to understand fully the contours of the legal culture of which they are a part and to do and to be seen to do substantial justice in cases that come before them. A recent example from litigation that reached the Supreme Court of Canada underlines the point being made. In Whiten v. Pilot Insurance76 Canada's highest court upheld a jury award of $1 million against the defendant insurance company because of its outrageous treatment of the insured plaintiffs, who had claimed for the destruction of their house in a fire. Justice Binnie for the majority of the court used historical references to support the venerability of such awards in the common law.79 He asserted that the award of such damages to a plaintiff constituted a recognition by the law that the private

108 John McLaren

litigant was acting in the public interest in carrying such an action. This concession to the exercise of private rights in the cause of the public welfare by the award of punitive damages was, said the judge, of considerable venerability. In support of this assertion he pointed to two mid-eighteenth-century decisions of Chief Justice Pratt (later Lord Camden) upholding jury awards of 'exemplary damages.' These awards expressed the juries' consternation at trespass by state officials on the premises of John Wilkes, the radical and populist MP who had been such a thorn in the flesh of the British government, and the assault and false imprisonment of his printer, Huckle.80 These awards had the clear approval of Chief Justice Pratt as a reflection of the juries' detestation of such arbitrary conduct. He also considered exemplary damages in such cases as a bulwark against state action that compromised the liberty of the subject. Although the context of the decision in Whiten is different from that of the head tax cases, the decision points to the common law possessing its own internal morality embodied in rule of law ideology and discourse. That important aspect of common law culture surely had even greater significance in a suit, like Mark, which had at its core a consciously discriminatory regime based on strongly held notions of racial supremacy. NOTES 1 Mack v. Attorney General of Canada (2001), 55 O.R. (3d) 113 (S.C.J.), upheld (2002), 60 O.R. (3d) 737 (C.A.). 2 Constitution Act R.S.C. 1985, Appendix II, No. 44. 3 Ibid. 4 [1903] A.C. 151 (P.C., Can). 5 Mack v. Attorney General of Canada (2001) 55 O.R. (3d) 113 (S.C.J.) per Gumming J. at para. 533 where the judge refers to James W. St. G. Walker, 'Race/ Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Toronto: Osgoode Society for Legal History, 1997). 6 A.V. Dicey, Introduction to the Study of Law of the Constitution (London: Macmillan, 1987). 7 John McLaren, 'Reflections on the Rule of Law: The Georgian Colonies of New South Wales and Upper Canada,' in Diane Kirkby and Catharine Coleborne, eds., Law, History and Colonialism: The Reach of Empire (Manchester: Manchester University Press, 2001), 46 at 46-7. 8 Ellis Sandoz, ed., The Roots of Liberty: Magna Carta, Ancient Constitution, and

The Head Tax Case and the Rule of Law 109

9

10 11 12 13 14 15

16

17 18 19

20

21

the Anglo American Tradition of Rule of Law (Columbia University of Missouri Press, 1993) See especially J C Holt, The Ancient Constitution in Medieval England' at 2-56 John Phillip Reid, The Jurisprudence of Liberty The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries/ mSandoz, ed at 147-231 John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago University of Chicago Press, 1988) H T Dickson, Liberty and Property Political Ideology in Eighteenth Century Britain (London Methuen, 1977) Leach v Money (1765) 19 State Trials 1026, Entick v Carnngton (1765) 19 State Trials 1045 E P Thompson, The Making of the English Working Class (Harmondsworth Pelican Books, 1968) at 144-9 Wolfe Tone's Case (1798) 27 State Trials 624 Paul Romney, 'Very Late Loyalist Fantasies Nostalgic Tory History and the Rule of Law in Upper Canada/ in Wes Pue and Barry Wright, eds, Law and Society Issues in Canadian Legal History (Ottawa Carleton University Press, 1988), 119, David Neal, The Rule of Law in a Penal Colony Law and Power in Early New South Wales (Cambridge Cambridge University Press, 1991) C H Currey, Sir Francis Forbes (Sydney Angus and Robertson, 1968) at 192-396, JM Bennett, Sir Francis Forbes First Chief Justice of New South Wales 1824-1837 (Sydney Federation Press, 2002) at 73-117 J Murray Beck, Joseph Howe, Volume 1 Conservative Reformer 1804-1848 (Montreal and Kingston McGill-Queen's University Press, 1982) at 129-^6 John Moloney, Eureka (Ringwood, Viet Penguin Books, 1989) at 187-201 Robert Fraser, '"All the Privileges which Englishmen possess" Order, Rights and Constitutionalism in Upper Canada/ in Fraser, ed , Provincial Justice Upper Canadian Legal Portraits from the Dictionary of Canadian Biography (Toronto Osgoode Society, 1992), xxi, and 201-21 (W W Baldwin) and 225-33 (M S Bidwell) Roy Millis, Waterloo Creek The Australia Day Massacre of 1838 and the Brtish Conquest of New South Wales (Sydney University of New South Wales Press, 1994), Sidney Harring, White Man's Law Native People in Nineteenth Century Canadian Jurisprudence (Toronto Osgoode Society, 1998) On the general history of racist polices in British Columbia, see Patricia Roy, A White Man's Province British Columbia Politicians and Chinese and Japanese Immigrants 1858-1914 (Vancouver UBC Press, 1989), W Peter Ward, White Canada Forever Popular Attitudes and Public Policy toward

110 John McLaren

22 23

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

39 40 41 42 43 44 45

Orientals in British Columbia, 2nd ed. (Montreal and Kingston: McGillQueen's University Press, 1990). . Jean Barman, The West beyond the West: A History of British Columbia (Toronto: University of Toronto Press, 1991) at 101. John McLaren, "The Early British Columbia Supreme Court and the "Chinese Question": Echoes of the Rule of Law' (1991) 20 Manitoba L.J. 107; John A. Munro, 'British Columbia and the "Chinese Evil": Canada's First Anti-Asiatic Immigration Law' (1971) 6 Journal of Canadian Studies 42. (1878) 1 B.C.R. Pt. 1101 (S.C.). Ibid, at 112. Ibid, at 112-13. Report and Evidence of the Royal Commission on Chinese Immigration (Ottawa: Queen's Printer, 1885) (Commissioner: Justice J.H. Gray) at Ixxii. (1885) 1 B.C.R. Pt. II150 (S.C.). Ibid, at 157. Ibid, at 163. Royal Commission on Chinese Immigration, Minutes of Evidence, 143 (Justice H.P.P. Crease). (1886) 3 B.C.R. 403 (Cty Ct.). Ibid, at 412, quoting from Ho Ah Kow v. Nunan, 12 Fed. Cas. 252 (Circ. Ct., D. Cal., 1879) at 255. R. v. Corporation of Victoria (1888) 1 B.C.R. Pt II331 (S.C.). Ibid, at 333. (1894) 3 B.C.R. 318 (S.C.). McLaren, "The Early British Columbia Supreme Court' at 117-18. John McLaren, 'The Early British Columbia Judges, the Rule of Law and the "(Chinese Question": The California and Oregon Connection' in John McLaren, Hamar Foster, and Chet Orloff, eds., Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina and Pasadena: Canadian Plains Research Center and the Ninth Judicial Circuit Historical Society, 1992), 237. McLaren, "The Early B.C. Supreme Court' at 127-31. Ibid., 131-5. Ibid., 134-5. McLaren, 'The California and Oregon Connections' at 244-63. For a less generous reading of these decisions and of the value of extrapolating from them, see Audrey Macklin in this volume. McLaren, 'The Early B.C. Supreme Court' at 135-6. R. v. Gold Commissioner of Victoria District (1886) 1 B.C.R. Pt. II260 (Div. Ct).

The Head Tax Case and the Rule of Law 111 46 McLaren, The Early B.C. Supreme Court' at 142-4. 47 See Victoria Daily Times, 22 May 1885; Victoria Daily Times, 23 May 1885, 2; Victoria Daily Colonist, August 1885. 48 McLaren, The Early B.C. Supreme Court' at 144. 49 Act to Restrict and Regulate Chinese Immigration into Canada (the 'Head Tax Act') S.C. 1885, c. 71. 50 Report of Royal Commission on Chinese Immigration (1885). 51 (1894), 3 B.C.R. 318 (S.C.). 52 In Re Coal Mines Regulation Amendment Act, 1890 (1896) 5 B.C.R. 306 (S.C.), see judgments of Walkem and Drake JJ. 53 See Re Bahari Lai (1908), 8 W.L.R. 129 (B.C.S.C.); In Re Rahim (1911), 16 B.C.R. 469 (S.C.); In Re Rahim (No. 2) (1911), 16 B.C.R. 471 (S.C.); In re Narain Singh et al. (1913), 18 B.C.R. 506 (S.C.). 54 In Re Munshi Singh (1914), 20 B.C.R. 244 (C.A.). 55 [1899] A.C. 580 (P.C. Can). 56 [1903] A.C. 151 (P.C. Can). 57 (1914) 49 S.C.R. 440. For the broader context of this decision, see James W. St. G. Walker, 'Race,' Rights and the Law in the Supreme Court of Canada (Waterloo, ON: Wilfrid Laurier University Press for the Osgoode Society, 1997), 51-121, and Constance Backhouse, "The White Women's Labour Laws: Anti-Chinese Racism in Early Twentieth-Century Canada' (1996) 14 Law and History Review 315. 58 Ibid., per the Chief Justice at 443-5; per Davies and Anglin JJ. at 445-50; and, per Duff J. at 459-69. 59 Ibid, at 450-9. 60 Ibid, at 452. 61 Yee Clun v. City ofRegina(1925), 20 Sask L.R. 232 (Q.B.). 62 Employment of Female Labour Act, S.S. 1912, c.17. 63 Female Employment Ad, S.S. 1918-19, c. 85, s.l; R.S.S. 1920, c.186, s.3. 64 For the racist and legal context of this decisions, see Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press for the Osgoode Society, 1999), 132-72. 65 [1940] 3 D.L.R. 583 (B.C.C.A.). For commentary on this case, see Walker, 'Race/ Rights and the Law, 173-6. 66 Ibid., per MacDonald C.J. at 584-6 and Sloan J. at 556. 67 [1940] S.C.R. 139. 68 Ibid, at 586. 69 Ibid, at 586-7. 70 Ibid, at 588. 71 Ibid, at 593.

112 John McLaren 72 Ibid, at 589. 73 Jonathan Swainger, 'Wagging Tongues and Empty Heads: Seditious Utterances and the Patriotism of Warfare in Central Alberta, 1914-1918,' in Louis A. Knafla and Susan WS. Binnie, eds., Law, Society and the State: Essays in Modern Legal History (Toronto: University of Toronto Press, 1995), 263. 74 Ibid, at 264. 75 (1979), 27 D.L.R. (2d) 143 (C.A.). 76 See e.g. Lucie Leger, The Culture of the Common Law in the 21st Century: Tort Law's Response to the Needs of Pluralist Society/ in Ken CooperStephenson and Elaine Gibson eds., Tort Theory (Toronto: Captus University Publications, 1993), 162 at 175-7; Philip H. Osborne, The Law of Torts (Toronto: Irwin Law, 200) at 234,395. 77 (1996), 132 D.L.R. (4th) 695 (Alta. Q.B.). 78 [2002] 1 S.C.R. 595. 79 Ibid, at 619-20. 80 See Wilkes v. Wood (1763), 98 E.R. 489 (K.B.); Ruckle v. Money (1763), 95 E.R. 768 (K.B.).

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The Limits of Constitutionalism:

Requiring Moral Behaviour from Government MARY E B E R T S

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 the Chinese Immigration Act permitted Mr Wong and his family to enter Canada, but the Chinese Canadian community of Gretta Wong's childhood was the 'married bachelor' society created by the rigid exclusion of almost all other immigrants from China. The Wong family came to Canada before the Second World War. Since then the international community has put in place a number of fundamental human rights instruments which enunciate an ethical vision of the relationship between the state, the individual, and communities within the state. These instruments 'laid down standards for a rights-based society which consciously chooses to respect the dignity of every human being so that no one is left out.'3 This 'ethical rights-based society'4 is also the one contemplated by the Canadian Charter of Rights and Freedoms, entrenched in the Canadian constitution5 and by the human rights law enacted in Canada in the postSecond World War era. The Head Tax Redress case was an attempt to bring the moral standards of an ethical rights-based society to bear on a grave historical wrong, with deep roots in Canada and far-reaching consequences for contemporary Canadian society. In light of these moral standards, which by the end of the twentieth century had received legal expression and

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had taken firm hold in Canada, the reprehensible nature of the head tax and Chinese exclusion acts is clear. The task of the Head Tax Redress case was to try to translate that sense of moral repugnance into a concrete remedy by invoking the ethical and moral commands which were legalized in the Charter. Counsel in the Head Tax Redress case, and the proponents of the case within the Chinese Canadian community, have always seen the case as an uphill battle. To challenge now a statute which was first enacted in 1885, underwent a major overhaul in 1923, and was repealed in 1947 presents substantial difficulties. However, we were encouraged by Canada's embrace of a rights culture through the Charter and human rights laws, and by the large and liberal interpretation which had been given to human rights guarantees by the Supreme Court of Canada. The legal culture of Canada, we believed, might be receptive to an argument that redress should, and could, be found for a profound racist wrong committed by Canada in an organized and systematic way for almost sixty years. The reported decisions in the Head Tax Redress case arose in the context of the Crown's motion to strike out the plaintiffs' statement of claim on the ground that it discloses no reasonable cause of action. The motion was heard by Mr Justice Cumming of the Ontario Superior Court of Justice, who granted the Crown's motion. The plaintiffs' appeal to the Court of Appeal was dismissed by a panel consisting of Justices Austin, Moldaver, and MacPherson JJ.A. An application for leave to appeal to the Supreme Court of Canada was refused. In addition to these proceedings, the Canadian Judicial Council considered, and declined to act on, a complaint from the Chinese Canadian National Council (CCNC) that Justice MacPherson had made racist remarks during oral argument before the Court of Appeal.6 All the judges who considered the motion, and issued written opinions, agreed that the head tax and Chinese exclusion acts were morally repugnant. Many of them specifically invoked the ethical standards of human rights when articulating this view. However, not one was prepared to venture outside a narrow and technical interpretation of the relevant statutes and case law and find that there was legal, in addition to moral, merit in the plaintiffs' case. That there is a gap between the promulgation and realization of human rights norms, internationally and nationally, is well known.7 There are many reasons why this happens. This essay concludes that it happened in the Head Tax Redress case because of the limited and

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formalistic way Canadian judges conceive of their role in interpreting and applying the moral norms legally entrenched in the Charter of Rights. The first part of this paper deals with the human dignity origins of contemporary human rights protection, internationally and in Canada, identifying their moral dimension, and showing how those dignity concerns underpin the early Canadian case law on the Charter's equality guarantees. The second part considers the approach to equality and human dignity of the present Supreme Court of Canada, showing how it has turned human dignity from a broad value underpinning the Charter to a device for 'weeding out' claims that do not comport with the Court's vision of Canada as a liberal democratic state with a capitalist economy. The third part focuses on the arguments put forward in the Head Tax Redress case that were designed to get the courts to implement the Charter's vision of an ethical rights-based society, and what happened to them, a fate which disappoints but does not surprise in a legal system that has lately been espousing a very narrow a view of equality and human dignity. Human Dignity and Human Rights The core of the large group advocating for improved equality provisions in the Charter consisted of 'baby-boomers,' born at or soon after the end of the Second World War.8 The consciousness of this generation was shaped by its abhorrence of the horrors of war and the Holocaust perpetrated by 'duly elected' governments, and hence it articulated its wish to prevent a recurrence of them. This consciousness was also infused with an awareness that even in a society with such aims, resistance to human rights by state and private actors alike could be strong, even violent. The international community turned to the idea of law in its search for a way to prevent future horrors. The formal instruments of that law were the international conventions that established both the United Nations and its value system of human rights. These conventions entrenched in formal documents, binding on their signatories, the basic post-Second World War vision that at law, all human beings are of equal worth and dignity. Such a precept had informed the domestic legal systems of some countries before this; at the establishment of the United Nations, it was embraced worldwide as an 'article of faith.' The Charter of the United Nations, signed 26 June 1945, states in its

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preamble that the peoples of the United Nations are 'determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.'9 Similarly, the Preamble to the Constitution of UNESCO, adopted 16 November 1945, states that 'the great and terrible war which has now ended was a war made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men, and by the propagation in their place, through ignorance and prejudice, of the doctrine of the inequality of men and races.'10 The Preamble to the Universal Declaration of Human Rights (1948) asserts that 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world/ and reaffirms the faith of the peoples of the United Nations 'in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.' The General Assembly proclaimed the Declaration 'as a common standard of achievement for all peoples and nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.'11 The International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights proclaim that 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.' These rights, the Covenants declare, 'derive from the inherent dignity of the human person.'12 Other UN instruments return to these same touchstones, including the International Convention on the Elimination of All Forms of Racial Discrimination,13 and the Convention on the Elimination of all Forms of Discrimination Against Women.14 Human rights legislation had begun to be passed in Canada even before the end of the Second World War, but the decades following the war saw the enactment of such statutes in all Canadian jurisdictions, and the progressive expansion of their coverage, with respect both to prohibited grounds of discrimination and also to the domains of human activity subject to anti-discrimination provisions. Many of those stat-

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utes, like the UN instruments which had inspired them, explicitly espouse human dignity as their grounding principle. The Preamble to the Ontario Human Rights Code, for example, begins by proclaiming that 'recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations.' It goes on to state that 'it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law/15 The UN Charter proclaims its 'faith' in fundamental human rights and the dignity and worth of the human person, a confession of faith that is reaffirmed in subsequent UN instruments. The belief in human rights, and the dignity and worth of the human person, did, in fact, become the 'civic faith' of large segments of the post-Second World War generations across the world, and certainly in North America. This civic faith provided as well a moral vision, secular rather than explicitly religious in nature.16 The secularity of this belief, and the articulation of these principles through entrenched constitutional instruments, legislation, and international conventions, distinguish these values - and cases attempting to bind governments to respect them - both from those cases where applicants have tried to use litigation to apply to the state sectarian religious values,17 and from attempts to enforce broader moral and political visions generally. In Andrews v. Law Society of British Columbia, the foundational judgment on s.15 of the Charter, Mclntyre J. acknowledges the importance of this dimension of equality to his approach to the constitutional guarantee of equality. He specifically builds upon the human rights legislation and jurisprudence which had developed in Canada following the Second World War. Although he does not invoke the concept of 'dignity/ his language shows his debt to that founding principle. He states that the purpose of s.15 of the Charter is to 'ensure equality in the formulation and application of the law/ describing the promotion of equality as 'the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration/18 Mclntyre J. quotes with approval the observations of Howland C.J.O. and Robins J.A. of the Ontario Court of Appeal that 'the right to equal protection and equal benefit of the law now enshrined in the Charter rests on the moral and ethical principle fundamental to a truly free and

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democratic society that all persons should be treated by the law on a footing of equality with equal concern and respect/19 He declares that the equality guarantees should be 'interpreted in a broad and generous manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a "continuing framework for the legitimate exercise of governmental power" and at the same time, for the "unremitting protection" of equality rights.'20 Both in his formal acknowledgment of the Charter's foundation on human rights statutes and jurisprudence, and in his description of the purpose and effect of the Charter's equality guarantees, Mclntyre J. affirms that the Charter's equality guarantees are the moral inheritor of the post-war human rights and human dignity vision of the United Nations. Indeed, in the passage I have quoted, he makes the continued legitimacy of government power depend on its observance of that vision. Justice Albie Sachs of the South African Constitutional Court has emphasized the influence on that Court's developing jurisprudence of Andrews and its explicit linkage of human rights principles and the equality guarantees of the Charter. The main focus of equality jurisprudence is what I would call the human rights dimension. Equality as we understand it in the contemporary world is associated with non-discrimination. It is designed to deal with the ways and means whereby societies marginalize, oppress, diminish or demean people because they are what they are. That is what is generally understood by equality. That is what the international human rights instruments were designed to respond to. The Universal Declaration of Human Rights was adopted to deal with the memory of terrible genocide, racial persecution, the denial of the humanity of people simply because they were Jews, gypsies or gays, whichever it might have been. Bearing in mind our own distinctive past, this had to be the launch pad for a coherent philosophy of equality for South African jurisprudence.21

He acknowledges his, and his Court's, debt to Justice L'HeureuxDube's conception of the relationship between equality rights and human dignity.22 He identifies this statement of hers in Egan as one that influenced a number of the first decisions of the Constitutional Court: This Court has recognized that inherent human dignity is at the heart of individual rights in a free and democratic society: Big M Drug Mart Ltd

The Limits of Constitutionalism 121 [(1985) 13 C.R.R. 64] at 97 ... (per Dickson J. (as he then was)]. More than any other right in the Charter, section 15 gives effect to this notion ... Equality, as that concept is enshrined as a fundamental human right within section 15 of the Charter, means nothing if it does not represent a commitment to recognizing each person's equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as secondclass citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity.23

There are many views about what, if anything, the concept 'human dignity' actually contributes to the analysis and resolution of questions arising under legislated human rights guarantees, including both international covenants and domestic constitutions and statutes. What I wish to observe here, however, is that the very fact that a country specifically espouses human dignity as a foundation of its human rights laws and entrenches those laws in its constitution tells us a great deal about the social vision and legal commitment of that country, if only at its highest and most abstract level. Explicitly embracing the human dignity vision underlying the cardinal United Nations documents signifies a nation's wish to dissociate itself from the vicious denials of humanity which the UN itself repudiates in those documents. Among the most explicit associations with that human dignity vision are those by countries which have their own extreme history, like postwar Germany, the state of Israel, and post-apartheid South Africa.24 Explicit constitutional entrenchment of human dignity is provided for in the constitutions of all three states. In one sense, identifying with the human dignity vision underlying post-war human rights instruments is aspirational. It illuminates the moral vision of the country, or an important part of that vision. However, entrenching human dignity as an express constitutional value, or an express underpinning of constitutional values, makes it more than aspirational. It makes respect for human dignity a benchmark against which the conduct of both legislative and judicial authorities can and should be measured. In the context of the Head Tax Redress case, it is highly significant that Canada is among the countries explicitly espousing the human dignity approach of post-war human rights instruments. Canada has chosen to identify with this value, and aspire to a society based on a respect for human dignity. This choice signifies a repudiation of state racism, both present and past. Moreover, the acceptance in Andrews that human rights principles

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underlie s.15 of the Charter means that Canada's adoption of the principle of respect for human dignity is more than simply aspirational. As an ethical rights-based society that has accepted human dignity as the foundation of its rights, Canada has committed itself to use respect for human dignity to measure the conduct of both legislative and judicial branches. There is a substantive commitment to respect for human dignity, then, that underlies Canadian law; this substantive commitment in turn underlies the recognition in Andrews that s.15 of the Charter confers a right to substantive equality, not merely equality in the application of the law. When respect for human dignity is a benchmark against which the conduct of legislative and judicial authorities is measured, certain consequences follow. The substantive commitment to respect for human dignity which in turn underlies the recognition that s.15 guarantees substantive equality requires that a court analyse a s.15 claim by considering whether, and to what extent, the impugned provision or action trenches upon human dignity. It requires that such a court ask itself which of several approaches open to it will be consistent with a substantive respect for human dignity, and which will be less consistent, or inconsistent. The human dignity element of the inquiry reverberates with, and arguably reinforces, the probe required by the explicit guarantee of equality. A fundamental respect for human dignity, driving the equality guarantee, would tend to push the outer limits of that guarantee rather than contract it. Only if human dignity has this complementary and reinforcing effect on the equality guarantee and other human rights measures will those measures be vigorous enough to do the job envisioned for them by the framers of the UN's constating instruments: to prevent a return to unspeakable atrocities committed in the name of racial superiority. The Supreme Court of Canada's earliest interpretations of the equality guarantee indeed seem to acknowledge this relationship between equality and human dignity. Canada's Andrews-era equality jurisprudence was one of the major factors behind the decision to pursue Head Tax Redress in the courts, and it shaped the nature of the arguments in the Head Tax Redress case. The arguments, described more fully below, relied strongly on the purpose of s.15 as identified in Andrews: the promotion of equality. They also relied on the essential link between respect for human dignity and a purposive, Targe and liberal' interpretation of the equality guarantees. However, the arguments in the head tax case, proceeding from and

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relying upon the approach to equality and human dignity taken in Andrews, were dealt with in the context of a jurisprudence that had departed quite markedly from those early ideas. Instead of being able to push farther along the lines opened up by the Andrews case, by invoking the deepest meanings of equality, human dignity, and the role of the Court in an ethical rights-based democracy, the head tax case was considered by courts that had, essentially, severed the link between equality and human dignity, while professing to be affirming it. The McLachlin Court recognizes, on a formal level, the value of human dignity in language quite consistent with the UN constating documents and the earlier Supreme Court jurisprudence. However, it constructs the concept of human dignity as a curb on the broad application of the equality guarantee. Such a narrow use is, in fact, at odds with the ostensibly broad definition it gives of the concept of human dignity. In fact, the Court, once having broadly defined human dignity, does not return to that definition and use its elements to analyse the issues before it. We do not see in the jurisprudence any inquiry into the human dignity implications of particular legislation, or of possible courses of action open to the Court. Instead, we see that in the name of human dignity, the Court applies a kind of reasonableness, or interior proportionality, test for claims under s.15. Of any such claim, it asks whether it is reasonable for the claimant to ask for the protection of s.15. That inquiry does not involve reflection on the human dignity interests at stake in the case, but rather application of the Court's own logical or common sense view as to whether it is 'reasonable' to bring the challenge. There is, then, a disjuncture in the McLachlin Court's jurisprudence between the concepts of equality and of human dignity; they are arrayed as oppositional to one another, with the sensible forces of human dignity (which also appreciate the need to slow the pace of change and uphold the stability of capitalist liberal democracy) invoked to curb an overboard resort to s.15. The conflict thus created between the two values which are actually synchronous has, in fact, checked the development of an equality jurisprudence based on human dignity. It has forestalled the development of a capacity to analyse equality claims in light of the particular aspects of human dignity which are implicated in legislation and to deepen our understanding of the idea of human dignity. The next part of this chapter outlines the McLachlin Court's invocation of 'human dignity' as a check on the equality guarantees. The

124 Mary Eberts section after that considers the reception given to the arguments made by the head tax plaintiffs. The construction of human dignity as the regulator of equality at the highest levels of jurisprudence has created a climate in which it was all too easy to overlook, misinterpret, and reject on narrow technical bases the plaintiffs' arguments. The plaintiffs' arguments challenged the courts to explore both the real nature of the connection between equality, human dignity and the rule of law, and the role of the courts in an ethical, rights-based democracy. There is little in the equality case law of the McLachlin Court that shows a willingness to undertake this challenge. Equality and Human Dignity in the Supreme Court of Canada, 1999 and After Chief Justice McLachlin describes three 'rocks' of certainty on which the Court anchors its evolving equality jurisprudence: substantive equality, concern with the effects of the law, and the dual nature of the equality guarantee, which requires not only like treatment but a comparable right to unlike treatment where circumstances warrant.25 Substantive equality, in her view, 'is founded on the principle that all human beings are of equal worth and possessed of the same innate human dignity, which the law must uphold and protect, not just in form, but in substance.'26 She sees the role of the Court, and the law, with respect to development of equality jurisprudence in dignitary terms: 'We can and must work to promote the fundamental worth and human dignity of each member of society.'27 The compendious statement of the McLachlin Court's approach to s.15 is that enunciated by lacobucci J. in Law v. Canada (Minister of Employment and Immigration).^ In his reasons, lacobucci J. states that the purpose of s.15 is to 'prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.'29 The same affirmation of the human dignity basis of s.15 is found in cases subsequent to Law. In Corbiere v. Canada (Minister of Indian and Northern Affairs), Justices McLachlin and Bastarache, for five members of the Court, speak of 'the presumption of the equal dignity and worth of every human being.'30 In Lovelace, lacobucci J. for the Court states

The Limits of Constitutionalism 125 that the 'central purpose of the guarantee in s.!5(l) is to protect against the violation of essential human dignity.'31 Bastarache J. for the majority of the Court in Blencoe v. British Columbia (Human Rights Commission), a case turning on s.7 of the Charter, states that the 'Charter and the rights it guarantees are inextricably bound to concepts of human dignity/32 He declares that 'notions of human dignity underlie almost every right guaranteed by the Charter,' invoking the statement of Dickson C.J. in R. v. Oakes33 that 'The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society/34 The McLachlin Court has also, again through Justice lacobucci in Law, described its conception of human dignity. In Law, Justice lacobucci says that human dignity 'means that an individual or group feels selfrespect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.'35 In spite of this adoption of human dignity as the basis for the Charter's equality guarantees, the jurisprudence of this Court does not seek to give the ideal of human dignity free expression and broad expansion. Rather, it uses the concept of 'human dignity' as a device which limits the extent of the equality guarantees in s.15 of the Charter. In order to use human dignity to limit equality claims, the Court in Law develops a three-part test for establishing a denial of equality under s.15 of the Charter. As bluntly put by Justice Binnie36 in describing the third part of the three-part test enunciated in Law: The "dignity" aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision/37 The Law test is a comparative, contextual one. As briefly described by Binnie J. in Little Sisters: at the first stage of the analysis, the claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality. The second stage requires the claimant to demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds. The third

126 Mary Eberts stage requires the claimant to establish that the differentiation amounts to a form of discrimination that has the effect of demeaning the claimant's human dignity.38

Central to the third branch of the test is review of several 'contextual factors': pre-existing disadvantage, relationship between the ground upon which the claim is based and the nature of the differential treatment ('the correspondence factor'), whether the legislation has ameliorative purpose or effects, and the nature of the interest affected.39 The claimant has the burden of demonstrating that the impugned provision amounts to 'discrimination' within the meaning of s.15, that is, that the impugned provision not only affects or involves human dignity, but also in fact demeans it.40 The Court applies what it calls the subjective-objective test in this inquiry: all of the individual's or group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.41 Even in enunciating this test in Law, lacobucci J. purports to recognize its pitfalls. He acknowledges his awareness of 'the controversy that exists regarding the biases implicit in some applications of the 'reasonable person' standard/ Applying only a reasonable person perspective could, he admits, 'through misapplication, serve as a vehicle for the imposition of community prejudices.' He is wary of such an approach 'subverting' the purpose of s.15. In order to prevent this, he qualifies the reasonable person point of view in the following way: 'Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s.!5(l).'42 The pitfalls involved in applying the 'reasonable person' standard were canvassed by the Supreme Court in R. v. Lavallee.43 At issue there was the admissibility and utility of expert evidence in assisting a jury considering a plea of self-defence to a murder charge against a common law wife who had been battered by the deceased. The Criminal Code section at issue contained two 'reasonableness' dimensions: whether the accused 'reasonably apprehended' death or grievous bodily harm on a particular occasion, and whether she had a 'reasonable belief that killing her batterer was the only way to preserve her own life. The

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Crown had argued that expert evidence concerning the battered wife syndrome and state of mind of the accused was unnecessary. Justice Wilson, writing for herself and five others in the majority, characterizes the Crown's primary submission as 'judges and juries are thoroughly knowledgeable about "human nature" and ... no more is needed. They are, so to speak, their own experts on human behaviour.'44 The majority of the Court rejects this submission. A woman coming before a judge or jury with the claim that she has been battered 'still faces the prospect of being condemned by popular mythology about domestic violence.'45 Justice Wilson states that without expert evidence she is sceptical whether 'the average fact-finder/ whom she also describes as the hypothetical reasonable man, 'would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship.'46 The Court includes both juries and judges, including the Court of Appeal in Lavallee, within the ambit of those who might, absent expert evidence, make decisions about the accused's state of mind on the basis of stereotypes of abused women. Justice lacobucci's sensitivity to the possibility of bias in the 'reasonable person' standard is laudable (and necessary), but the Court does not actually follow through and develop an approach that really guards against this danger. In Law itself, for example, Justice lacobucci states that a court may often, where appropriate, determine on the basis of 'judicial notice' and 'logical reasoning' alone whether the impugned legislation infringes s.!5(l).47 In Gosselin v. Quebec (Attorney General), Chief Justice McLachlin finds that 'logic and common sense' support the legislature's decision, and observes that it has sufficient 'foundation in reality and common sense.'48 However, common sense is often the very vehicle by which community prejudices become expressed in law. Reasoning by way of judicial common sense does not prevent the intrusion of the kind of popular mythology and stereotyping condemned by the Court in Lavallee if the particular judge doing the common-sense reasoning also holds those community stereotypes. The so-called objective element of the Law test is the portal through which the judges' own mythology, described as judicial notice, logical reasoning, or common sense, will enter the decision-making process. The application of this mythology will not take place at the fact-finding stage, as was the case in Lavallee, but rather in the process of legal analysis brought to bear on the question of whether s.15 has been breached. How that process works in the context of Law's human dignity analy-

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sis is illustrated by Justice Gonthier's consideration of the human dignity test in M v. H.49 In that case, the majority of the Court finds that limitation to heterosexual couples of the spousal support sections of the Ontario Family Law Act violates the s.15 rights of a lesbian woman seeking support from her former conjugal partner. Justice Gonthier dissents. He states that 'in no way' does the legislative distinction violate the complainant's human dignity. He 'cannot see' how a reasonable person in the circumstances of the claimant would feel that her human dignity is demeaned.50 Justice Gonthier reaches this conclusion through the subjectiveobjective test. Even while recognizing that the claimant is a member of a group that suffers pre-existing social disadvantage, he remarks that the evidence does not suggest that there is the same level of dependency in same-sex relationships that warrants granting the benefits (and imposing the burden) of access to the mandatory spousal obligation regime. Nor does the evidence suggest either that same-sex relationships fulfil the same social role, or that they suffer the consequences of that unique social role.51 Having thus put his own construction on the evidence of difference, he concludes that the law takes into account accurate differences between the heterosexual and same-sex union 'in a manner which respects the claimant's dignity by not relying on a stereotype.'52 His theoretical underpinning for this surprising conclusion is: ... it is not a denial of human dignity to recognize difference: to the contrary, acknowledging individual personal traits is a means of fostering human dignity. By recognizing individuality, and rejecting enforced uniformity, the law celebrates differences, fostering the autonomy and integrity of the individual.53

What Justice Gonthier regards as a dignity-affirming freedom from enforced conformity would probably be regarded by most people in the position of the complainant as an unfair burden on her, or unfair withholding of a benefit, solely on the basis of her sexual orientation. We know that M regarded it as such, for that was the position she took in the law suit. Justice Gonthier's reasons thus highlight that the subjective-objective test deprives us of the subjective perspective of the actual litigant. While it is well recognized in the human rights literature that an offence to human dignity cannot be founded only on the complainant's subjective feelings, it is not acceptable to give that element no weight whatsoever.

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The McLachlin Court has made no secret of its unease with the concept of equality in s.15. Chief Justice McLachlin has observed that the 'language of equality is so open and general that it is difficult to assign it precise legal meaning/54 and has described equality as 'difficult/ 'complex/ 'intricate/ 'ambiguous/ 'elusive/ 'slippery/ and 'mysterious.'55 Frankly stating that equality is the 'most difficult' right, she invokes Justice lacobucci's observation in Law that part of the difficulty in defining the concept of equality stems from its exalted status: The quest for equality expresses some of humanity's highest ideals and aspirations, which are by their nature abstract and subject to differing articulations. The challenge for the judiciary in interpreting and applying s.l5(l) of the Charter is to transform these ideals and aspirations into practice in a manner which is meaningful to Canadians and which accords with the purpose of the provision.56

In response to this challenge, the Court has invoked the concept of human dignity to help it manage and limit the sprawling nature of the equality concept. However, the concept of human dignity is, if anything, more protean and mysterious than equality. It has been variously described as 'elusive and capricious/ 'philosophically vague and ambiguous/57 'culturally dependent and eminently malleable/58 'highly controversial/59 and even 'something of a loose cannon, open to abuse and misinterpretation.'60 It hardly seems logical to use as a limiting device a concept which is no less indeterminate than the idea it seeks to limit. In order to make of human dignity a concept which will limit and confine the scope of the equality guarantee, it is necessary in fact to limit the concept of human dignity itself. It is intuitively more consistent with the breadth of human dignity and the breadth of equality that they would inform and illuminate - but not limit - one another. While perhaps difficult to manage, such a use of human dignity concepts would deepen and enrich our understanding of equality. When one considers the Court's interpretation of human dignity, as enunciated by Justice lacobucci in Law, it seems evident that at least on its face, the Court's concept of human dignity is not a narrow one. The narrowing effect of human dignity comes from the use made of the concept, and not from the Court's idea of what it is. Chief Justice McLachlin herself has given us the term for what the Court is doing with human dignity in its s.15 analysis. She has described the 'internal proportionality restraints inherent in substantive

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equality/ which are different from the 'separate proportionality constraint of s.l of the Charter.'61 The Court gives shape to these inherent restraints by clothing them in the language of human dignity, which it can then employ so as to slow down the expansion of the equality guarantee beyond what the Court regards as its natural limits. In fashioning a limit based on human dignity, the Court is doing in Law what the British Columbia Court of Appeal tried to do in its decision in Andrews: that is, require the equality claimant to satisfy a proportionality test in the course of establishing his or her equality claim, well before the state must face the proportionality test which is part of the justificatory analysis under s.l.62 But this approach was rejected by Mclntyre J. on behalf of the majority of the Supreme Court of Canada in Andrews.63 The claimant's proportionality test is not explicit on the face of s.15 as it is, for example, in the language of s.8 of the Charter protecting against 'unreasonable search and seizure.' By 'finding' that human dignity underlies s.15, and is inherent in the concept of equality specifically named in s.15, the Court gives itself a whole new term, open-weave and indeterminate, unencumbered by being found in the Charter itself, from which it can fashion the limitation it wishes to impose on s.15. Moreover, the Court can place this further hurdle in the path of the equality claimant while ostensibly respecting the language and spirit of s.15, and the requirement that the state bear the burden of establishing justification under s.l of the Charter for a breach of s.15. These 'natural limits' of s.15 have themselves been articulated by Chief Justice McLachlin. She refers to the 'traditional discriminationoriented focus' of the equality guarantee, aimed at improving the situation of members of disadvantaged groups. This kind of equality, directed at actually improving the lives of individuals and society by reducing stereotypical discrimination, she characterizes as 'ameliorative equality.'64 The equality issues of the future, in her view, are concerned with whether, and to what extent, the equality guarantee should apply outside this traditional ambit. She identifies two possible growth areas for the guarantee: to promote the equal conferral of state benefits, and to promote equal status.65 Using the equality guarantee to promote equal conferral of state benefits would be a direct attack on the nature of the Canadian state as conceived by this Court: 'a system that espouses a market economy and the importance of open competition,' and '[a] market-based representative democracy [which] necessarily tolerates a certain degree of disparity, economic and otherwise.'66 Too broad an interpretation of the equality

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guarantee, says the Chief Justice, 'risks undermining long-standing social institutions and upsetting the careful equilibria crafted by Parliament and the legislatures to maintain social stability.'67 In grafting onto s.15 the 'human dignity' limitation, the Court has given itself the ideal tool for slowing down the pace at which assertions of equality may disequilibrate Canadian society as the Court sees it. Into the large space created by this expansive and luminous expression of social values, the Court may pour its own value judgments about what is necessary for human dignity to flourish. It can use its own logic, logical reasoning, and common sense. It is not constricted in any way by the explicit language of the Charter. It does not have to recognize as dispositive the human aspirations of the equality claimant, for these are subjective aspirations. They are always controlled by the objective element of the subjective-objective test, and the objective element will always be supplied by the Court itself. In developing this approach to the equality guarantee, the Court uses the term 'human dignity' to structure a limit on equality which was not intended by the framers of the Charter. From being an aspirational term expressing high moral values, human dignity in the hands of the Supreme Court of Canada has become a way of chastising equality claimants. When it refuses an equality claim on the basis of the 'human dignity' limitation, the Court is, in effect, telling the claimant (who may have passed successfully every other substantive test put in her path) that her claim to equality is, in effect, 'unreasonable.' No reasonable person in her shoes would make it. That such a rebuff should be couched in the language of human dignity, deployed by the United Nations and many state governments to express our best ideals about human conduct, is deeply ironic. Using the human dignity rubric to 'weed out' so-called trivial equality claims is a way for the Court to avoid challenging - or challenging too robustly - the social and economic status quo. What preoccupies this Court is elaboration of doctrinal points within the overall framework already laid out by the judicial thinkers immediately past, and these doctrinal points have much to do with slowing down the pace at which, and the ways in which, the unruliness of the equality guarantees can disturb the equilibrium of the Canadian state. In this environment, it comes as no surprise that Canadian courts so summarily rejected the opportunity offered by the Head Tax Redress case to explore how the fundamental ethical and legal commitment to human dignity, and equality, of the Charter and of the law itself could be

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brought to bear on the persisting shame of the head tax and Chinese exclusion legislation. Fate of the Plaintiffs' Arguments in the Head Tax Redress Case Chief Justice McLachlin is correct in recognizing that a formal, constitutional commitment to the respect for equal human dignity underlying the UN human rights instruments has potentially far-reaching consequences. The language of these instruments indicates that this commitment was meant to have such consequences. It was meant, in fact, to keep the world from descending once again into the hell of war and genocide based on fundamental disrespect for human dignity, and in particular, disrespect for human beings based on their allegedly inferior race. Genuine adherence to such a civic faith is, indeed, not for the timid. It requires courage, from judges and political actors as well as from the more visible activists who work on the ragged front lines of the worldwide human rights movement. In a constitutional democracy based on respect for human dignity and equality, it is not sufficient for courts to speak respectfully of these ideals. They must act respectfully as well, and the nature of the ideals themselves means that actions respecting them will disturb any status quo that is inconsistent with them. This is the lesson demonstrated in societies truly confronting the evils of racism, from the segregationist United States to the Republic of South Africa. Another lesson from such societies is that to the extent that the challenge of the status quo can be accomplished through peaceful legal means, more violent kinds of disequilibrium may be avoided. Social change accomplished within the framework of the rule of law does not eliminate or minimize disturbance to the status quo, but rather channels and contains it. The plaintiffs in the Head Tax Redress case estimated at $1.2 billon the present value of the head tax collected by Canada from 1885 to 1923, and sought return of that sum. It was this financial claim that gave the Head Tax Redress case its threatening edge. A successful Head Tax Redress claim would not only divert state funds but would open the way for more such claims. 'Equality does not come cheap/ as one Canadian women's rights activist has put it.68 The tension in the Head Tax Redress case was, then, between respect for human dignity as entrenched in the law, including the Charter, and the potential for fiscal disruption should the plaintiffs be allowed to

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proceed with the case, possibly overcoming all of the legal and evidentiary hurdles in their path to secure eventual victory. Fiscal calm is, in the Head Tax Redress case, the 'long-standing social institution' and part of the 'careful equilibria crafted by Parliament and the legislatures to maintain social stability.'69 The Arguments The plaintiffs' Charter and international law arguments in the Head Tax Redress case strove in particular to give their claim a contemporary dimension. They argued that they could not regard themselves as fully equal before and under the law and fully entitled to its protection and benefit as long as the history of official racism against them by the Canadian government was unredressed and the Government of Canada could be seen as the beneficiary of monetary extractions made pursuant to a racist law. The enduring status of being second-class citizens is a present wrong, not simply the effects of an old one which cannot be dealt with because it occurred before the coming into effect of the Charter. Without some positive step to alter the status created earlier, it remains unabated to the present day. They also argued that the government violated s.15 of the Charter when it granted redress to Japanese Canadians for past discrimination, while refusing to provide redress for the wrongs done to the Chinese Canadian community by the head tax and exclusion acts. They noted in this regard that the two communities shared for many years a common experience of anti-Asian racism and racial discrimination by the Canadian government. They further contended that s.15 gives rise to an independent right of redress against past wrongs, and argued that on a motion to strike a claim for disclosing no reasonable cause of action, it is inappropriate to strike merely because the asserted claim is novel.70 The international law arguments invoked conventional international law as a guide to the interpretation by Canadian courts of domestic legislation, including the Charter. They also noted that customary international law was not just an aid to interpretation but was directly applicable. The plaintiffs argued that it was not 'plain and obvious' that customary international law failed to condemn racial discrimination while the head tax and exclusion acts were in force.71 The plaintiffs also argued that the precepts of unjust enrichment mandated return of the funds gathered by the federal government

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under the discriminatory head tax legislation. Since it was clear that the federal government had been enriched by the payment of the head tax, the main question focused on the question of whether that enrichment was unjust. On this point, the plaintiffs contended that the commands of the law itself required that the courts not validate in the present a racist law from Canada's past. The first broad theme under this head of argument involved cases from other jurisdictions where courts had to consider what weight should be given to validly enacted legislation that was never repealed but was nonetheless profoundly at odds with the core values of the law itself. 'At such moments,' argued the plaintiffs, 'courts have upheld the rule of law in the face of legislation that undermined its core values.'72 The plaintiffs relied on a decision of the German Federal Constitutional Court which held void a formally valid decree of the Nazi era which deprived Jewish emigres of their German citizenship. The core of the Court's reasoning is described as follows: Hence the Federal Constitutional Court has affirmed the possibility of depriving National Socialist legal' decrees of their legal validity because they so evidently contradict fundamental principles of justice that the judge who applied them or recognized their legal consequences would pronounce injustice instead of law.73

Another German court invalidated expropriation of property of a Jewish woman by the German government when she lost her citizenship under the same Reich citizenship decree. That decree, it held, was void from the outset 'because of its iniquitous content which contradicts the foundational requirements of every order based on the rule of law.'74 This approach was also adopted by the English House of Lords in a case involving.the validity of the German citizenship law.75 The plaintiffs' written argument also observed that similar reasoning was later applied by the German courts in assessing the culpability of East German border guards for shootings on the former Berlin Wall and the effect in those circumstances of the Border Law of the German Democratic Republic. In the leading case, the Federal Court of Justice noted that positive law must give way where it 'violates the legal convictions of all nations in regard to people's worth and dignity.' In determining whether particular laws amounted to such extreme injustice, the Court drew on the International Covenant on Civil and Political Rights as 'guiding principles.'76

The Limits of Constitutionalism 135 The plaintiffs argued that similar conclusions could be drawn with respect to the validity of the Chinese Immigration Act, on the basis that it violates one of the fundamental principles of the rule of law, namely the principle of equality. The principle of equality is recognized in various international human rights conventions, and the plaintiffs argued that these international law principles lend support to their argument that the head tax was unjust even though imposed through properly enacted legislation.77 They argued that the law of equity, like the common law, should be interpreted in accordance with Charter values. Accordingly, the doctrine of unjust enrichment should be construed to maximize consistency with Charter values. In particular, the appellants urged that just as a law with a discriminatory purpose fails the justification test under s.l of the Charter, so too should a law with a racist and discriminatory purpose fail to constitute a juristic reason under the third branch of the unjust enrichment test. To take this approach is not to apply the Charter retrospectively. Rather, it means that a court interpreting and applying equitable doctrine in the present day, when that court is a key part of the constitutional regime furthering Charter values, must act in a way that is consistent with those values.78 The plaintiffs also argued that the principle of non-discrimination had been found fundamental, not just to international human rights law, but to the common law itself. They relied on the decision of the Australian High Court in Mabo v. Queensland (No. 2).79 In Mabo, the High Court declares that the State of Queensland was not entitled to extinguish the title of the Meriam people to three islands they had occupied since before contact. Noting that international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights, the High Court states that it is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.80 The plaintiffs argued that in determining what forms of enrichment would be considered 'unjust,' regard must be had to the fabric of the rule of law, which is found in important international instruments and the fundamental principles of common law, including the principle of equality and non-discrimination on the ground of race. Legislation that so fundamentally undermines both the values of international law and

136 Mary Eberts

the common law itself could not possibly be accepted as a juristic reason to defeat a claim for unjust enrichment.81 Although the modern principles and structure for international human rights protection had not yet come into being at the time the Chinese Immigration Acts were enacted, the plaintiffs argued that the principles and practices of the League of Nations and International Labour Organization had reflected a respect for fair treatment and protection of minorities.82 Before the Court of Appeal, it was also argued that the Court of Appeal had recognized in Canada Trust Co. v. Ontario Human Rights Commission83 the principle that when positive law enshrines extreme injustice courts acting in furtherance of their judicial duties must refuse to give legal effect to that injustice. That case dealt with the contemporary validity of a racist trust established in 1923. The trust met all the ordinary conditions of legal validity imposed on charitable trusts, and had been in operation for many years. It was challenged as against public policy under the Ontario Human Rights Code, 1981. Although in ordinary conditions a court has no power to override the settlor's intent in a validly executed trust, the Court of Appeal found that the trust, while formally valid, was invalid as contrary to public policy, stating: 'the settlor's freedom to dispose of his property through the creation of a charitable trust fashioned along these lines must give way to current principles of public policy under which all races and religions are to be treated on equal footing of equality and accorded equal regard and equal respect.'84 The appellants argued that this reasoning was equally applicable to Mack. Holding that the Chinese Immigration Act constitutes a juristic reason for the continued enrichment of the government would amount to a contemporary validation of this racist legislation, and would implicate the court - the ultimate custodian of rights - in that validation. A judge determining whether the enrichment in this case is unjust is acting today and must act in accord with the principles of the legal order as we understand them now. A contemporary court must apply principles of racial equality in order to prevent validation and perpetuation of the state racism in the Chinese Immigration Act.S5 The appellants also argued that in making a determination whether a discriminatory law provides a juristic reason, it is appropriate to consider how representative was the legislature which passed the law. They stated, 'Since respect for democracy underlies deference to legislative choices, courts ought to be wary about categorically granting such deference to legislatures that are profoundly undemocratic, par-

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ticularly when the legislative choices place burdens on the very groups excluded from the democratic process.'86 Noting that it was not until 1948 that the Dominion Elections Act repealed the provisions which made race a ground for exclusion from the federal franchise, the appellants characterized Mack as 'a classic case of a discrete and insular minority being legislated against by a legislature that is structured specifically to exclude them.'87 Judicial deference to such legislation is supported neither by democratic theory nor by jurisprudence. The appellants argued that legislators have a right to expect that judges will treat their enactments as authoritative only on the condition that the enactments meet the ideals to which fundamental common law standards can be said to aspire. These ideals, or common law restraints, include reasonableness, fairness, equality, and justice. A common law judge, argued the plaintiffs, in interpreting or applying a statute is doing so in a context in which standards of critical morality are embedded.88 The Response The courts' expression of moral repugnance at the head tax and exclusion acts is strong. Justice Gumming states that the Chinese Immigration Act, if enacted today, could not withstand Charter scrutiny. He describes the legislation as 'patently discriminatory against persons of Chinese origin,' and declares that by contemporary Canadian morals and values, 'these pieces of legislation were both repugnant and reprehensible/ The Act of 1885 and its successors, he notes, 'have come to symbolize a period of Canadian history scarred by racial intolerance and prejudice.'89 Justices Moldaver and MacPherson in the Court of Appeal begin and end their reasons (with which Austin J.A. agrees) by proclaiming that Canada's record of upholding minority rights has 'by no means been spotless.'90 They acknowledge that Canada's treatment of people of Chinese origin who sought to immigrate to this country between 1885 and 1947 'represents one of the more notable stains on our minority rights tapestry/91 They say that the appellants 'quite properly' characterize the legislation as racist and discriminatory. In communicating Justice Glube's findings on the CCNC complaint to the Canadian Judicial Council, the CJC Executive Director clearly states that no educated person would deny that the head tax was 'racist, cruel and indefensible/ Moreover, the letter declares that the fact that

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the head tax was unjust was 'a given' in the case: 'the reality and magnitude of the injustice was understood and accepted by all those associated with the proceedings.'92 There were no reasons given for the denial of leave to appeal to the Supreme Court of Canada. Elsewhere, however, the Chief Justice has described the head tax as an 'abhorrent policy, founded on ignorance and fear of Asian culture.'93 These fulsome condemnations of the head tax call to mind Justice lacobucci's generous description in Law of the concept of human dignity. On the level of ideas, it seems clear that the courts grasp the horror of racism and the fundamental value of respect for human dignity. In the Head Tax Redress case, however, they do not follow through on that realization and treat respect for human dignity as a core value of Canadian law, even though the plaintiffs had provided them with a respectable legal basis for doing so. Both Justice Cumming and the Court of Appeal dismiss the plaintiffs' arguments on a narrow, technical basis. Relying on the holding in Benner v. Canada (Secretary of State)9* that the Charter cannot apply retroactively or retrospectively, Cumming J. states that the plaintiffs must find a foundation for their claim in the laws applicable to the time of the impugned actions of government.95 Neither the Charter nor the various international norms and covenants relied on by the plaintiffs satisfy that requirement.96 Where a substantive argument appeared to have a contemporary dimension, Cumming J. rejects it in a substantive way. The case of Lovelace v, Ontario97 is seen as fatal to the plaintiffs' Charter claim resting on government redress for Japanese Canadians. The argument that s.15 itself supports a contemporary claim for redress of past wrongs, based on international law, is rejected because 'it is unclear that there currently exists a principle of accepted international law saying governments have a positive duty to provide redress for wrongs involving violations of international norms respecting human rights.'98 The plaintiffs' argument based on the Mabo decision was part of their unjust enrichment arguments. Cumming J. does not consider it in this context. Rather, he deals with it in the course of his reasons on the Charter and international law. He refuses to apply Mabo because the inequality complained of in Mack does not come from application of a rule of common law as it did in Mabo, but rather from the application of statute.99 Similarly, he bluntly sweeps aside the unjust enrichment arguments by stating: 'since the impugned legislation cannot be challenged on either constitutional or international law grounds, I... find it constitutes a juristic reason.'100

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139

The Court of Appeal adopts the approach and much of the reasoning of Gumming J. on these points.101 With respect to the customary law argument, which had been more fully developed before the Court of Appeal than before the Superior Court, the Court of Appeal finds that there was no customary international law forbidding race discrimination in the pre-UN era,102 and even if there had been, it was ousted by the legislation.103 The Court of Appeal does not reject out of hand the appellants' arguments on the third branch of the unjust enrichment test. The Court acknowledges that in the public, as well as the private, law context, there exists the possibility that a statute will not provide a juristic reason for retention by government of revenues raised through taxation.104 The Court of Appeal then goes on to consider what it calls the merits of the appellants' argument on this branch, and dismisses it on the same basis as Gumming J. had done.105 The Court considers that the submissions relating to juristic reason cover precisely the same ground as the submissions on the Charter and customary international law issues, and quotes selectively from the appellants' factum to support this view.106 Rejection of the latter necessarily entails rejection of the former. The Court of Appeal does nod in the direction of the appellants' appeal to morality in the third branch of the unjust enrichment test, agreeing that the factors of 'moral balancing,' 'good conscience/ and 'injustice' are part of the equitable doctrine. However, the Court points out the limits of the doctrine set out by McLachlin J. (as she then was) in Pee/:107 where the legal tests for recovery are clearly not met, recovery cannot be awarded on the basis of justice or fairness alone. This is a middle course between inflexible rules on the one hand and 'palm tree justice' on the other. This is predicated on the understanding that the legal principles applied will be 'sufficiently flexible to achieve recovery where justice so requires having regard to the reasonable expectations of the parties in all the circumstances of the case, as well as to public policy.' Definition in law of what kinds of 'injustice' require disgorgement is required for legal certainty, as well as to ensure due consideration of factors such as the legitimate expectation of the parties, the right of parties to order their affairs by contract, and the right of legislators in a federal system to act in accordance with their best judgment without fear of unforeseen future liabilities.108 The Court of Appeal thus declines to investigate whether the nature of the common law itself, or the rule of law, or the judicial role in a contemporary democracy with an entrenched constitution requires it to

140 Mary Eberts

refuse to recognize as a juridical reason a racist and reprehensible law. It states that even the broad purview of equity does not provide courts with the jurisdiction to use current Canadian constitutional law and international law to reach back almost a century and remedy the consequence of laws enacted by a democratic government that were valid at the time.109 The appellants' arguments about the unrepresentative nature of the government, its exclusion of the very racial minorities it was penalizing with the Chinese Exclusion Act, and the legal response to the iniquitous laws of the Nazi regime and the GDR Border Law were dismissed by the Court of Appeal in one footnote, in minuscule print, at the bottom of the last page of the reasons: 'We are not here considered with facially valid laws enacted by a totalitarian or other despotic regime.'110 Justice Cumming did not even refer to these arguments. Conclusion The key to the decisions in the Head Tax Redress case, in my view, is seen in the Court of Appeal's reference to Justice McLachlin's comments in Peel, and in particular to 'the right of legislators in the federal system to act in accordance with their best judgment without fear of unforeseen future liabilities.' Here is a specific invocation of the value of fiscal calm, that social institution that should be protected from the disruptions inherent in implementing the guarantee of equality and giving real value to human dignity. In the Head Tax Redress case, the courts were presented with an opportunity to act on an interpretation of the Charter's substantive equality guarantee that makes fully operational the protection of human dignity. Not only did the courts decline this opportunity in favour of a technical approach to the Charter, but also the reasons of both levels of court obscure the fact that the opportunity was even extended. Justice Cumming states that he does not disagree with the plaintiffs' basic submission that merely repealing a discriminatory law, without repairing its discriminatory effects, will not necessarily effectuate substantive equality for the disadvantaged group or redress the negative effects of discriminatory treatment.111 Yet he sees the responsibility for such repair as that of all Canadians, and, more specifically, of Parliament rather than the courts. True equality, he says, will only be possible if all Canadians take on the challenge of eradicating racism and other forms of intolerance.112 He ventures the suggestion that 'it may very

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well be that Parliament should consider providing redress for Canadians who paid the Head Tax or were adversely affected by the various Chinese Immigration Acts,'113 but leaves no doubt that the job of redressing this wrong does not belong to the courts: the court's function is not to usurp the power of Parliament. Rather, its role is to adjudicate claims based upon their legal merit within the framework of Canadian constitutional law.114

Justice Cumming specifically directs the plaintiffs to pursue a political solution even though he had before him a Statement of Claim which explains that one of the deleterious effects of the legislation was to delay the political maturation of the Chinese Canadian community. One panel discussion at the Conference raised the pointed question of what propels a judge to take a courageous stand in the face of manifest injustice. Another provided examples of judges who respectfully canvassed and commented upon arguments against grave injustice even where dismissing them. Many held out the hope that the courts in the Head Tax Redress case would have adopted either one of these approaches. As it is, strict respect for the constitutional climate of a past age has given new life in Canada to a despicable record of state racism. More gravely, the deep and complex legal protections of equality and human dignity which permeate our law and underlie the constitution itself have been accorded far less respect than a 'right' of government to make fiscal decisions. The 'market-based' democracy described by Chief Justice McLachlin is not the rights-based ethical democracy which has committed to measure all acts of the state by the benchmark of respect for human dignity. NOTES 1 Mack v. Canada (Attorney General) (2001), 55 O.K. (3d) 113 (Sup. Ct. Just.) [hereinafter Mack (Sup. Ct. Just.)], aff'd (2002), 60 O.R. (3d) 737 (C.A.) [hereinafter Mack (C.A.)], leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 476. 2 The Road Chosen: The Story ofLem Wong, White Pine Pictures, directed by Keith Lock, produced by Peter Raymont, Lindalee Tracey, and Maria Pimentel in association with History Television, Reseau de FInformation de la Societ^ Radio-Canada, Vision TV, and SCN. The video is distributed in Canada by McNabb and Connolly, [email protected].

142 Mary Eberts 3 Susan George, 'Globalizing Rights/ in Matthew J. Gibney, ed., Globalizing Rights, The Oxford Amnesty Lectures 1999 (Oxford: Oxford University Press, 2003) 15 at 17. 4 George, ibid., at 18. 5 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982. 6 Letter from Jeannie Thomas, Executive Director, Canadian Judicial Council, to Karen Chan, Executive Director, Chinese Canadian National Council, 25 October 2003 ('CJC Letter')7 Anne R Bayefsky, International Human Rights Law: Use in the Canadian Charter of Rights and Freedoms (Toronto: Butterworths, 1992) at 2. 8 Not everyone in the post-war generation shared this view. Among those advocating for the insertion of s.33 into the Charter were those who saw courts as anti-democratic and wished to leave a legislative safety valve to guard against regressive judicial decisions. This approach remain a strong theme in Canadian constitutional writing. See, for example, F.L. Morton and Rainer Knopf, The Charter Revolution and the Court Party (Peterborough: Broadview Press, 2000). 9 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7. 10 Constitution of the United Nations Educational, Scientific and Cultural Organization, 16 November 1945, in Manual of the General Conference, 2002 edition (Paris: UNESCO, 2002) at 7, online: UNESCO http://unesdoc.unesco.org/ images/0012/001255/125590e.pdf#constitution. 11 Universal Declaration of Human Rights, GA Res. 217(111) (1948). 12 International Covenant on Civil and Political Rights, 16 December 1966,999 U.N.T.S. 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, 16 December 1966,993 U.N.T.S. 3 (entered into force 3 January 1976). 13 International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966,660 U.N.T.S. 195 (entered into force 4 January 1969). 14 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979,1249 U.N.T.S. 13 (entered into force 3 September 1981). 15 Ontario Human Rights Code, R.S.0.1990, c. H.19. 16 Feldman, for example, states that dignity has been seen as underpinning what one might call legal humanism' and Englard notes that '[djignity, stripped of both religious connotation and strict Kantian moral meaning, has become a most fashionable concept in modern constitutional discourse.' D. Feldman, 'Human Dignity as a Legal Value - Part I' (1999) Pub. L. 682 at 682; I. Englard, 'Human Dignity: From Antiquity to Modern Israel's Constitutional Framework' (2000) 21 Cardozo L. Rev. 1903 at 1923. 17 See, for example, Borowski v. Canada, [1989] S.C.R. 342, at 364-5 (per

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18 19 20 21

22

23 24

25 26 27 28 29

Sopinka J.), and Halpern v. Canada (Attorney General) (29879) (Ont.), [2003] S.C.C.A. No. 337. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 163. Ibid, at para. 34. Ibid, at para. 38. A. Sachs, 'Equality Jurisprudence: The Origin of Doctrine in the South African Constitutional Court' (1999) 5 Rev. Const. Stud. 76 at 83 (footnotes omitted). See the analysis of the relationship between human dignity and equality in W.A. Parent, 'Constitutional Commands of Human Dignity: A Bicentennial Essay in Honor of Mr. Justice William J. Brennan, Jr.' (1992) 5 Can. J.L. & Juris. 237-56. Supra note 21; Egan v. Canada, [1995] 2 S.C.R. 513 at 543. Feldman, supra note 16 at 696. Article 1 of the German Basic Law provides that human dignity is inviolable, and that to respect and protect it is the duty of all state authority. Article 79(3) provides that the principle of human dignity cannot be changed by any constitutional amendment. Section 1A of the Basic Law of Israel states that the purpose of the Basic Law is to protect human dignity and liberty, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state. Sections 2 and 4 of the Basic Law provide for the inviolability and protection of a human being's life, body and dignity.' The Constitution of post-apartheid South Africa specifically acknowledges its aim of promoting human dignity and also contains an explicit guarantee of human dignity, hi Article l(a) of the 1996 Constitution, human dignity is identified as one of the values on which the sovereign democratic state of South Africa is founded. Article 7(1) proclaims that the Bill of Rights 'affirms the democratic values of dignity, equality and freedom.' Article 10 enunciates the non-derogable right: 'Every person has inherent dignity and the right to have their dignity respected and protected/ Feldman points out that in the setting of the South African constitution 'emphasizing dignity serves to concentrate attention on the importance of ensuring that some people are not treated as less than human or as inferior to others': Englard, supra note 16 at 1924-5; Feldman, supra note 16 at 697. B. McLachlin, 'Equality: The Most Difficult Right' (2001) 14 S.C.L.R. (2d) 17 at 21^. Ibid, at 24. Ibid, at 27. [1999] 1 S.C.R. 497 (hereinafter Law). Ibid, at para. 51.

144 Mary Eberts 30 Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 11. 31 Lovelace v. Ontario, [2000] 1 S.C.R. 950 at para. 54. 32 [2000] 2 S.C.R. 307 at para. 76. 33 [1986] 1 S.C.R. 103 at 136. 34 [2000] 2 S.C.R. 307 at para. 76. 35 Law, supra note 28 at para. 53. 36 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 (hereinafter Little Sisters). 37 Ibid.atpara.110. 38 Ibid.atpara.110. 39 Law, supra note 28 at para. 88. 40 Ibid, at paras. 59 and 80. 41 Ibid, at para. 60. 42 Ibid, at para. 61. 43 [1990] 1 S.C.R. 852. 44 Ibid, at para. 29. 45 Ibid, at para. 34. 46 Ibid, at para. 50. 47 Law, supra note 28 at para. 78. 48 Gosselin v. Quebec (Attorney General) (2002), 221 D.L.R. (4th) 257 (S.C.C.) at para. 44. 49 [1999] 2 S.C.R. 3 at paras. 261 to 263 50 Ibid., paras. 262,263. 51 Ibid., para. 263. 52 Ibid. 53 Ibid., para. 262. 54 McLachlin, supra note 25 at 17. 55 Ibid, at 18. 56 Ibid, at 17 and 19, quoting Law, supra note 28 at para. 2. 57 Englard, supra note 16 at 1924. 58 Feldman, supra note 16 at 698. 59 Ibid, at 699. 60 D. Beyleveld and R. Brownsword, 'Human Dignity, Human Rights, and Human Genetics' (1998), 61 Mod. L. Rev. 661 at 662. 61 McLachlin, supra note 25 at 22. 62 Andrews v. Law Society of British Columbia (1986), 27 D.L.R. (4th) 600 at 609-10 (B.C.C.A.). 63 Andrews (S.C.C.), supra note 3 at para. 45. 64 McLachlin, supra note 25 at 24-5.

The Limits of Constitutionalism 65 66 67 68

145

Ibid, at 25-6. Ibid, at 20. Ibid, at 17-18. Denise Arsenault, C.A., one of the co-founders and first Treasurer of the Women's Legal Education and Action Fund. 69 See text to note 67, supra. 70 Mack (Sup. Ct.), supra note 1, Plaintiffs' facrum, paras. 76,57, and 58 and Mack(C.A.)supra,note 1, Appellants' factum, paras. 114-48. 71 Mack (Sup. Ct. Just), supra note 1, Plaintiffs' facrum at paras. 50-76, and Mack (C.A.), supra note 1, Appellants' facrum at paras. 36-70. 72 Mack(Sup. Ct.),supra,note 1, Plaintiffs' factum, para. 88. 73 BverfGe 23,98 (106) cited in Robert Alexy, 'A Defence of Radbruch's Formula,' in David Dyzenhaus, ed., Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1995) at p. 18 ('Alexy'); Plaintiffs' factum at para. 88. 74 BGHZ 16,350 (354), cited in Alexy, supra at 19; Mack (Sup. Ct. Just), supra note 1 (Plaintiff's facrum at para. 89). 75 Oppenheimer v. Cattermole, [1976] A.C. 249 (per Lord Cross of Chelsea) at 270-1 (H.L.); Mack (Sup. Ct. Just), supra note 1 (Plaintiffs' facrum at para. 90). 76 BGHSt 39,1 (15-16), cited in Alexy, supra at 22; Mack (Sup. Ct. Just), supra note 1 (Plaintiff's Factum at para. 91). 77 Ibid., para. 92. 78 Mack (C.A.), supra note 1, Appellants' factum, paras. 75-81. 79 (1992) 175 C.L.R.l. 80 Ibid., at 35, per Mason C.J. and McHugh J. (emphasis added). 81Mack(Sup. Ct.),supranote 1, Plaintiffs' factum, para. 95. 82 Mack (Sup. Ct.), supra note 1, Plaintiffs' facrum, paras. 96-104. 83 (1990), 74 O.R. (2d) 481 (C.A.). 84 Ibid, at 496 per Robins J.A. 85 Mack(C.A.),supranote 1, Appellants' facrum, para. 106. 86 Mack(C.A.),supranote 1, Appellants' facrum, para. 107. 87 Mack(C.A.),supranote 1, Appellants' factum, paras. 108-110 citingUnited States v. Carolene Products Co., 304 U.S. 144, at para. 35 (U.S.S.C.) and supra note 18, [1989] 1 S.C.R. 143 at para. 5 (per Wilson J.). 88 David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy(Oxford: Clarendon Press, 1991) at 83,255, 262 (Mack (C.A.), supra, note 1, Appellants' factum, para. 113). 89 Mack (Sup. Ct.), supra note 1, para. 52. 90 Mack(C.A.),supranote 1, para. 1.

146 Mary Eberts 91 Ibid. 92 QC letter, p. 2. 93 The Right Honourable Beverley McLachlin, 'Racism and the Law: The Canadian Experience' (2002) 1 Journal of Law & Equality 7 at 11. 94 [1997] 1 S.C.R. 358. 95Mack(Sup. Ct. Just),supranote 1, para. 20. 96 Mack, supra note 1, para. 19,39,40. 97 [2000] 1 S.C.R. 950. 98 Mack, supra note 1, para. 37. 99 Mack, supra note 1, para. 36. 100 Mack, supra note 1, para. 51. 101 Mack (C.A.), supra note 1, paras. 8-13. 102 Mack (C.A.), supra note 1, paras. 18-31. 103 Mack (C.A.), supra note 1, paras. 32-3. 104 Mack (C.A.), supra note 1, paras. 37-44. 105 Macfc (C.A.), supra, note 1, paras. 48-9. 106 Mack (C.A.), supra, note 1, paras. 45,50. 107 Peel (Regional Municipality) v. Canada; Peel (Regional Municipality) v, Ontario, [1992] 3 S.C.R. 762. 108 Ibid., 802-3. 109 Mack (C.A.), supra note 1, para. 53. 110 Mack (C.A.), supra note 1, footnote 7. 111 Mack (Sup. Ct.), supra note 1, para. 54. 112 Mack (Sup. Ct.), supra note 1, para. 54. 113 Mack (Sup. Ct.), supra note 1, para. 53. 114 Mack (Sup. Ct.), supra note 1, para. 55.

Delivering the Goods and the Good: Repairing MoralWrongs CATHERINE LU

The mind of the Chinaman is absolutely different from the mind of the ordinary white man. You cannot in any possible way find out just how the Chinese mind works. It is very true that in a way the Chinese are good citizens. They make good domestic servants and faithful workers, but they will never help us to build up a Canada of which we will be proud. Anyone who knows the Chinese knows perfectly well that our race will never intermarry with them nor assimilate them. Robert F. Green, Senator from Victoria, 19231

The Politics and Ideology of Race 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's Essai sur I'lnegalite des Races Humaines in 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 less a biological category than a social category with 'social meanings constructed from historical, economic, political, and legal influences ... [Rjace is determined more from without than from within/2 More significant to the concept of race than the scientific evidence was the political context in which it developed, in the nineteenth and twentieth centuries, into a

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Catherine Lu

legitimating ideology for European cultural, economic, and political mastery over much of the rest of the non-European world. As Benedict Anderson has observed, Where racism developed outside Europe in the nineteenth century, it was always associated with European domination ... Colonial racism was a major element in that conception of 'Empire' which attempted to weld dynastic legitimacy and national community. It did so by generalizing a principle of innate, inherited superiority on which its own domestic position was (however shakily) based to the vastness of the overseas possessions.3

The ideology of racial inequality thus buttressed a modern version of 'the Athenian thesis' to justify the subjugation of weaker groups by those more powerful.4 Not surprisingly, the Western image of China as a 'nation' and the Chinese as a 'race' in the mid-nineteenth century reflected the relative political and economic decline of China's last dynasty in comparison with the rising empires of the West. At the same time, as an unrivalled cultural, political, and economic hegemon in Asia for centuries, the Chinese had developed a similar attitude of superiority over nonChinese.5 The Chinese Imperial governance system based its foreign relations on the tribute system, which 'presupposed inequality among nations.' In this system, China was at the top of the hierarchy of nations, and its Asian neighbours - Korea, Japan, Vietnam, and Burma - as well as Western countries such as Britain, were treated as 'inferior tributebearing' nations.6 Britain's drive to replace the tribute system with a treaty system based on equal recognition led to the Opium Wars (1839-42 and 1858-60); the result of the West's victory was not a relationship founded on equity, however, but nearly a century of 'unequal treaties' imposed on China that gave Western traders, missionaries, and diplomats immunity from Chinese law and authority, and allowed China to be exploited commercially in accordance with Western imperial ambitions.7 Canadian immigration law reflected the outcomes of these larger political, social, and economic struggles.8 The head tax levied against those of Chinese origin entering Canada from 1885 to 1923 and the subsequent exclusion act that forbade Chinese immigration from 1923 to 1947 developed in a context of Chinese imperial decline and Western imperial ascendancy.9 Larger global political realities and a different

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image of China in the West may also account for the repeal of the exclusion acts in Canada and the United States, in 1947 and 1943 respectively. Gerald White noted in 1950 that advocates for repeal of the Chinese exclusion act in the United States used acknowledgment of China's status as a US ally during the Second World War, fear of pushing China into the Soviet camp, as well as general moral and intellectual trends to support the conclusion 'that to discriminate so sharply in immigration law against the citizens of a great nation was not sound national policy.'10 Political struggles for national liberation and decolonization marked the near universal repudiation of nineteenth-century European racial theories and spawned, by the middle of the twentieth century, domestic and global political, legal, and social transformations, from the recognition of the sovereign equality of former colonies in international law, to the entrenchment of human rights charters and anti-discrimination laws at national and international levels. The decline of the ideology of racial inequality has generated moral/political demands for a moral accounting of racism and its negative legacies. As John Torpey has observed, the 'proliferation of demands for reparations for historical injustice has so far involved more than anything else the righting of injustices based on racial hierarchies.'11 Indeed, Avvy Go, co-counsel in the class action suit in Ontario seeking compensation for the head tax payers and their families, has stated, 'Without redress, we are essentially confirming by our acquiescence that racism towards Chinese and other racialized groups is acceptable, and that it is okay for our Government to benefit from racist laws.'12 Such a claim for restitution can be understood and evaluated as a problem of moral regeneration. Reparations and Moral Regeneration By moral regeneration I mean the project of establishing a new moral order of political, legal, and social relationships that affirms certain moral truths denied by a previous order.13 While some have preferred the terms 'restorative justice' or 'transitional justice' to denote the theme of moral accounting and transformation after moral wrongs, I prefer 'moral regeneration' to highlight, firstly, the larger moral framework of any regenerative process in which reparative claims for victims are to be pursued, and secondly, the role of moral learning, growth, and change in persons and institutions in that process. In this case, racial prejudice denied the principle of the equality of

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persons in Canadian law, politics, and society, leading to the systematic disadvantage of particular groups, such as persons of Chinese origin or descent, in everything from opportunities in immigration to labour to education. What would the moral regeneration of Canadian social institutions and relationships entail, given this history of racial discrimination? More specifically, how do reparative claims fit into the theme of moral regeneration? In a recent work on repairing historical injustices, Janna Thompson understands reparative justice as conceptually distinct from retributive justice and distributive justice. While reparative 'justice concerns itself with what ought to be done in reparation for injustice, and the obligation of wrongdoers, or their descendants or successors, for making this repair,' retributive justice concerns itself with 'the punishment of wrongdoers/ and distributive justice with equity, or the question of 'how goods should be distributed among individuals or how members of a society should share its benefits and burdens.'14 Yet while this categorization is appealing, the lines between these types of justice are actually quite porous, and the morality of reparations for historical injustice may involve both retributive and distributive justice claims. The concept of 'reparation' can be understood so broadly as to be synonymous with the project of moral regeneration. One might, for example, characterize the aim of moral regeneration as the repair of morally defective or damaged norms, institutions, and social relationships. Effecting 'reparation' so understood entails several components, including retributive and distributive justice, since moral repair might require a public truthful accounting, punishment of the guilty, material restitution and compensation for losses and harms suffered by victims, public acknowledgment and remembrance of the wrong, and legal and other institutional transformations to vindicate a more legitimate scheme of distributive justice. The term 'reparations' in contemporary political discourse is generally understood in a narrower sense, to refer to monetary or material restitution or compensation paid by the state and/or offending parties to victims of acknowledged moral transgressions. Although, superficially, such reparative claims seem concerned primarily with delivering the goods, rather than the good, it should be recognized that the good is fundamental even to this narrow understanding of reparation, since material transfers are characterized as restitution or compensation only when made in response to an acknowledged moral wrong.15 Since reparative claims are essentially moral claims for transfers of material

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resources from the state or a certain group to another group, it is useful to ask what moral interests or purposes related to the larger project of moral regeneration can ground these claims, and what moral or political principles determine the responsibilities of contemporary states and citizens for repairing historical injustices. In this paper, I will consider three grounds for reparations - retributive, democratic, and distributive justice - and, from these perspectives, assess the moral strengths and weaknesses of the legal case for restitution and compensation to head tax payers and their families.16 Reparations and Retributive Justice In the aftermath of moral transgressions, retributive justice provides a typical normative framework for assigning rights and responsibilities to victims, perpetrators, and the state. According to Jean Hampton, retributive justice aims to establish the good in a negative fashion by repudiating moral wrongs, thereby contributing to the reassertion of moral truths that have been denied or violated by a wrongful act. Retribution effects 'the defeat of the wrongdoer at the hands of the victim (either directly or indirectly through an agent of the victim, e.g., the state) that symbolizes the correct relative value of wrongdoer and victim.'17 Retribution aims at redeeming the good by making the wicked pay for their wickedness through some kind of deprivation. In a retributive model of justice, accountability is wedded to agency, so that only those who intentionally perpetrate a wrong deserve to be punished for it. Material reparations fit into a retributive model of justice if they are legitimated as a punitive measure to condemn the offender's conduct in order to affirm a violated moral claim or good, and if they assign responsibility for reparations based on culpability. For example, when victims claim reparations from corporations guilty of a wrong such as negligence, such reparations can be considered retributive to the extent that they are directed against the culpable agent for the purpose of expressing disapproval of the wrongful conduct. Institutionally, retributive mechanisms such as incarceration and material penalties may be an important aspect of repairing the moral order, by validating the connection between moral agency and responsibility, and by effecting the repudiation of moral falsehoods and the reassertion of moral truths violated by the wrongdoing. Seen in this light, the distinction that Thompson draws between retributive and reparative justice is blurred,

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since retributive justice is one way of responding to the question of 'what ought to be done in reparation for injustice' that focuses primarily on 'the obligation of wrongdoers, or their descendants or successors, for making this repair.'18 In a retributive framework, the responsibility to provide reparation for a wrong belongs only to those who are culpable for the wrong. For example, the argument that reparative demands are justified against the Canadian state because it has benefited unjustly from racist policies is an attempt to assign to the contemporary state some responsibility for reparations based on culpability, which is necessary for retributive justice. The problem with the argument of unjust enrichment is that it tends to equate benefiting from racist policies with being racist or condoning racist beliefs. Indeed, when Awy Go argues that by denying the reparative claims of Chinese head tax payers and their families, 'we are essentially confirming by our acquiescence that racism towards Chinese and other racialized groups is acceptable,'19 she goes so far as to express an insecurity about whether Canadians have actually repudiated racism against Chinese and others. The fact that the Canadian state is a product of many injustices may be incontrovertible; indeed it would be difficult for any contemporary state to claim just foundations.20 Unjust enrichment is therefore a normal rather than abnormal feature of the wealth of virtually all nations. Contemporary citizens, including the descendants of victims, may of necessity be beneficiaries of past injustices without being culpable of endorsing or condoning unjust attitudes and policies. The dispute over reparations thus may not stem from residual racism in contemporary Canadian society. As Thompson has pointed out, in most cases of historical injustice, contemporary governments and citizens do not doubt 'that their predecessors committed injustices or that presently existing people suffer harm because of these injustices. They doubt that the requirements of reparative justice are applicable to them.'21 This doubt is well founded when reparative claims for historical injustices are legitimated on retributive grounds. A demand for punitive reparations against the contemporary Canadian government and citizenry for historical racism implies that they hold or condone racist attitudes or policies. This is because the logic of retributive justice requires that punishment be matched to perpetrators; it offends retributive logic to administer punitive measures against descendants for wrongs of their ancestors, or against a government and citizenry that no longer subscribe to the racist policies of a previous government. Since it

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would be hard to argue today that the Canadian populace at large or the Canadian government condones or accepts racism towards Chinese and other racialized groups, such a demand violates the logic of retributive justice and hence cannot be considered a just claim on retributive grounds. The deficiencies of a retributive approach to reparations for historical injustice are even more apparent when one considers that from a retributive perspective, the first post-apartheid South African government headed by the most celebrated victim of apartheid, Nelson Mandela, would have borne responsibilities for reparations to victims of apartheid only if it could be seen as culpable in some way for apartheid. One might argue that the greater continuity in identity of the Canadian state makes it more plausible to assign to it contemporary responsibility for reparations based on past culpability. The disjuncture between, on the one hand, a continuous institutional identity and, on the other hand, discontinuous individual identities, however, creates a dilemma for efforts to ground reparations on the moral logic of retributive justice. For the attempt to justify reparations against a contemporary state on retributive grounds requires accepting the necessity of punishing individual citizens existing at this time for the moral blameworthiness of other individual citizens in the past, a prospect that is difficult to reconcile with the logic of individual retributive justice. At the same time, even in the case of South Africa after a radical regime change, it seems wrong to argue that post-apartheid South African governments bear no moral responsibilities to assist victims of apartheid. This intuition suggests that there are other moral grounds on which contemporary regimes may incur a responsibility to repair the legacies of historical injustice. Reparations and Democratic Justice The virtue of the idea of unjust enrichment lies in its reminder to us that contemporary societies typically inherit morally problematic histories marked more often than not by great injustices that have enduring legacies. The logic of retributive justice tends towards focusing exclusively on the positive legacies of injustice for perpetrators and their descendants, and the negative legacies suffered by victims and their descendants. Yet it seems clear that contemporary states and citizens inherit not only benefits but also burdens from historical injustice. The stain of having once had racist policies is a moral burden that some may

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consider outweighs any material gains from those policies. It is not only victimized individuals or groups that suffer negative legacies from historical injustice; in inheriting a social fabric stained by injustice, contemporary societies and citizens inherit special problems for the development of a well-functioning democracy. John Rawls, the most distinguished philosopher of liberal democratic justice in the twentieth century, has argued that a well-functioning democracy structures basic social institutions to support a conception of society as a fair system of cooperation that is regulated by principles of moral reciprocity between citizens considered to be free and equal persons. The establishment of a just social order supports the development of a community bound by 'a common sense of justice' and 'ties of civic friendship/ as well as individuals with a healthy sense of selfrespect.22 Historical injustice creates contemporary challenges for realizing this social ideal at institutional and interpersonal levels, for the immediate legacies of injustice are morally tarnished institutions, fractured communal relations, and individuals whose sense of self-respect is undermined by their experiences of injustice. The social bases of individual self-respect are a main concern of Rawls's theory of justice. He considers the social bases of self-respect as 'the most important primary good' because a 'sense of their own worth is necessary if [individuals] are to pursue their conception of the good with satisfaction and to take pleasure in its fulfillment.'23 A concern for individual self-respect leads Rawls to a theory of democratic justice because 'our self-respect normally depends upon the respect of others.'24 Since self-respect is critical to leading an autonomous and meaningful life, Rawls argues that people 'would wish to avoid at almost any cost the social conditions that undermine self-respect.'25 At the same time, self-respect 'is reciprocally self-supporting':26 self-respecting individuals are better guardians of democratic justice than individuals who are either too selfish or too selfless to care about being treated fairly. Rawls includes 'cultural and ethnic discrimination' as a social condition that is destructive of self-respect. Indeed as the Factum of the Appellants in the Chinese head tax case states, 'the Chinese Immigration Act was never about the payment of money. It was about the desire to prevent the immigration of Chinese people to Canada because they were deemed to be of lesser worth than other people. From the appellants' perspective, the most significant aspect of both the Head Tax and the exclusion provisions was the imposition of this discriminatory status.'27 The moral problem of racially discriminatory policies from the

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perspective of democratic justice is that they constitute public 'demonstrations of disrespect'28 and thus fail to secure for all citizens the social bases of self-respect. Rawls argues that, 'In a well-ordered society ... self-respect is secured by the public affirmation of the status of equal citizenship.'29 Institutionally, the moral regeneration of democratic institutions in response to systemic injustices such as racism requires broad legal and political transformations to affirm previously denied moral principles such as the principle of equal respect and concern for all citizens. But is such an affirmation enough to rebuild the damaged selfrespect and self-esteem of victims of social injustice or discrimination?30 While political and legal changes to extend the status of equal citizenship to previously discriminated groups go a long way towards establishing the social bases of self-respect, victims of racial discrimination bear legacies of damaged self-respect and social trust that may diminish their ability to translate the formal guarantees of equal citizenship into active engagement in public life as free and equal persons. Those who experience political and social injustices may develop a profound sense of mistrust of and alienation from political and social institutions that lingers even after political and social transformations. If Rawls is right to be concerned with individual self-respect as a basis for a just democratic order, then contemporary democratic governments must be concerned to assist victims of discrimination to rebuild their selfrespect. The responsibility of contemporary governments to assist victims stems not from their culpability for past injustices, but from their commitment to the realization .of a just democratic order. From this perspective, the duty of repair is an obligation of democratic justice. Reparations and Distributive Justice Does this responsibility for reparation, justified on democratic grounds, include an obligation to provide material restitution or compensation to individual victims or their descendants? The Chinese Canadian National Council that is lobbying for such compensation to all surviving head tax payers seems to believe that it constitutes, or at least contributes to, justice.31 The question to ask is how such reparative measures would aid the task of building the social bases of self-respect, social trust, and democratic social engagement characterized by moral reciprocity. I am doubtful that such a reparative measure would be desirable or even defensible from the point of view of democratic justice. The plurality of historical injustices and victimized groups in most

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societies creates a question as to how reparative mechanisms of moral regeneration can best support diverse victims' pursuits of increased self-respect. In such a context, the issue of reparations for victims becomes an issue of distributive justice, as societies must consider how they can fairly respond to different claims from different victim groups; unfairness in responses can further undermine their self-respect. Rawls argues that a 'public affirmation of the status of equal citizenship' should be viewed as the political basis of self-respect in a just society, not income share. The problem with making self-respect dependent on a person's position in the distribution of income and wealth is that such a system would bring people inevitably into conflict in their pursuit of self-respect, since 'to improve one person's position is to lower that of someone else. Social cooperation to increase the conditions of selfrespect is impossible. The means of status, so to speak, are fixed, and each man's gain is another's loss.'32 The attempt to repair demonstrations of disrespect through monetary restitution or compensation to individual victims ties the basis of self-respect to a material award, leading to a system whereby victims' self-respect becomes dependent on their relative place in the distribution of monetary payments for injustice. Further damage to victims' self-respect can then be triggered by the pursuit of self-respect by another victim group, especially when the outcomes of such pursuits in terms of monetary payments differ between them. It is indeed striking that the legal case for reparations for Chinese head tax payers and their families refers to the successful claim for redress by Japanese Canadians interned during the Second World War. The Factum of the Appellants states that 'the appellants cannot regard themselves as fully equal before and under the law, and equally entitled to its protection and benefit, as long as the history of official racism against them by the Canadian government is unredressed.'33 Appealing to section 15 of the Charter guaranteeing the right to equality before and under the law, the Factum argues that granting redress to Japanese Canadians for racial discrimination while denying the claims of Chinese Canadians amounts to a violation of equal citizenship. The lack of a similar restitution package for Chinese Canadian victims of racial discrimination confirms an 'ongoing discriminatory status.'34 The pursuit of self-respect by diverse victim groups through ad hoc legal challenges for monetary restitution to individual victims clearly breeds rather than resolves grievances.35 Thus, although the appellants are right in their claim that differential restitution for victims is dis-

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criminatory and another source of grievance, this very fact reveals the counterproductive consequences, and hence, moral undesirability, of such an approach to repairing demonstrations of disrespect.36 Even if monetary reparations to victims of discrimination and other social/ political injustices are systematized, the development of such a system will inevitably involve arbitrary assessments of who the victims are, and perverse calculations of how much their suffering is worth. In the Chinese head tax case, those who paid the tax may form an easily identifiable group, but it may ultimately be an arbitrary one. For example, those unknown persons who suffered from the racism of the exclusion provisions of the Chinese Immigration Act by being denied entry into Canada fall outside of the legal case for reparations, although they too have suffered a comparable wrong and perhaps with even more devastating personal consequences, given the social conditions of China at the time. If the case for reparations is not simply based on a commercial view of justice derived from the notion of property entitlements, but is more fundamentally about justice as mutual respect, it is not clear why the identification of victims is limited to those who paid the tax and their descendants. Furthermore, while proponents of financial restitution argue that such restitution is needed to symbolize the sincerity of an apology, it is difficult to see how any amount of monetary compensation can adequately demonstrate such sincerity for wrongs that are not primarily material, but moral.37 Using monetary restitution to confer symbolic value on historical injustices can create a hierarchy of victims, whose place in the hierarchy will be evident by the amount of monetary compensation they are entitled to receive. Such a system is ultimately likely to be destructive of their self-respect and thus subversive of a just democratic order. Rawls thus argues that The best solution is to support the primary good of self-respect as far as possible by the assignment of the basic liberties that can indeed be made equal, defining the same status for all.'38 If the social bases of self-respect are understood as a scheme of basic liberties that can be assigned equally to all, then the discriminatory status accorded to victims of racial discrimination is effectively redressed once social institutions adopt a scheme of equal basic liberties for all. Of course, Rawls does not stop there. Aware of the material bases of self-respect, he excuses envy in societies that 'permit such large disparities in [objective primary] goods that under existing social conditions these differences cannot help but cause a loss of self-esteem.'39 Rawls's theory of justice thus includes a robust egalitarian principle, so that

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social and economic inequalities are justified only if they benefit the worst-off group or groups. While Rawls's theory does not address directly the issue of rectificatory justice for past wrongs, it provides a strong moral justification for repairing the iniquitous material legacies of historical injustice, since victims of social and political injustice are likely to constitute the worst-off groups. Reparative measures, when legitimated as a duty of democratic justice, must contribute to building the social bases of self-respect for discriminated against and disadvantaged groups, without which the ideals of democratic government are thwarted. In the case of racial discrimination, the best way to meet this purpose, beyond the institution of equal citizenship and social justice, is to commit public resources to social and political programs that have as their focus the repudiation and prevention of racism and the positive affirmation of respect for previously discriminated groups. The history of racial discrimination in Canadian politics, society, and law needs to be taught and discussed in schools - it is the most important duty we owe to victims of historical injustice, to remember and tell their histories as truthfully as possible, and to promote moral learning from their experiences. Social programs to combat racism in society at large, and public watchdogs to monitor policies for racial discrimination, can be coupled with more positive efforts, such as public programs to assist immigrants, and especially those who have suffered discrimination, to participate fully in all aspects of Canadian public and political life; public events to recognize and celebrate the positive contributions of previously discriminated groups to Canadian society; and public memorials to honour and remember their sacrifices and suffering. Interestingly, the federal government that settled the Japanese Canadian claim for redress did engage in a process of redress of the Chinese head tax in 1993, which resulted in a proposal for official acknowledgment in the form of certificates of apology to directly affected individuals, and official commemorative functions and ceremonies. The Chinese claimant organization rejected these offers because they excluded any form of financial restitution to individual claimants.40 Given the financial awards offered to Japanese Canadians in 1988, the reaction of the Chinese claimants is understandable, although indicative of the moral flaws of ad hoc monetary restitution as a mechanism for rebuilding the social bases of self-respect of victims of historical injustice. Although I am challenging the idea that individual financial compensation is a requirement for democratic justice or for moral reconciliation,

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given that such compensation has been granted to Japanese Canadian victims of racial discrimination, it may be prudent and conducive to social reconciliation for the current federal government to grant some symbolic amount of compensation to individuals of other discriminated groups, such as Chinese head tax payers. The government could initiate a special fund for victims of racial discrimination that would pay a specified amount (such as $500) to any person who can claim to have suffered from a past or present racially discriminatory public policy or law. The moral function of such standardized financial reparation would be to help prevent the appearance of a competitive hierarchy of victims that would only erode the social bases of their self-respect. Conclusion: From Injustice to Tragedy Although reparative measures, properly understood in the context of moral regeneration, have the moral interests of victims at heart and should be shaped through dialogue and consultation with them, it is not possible to ground the legitimacy of reparative demands on victims' articulated preferences. This is because victims of similar moral wrongs typically desire different kinds of responses, and some demands of victims may go beyond the bounds of justice. It is not possible or justifiable to meet all victims' subjective senses of justice. Psychologically, for example, retribution can be part of some victims' sense of repair, even when there are no wrongdoers left to punish. Historical injustices perhaps create greater frustrations for victims and their descendants because culpable agents are no longer present to be held accountable for their beliefs and actions, and historical injustices are compounded when contemporary societies fail to meet their democratic obligations to assist victims of past injustices. The tragedy of victimhood is that loss and sorrow are its most familiar and enduring legacies. Victims suffer irreparable losses, since no amount of restitution or compensation can bring back lost years with their families, lost social opportunities, and lost career prospects. The grief generated by such suffering may leave some victims permanently unreconciled, even after political and social transformation and reparative efforts are adopted. Legal and political innovations that effect a moral basis for reconciliation through the repair of defective norms and institutions, therefore, cannot guarantee the social reconciliation of peoples and communities divided or alienated by historical injustice.41 Societies that embark on the project of moral regeneration wager that

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victims of historical injustice will be more reconciled to a transformed social order that affirms their equal worth and dignity through a just distribution of the social bases of self-respect. To pose moral regeneration as a problem in the aftermath of moral wrongs and injustice is to reject other typical responses, such as moral cynicism, despair, and resignation. Although the idea of moral regeneration entails a realistic acknowledgment of histories of injustice in human relations, the hope of moral regeneration is that coming to terms with such histories can inspire a transformative politics of redemptive tragedy, and spur efforts to construct a more inclusive and fair society.42 No doubt some of the legacies of our history of racial discrimination will always cause sorrow. But the remnants of historical injustice need not all be tragic. Indeed, we are driven to the quest for moral regeneration because the tragedy of experiences of injustice would be compounded if their only legacies were enduring grief and grievance. The moral regeneration of societies governed by democratic principles of justice requires contemporary governments and citizens to acknowledge a general moral and political duty to provide special assistance to victim groups so that its members can become functioning participants of a fairer and more inclusive democratic order. Understood and pursued in the context of the project of moral regeneration, reparative measures for historical injustice can transform experiences of injustice into a shared communal tragedy that binds the contemporary state and citizens with the victims of historical injustice. In helping to deepen the bonds of justice and civic friendship, histories of injustice are thereby partly redeemed. NOTES The author wishes to thank Edward Andrew, David Dyzenhaus, Matt James, Alan Patten, Richard Vernon, and David A. Welch for their comments on previous drafts on this paper. 1 From Senate, Debates, 26 June 1923, p. 1123. Quoted in James W. Walker, 'Race/ Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Waterloo, ON: Osgoode Society for Canadian Legal History and Wilfrid Laurier University Press, 1997), 111. 2 See Angelo N. Ancheta, Race, Rights, and the Asian American Experience (New Brunswick, NJ: Rutgers University Press, 1998), 16.

Delivering the Goods and the Good 161 3 According to Benedict Anderson, The dreams of racism actually have their origin in ideologies of class, rather than in those of nation.' See Benedict Anderson, Imagined Communities: Relections on the Origin and Spread of Nationalism, rev. ed. (New York: Verso, 1991), 149 and 150. 4 As the generals of an imperial Athens argue in the famous Melian dialogue, 'it is a general and necessary law of nature to rule whatever one can. This is not a law that we made ourselves, nor were we the first to act upon it when it was made. We found it already in existence, and we shall leave it to exist for ever among those who come after us.' See Thucydides, History of the Peloponnesian War, trans. Rex Warner (Toronto: Penguin Books, 1972), 405. 5 According to Yi-fu Tuan, the Chinese treated the non-Chinese with whom they came into contact 'varyingly, from extreme harshness to condescending benevolence and grudging respect, depending on their political-military power.' See Yi-fu Tuan, Cosmos and Hearth: A Cosmopolite's View (Minneapolis: University of Minnesota Press, 1996), 39. 6 According to Franz Schurmann and Orville Schell, the smaller countries of 'the East Asian family ... accepted a peripheral status which demanded that they pay tribute to China in the form of periodic missions to Peking to perform the three kneelings and nine prostrations before the Emperor.' As this system had served China for thousands of years, no exception was made for the 'European barbarians.' See Franz Schurmann and Orville Schell, Imperial China: The Decline of the Last Dynasty and the Origins of Modern China - The 18th and 19th Centuries (New York: Vintage Books, 1967), 104. 7 Allegedly, in some parks in the treaty port of Shanghai hung the sign, 'No dogs or Chinamen.' See Schurmann and Schell, ibid, at 160^1. 8 H.F. Angus, writing in the 1930s when the exclusion provisions were in place, noted that Canadian immigration law created an 'order of priority' based on nationality, race, and class: 'First come Canadian citizens, with those of Chinese race in a slightly inferior position. Next come British subjects from Great Britain and the self-governing dominions other than Rhodesia, provided that they are not of Asiatic race. Next come United States citizens, provided they are not of Asiatic race. Then come nationals of Japan, if they comply with existing agreements. Then come nationals of countries of the continent of Europe, provided they are not of Asiatic race. Then come Asiatics, whether British subjects or not, provided that they are not Chinese. Chinese are outside the scope of the Immigration Act altogether and are thoroughly excluded by special legislation. Side by side with this national and racial sequence there are economic gradations

162 Catherine Lu which favor farmers, farm laborers and domestic servants, but which exclude skilled and unskilled labor, and (with necessary exceptions) contract labor ... Finally the provisions for the admission of wives and children of immigrants show a social or sentimental respect for family life which does not, however, extend to families of Chinese origin or descent in the male line.' See H.F. Angus, 'Canadian Immigration: The Law and Its Administration/ American Journal of International Law 28:1 (1934), 74-89 at 85. 9 The tax was set at $50 in 1885 and rose to $500 in 1903. 10 Gerald T. White, "The Chinese and Immigration Law,' Far Eastern Survey 19:7 (1950), 68-70 at 69. "The opposition to repeal had a traditional cast. It was argued that the Chinese were a non-assimilable (and inferior) people, and that liberalizing the immigration laws concerning Chinese could start a heavy new influx to the detriment of the American wage earner.' 11 John Torpey, '"Making Whole What Has Been Smashed": Reflections on Reparations' Journal of Modern History73 (2001), 333-58 at 334-5. 12 http://www.asian.ca/redress/index.htrnl 13 I first discussed the idea of moral regeneration in 'Justice and Moral Regeneration: Lessons from the Treaty of Versailles,' International Studies Review 4:3 (2002), 3-26. 14 Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice (Cambridge: Polity Press, 2002), xi. 15 If this moral evaluation is inappropriate, then the notion of reparations is also inappropriate. For example, if my friend Brian voluntarily lends me $10 and I return the amount one week later, the transfer of money cannot be termed reparation, since there was no moral wrong involved in the initial transaction. If, however, I steal $10 from him, and am caught, then it is intelligible to think of my repayment to him as an act of restitution or reparation. Of course, I may return the money grudgingly, without repairing the demonstration of disrespect my act exhibited. 16 The claim of the illegality of the head tax collection is one that I will leave to legal scholars to assess. 17 Jean Hampton, "The Retributive Idea/ in Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), 125. 18 Thompson, Taking Responsibility for the Past, xi. 19 http://www.asian.ca/redress/index.htrnl 20 According to Tuan, 'During the Ming (1368-1644) and Ch'ing (1644-1911) dynasties, for example, Chinese armies waged campaigns against the Miao and the Yao, driving them off their lands and massacring them to

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21 22 23 24 25 26

27 28 29 30

31

32 33 34

35

36

make way for Chinese settlers.' See Tuan, Cosmos and Hearth, 39^0; and Herold J. Wiens, China's March toward the Tropics (Hamden, Conn.: Shoe String Press, 1954), 159. Thompson, Taking Responsibility for the Past, 39. John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard University Press, 1999), 470. Ibid., 386 and 155. Ibid., 155. Ibid., 386. According to Rawls, 'one may assume that those who respect themselves are more likely to respect each other and conversely. Self-contempt leads to contempt of others and threatens their good as much as envy does.' Ibid., 156. Mary Eberts and Avvy Go (co-counsels), Factum of the Appellants, para. 120. Thompson, Taking Responsibility for the Past, xii. Rawls, Theory of Justice, 478. On the distinction between self-respect and self-esteem, see David Sachs, 'How to Distinguish Self-Respect from Self-Esteem/ Philosophy and Public Affairs 10:4 (1981), 346-60. In addition to financial compensation to head tax payers and their descendants, the movement for redress also seeks an official apology to all Chinese Canadians for the maltreatment of Chinese immigrants, and new federal funding for anti-racism institutions and policies. See 'The Unfinished Business of the Chinese Head Tax/ Globe and Mail, 13 July 2001, A14, and Jim Wilkes, 'Spike a "Symbol" to Chinese in Canada,' Toronto Star, 4 October 2003. Rawls, Theory of Justice, 478. Eberts and Go, Factum of the Appellants, para. 114. Ibid., para. 121. See also para. 124: 'the appellants submit that by granting redress to Japanese Canadians for past discrimination, while refusing to provide redress for the appellants, Canada infringed their s.15 Charter rights. It is respectfully submitted that the failure to extend redress to the appellants is discriminatory.' For an alternative view of the potential contributions of 'recognitionseeking social movements' to distributive justice, see Matt James, 'Recognition, Redistribution and Redress: The Case of the "Chinese Head Tax,"' Canadian Journal of Political Science (forthcoming). Furthermore, reparative claims for racial discrimination typically resuscitate the problematic concept of race. Thus John Torpey has observed that,

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37

38 39

40 41

42

'paradoxically, the attempt to get beyond race ineluctably involves a rejection and simultaneous reappropriation of that category on the road to overcoming iniquitous pasts.' See Torpey, 'Making Whole What Has Been Smashed/ 335. On contemporary scientific and political disputes about the concept of race, see Nicholas D. Kristof, 'Is Race Real?' New York Times, 11 July 2003. In a conceptually clarifying and cogent article, Richard Vernon has argued that 'what is called "compensation" is often better understood in one of three ways - as a demonstration of the sincerity of an apology, as a response to distributive injustice or as a form of self-inflicted retribution.' See Vernon, 'Against Restitution/ Political Studies 51 (2003), 542-57 at 554. Rawls, Theory of Justice, 478. Ibid., 468. An exemplary component of such a society could be a health care system that is only accessible to those with a certain level of income. It is not reasonable to expect a person with a sick child who cannot afford treatment under such a system to resist envying a wealthier parent who can afford treatment for her child. It is also likely that the poor parent will feel that she has less worth than her affluent counterpart. Alexander Norris, 'Italian, Chinese Groups Reject Redress Offer/ Montreal Gazette, 29 May 1993, A6. Janna Thompson is surely right in arguing, however, that in a 'reconciliatory theory' of reparation, 'victims have an obligation to accept reparation that they have reason to regard as just, and thus to play a morally responsible role in the process of reconciliation.' See Thompson, Taking Responsibility for the Past, 51. On the idea of redemptive tragedy, see my 'Human Wrongs and the Tragedy of Victimhood: A Response to Robert Meister/ and 'Liberals, Revolutionaries and Responsibility/ Ethics and International Affairs16:2 (2002), 109-17 and 124-6.

Rights and Wrongs, Institutions and Time: Species of Historic Injustice and Their Modes of Redress JEREMY WEBBER

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 the normal by-product of any institution, more the result of human weakness than of principle: timid civil servants concerned only with the safe route to a secure pension; judges who are pleased to pronounce the law but who have stopped listening; legislators concerned with their standing within, rather than their service to, the community. But more often they encounter structures and processes that have a compelling principled foundation, but the principles of which take little account of the claimants' immediate concerns - broad principles of democratic self-government, institutionalized in legislatures and electoral politics; mechanisms for deliberation that encourage the participation of a diverse array of actors; the adjudication of disputes by independent judges, according to rules that have some claim to be society's rules, not the personal preferences of the judges.1 Those structures - those principles - channel the claims. They sift them. They define the possible forms of resolution. In the process, they redefine the claims themselves.2 And in so doing, they can fail to do

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justice, or fail to do it to the claimants' satisfaction - for of course, even when citizens and officials seek to do justice, they don't always agree what justice is or conclude that it is within their power to grant it. The Mack litigation poses exactly that kind of conundrum.3 The plaintiffs sought redress for a shameful wrong: the 'head tax/ which Chinese immigrants to Canada were compelled to pay between 1885 and 1923, when it was replaced by what amounted to an outright prohibition of Chinese immigration, which in turn was repealed in 1947.4 The action emerged out of a process of discussion within the Chinese Canadian community, in which community members debated whether such a claim should be made and what form redress should take. That process did not result in a philosopher's rationalized structure of aims - no popular process does - but the choices ultimately made did reflect a sense of what the injustice meant and what forms of relief could speak to that injustice. The claims were first advanced in the political realm to people holding elective office. They were unsuccessful, and in frustration the claimants came to the courts. There they faced other institutional demands, which resulted in their claim being formulated as an action for restitution of the head tax, damages for discrimination, and an apology for themselves, all surviving payers of the tax, and payers' spouses and descendants.5 The underlying impulsion of the claim, however, remained the same. The action was dismissed at a preliminary stage of the proceedings, but the use of ordinary courts to respond to historic injustice is an increasingly common phenomenon. In this paper, I use the Mack litigation as a way of exploring the intersection of these claims with issues of institutional role. I address whether, in a situation like that in Mack, judicial process could - or should - have provided the relief desired. There are many ways of approaching an action of this kind. One can see it as merely one instance in a broader political struggle for a just outcome, in which the institutional realities are of practical interest only in that they facilitate or impede the vindication of the claims, a vindication that may ultimately come either through the courts or through renewed political action stimulated by the litigation. My concern is rather with the encounter between two sets of normative concerns - the plaintiffs' claim on the one hand and the institutional values on the other - and inquires into the normative fit between the claims of injustice and institutional roles. It starts from the position that institutional roles have a principled foundation. That foundation embodies a con-

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cern with popular participation in the business of government, the impartial adjudication of disputes by an independent judiciary, and, underlying each of those, the establishment of institutions through which disagreements over justice can be resolved, albeit provisionally, so that citizens who continue to disagree can live within a single society, governed by principles that represent some tolerable approximation to justice.6 The paper seeks to probe the interaction between the claims of justice made in a case like Mack and the institutional forms through which they are pursued. That relationship is not simple. It is not given. There is substantial room for argument over the principles and over their implications for a particular case. There is no guarantee that contemporary practices accord with the best interpretation of the principles. The practices are open to argument and reform. This paper is therefore more philosophical than lawyerly in nature, exploring the principles that should inform particular decisions. Those principles may ultimately have to be reconciled with the language deployed in different areas of law - the rules of unjust enrichment, for example. In doing so, they may make use of fictions, infusing old concepts with new content - perhaps in Mack treating as contemporaneous judgments that are in substance retrospective. But at the level of fundamental justification a high premium should be placed on frankness. These institutions are society's institutions. The justice that is being administered is society's justice. The question of employing fictions should arise only at a later stage, once one has concluded that this is the kind of claim that a court should remedy. This paper begins by examining the arguments of justice at issue in Mack, indeed in many claims for reparations for past injustice. It will seek to parse those claims in order to determine precisely the species of justice - possibly plural - in issue. This will take the claims beyond their expression by the parties themselves, although in a manner that I hope remains true to the claimants' intentions. The paper then addresses the significance of the passage of time for the force of the claims. That significance depends, I argue, on how one characterizes the nature of the claims. It returns, finally, to the question of institutions. In what institutions, through what forms of proceedings, can such species of justice be attained and can such injustices be remedied? Or, to put it sharply in the context of Mack, can this kind of action, in this type of forum, provide a remedy appropriate to the injustices at issue? Many of the themes discussed in this paper are addressed in the now

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extensive literature on 'transitional justice.' That literature is expressly concerned with whether and how conduct performed under previous regimes can be judged by the standards of successor regimes (although in most of that literature, the change in regime has occurred relatively recently, so that the lapse of time between conduct and judgment is reasonably short). The literature on transitional justice is also concerned with institutions, especially the creation of novel tribunals or commissions of inquiry to deal with the impugned conduct. And some of that literature is also concerned with parsing the claims of justice to determine precisely what moral claims, what normative objectives, are involved in regime change.7 But there are also material differences between the transitionaljustice literature and the situation presented in Mack, differences that substantially limit the relevance of the former. First, much of that literature is strongly coloured by political necessity. It deals with societies that are deeply divided, often where people identified with the old regime continue to wield considerable power. Much of it is preoccupied, then, with practical constraints on the pursuit of justice: the need to consolidate the new regime in the face of entrenched opposition; or the need to achieve some form of reconciliation between former enemies. Those constraints don't exist, certainly not in the same form, in the case of the head tax. Moreover, the transitional-justice literature is often concerned with the responsibility of individuals for heinous acts committed by the old regime. Those acts tend to be the most vicious often crimes against humanity. That very character makes it easier to justify their punishment retrospectively: the crimes offend against norms so fundamental that the state is not entitled to authorize the norms' breach. In the case of the head tax, criminal liability is not in issue. The individuals responsible for the tax are long gone; any persisting responsibility resides in the community. And the wrong in issue, although contrary to the principles for which the country purports to stand, was not a crime against humanity. The expanding literature on compensation for historic injustices committed by predecessor governments without a sharp break in regime (compensation sometimes discussed under the rubric 'reparations') tends to be more relevant. But here again, much of the literature is insufficient for our purposes. In many of these works, the institutional dimension is lacking, so that the argument falls into one of two camps. Either (1) it focuses on the merits of reparations in philosophical terms alone, not on the institutional structures through which they might be achieved. Such

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arguments are extraordinarily useful on the general issues of justice, but they do little to determine whether it is appropriate for courts to order recovery in an action such as Mack. Or (2), they simply assume that recovery before the courts is appropriate and, as advocates, try to canvass a range of arguments that might succeed. Here the law is treated instrumentally, as a resource for achieving a predetermined end. The institutional issues that lie at the heart of this paper - whether this is a kind of claim on which judges should rule, whether it involves a species of justice on which judges are competent to adjudicate - are neglected.8 Finally, the reparations literature is often marked by insufficiently argued presumptions about the nature of the normative claim at issue. Without clarity on this, the literature is prone to offer unsatisfying answers to many of the questions raised. That is where this argument begins. Retrospective and Prospective Justice To see clearly the nature of the claims in Mack, it is worth distinguishing between two types of justice, which I will call 'retrospective' and 'prospective/ or 'backward-looking' and 'forward-looking.'9 This is not meant as an exhaustive typology. These terms do not represent an allpurpose classification. As will become clear, there are points of intersection and overlap between them. But distinguishing between them does help clarify different orientations of normative concern, orientations that have a substantial impact on the considerations relevant to claims of justice, the effect of the passage of time on those claims, and the institutions appropriate for judging and remedying them. 'Retrospective' justice is primarily concerned with repairing an event in the past - with making good a loss suffered as the result of a particular instance of wrongful conduct. This is Aristotle's 'corrective' or 'rectificatory' justice.10 Its focus is entirely on the consequences of the past action, and in that sense is quintessentially backward-looking. The applicable remedial principle is, as Aristotle says, 'arithmetic': the appropriate remedy is precisely equal to the loss caused by the wrongful action. The frame of inquiry is narrow, tightly circumscribed to the event and its consequences. As Aristotle says, 'the law pays attention solely to the difference created by the damage done.' 'Prospective' justice, on the other hand, is primarily concerned with the health of the relationship from this point forward - with adjusting

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the relations between the parties so that each is treated appropriately now and into the future. It does not merely focus on repairing some discrete .wrong suffered in the past (though this may be part of the process). It has a broader frame of inquiry, directed towards establishing justice among the parties all things considered. Its remedies seek to restore the proper relationship among the parties, not merely to reverse some illicit past transaction. What I call 'prospective justice' is akin to Aristotle's 'distributive justice.'11 They both involve a complex weighing of a host of criteria an inquiry, then, of breadth and relative indeterminacy. They are both concerned with establishing proportionate justice in the final relationship. Aristotle does not emphasize the temporal dimension explicit in my concept, but arguably that dimension is implicit in his liberation of distributive justice from the specifics of a past event and his concern with the restoration of a proportionate relation between the parties. In any case, Aristotle's distributive justice is a less discrete category than corrective justice. It is broad enough to capture a wide range of distributional principles, and he deploys it primarily as a contrast to the more cut-and-dried concerns of corrective justice. Focusing on the temporal dimension helps to distinguish the contrasting types of inquiry involved in the different conceptions of justice. An example drawn from Canadian labour law - concerning the regulation of illegal strikes - makes the difference clear.12 Under the labour relations regime applied generally in Canada up until the 1970s, courts enforced restrictions on strikes through the use of injunctions and fines. When seized with a complaint, the courts focused purely and simply on whether a cessation of work had occurred outside the circumstances in which strikes and lockouts were permitted. If so, the strike was illegal, an injunction was issued and penalties imposed. The courts' approach therefore conformed closely to the model of corrective justice. Beginning in the 1970s, however, many Canadian jurisdictions moved to limit or exclude the courts from the regulation of strikes and instead entrusted that role to specialized labour relations boards. These boards had a very different conception of their task. Instead of focusing solely on the legality of the strike, they took as their principal concern the establishment of a sound working relationship between the parties. When seized with a complaint of an illegal strike, they would often send one of their officers to inquire into the circumstances. The officer would seek to identify and rectify its root cause, even if this went beyond matters of legal right. The stoppage may have been provoked,

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for example, by the slow processing of grievances through the arbitration mechanisms of the collective agreement. The board might order, then, the expedited hearing of past grievances and work with the parties to develop more efficient arbitration processes for the future. The boards' focus, in short, conformed much more closely to the model of prospective justice. Their inquiry was not limited to identifying and reversing the legal wrongs of the past. Indeed, they might decline to punish workers who had engaged in an illegal strike if they believed that the workers had had some justification for their actions or that punishment would, all things considered, impede the development of a sound relationship between the parties. Restoration for the future, not the vindication of the past, was the principal object of justice. The boards' intervention was triggered by the illegal strike. Getting the parties back to work remained a primary objective. But the sphere of normative concern was both broader and more forward-looking than had been the case under the court-enforced regime. Very different types of orders might result. This example makes clear the different orientation in backwardlooking and forward-looking justice, but it is important to note that the two categories are not hermetically sealed from one another. On the contrary, there is substantial overlap between them, in at least two ways. First, the two forms of justice are often blended in any practical situation. A tort action is, for example, a paradigmatic example of retrospective (or 'corrective') justice. Yet at the same time, prospective considerations play a significant role in determining, among other things, the circumstances in which a duty of care should exist, the standard of care that might reasonably be expected of an actor in a particular situation, or the kinds of risk that should be considered a normal part of daily life. Adjudication in tort involves both recovery for a past wrong with recovery calculated in the 'arithmetic' fashion described by Aristotle - and the determination of those circumstances in which a wrong should be held to have been committed. The former is retrospective, the latter in significant measure prospective.13 Second, both forms of justice overlap in their concern with the past. The establishment of a sound relationship may very well require attention to past wrongs. In the labour example, the board still needs to address the causes of the strike. If the union's action in calling the strike is found to have been abusive, some combination of compensation, apology, and undertaking for the future may well be required both in fairness to the employer and to re-establish trust. The board might not

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order that the employer's loss be fully compensated. It will in any case consider a broad range of concerns, many forward-looking, in determining the amount of compensation. But the fact remains that justice for the future often demands that one respond to the past. The two species are not, then, absolute. Nevertheless, the distinction remains helpful. It points towards a different scope of normative inquiry and different remedies. As we will see, it has significant implications for the relevance of time and for judgments of institutional competence. Finally, in arguing for this contrast I am not saying that prospective justice is necessarily better than retrospective justice, either because it is forward-looking or because it has a broader scope of normative concern. The reasons supporting retrospective justice, with its full arithmetical satisfaction of loss, are compelling: there has been a clear, crystallized wrong; that wrong must be fully reversed if one is committed to a society ruled by right. Moreover, the path towards prospective justice conceals numerous pitfalls: the vagaries of predicting what measures will in fact establish a sound relationship; the danger of wishful thinking; the temptation to prefer peace and stability to a more thoroughgoing justice. The broader field of vision of prospective justice is attractive, but it also conceals risks. The Form of Justice in Mack What kind of justice is in issue in Mack? One prominent aspect of the action certainly takes the form of retrospective justice: the claim to recover the amount of the head tax paid (with interest) on the basis of unjust enrichment - a branch of the law quintessentially concerned with corrective justice. But does retrospective justice capture the substance of the action? Is the essence of the claim the desire to secure the return of funds wrongfully extracted and retained? No, at least not entirely. If the plaintiffs were to state the substance of their claim, they would not emphasize the loss of $500 to their patrimony in the early part of last century. Rather, they would emphasize (as indeed they do in their statement of claim and factum)14 the discrimination that gave rise to the head tax, the sense of devaluation and purposeful humiliation accomplished by the tax and the subsequent practice of exclusion, and the profound dissonance between that discrimination and Canada's claims to be an inclusive polity today, fully respectful of equality. Furthermore,

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they would argue - and do argue - not only that damage was done at the time, but that the effects of that humiliation continue today, constituting an unhealed breach between Chinese Canadians and the rest of the Canadian community.15 Within that framework, the retention of funds paid under the head tax is significant. It invests the claim with added poignancy, making clear in the most concrete terms that identifiable individuals were harmed by the odious policy. Moreover, it emphasizes that the policy hurt people who are now unambiguously Canadian citizens, people to whom Canadians owe special obligations of solidarity, not merely anonymous foreigners or some general category of racially or nationally defined persons. Above all, the retention of the head tax undermines any assertion that Canada has decisively dealt with the issue, at least vis-a-vis citizens who actually paid the tax. How can one say to a headtax payer that the policy was vile, that it was profoundly regrettable, and that Canada has now left those days entirely behind, when one retains in one's hands the $500 that that very person was forced to pay upon entry?16 Nevertheless, the retention of the funds differs from the claim in an ordinary action in unjust enrichment. It does not quantify the injury; it does not exhaust the nature of the harm done. Rather, it serves as a marker: as a concrete and inescapable reminder that injury has occurred. The injury itself is of a substantially different nature from the loss of $500. One sees that even when one examines the immediate circumstances of the tax. Those directly harmed not only included the persons who paid the head tax, but also - indeed probably more so those who could not pay and thus were turned away, or those who were bluntly excluded under the policy that succeeded the head tax. Moreover, even with respect to those who paid the tax, the fundamental wrong is not the loss of the money but the insult to human dignity. The $500, like the receipts produced by claimants attesting to the payment of the tax, is a token of the less tangible but vastly more important loss to dignity.17 The sense of injustice would be just as strong if the head tax had been paid outright by the immigrant's employer.18 But even more importantly, it is misleading to focus simply on the loss suffered by would-be immigrants at the time of the tax (though I do not want to minimize those individuals' losses). The plaintiffs' overriding concern is with the consequences of that discrimination, if uncorrected, for Canada's claim to equality and inclusiveness today. It is with a lingering sense of exclusion, of subordinate citizenship for Chinese

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Canadians, which they see as flowing from the unredeemed legacy of the head tax.19 Indeed, in a certain sense the gist of the claim has only emerged in the decades since the repeal of the tax, as Chinese immigrants have become full members of Canadian society and as Canadian society has embraced, ostensibly, norms of racial equality. It is only as a result of those changes that a stark dissonance has emerged between Canada's professed norms and the rationale of the head tax - a dissonance that did not exist, at least not with the same clarity, at the time the tax was imposed. The purpose of the claim is therefore not so much to undo what was done, but to force a present reckoning with that past. It is designed to ensure that Canada lives up to its professed values today by acknowledging and addressing its history of official discrimination. It seeks to remove an impediment to full community arguably operative in the present, so that Chinese Canadians can participate fully as citizens without the bitter memory of an unresolved injustice. It is emphatically about the character of Canadian society now and into the future. It is about prospective justice. The Relevance of Time This has important consequences for the effect of the passage of time on the force of the claim. Time has potential relevance for justice in at least two distinct ways. The first is the rationale for the barring of claims because of the passage of time, which supports limitation periods on causes of action, the doctrine of laches in equity, and the extinction of claims through prescription in the civil law.20 Extinctive prescription is justified on a range of grounds. Some of those focus on problems of proof. This is true, for example, of limitation periods in the case of regulatory or minor criminal offences where witnesses may have disappeared, memories faded, long after the events in issue. Others focus on the question of fault: has the plaintiff or prosecutor pursued his or her interests with reasonable vigour or has he or she 'sat on their rights'?211 am not concerned with either of those reasons here. The kind of litigation at issue in Mack raises no particular problems of evidence - at least none with consequences akin to the prejudice caused to an accused in a criminal prosecution. Nor is there any suggestion of fault by the plaintiffs in the pursuit of the claims. On the contrary, it is abundantly clear that the claim could not have succeeded at the time that the harm was committed; the case is

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entirely about the injustice of the law as it stood then and involves a straightforward attempt to judge it retrospectively. But there is a third justification for limitation periods that is potentially relevant, at least ostensibly. That justification focuses on the waning of the moral demand for reparation with time - on how the sense of injustice, initially felt acutely, can fade with the passage of time; on how 'time heals all wounds.' There are a number of reasons for the belief that injustices become less acute and therefore less demanding of correction with time. One is simply the increasing practical difficulty of providing an effective remedy. This is obviously true if one's objective is to provide recompense to the immediate parties to the events. Those parties pass away; the ability to repair their particular damage disappears. It can also be more difficult to assess the present consequences of past actions. As time passes, many more intervening events have occurred; it becomes increasingly difficult to determine what aspects of today's situation are properly attributable to the past event. This is the basis for Jeremy Waldron's argument that eventually historical injustice comes to be 'superseded/ and while Waldron's application of that concept is open to serious criticism, one can see the force of the underlying argument.22 A third reason for suggesting that 'time heals all wounds' has to do with normative presumptions about how individuals should respond to injustice in their own lives. Eventually (so the argument runs) one should move on with one's life; one should not live perennially in the past; one should not allow one's identity to be defined forever by the status of victim. Supporting this position is the recognition that in an imperfect world, no systems of redress are perfect and injustice is therefore never completely eradicable. In one's personal life, one has to find ways of getting beyond the sense of grievance. In fact, individuals often do 'get beyond.' They forget. They are distracted. Now, the process of argumentation from these hard truths to rules of law is fraught with moral hazard. Responses that are appropriate for individuals - T should forgive and forget' - are not necessarily appropriate for society, especially when society is the party in need of forgiveness! And redress is often about the acknowledgment and sometimes the punishment of fault, not merely about compensation to the individuals harmed. Some legal response may therefore be appropriate, even when the primary parties to the action have passed away. Above all, we should never lose sight of the fact that forgiving and forgetting mean acquiescence in injustice. There comes a time when that is appropriate, perhaps even inevitable. But in framing our judgments as to

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when that moment has arrived, we should be alive to the dangers of complacency and self-exculpation. I do not want to explore those considerations in detail here. For my purposes, it is sufficient to note that while there are reasons to believe that the passage of time is relevant to claims for redress, those reasons operate differently in the case of retrospective than in prospective justice. Unlike prospective justice, retrospective justice is concerned purely and simply with reversing the illicit past transaction. It is especially vulnerable, then, to changes wrought by the passage of time. The passing away of the parties (both the immediate wrongdoer and the immediate victim) and the increasing difficulty of assessing how the parties' positions today are the result of wrongs long in the past are most relevant when one's primary concern is to place the parties back in the position that they would have occupied had the wrong not occurred. Moreover, it is primarily in the case of retrospective justice that one has, with the passage of time, a fading of the sense of injustice and the growth of a belief that the wrongs of the past should be left behind - the emergence of a sense that one should get on with one's life. For in retrospective justice, the cause of injustice is firmly rooted in the past. With time that cause becomes increasingly distant. The same considerations do not apply, at least not in the same way, to prospective justice, such as the fundamental claim in Mack. There, the alleged impact is not locked in the past. It is said to be operating today, in the very structure of the parties' contemporary relationship.23 One's concern is with repairing that relationship, not merely with reversing an event of the past. Far from forgetting the past wrong, one may have an affirmative obligation to remember it, to call it to mind, precisely because of its continuing effect on today, or because it serves as a cautionary tale, drawing attention to the persistence and possibilities of racism. The passage of time may have an effect on claims of prospective justice based on a past wrong, but that effect arises from a very different source. It is not a result of the inability or inappropriateness of reversing a past transaction. It focuses upon the extent to which the past wrong continues to operate today. In the case of the head tax, for example, one can argue that those events are no longer operative, that they are no longer useful in understanding the structure of our relationships today. Those are potentially valid arguments against a claim of prospective justice. But they are arguments about the character of today's society and about the factors responsible for that character. They are not con-

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cerned with the wrongs of the past for their own sake; they are not affected by the same sense that as time passes, the moral imperative to redress wrongs must wane. The fading of a sense of injustice may be relevant to prospective justice, but only if it means that in fact the past event no longer has an appreciable impact on relations today. There is a second way in which the passage of time may be relevant to a claim of justice. Legal norms themselves vary with time, or at least our understanding of them does. When standards have changed dramatically, is it appropriate to judge yesterday's conduct by today's norms? This issue is raised directly in Mack, for there the conduct in question the imposition of the head tax and then the effective exclusion of Chinese immigrants - was ostensibly valid under Canadian law at the time, having been authorized by federal statute. Again, this question is most pertinent in the case of retrospective justice. There, the considerations that give rise to the claim are entirely crystallized by the past transaction. That transaction has produced the unjustified loss and the unmerited gain. It has generated all necessary elements of the claim. There is a compelling argument, then, that the transaction should be judged by the standards applicable at the time that the events took place. If the parties had inquired into their rights if they had ascertained the law so that they could mould their conduct accordingly - those would have been the standards they would have discovered. There may be situations in which those standards should be trumped. Much of the transitional justice literature is concerned with conduct so reprehensible that the state is arguably incompetent to excuse it. Moreover, one must be careful not to assume that the norms of the time were worse than they were. In particular, one should not assume that conduct is in accord with the standards of the time simply because it is officially sanctioned. Legal systems often embody a plurality of principles and institutions, and it is legitimate to judge conduct by our best understanding of the ostensible norms of that society, even if the society itself failed to apply its standards consistently.24 But all that said, there is good reason to hold that presumptively, claims of retrospective justice should be judged by the standards of the time. The same is not true of prospective justice. There, one's primary focus is on remaking, on a better foundation, today's normative community. That process may require that one denounce past conduct as unjust, even if it was consistent with the norms of the time, precisely so that

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one can differentiate the norms one affirms now from those accepted in the past. One may still want to do so in a way that acknowledges the imperfect, provisional, and therefore time-dependent nature of all our conceptions of justice. Our own judgment is not perfect. In time, we too maybe subject to unflattering scrutiny. In addition, we should pay close attention to the impulsions, fears, normative principles, and arguments that generated and maintained the standards of the past. They offer useful lessons for understanding and perhaps correcting our own shortcomings. An awareness of the relativity of norms - a sense of humility is therefore appropriate. But that can never mean full deference to the past. Prospective justice is precisely about judging the past, so that we can fashion norms appropriate to today. The passage of time, then, has a different impact depending on the species of justice at issue. Its effect is especially marked on arguments of retrospective justice, for in that case there is good reason to accept that the impulsion to correct injustice wanes with time and to affirm that conduct should be judged by the norms of the period in which the action occurred, rather than the norms of today. In the case of prospective justice, neither of those considerations applies. Rather, the passage of time is relevant to determining whether the wrong continues to have an impact on our relations today. If the fundamental issue in Mack is one of prospective justice, only the latter impact is relevant. Institutions and Recourses To this point, we have concentrated on the nature of the claim in Mack, together with the impact of the passage of time on the force of that claim. Our focus has been on the theoretical level, with little reference to institutional concerns. It is now time to address those concerns. Is the action in Mack an appropriate vehicle for addressing the fundamental claim in the head tax litigation? Are the courts an appropriate institution for responding to the kind of justice at issue in Mack? The action certainly adopts the forms of retrospective justice. The claim to recovery for unjust enrichment echoes the classic formulation in Pettkus v. Becker.25 An enrichment has been obtained, a corresponding deprivation suffered, without a juristic reason. The action therefore seeks to reverse that transaction, forcing repayment of the head tax with interest. Alternatively, the plaintiffs argue that the discrimination inherent in the tax can itself give rise to a claim in damages.26 Both these claims, when considered as instances of retrospective

Rights and Wrongs, Institutions and Time 179 justice, are vulnerable to arguments based on the law of the time. In the case of unjust enrichment, there certainly appeared to be a 'juristic reason' when the tax was paid: the tax was compelled by statute. In the case of damages for discrimination, it was only with the coming into force of the Canadian Charter of Rights and Freedoms27 that Canada adopted a constitutional guarantee of equality. Prior to that time (prior to 1985 in the case of the Charter's equality provision), the legal validity of statutes could not be challenged on human-rights grounds. Or at least that was the widespread assumption; there had been some suggestion that implied rights might exist, a suggestion on which one of the plaintiffs' arguments builds.28 The plaintiffs in turn deploy a number of arguments to overcome these objections. They claim that in fact the tax was wrongful at the time, because the tax was inconsistent with customary international law or implied rights inherent in general legal principle (especially the rule of law).29 Alternatively they argue that the tax can be declared wrongful in effect retroactively, as a result of Canada's commitment to equality in the Canadian Charter of Rights and Freedoms.30 Third, they argue that because the money is still retained by Ottawa the cause of action continues today, and Ottawa can be forced to disgorge the funds because it no longer has (following adoption of the Charter) a valid juristic reason to retain the funds.31 In the further alternative, they argue that the fact that Ottawa has granted compensation to one wronged group (the Japanese Canadians, for their detention and the seizure of their property during the Second World War), the failure to grant redress to Chinese Canadians constitutes a new instance of discrimination under the Charter.32 In each case, the to-and-fro of claim and response ostensibly follows the logic of retrospective justice, attempting to identify a discrete wrong and reverse it. The amount of the recovery would appear to be, in each case, the amount necessary to correct that wrong in the arithmetic fashion of Aristotle's corrective justice: repayment of the head tax with interest; recovery of damages by the specific persons affected in order to compensate for the identified instances of discrimination. But is this recovery adequate to the claim? If one was to design a remedy premised not on the borrowed forms of retrospective justice but rather on a framework of prospective justice - a framework, in other words, that reflected more accurately the fundamental claim of the plaintiffs, seeking to remake the relationship between Chinese Canadians and the Canadian state so that it can proceed on a sounder

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basis - what would that remedy involve? It would be something like the following: 1. A clear apology, repudiating the discriminatory policies of the past. 2. The making of a payment to provide material substance to the apology. The rationale for this payment would not be the reversal of a specific transfer of wealth. Its amount would not be an arithmetic quantification of the harm suffered. Rather, it would be in the nature of an earnest - a payment made to seal the act, to demonstrate seriousness of intent, so that the apology was not mere words.33 The amount would be calculated by what is judged necessary to convey that seriousness, which in turn would be a function of the extent to which the head tax is held to have impaired relations between Chinese Canadians and Canadians at large. Moreover, because it is designed to repair that relationship rather than make up for lost wealth, the class of beneficiaries might extend beyond those directly affected by the head tax. There would nevertheless have to be special attention to those who actually paid the tax. Their relations to Canadian society were directly impaired by the tax. They were people to whom Canada unmistakably communicated its disdain. If the hurt caused by the tax is to be expiated, their payments must surely be refunded,34 3. The introduction of measures to improve relations between Chinese Canadians and Canadians at large, and to prevent a similar breach in the future. These features are reflected in Mack. The statement of claim demands, in addition to return of the head tax, damages, and interest, a public apology from the Government of Canada and payments to 'a trust or foundation dedicated to the eradication of racism.'35 Moreover, the plaintiffs cite with approval the Japanese Canadians' Redress Agreement, concluded in 1988 between the National Association of Japanese Canadians (NAJC) and the Canadian government under Brian Mulroney, as an explicit point of comparison.36 That agreement very much took the form described above, providing an acknowledgment of wrongs committed with respect to the Japanese Canadians, an apology, a lumpsum payment to individuals who suffered directly (the sum was the same for each individual; it did not vary in proportion to that person's

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loss), funding for the Japanese Canadian community, financial support for a new Canadian Race Relations Foundation, a process for restoring citizenship to persons expelled from Canada, and provision for clearing the convictions of those prosecuted for violation of wartime restrictions.37 Remedies like those in the Japanese Canadians' Redress Agreement make sense, but they fit poorly within a framework of retrospective justice. If Mack is treated as an action for unjust enrichment and damages for discrimination, the remedy is likely to be much blunter and ill adapted. An apology and broader measures of reconciliation are unlikely to be ordered, unless the court chooses to graft prospective remedies onto what is in form a retrospective claim. Moreover, even the retrospective-justice remedies are unlikely to be ordered if the court remains true to the retrospective-justice rationale. The problems flowing from the disjuncture between past and present norms are severe. Two of the arguments made in Mack to overcome that disjuncture amount squarely to the retroactive application of today's norms - frankly so in the case of the reading back of Charter values into the pre-Charter era, implicitly so in the case of the argument that the unjust enrichment is continuing and therefore subject to reversal once the Charter comes into force.38 The argument that the head tax was invalid at the time of its enactment because it was inconsistent with guarantees implicit in customary international law or the rule of law, on the other hand, does not obviously offend the principle that conduct should be governed by the norms of the time. But it does require a tendentious reading of those norms, one that it is highly unlikely that international lawyers or a court of the time would have adopted.39 Moreover, it assumes that legislative power is subject to extensive implied limitations determined and enforced by judges, limitations the acceptance of which would have significant consequences for the balance between legislative and judicial roles and which would be founded on judicial fiat alone, without any grounding in the text of the constitution. Finally, although the fourth argument cited above - that the denial of redress amounts to a denial of equality under the Charter because of the compensation granted to Japanese Canadians - similarly respects the principle that conduct should be judged according to the norms of the time, it does so only by diverting one's focus from the head tax itself to the comparative situation of Japanese Canadians. Recovery therefore depends entirely on the extent to which the two claims are alike, so that there are no valid grounds for distinguishing between them.40 Each of these arguments is a substantial stretch. The fundamental

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problem, I suggest, lies in the attempt to adapt a framework of reasoning appropriate to retrospective justice to a claim that is essentially about prospective justice.41 Time is relevant in different ways to those two species of justice. The effort to square the two produces an attempted sleight of hand, as one seeks to make the form of retrospective justice serve the ends of prospective justice. There is nothing improper about that attempt. We often use the means available to pursue ends that may, in their fullest extent, go well beyond those means. In the case of Mack, the plaintiffs had tried to achieve a more flexible remedy through the political process; they came to the courts in frustration. If the claims of justice are strong enough and the fit between the potential remedies close enough, a court may deploy the means at its disposal to provide a remedy. Is this one of the cases in which it should do so? It is clear that there are situations in which courts should grant a remedy according to retrospective justice even when the more fundamental claim is one of prospective justice. The two types of justice often overlie one another. An unjust relationship today may result, in large measure, from past wrongs that are unjust even by the standards of retrospective justice. In that case, it makes perfect sense for the court to provide a remedy according to retrospective justice, even if the broader prospective claim lies beyond its power. This is one reading of what has been occurring in the adjudication of indigenous rights.42 The fundamental issue between indigenous and non-indigenous societies is how to establish an appropriate relationship from this point forward. The full establishment of that relationship can only occur effectively through negotiations. But many features of the current relationship are the result of particular wrongs in the past, wrongs that conform entirely to the framework of retrospective justice: disregard for Aboriginal title, even according to the best interpretation of the law of the time; the failure to fulfil treaty obligations; the excision of lands from Indian reserves without legal authority; and so on. There is no reason why courts should refrain from pronouncing on those matters even if they do leave some dimensions of prospective justice untouched. To decline to do so would amount to acquiescence in a clear injustice in the uncertain interest of a comprehensive settlement. That concern for attending to retrospective justice applies to situations in which the relevant law may be in need of development. By retrospective justice, I do not refer only to situations where the law is without dispute (that would be very small class). I refer simply to

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situations in which the primary objective is the reversing of a past transaction once it is found to be wrongful, rather than the achievement of a sound relationship in an all-things-considered judgment. Novel claims may of course serve to develop what one considers to be wrongful conduct, even in the case of retrospective justice.43 That kind of stretching of legal categories poses no problem of principle, other than the straightforward one of determining whether the proposed development makes sense within the framework of the law. But what about the manipulation of categories so that what is in substance prospective justice can be squeezed within the forms of retrospective justice, even when those forms would not be satisfied in their own terms - a situation like that in Mack? That question should be resolved by determining whether it is appropriate for the court to determine the substantial claim - to determine, in other words, the claim of prospective justice - the claim that is in fact driving the response. The ultimate solution might adopt the forms of retrospective justice. The law often develops through fictions, investing old forms with new content. But the question of fundamental justification should nevertheless be determined on the basis of the substance of the matter, not by taking the fiction as though it were the reality. Is it appropriate, then, for the courts to endeavour to achieve prospective justice in a case such as Mack? There is no absolute bar to the courts addressing issues of prospective justice. While the core of their responsibilities generally falls within retrospective justice, courts do perform functions that fall squarely within prospective justice. This is true, for example, of their determination of the best interest of the child in custody cases, their assessment of the appropriate sentence following a criminal conviction (at least insofar as it seeks to rehabilitate the offender), or, to some degree, their determination of the appropriate scope of duty in a complex negligence case. These examples deal, however, either with a highly individualized determination, or with cases in which the questions of prospective justice emerge as an indispensable element in deciding a claim of retrospective justice. It is much more questionable whether the courts are competent to rule on a claim like that which lies behind Mack. First, the underlying claim in Mack requires that one balance a broad array of considerations, difficult to determine in their own right but where there is, in addition, very little guidance as to the relative weight that should be accorded to any of them. It requires a wide-open discretionary judgment. It requires, for example, that one determine whether

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the undeniable wrong of the head tax continues to structure relations between Chinese Canadians and Canadians at large and, if so, to what extent. If one does find that the head tax has continuing effect, one must determine the amount and form of recompense, in a situation where that recompense may take a wide variety of forms: financial payments only to those who paid the head tax; payments to their descendants or spouses; payments to the Chinese Canadian community at large, many of whom had no connection to the head tax, being the descendants of later immigrants; education programs to remind people of the brutal effects of racism; mechanisms to foster Chinese Canadian political participation; mechanisms to prevent racism generally. For example, one of the remedies in the Japanese Canadians' Redress Agreement, also claimed in Mack, was financial support for a foundation to advance human rights.44 Moreover, there is no clear principle for determining the global amount: simply what is sufficient to respond to the current effect of the injustice. And because all justice is comparative, and because all payments result in a redistribution among Canadians today, there has to be some calibration of the wrong inflicted on the Chinese Canadian community relative to that suffered by other disadvantaged persons, other groups that have suffered historic disadvantage: Aboriginal peoples, Ukrainian Canadians, Jews, Italian Canadians, African Canadians, French Canadians, trade-unionists, welfare recipients, Catholics, Jehovah's Witnesses, etc. That is not to belittle the wrong, to suggest that all wrongs are equally grave, to suggest that one should be 'just in our time' in a way that ignores the continuing presence of the past,45 or to suggest that there is no sensible and compassionate response that can be made to the current legacy of the head tax. I simply emphasize the broad and highly discretionary array of considerations that enter into the calculation. Matt James, in a very 'fine article, refers to this as 'the social alchemy of redress.'46 The phrase is apt. Is that the kind of decision that courts are well placed to make? One of the reasons that retrospective justice forms the core of judicial decision-making is precisely that the scope of decision-making is structured and contained. It has a sharply confined normative and evidentiary focus. It has a limited scope of inquiry, together with relatively defined criteria of judgment. Those constraints are what make it acceptable for a single, unrepresentative judge to make the decision - a judge whose primary qualifications are professional expertise, not democratic legitimacy, the mastery of social symbolism, or sociological insight. There are good reasons why we generally entrust the more wide-ranging decisions inherent in prospective justice

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to elective institutions.47 The representative character of those institutions, their broader frames of reference and more flexible procedures, permit such judgments to be made in a manner that canvasses all constituencies and hears an extensive array of arguments. They can devise appropriate remedies through negotiation or deliberation with the groups concerned. The very fact that the institutions are representative means that their decisions have a measure of legitimacy, even if they do pick one set of solutions from a host of equally plausible possibilities and inscribe a single path among often incommensurable or imponderable alternatives. But what about the element of the claim in Mack that is crystallized in amount and for which there is immensely strong justification (albeit on grounds of prospective justice): the refund of the amount of the head tax to surviving individuals who paid the tax? This element does not involve the same wide-open discretionary judgment, at least not apparently. Recovery would be tied to the most compelling and least contestable dimension of the plaintiffs' claims, precisely targeting its symbolic core. It would not have serious distributional consequences for other groups within society. And it would respond to an injustice that is felt acutely in the particular circumstances of individuals. It looks very much like the kind of individualized justice we often entrust to courts. Can this at least be granted? Reducing the claim to repayment of the tax does avoid many of the difficulties associated with the adjudication of prospective justice. But one significant difficulty remains: the implication of the legislature in enacting the various statutes that imposed the tax and later barred Chinese immigration altogether. Are the courts entitled to reverse the effects of those decisions? The discriminatory policies were imposed by legislative action at a time when Parliament was able to do so without judicial constraint.48 Constitutional prohibitions on discriminatory legislation were introduced by the Charter some sixty-two years after repeal of the head tax (thirty-eight years after repeal of the exclusion that followed the head tax). The Charter has typically been interpreted as applying prospectively, not as authorizing the readjudication back through time of all disputes that might raise an issue of rights. That limitation in the Charter's application is consistent with arguments canvassed above regarding the relevance of the passage of time to claims of justice. It does not make sense to apply today's norms to past events, at least not without careful consideration of how time has made a difference. But what about claims based on prospective justice, where the

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focus is the impact on relationships today? Can courts justifiably overturn the consequences of discrimination imposed by the legislature prior to the Charter, on the basis that that discrimination, even though long in the past, has a continuing impact on relations today - at least when the claim has a sufficiently confined focus (as in the case of the return of the head tax to surviving payers)? The division of roles between legislature and courts still presents a stumbling-block. Even though the remedy is highly focused, the justification retains the allthings-considered nature of prospective justice. It must do so; otherwise it would run afoul of the argument, appropriate to retrospective justice, that judgments of past conduct should be governed by the law of the time. And while courts do adjudicate issues of prospective justice in precisely defined contexts (the best interests of the child in custody disputes; the scope of duty in negligence actions), that adjudication generally proceeds within frameworks defined by legislative action or which acknowledge that adjudicative judgments must, if necessary, cede precedence to legislative determinations. There is an implicit assumption that legislatures are best placed to make open-ended decisions of justice for the future. Even when the Charter is applied to distributional questions arising after the date of the Charter's enactment, the courts do not adjudge the distributional issues at large. The Charter is not used to create entirely new systems of welfare benefits out of whole cloth. On the contrary, judicial intervention is focused on antecedent legislative or governmental action, and it is that action, not the general distribution of resources within society, that is assessed against norms of non-discrimination. The distribution that exists prior to the legislature's action is treated as being outside the courts' purview, precisely because any attempt to revise it would have such an open-ended character.49 The courts are therefore faced with a double bind when considering whether they might order repayment of the head tax: The payment was initially made under statute, a statute they are not entitled to overturn. And any recovery ordered on the basis of prospective justice alone would be the kind of wide-open decision that has, for good reason, conventionally been treated as the province of the legislature. The simple repayment of the tax, under judicial order, would in any case be an impoverished remedy given the nature of the claim. That very poverty reinforces the view that this is not a kind of justice that the courts have it in their power to grant. In particular, there is real question whether the courts can address what is an essential dimension of the claim: the desire for acknowledgment and reconciliation among Cana-

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dians. The plaintiffs in Mack seek, above all, an apology. That is the key element in their and many demands for prospective justice. But can that be achieved through court order? Even if the order is made and obeyed, to what extent does an apology made under judicial compulsion expiate the wrong?50 That act of solemn apology, by the Canadian people, can only come from those who have some entitlement to speak for the people, and that is emphatically not the courts, who represent nobody. My point is not that there is no substantial claim of justice in the case of the head tax. On the contrary, as I have insisted above, there is at least one dimension of the claim that is, in my view, undeniably due: the refunding of the head tax to those individuals who paid it. But there are different forms of justice and different institutions that are competent to deliver that justice. The structure of our institutions means something. An unrepresentative but professionally learned and impartial institution can do some things very well. There are other roles that only a representative institution can fulfil, because its capacities and procedures are adequate to the task, but more importantly, because the method of selection and reselection of its members permits it to speak, with imperfect but real authority, for the society as a whole. Conclusion The head tax and the Chinese exclusion policies were a disgrace. They also wrought a severe injustice, preventing people from immigrating on grounds of race, reinforcing the severe economic dependence of those who were admitted, dividing families, and forming one component of a grotesquely discriminatory set of rules and practices. That original discrimination may still shape, in subtle ways, relations between Chinese Canadians and Canadian society generally. That, I am not competent to judge. What I do know is that it was a profound injustice to the particular individuals concerned, some of whom are members of our community today. At the very least, there are compelling reasons for apologizing and returning the amount of the tax to those individuals. I do not see how we can say that the events are in the past, yet decline to return the funds to the very persons who paid the tax. But in my view, those remedies should come through the representative institutions. They do not lie within the province of the courts. Is this inconsistent? Does it amount to a technical objection taking precedence over justice? Only if one discounts the norms underlying institutional roles.

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Judges do not personify the society, so that they may speak for us whenever they feel compelled to do so. In a democracy, representation involves more than the occupation of high office, or the assertion of a right to speak for the nation, or even great wisdom and insight in the determination of justice. Representation involves concrete mechanisms for popular engagement and accountability.51 Those mechanisms are absent in the courts - or at least they operate very indirectly. That limits the kind of decisions that courts may legitimately make, although it also means that within their province, courts can make decisions with an independence, impartiality, and attention to the individual case that is often lacking in more popularly responsive institutions. Courts have their role, but that role does not extend to every species of injustice. That means that some wrongs may go unremedied. Representative institutions can fail to do justice. Indeed the courts can fail too. That does not mean that some other institution will always be found to set things right. We, through our elected representatives, have an indefeasible responsibility. We are the only ones who can come to terms with certain aspects of our history, addressing its contemporary consequences and trying to achieve a more adequate justice. NOTES My thanks to Marcia Barry, Kate Devlin, Keltie Mann, and Lloy Wylie for their able research assistance, and to the participants in seminars at the Universities of Victoria and Toronto, Marcia Barry, David Dyzenhaus, Arthur Glass, Hester Lessard, Matt James, and Chad Vandermolen, for their comments on previous drafts of this paper. 1 I do not mean to suggest that there are no points of connection between claims for redress and the broader structural principles. There are, especially if claims for redress are motivated, as Matt James has persuasively argued, by a desire for a more engaged participation, a more perfect citizenship, Matt James, 'Redress Politics and Canadian Citizenship,' in Harvey Lazar and Tom Mclntosh, eds., Canada: The State of the Federation 1998/99: How Canadians Connect (Montreal and Kingston: McGill-Queen's University Press, 1999), 247. But that connection is often indirect and less than obvious when claims for redress are sifted through institutional forms. 2 See, for example, C. Menkel-Meadow, 'The Transformation of Disputes by

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3 4

5 6

7

8

9

Lawyers: What the Dispute Paradigm Does and Does Not Tell Us' (1985) Mo. J. Dispute Res. 25 at 30-7. Mack v. Attorney General of Canada (2001), 55 O.R.(3d) 113 (S.C.); Mack v. AG (Canada) (2002), 217 D.L.R. (4th) 583 (C.A.); leave to appeal denied Mack v. Canada (AG) (2002), 100 C.R.R. (2d) 375 (S.C.C.). The legislation is summarized in Mack (S.C.), ibid., at para. 3. See Patricia E. Roy, A White Man's Province: British Columbia and Chinese and Japanese Immigrants, 1858-1914 (Vancouver: UBC Press, 1989); Peter S. Li, The Chinese in Canada (Toronto: Oxford University Press, 1998) at 31-7; Lily Cho, 'Rereading Chinese Head Tax Racism: Redress, Stereotype, and Anti racist Critical Practice' (2002) 75 Essays on Canadian Writing 62. Mack v. AG (Canada), Statement of Claim, Ontario Superior Court of Justice file # 00-CV-202644CP, para. 1. There are, of course, a host of exceptionally fine works that explore this foundation. For a modest statement of my own views, see 'Constitutional Reticence' (2000) 25 Australian J. of Legal Philosophy 125. Good examples include A. James McAdams, Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000). A notable exception is Eric A. Posner and Adrian Vermeule, 'Reparations for Slavery and Other Historical Injustices' (2003) 103 Columbia L. Rev. 689. Posner and Vermeule treat reparations as being, by definition, unobtainable before the courts, as indeed do many others. See, for example, Boris L. Bittker, The Case for Black Reparations (New York: Random House, 1973), especially at 21; Roy L. Brooks, "The Age of Apology,' in Roy L. Brooks, ed., When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice (New York: New York University Press, 1999), 3 at 6. Posner and Vermeule use a comparable distinction with virtually identical terminology. They suggest that reparations are essentially an example of backward-looking justice (692), as does Ellen Frankel Paul, 'Set-Asides, Reparations, and Compensatory Justice' (1991) 33 Nomos 97 (though Paul leaves more ambiguity). This may be true of some reparations, but, for reasons I give below, not of the claims at issue in the head tax case. Indeed, I suspect that many (perhaps most) claims for reparations have the more complex structure described here, in which the essential claim is one of forward-looking justice, but the concern for the future is rooted in past injustice.

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10 11 12 13

14

15 16 17

18

19

20

David Lyons also uses a distinction similar to mine, although he inverts the terminology, applying the term 'corrective justice' to the present- or forward-looking form of justice: 'Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow/ Boston University School of Law Working Paper Series, Working Paper No. 03-15 (2003). He considers rightly, in my view - reparations to fall within that broader category, not within a merely compensatory justice equivalent to Aristotle's corrective justice. This is also true of Minow, supra note 7 at 91ff., who deals with reparations within the framework of restorative justice. Aristotle, Nicomachean Ethics, trans. Christopher Rowe (Oxford: Oxford University Press, 2002) at 1131b25 ff. (quotation at 1132a4-5). Ibid, at HSlalOff. See Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto: Carswell, 1980) at 292-8. Peter Cane, 'Corrective Justice and Correlativity in Private Law' (1996) 16 Oxford J. of Legal Studies 471; Peter Cane, Responsibility in Law and Morality (Portland, Ore.: Hart, 2002) at 181-90. Statement of Claim, supra note 5, paras. 9 and 17ff; Mack v. AG (Canada), Factum of the Appellants, Court of Appeal for Ontario, file # C36799, para. 120ff. Factum, ibid, paras. 120-3. Cf. James, supra note 1 at 258-9. By describing the tax as a 'token,' I do not mean to suggest that it was minor in amount. The amount of the tax was, for a Chinese immigrant at the turn of the twentieth century, very considerable indeed. My point is simply that its normative significance today lies not in its monetary value, but in its concrete and symbolic embodiment of discrimination. Payment by employers was not the rule. Often the tax was paid by the employer or a labour contractor on the immigrant's behalf, but the immigrant then laboured under indenture to repay it. Sometimes, the immigrant borrowed the sum from a money-lender. In practice, either of these alternatives meant a long and oppressive period of indebtedness. See Cho, supra note 4 at 72-3. Factum, supra note 14, paras. 120-3. Compare, to the same effect, the Japanese Canadian redress movement: Roy Miki and Cassandra Kobayashi, Justice in Our Time: The Japanese Canadian Redress Settlement (Vancouver: Talonbooks, 1991). See also James, supra note 1, especially at 254ff. Although the issues of laches and limitations were raised in Mack, they were not decided. The case was determined on a motion to strike out the

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21 22

23

24

25 26 27 28

statement of claim on the grounds that it disclosed no reasonable cause of action, in which proceeding laches and limitations are not considered: Mack (S.C.), supra note 3 at para. 11. These two reasons figure prominently in the Supreme Court of Canada's discussion of limitation periods in M(K) v. M(H), [1992] 3 S.C.R. 6 at paras. 21-4. Jeremy Waldron, 'Superseding Historic Injustice' (1992) 103 Ethics 4; Waldron, 'Redressing Historic Injustice' (2002) 52 University of Toronto L.J. 135. For powerful responses to Waldron, see: Minow, supra note 7 at 107-10; Paul Fatten, 'Colonisation and Historical Injustice - The Australian Experience,' in Lukas Meyer, ed., Historical Justice (Baden-Baden: Nomos Verlag, 2003). Waldron also falls into the error of exaggerating the extent to which the dispossession of Aboriginal peoples occurred in the past, rather than in the present. See Jeremy Webber, The Jurisprudence of Regret: The Search for Standards of Justice in Mabo' (1995) 17 Sydney Law Review 5. Compare Lyons, supra note 9 at 6-8. Indeed, Waldron acknowledges that it is perfectly appropriate, perhaps necessary, to respond to historic injustice, if done within the framework of a forward-looking theory of justice. He claims that his arguments against reparations based on supersession are merely directed towards a particular way of approaching those claims, a way equivalent to my 'backward-looking justice.' See Waldron, 'Redressing/ Supra note 22 at 158-60. This is an important element in David Dyzenhaus, The Juristic Force of Injustice' (this volume) - an element with which I entirely agree. It is entirely appropriate to judge past conduct by the best interpretation of the law of the time - even an interpretation that draws upon the most praiseworthy elements of that law, even if the past legal system was unlikely to have done so itself. After all, we have no compunction about applying that kind of interpretation of today's law to today's conduct, even when we know that the law may be imperfectly applied as a result of problems of detection or even official complicity. [1980] 2 S.C.R. 834 at 848 per Dickson J. Statement of Claim, supra note 5, paras. 1 and 38; Factum, supra note 14, paras. 71 ff. Canadian Charter of Rights and freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. Prior to the adoption of the Charter, a number of judgments had suggested that there might be implied rights in the Canadian Constitution, but no decision had been based squarely on those grounds. Ironically, there has

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29 30

31

32 33 34

35 36 37

38

been greater recognition of implied rights in the posi-Charter era. See, for example: Reference re Remuneration of Judges, [1997] 3 S.C.R. 3 at paras. 82-109; Peter W. Hogg, Constitutional Law of Canada: 2003 Student Edition (Toronto: Carswell, 2003) at 684-7. Factum, supra note 14, paras. 9-12,24(b) and 32-70. This appears to be implicit in Factum, supra note 14, paras. 24(c) and (d) and 80. See also B. Baines, 'When Is Past Discrimination Un/Constitutional? The Chinese Canadian Redress Case' (2002) 65 Sask. L. Rev. 573. The plaintiffs deny in paras. 24(e) and 81 that they were seeking to apply the Charter retroactively, on the grounds that they are merely asking the court, in its interpretation in the present day of what should count as a juristic reason at the time, to do so in a manner that complies with Charter values. But if the mere fact of adjudication in the present day were sufficient to remove the suggestion of retroactivity, the issue of retroactive application would never arise in any case. Factum, supra note 14, paras. 17,106. This is coupled with a Charter variant: that the failure to disgorge the funds constitutes a violation of the Charter's guarantee of equality: Factum, supra note 14, paras. 114ff.; Mack (C.A.), supra note 3 at para. 8. Factum, supra note 14, paras. 19,24(f), and 124ff.; Mack (C.A.), supra note 3 at para. 9. James, supra note 1 at 258-9; Minow, supra note 7 at 100 and 102-5. That is certainly true of the specific individuals who paid the tax. It may not be true of their heirs. Given that the essence of the payment is an earnest to give substance to the apology for past discrimination, not compensation for the value of the head tax, it may be that all Chinese Canadians other than those who actually paid the tax are in roughly the same position, and the same earnest should apply for all. Statement of Claim, supra note 5, para. 1. Statement of Claim, supra note 5, para. 36; Factum, supra note 14, paras. 124ff. The agreement was given force by Order-in-Council P.C. 1988-89/2552. The terms of the agreement are reproduced in Miki and Kobayashi, supra note 19 at 138-9. See also Audrey Kobayashi, 'The Japanese-Canadian Redress Settlement and Its Implications for "Race Relations'" (1992) Canadian Ethnic Studies 1. Compare the breadth of remedy proposed by David Lyons for slavery of African Americans and Jim Crow: supra note 9. But see the argument against the suggestion that the Charter is being applied retroactively, discussed supra note 30. The Court of Appeal found that applying the Charter in the manner proposed would be tantamount to

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39

40 41

42

43

retroactive application: Mack (C.A.), supra note 3 at paras. 10-12. As for the implied retroactivity in the treatment of unjust enrichment, that branch of the law generally considers that an action has accrued once all the elements of the cause of action are complete (in unjust enrichment, usually the date of the transfer of value). Limitation periods, for example, begin to run as of that date. See Peter D. Maddaugh and John D. McCamus, The Law of Restitution (Aurora, ON: Canada Law Book, 1990) at 60-4; H.M. McLean, 'Limitation of Actions in Restitution' (1989) 48 Cambridge L.J. 472. It makes sense that that date should also determine the applicable law. That, after all, was the law at the time that all relevant actions by the parties took place. If this were otherwise - if the mere retention of an illgotten gain were sufficient to found a fresh cause of action covered by new law at any point up until the gain is disgorged - the failure to do justice in any branch of the law (contract; tort; unjust enrichment) would always be open to action long after the fact, on the basis that the imbalance in entitlements persisted and should be reversed. This indeed was the finding of the Court of Appeal: Mack (C.A.), supra note 3 at paras. 18-33. The appellants' factum does note examples of judgments in which anti-Asian legislation was held invalid by Canadian courts (Factum, supra note 14, para. 41), but as the Court of Appeal notes at para. 29, the express foundation for those decisions (at least the vast bulk of them) was the federal-provincial division of powers. For a review of the cases that would best support an implied right of equality, see John McLaren, 'The Head Tax Case and the Rule of Law: The Historical Thread of Judicial Resistance to 'Legalized' Discrimination' (this volume). See Mack (C.A.), supra note 3 at paras. 13-17. For the difficulty of achieving an essentially prospective claim within the form of retrospective justice, in the context of reparations, see also Paul, supra note 9 (focusing especially on the difficulty of justifying affirmative action plans on grounds of corrective justice); Lyons, supra note 9. I have developed this reading in Reimagining Canada: Language, Culture, Community and the Canadian Constitution (Montreal and Kingston: McGillQueen's University Press, 1994) at 66-74; 'Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples' (1995) 33 Osgoode Hall L.J. 623; Webber, supra note 22; 'Beyond Regret: Mabo's Implications for Australian Constitutionalism,' in Duncan Ivison, Paul Patton, and Will Sanders, eds., Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000), 60. This, I suggest, is what occurred in Mabo v. Queensland (No 2) (1992), 175

194 Jeremy Webber

44 45

46 47 48

C.L.R. 1, where the High Court of Australia found for the first time that Aboriginal title existed within Australian common law: Webber, supra note 22. Miki and Kobayashi, supra note 19 at 139; Kobayashi, supra note 37; Statement of Claim, supra note 5, para. 1. Being 'just in our time' is the phrase used by former Prime Minister Pierre Elliott Trudeau, on his last day in office, when justifying his reluctance to issue an apology on behalf of all Canadians to the Japanese Canadians: 'I do not see how I can apologize for some historic event to which we or these people in this House were not a party. We can regret that it happened. But why mount to great heights of rhetoric in order to say that an apology is much better than an expression of regret? This I cannot too well understand.... We could mount pressure groups across this country on many areas where there have been historic wrongs. I do not think it is the purpose of a Government to right the past. It cannot re-write history. It is our purpose to be just in our time, and that is what we have done by bringing in the Charter of Rights.' House of Commons Debates, 4 (29 June 1984) at 5308 (Hon. Pierre Elliott Trudeau). There is much in this argument if the apology is seen as merely an element in retrospective justice, much less if it is seen, as I suggest, as an element of prospective justice. I have drawn the phrase 'presence of the past' from the title of a wonderful article by Gerald Postema, 'On the Moral Presence of Our Past' (1991) 36 McGill L.J. 1153. James, supra note 1 at 257. See especially Jeremy Waldron, Law and Disagreement (New York: Oxford University Press, 1999). Some papers in this volume, notably those of Dyzenhaus and McLaren, contest this assumption (or at least explore grounds for contesting it). It is impossible, within the scope of this paper, to debate those issues fully. Suffice it to say that I am not convinced that, on a fair reading of the law of Canada as it stood in the late nineteenth and early twentieth centuries, legislatures were subject to judicial review of constitutionality on grounds relevant to this case. This is true even though I accept, with Dyzenhaus, that our interpretation of the law of that time cannot be formalistic and must attempt to capture the aspiration to principle typical of all defensible legal interpretation. Principle is not uniquely on the side of judicial oversight. There are good reasons for accepting democratic determinations of points of social disagreement, reasons that support legislative supremacy and that (it is absolutely clear) were accepted more readily in the late nineteenth century than they are now. When attempting to interpret the

Rights and Wrongs, Institutions and Time 195 law as it stood at that time, those reasons deserve respect on their own terms, even if, in late twentieth-century Canada, we have shifted decisively towards judicial supremacy. 49 Indeed this is crucial to the Supreme Court of Canada's justification for altering the distribution of benefits in such cases as Schachter v. Canada, [1992] 2 S.C.R. 679 or Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624. There have been arguments for a more wide-ranging and self-standing judicial pursuit of prospective justice, especially under s.7 of the Charter, but these arguments have foundered, I suspect on the basis of the kind of distinction articulated in the text. Indeed, the force of that distinction is precisely why some have argued that charters of rights are inherently conservative instruments, with distributional implications that are neutral at best, negative at worst: Andrew Fetter, 'The Politics of the Charter' (1986) 8 Supreme Court L.Rev. 473; Allan Hutchinson and Andrew Fetter, 'Private Rights/ Public Wrongs: The Liberal Lie of the Charter' (1988) 38 University of Toronto L.J. 278; Jeremy Webber, Tales of the Unexpected: Intended and Unintended Consequences of the Canadian Charter of Rights and Freedoms' (1993) 5 Canterbury L. Rev. 207; Michael Mandel, The Charter of Rights and the Legalization of Politics, 3rd ed. (Toronto: Thompson Educational, 1994); Allan Hutchinson, Waiting for Coraf: A Critique of Law and Rights (Toronto: University of Toronto Press, 1995); Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997). 50 Compare the discussion of apologies in Minow, supra note 7 at 115-16. 51 For particular clarity in this regard, I am indebted to Kevin Tuffin, The Sovereignty of the People: A Political Interpretation of a Constitutional Principle' (Ph.D. thesis, University of Sydney, 2002).

Redress for Unjust State Action:

An EquitableApproach to the Public/Private Distinction LORNE SOSSIN

Introduction Several contributors to this volume examine the Ontario Court of Appeal's analysis of constitutional and international law doctrines in Mack v. Attorney General of Canada.1 Others 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 view Mack as 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, Mack is an example of a wider trend - the attempt, through in particular class actions against the Crown, to hold governments accountable (and liable) for the consequences of public policies pursued in the past.2 This means of obtaining judicial intervention through civil actions is of special interest in light of the increasing trend toward deference to the executive and legislative branches associated with traditional administrative law and constitutional doctrines of judicial review, and especially so where public policy or legislative choices are impugned.3 In my view, Mack reflects a double bind for public law. The first bind is the challenge of formalism.4 An unwavering focus on legality has come to characterize both administrative and constitutional law doctrines in Canada. Under this approach, as long as a statute does not violate the constitutional strictures to which it is subject at the time, and as long as the action taken under that statute does not exceed the authority given to officials to implement it, then no redress is available no matter how unjust, in the sense of the equities at stake, the law or the government action appears to be in the circumstances. The second bind

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is the challenge of the private/public dichotomy. Private law doctrines such as unjust enrichment and breach of fiduciary obligation, which may provide a remedy against the Crown, will be invoked by courts where the state action at issue can be construed exclusively in terms of private law duties. In other words, private law will be of assistance to victims of unjust policies only where, for example, statutory benefits are seen as property or where the exercise of public authority is seen as giving rise to a duty of care to a discrete group of affected parties. Confronted with allegations of unjust public policies, courts thus face two options. First, they can deny relief on legality grounds; or second, they can offer relief by construing the policy-making in private law terms. Mack is an example of the former option. An example of the latter option is the Ontario Court of Appeal's Authorson v. Canada5 decision, discussed below, which was issued by the Ontario Court of Appeal within a few months of Mack. In this paper, I argue that these two cases stand as stark illustrations of the flaws both in the formalism of public law and in the attempt to subject the Crown to civil liability using private law doctrines. I wish to suggest a way to bridge the disjuncture between the onedimensional lens of legality on the one hand and the equally onedimensional lens of civil liability on the other. This involves approaching the judicial review of public policies (especially those from the distant past) from a multi-dimensional perspective. Public law doctrines such as the duty of fairness, the standard of patent unreasonableness, and the ultra vires doctrine, must be viewed from the perspective of the equitable obligations to which state action gives rise.6 In short, I argue that the contextually understood duties and jurisdictional boundaries governing state action may together be encompassed by the concept of 'public trust.'7 While governments come and go, the trust invested in the Crown to uphold the public interest and to have special regard for the welfare of vulnerable groups is continuous and thus of particular significance where the impugned state action dates back a significant period of time. I suggest that cases such as Mack and Authorson would be better approached within a public trust framework than within purely public law or purely private law frameworks. This analysis is organized into three sections. First, I will situate Mack against the backdrop of recent case law in which litigants have used civil actions raising private law breaches against the Crown to secure judicial scrutiny of government action. In the second section, I contrast Mack with the Ontario Court of Appeal's decision in Authorson. I will attempt to account for the very different reception the Ontario Court of

198 Lome Sossin Appeal gave to the Mack and Authorson cases, each of which involved class actions against the Crown for breach of equitable obligations. Finally, in the third section, I will elaborate the implications of the continuing tension between public and private law, and allude to a contextual framework of public trust for resolving these tensions, one which integrates public law doctrines with private law obligations. 1. Public Law by Other Means? Crown Liability for Public Policy The conventional view is that private law duties are inconsistent with review of government decision-making because those duties presuppose a duty owed to a discrete group whereas the nature of public law authority presupposes a duty owed to the public as a whole. A minister deciding on funding cannot be said to owe a specific duty to act in the interests of a particular constituency; rather, it is in the nature of policymaking to choose from among worthy recipients for public benefits and burdens. This dichotomy between public and private duties owed by the Crown was taken up by the Supreme Court in Cooper v. HobartB and Edward v. Law Society of Upper Canada.9 Both Cooper and Edward involved allegations of 'regulatory negligence' in which investors lost money due to the mishandling of their investment by mortgage brokers (Cooper) or lawyers (Edward) and then those investors sought recovery from the relevant regulators on the grounds that the regulators violated their duty of care by not taking steps to prevent the misdeeds at issue. In both cases, the Supreme Court found that the regulators were not liable, and in each, the basis of this finding is that nothing in the governing statutes indicated the regulators owed a 'special' duty to these investors as opposed to the general duties owed by the regulators to the public as a whole. McLachlin C.J. and Major ]., writing jointly for a unanimous Court, explained this logic succinctly: In this case, the statute does not impose a duty of care on the Registrar to investors with mortgage brokers regulated by the Act. The Registrar's duty is rather to the public as a whole. Indeed, a duty to individual investors would potentially conflict with the Registrar's overarching duty to the public.10 This passage reflects a common judicial response to cases of civil actions against the Crown. Courts attempt to demarcate a zone of

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deference to policy-making from a zone of intervention for the breach of recognized private law duties.11 When analysing the issue of liability for the exercise of discretion by the Registrar of Mortgage Brokers in Cooper, McLachlin C.J. and Major J. imported the notion of deference from administrative law. They explain that another reason why no civil liability should attach to the policy choices made by the Registrar is the distinction between government policy and the execution of policy: 'As stated, the Registrar must make difficult discretionary decisions in the area of public policy, decisions which command deference.'12 In other words, even when considering the application of liability in the private law sense, the Court continued to view the impugned act (or omission, in this case) in fundamentally public law terms. This tension surrounding how private law doctrines should apply in the context of discretion and ministerial policy-making was also at the centre of the Mt. Sinai Hospital Centre v. Quebec.13 While the majority in that case used a public law analysis to quash a denial of a hospital licence in circumstances where a minister of health had earlier indicated that the licence would be offered, Justice Binnie, in a concurring set of reasons, found that promissory estoppel could operate against the minister.14 In considering the application of promissory estoppel, Binnie J. indicated that even though the elements of this equitable doctrine of a promise, of reliance, and of harm were met, an additional element was needed. This added element considered whether an estoppel which otherwise would operate was negated by an overriding public interest. Binnie J. characterized this as a requirement of 'public law estoppel/ in which the minister's empowering legislation had to be consulted. In Mt. Sinai, a review of the statute disclosed that the minister's overriding statutory obligation to the 'public' as a whole was indeed in evidence and therefore the estoppel was vitiated. Binnie J. emphasized that 'this is not a private law case' and that public law estoppel required attention to be paid to legislative context, and to the overriding public interest which may be expressed in legislation.15 The dichotomy between the Crown's duty to the public and its duty to a discrete individual or group was highlighted again in Harris v. Canada.16 Harris involved a claim against the Minister of National Revenue for providing an advance tax ruling in 1991 which, in effect, permitted a wealthy family trust to transfer assets to the US without tax penalties. The plaintiff was a member of an unincorporated public interest group named 'CHOICES,' which is interested in social justice

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and fiscal issues. Harris claimed that the Minister's exercise of discretionary authority was undertaken, inter alia, illegally, improperly or for ulterior motives (namely favouritism and preferential treatment by way of a covert deal when he interpreted the provisions of the Act in favour of a specific trust) and constituted a breach of a fiduciary obligation owed to all taxpayers to act in their interest. The remedy sought by the class was not damages but rather a declaration by the Court that the decision of the Minister was invalid. This scenario comes closest to bringing a public law claim by private means - it squarely raised the question of whether a fiduciary obligation owed by the Crown to a class of all taxpayers can be meaningfully distinguished from a Minister of the Crown's duty to uphold the public interest. In order to appreciate the significance of Harris, its judicial history and context are relevant. The case reached court at first instance when the government sought to strike out the claim on the grounds that it disclosed no reasonable cause of action and that Harris lacked standing to bring this action. The government's motion succeeded at first instance on the ground that a third party has no standing to challenge the Minister's decision on a tax assessment.17 Harris was successful in appealing this ruling to a Federal Court judge,18 and the Federal Court of Appeal upheld this decision, finding that the claim raised a justiciable issue, that Harris had established public interest standing to pursue the action, and that it was not 'plain and obvious' that Harris's claim could not succeed.19 Specifically, the Federal Court of Appeal held that it was not 'plain and obvious' that the Crown owed no fiduciary obligation.20 After procedural wrangling about Crown privilege and discovery, the case proceeded to trial.21 At the conclusion of the trial, Dawson J. dismissed the claim,22 holding that no fiduciary duty, or duty akin to a fiduciary duty, is owed by the Minister of National Revenue to all taxpayers when providing an advance ruling on a tax matter to a particular taxpayer.23 Dawson J. viewed the challenge in binary terms - either the Crown owed specific, private law duties to all taxpayers, or the Crown owed a general public law obligation to uphold the public interest. She chose the latter characterizatio and the class action consequently was dismissed. Absent any obvious indications of bad faith, it is, in her view, for the appropriate minister to determine what state action is or is not in the public interest. Concurrent with the trend to import public law notions of deference into the analysis of civil actions against the Crown is the trend to negate immunities once enjoyed by the Crown against civil liability. In other

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words, where the Crown z's found to owe a duty to a discrete group, th Court will no longer hesitate to impose civil remedies against the Crown, and in so doing, is most likely to consider the Crown no different from any other private actor subject to civil liability for wrongs committed. As Major J. wrote for the Court in Wells v. Newfoundland (1999),24 a case where the Crown was found liable for contractual damages for dismissing a utilities board member by legislative restructuring, In the absence of a clear express intent to abrogate rights and obligations rights of the highest importance to the individual - those rights remain in force. To argue the opposite is to say that the government is bound only by its whim, not its word. In Canada this is unacceptable, and does not accord with the nation's understanding of the relationship between the state and its citizens.26

I suggest that ultimately it is this relationship between the state and its citizens which lies at the heart of cases such as Mack. Does the legitimacy of state action, and a judicial role in holding government accountable for its policies and their impact, depend solely on the legality of the law or action in question? What if the rights and obligations of vulnerable individuals are abrogated through a 'clear express intent' on the part of Parliament? Does a government's right to enact a law or undertake an act (or failure to do so) preclude a court from subsequently concluding that its choices were unjust? And finally, must the Court approach state action in binary terms - either as a public law actor with a duty to all or a private law actor with a duty to some? It is to these interrelated questions that I now turn. 2. The Intersection of Public and Private Law in Mack and Authorson As indicated in the first section of this paper, the prospects of those subject to unjust policies holding the Crown liable depends in large measure on the characterization of the state action. If that action can be characterized as a public exercise of lawful authority, then liability will rarely follow. If, on the other hand, the state action can be characterized in private law terms, as the breach of a contractual duty or a fiduciary obligation, for example, then a judicial remedy is far more likely. In this section, I consider this aspect of the public/private dichotomy in the context of two decisions of the Ontario Court of Appeal rendered

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the same year, Mack v. Canada and Authorson v. Canada. Both Mack and Authorson involved class actions against the Federal Crown in provincial superior court, alleging unjust treatment dating back to the early twentieth century which led to financial losses by a vulnerable group and which was said to constitute a breach of equitable obligations owed by the Crown to the group in question. Mack involved a morion under Rule 21 of the Ontario Rules of Civil Procedure (the 'Rules'), by which a claim which discloses no reasonable cause of action may be struck; Authorson involved a motion under Rule 20, by which judgment may be rendered where there is no genuine issue for trial. In both cases, the issues for the Court were legal rather than factual. All parties agree on what occurred in these two cases; the only question for the Court was whether what occurred was unlawful. I suggest that the finding of liability (or lack thereof) in each case may be traced to the Court's characterization of the dispute in either public law or private law terms (of course, such characterizations are not technical determinations, but themselves often disclose the Court's understanding of the equities at stake). The facts and circumstances of the Mack decision are by now well known and addressed in greater depth by other contributors to this volume. In short, the Chinese Immigration Act26 levied a $50 charge upon each Chinese person entering Canada and this tax was increased by successive legislation between 1885 and 1923. In 1923, the levy was abolished and all Chinese immigration to Canada effectively was banned.27 This ban was repealed in 1947 and it was at that time that the earlier Chinese immigrants who had paid the head tax became eligible for Canadian citizenship. The plaintiffs in Mack brought an action seeking a public apology, damages in the amount of approximately $1.2 billion and other remedies arising out of the head tax. According to the plaintiffs, between 1885 and 1923, the Canadian government collected a total of $23 million from some 81,000 people under the various forms of the Chinese Immigration Act. The plaintiffs challenged the Acts as discriminatory based on international law, the Charter, and the equitable doctrine of unjust enrichment. While the claim included public law and private law bases to invalidate the legislation and action taken under it, the Court of Appeal, upholding the decision of Cumming J. to dismiss the claim,28 characterized these grounds as fundamentally intertwined. The Court dismissed the challenge based on international human rights law as there was no consensus in the era at issue (1885-1923)

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regarding the discriminatory nature of such immigration barriers. The Charter challenge was dismissed on the ground that the Charter has no retrospective application. Since no government act after 1982 applied to those affected by the former head tax, the Charter could have no bearing on the case. The Court also rejected the argument that a decision, which occurred after 1982, to compensate the Japanese who had been interned during the Second World War, could constitute discrimination for not extending compensation to those subject to the head tax. Having dispensed with the public law challenges, the Court considered the claim for compensation resulting from the head tax based on unjust enrichment. The cause of action for unjust enrichment consists of three parts: 1) an enrichment to the defendant; 2) a corresponding deprivation to the plaintiff; and 3) an absence of juristic reason for the defendant's enrichment. The first two prongs were clearly met in the case of the Chinese head tax, so the crux of the analysis lay in the third prong. It is here that, I suggest, the Court revealed that it viewed Mack, ultimately, as a public law case. Notwithstanding the Court's clear conclusion that the law was substantively unjust, because it was legal at the time it was enacted, the legislation was held to constitute a 'juristic reason' sufficient to defeat the claim for unjust enrichment. Moldaver and MacPherson JJ.A. noted that 'Canada's treatment of people of Chinese origin who sought immigration to this country between 1885 and 1947 represents one of the more notable stains on our minority rights tapestry,' yet they reached the following conclusion: The doctrine of unjust enrichment is an equitable doctrine. However, even the broad purview of equity does not provide courts with the jurisdiction to use current Canadian constitutional law and international law to reach back almost a century to remedy the consequences of laws enacted by a democratic government that were valid at the time.29

Moldaver and MacPherson JJ.A. were at pains to emphasize that liability for unjust enrichment could not turn solely on the unjust nature of the enrichment. They cited at length from a judgment of McLachlin J. (as she then was) in Peel (Regional Municipality) v. Canada,30 which stated, in part: "The court's concern to strike an appropriate balance between predictability in the law and justice in the individual case has led them in this area, as in others, to choose a middle course between the extremes of inflexible rules and case by case 'palm tree' justice.'31 Therefore, the Crown succeeded in having the suit struck. For the

204 Lome Sossin Court, whether cloaked in the guise of a civil action or a facial constitutional challenge, the issue in the head tax case was fundamentally the same: were the Chinese Immigration Acts and actions taken under that legislation ultra vires! If not, then the resulting harm, no matter how unjust, could not justify a judicially imposed remedy. While other contributors to this volume raise concerns with the Ontario Court of Appeal's application of constitutional, international law and unjust enrichment doctrines and principles, I wish to view the Court's decision not only on its own merits (or lack of them), but also from a comparative perspective. The Crown advanced similar arguments in Authorson v. Canada as in Mack, but was strikingly less successful before the Ontario Court of Appeal. Authorson involves a class action by disabled veterans who are seeking to recover unpaid interest on pension funds administered by the federal Crown over a period of seven decades. Veterans' pensions represented one of the very first statutory benefits schemes in Canada. Since the First World War, the Department of Veterans Affairs (DVA) and its predecessors have administered the pensions of veterans who were found to be incapable of managing their own affairs. The determination that a veteran could not administer his or her own affairs typically would be made by an independent pension tribunal, which would also decide whether the Crown or a private party should administer the accounts. By statute, Crown-administered funds were to be deposited in the Consolidated Revenue Fund (CRF). Funds in the CRF generally do not earn interest, but since the early 1950s, the Minister of Finance could direct that interest be paid on such accounts. Until 1 January 1990, no interest was paid on the administered accounts of disabled veterans. From 1 January 1990 onwards, the Minister of Finance directed that interest was to be paid on these accounts. At that same time, in 1990, the Department of Veterans Affairs Act was amended to include an express bar to civil claims for unpaid interest on administered veterans' accounts.33 Joseph Authorson, the representative plaintiff for the class, suffered from a mental disability exacerbated during his service in the Canadian army during the Second World War. In 1950, he was awarded a full pension, which was ordered to be administered by the Crown. He spent the next forty years in a veterans' hospital until 1991 when he was declared competent to manage his own financial affairs. During the four decades his pension was administered by the Crown, no interest was paid or permitted to accrue on his account. This class action was

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brought by Authorson on behalf of all the disabled veterans whose accounts were administered by the DVA. The class was certified on 26 October 1999. At one time in the 1970s and 1980s, the trial judge estimated that there were ten thousand administered accounts. Currently, he estimated one thousand accounts remain administered by the DVA. While the total amount of exposure of the Crown remains a point of contestation, it is estimated to be in excess of a billion dollars.33 The trial judge granted a motion for summary judgment brought by Mr Authorson, and dismissed the summary judgment motion brought by the Attorney General for Canada.34 Brockenshire J. found that the Crown owed a fiduciary duty to the disabled veterans, and that the Crown had breached this duty by its failure to pay interest on administered accounts. Brockenshire J. further found that the statutory bar to civil recovery enacted in 1990 was inoperative due to the combined effect of ss.l(a) and 2(e) of the Canadian Bill of Rights. The Ontario Court of Appeal unanimously upheld the main aspects of the trial decision. On appeal, the Supreme Court reversed the Ontario Court of Appeal, on the narrower ground that the Bill of Rights does not provide any procedural rights in the legislative process. At first glance, the differences between Authorson and Mack are notable. First, and perhaps most importantly, the difference between the equitable doctrines of unjust enrichment and breach of fiduciary obligation are significant, and alone may, for some, satisfactorily explain the contrasting outcomes in the two Court of Appeal decisions. The requirements of unjust enrichment are set out above. To reiterate, the party claiming redress must establish a benefit to the defendant, a corresponding deprivation to the plaintiff, and no juridical reason for the defendant's retention of the benefit.35 It is also worth returning to McLachlin J.'s proviso from Peel that recovery under unjust enrichment cannot be awarded on the basis of fairness and justice alone.36 Thus, the vulnerability of the party suffering the deprivation and the motivations of the party retaining the benefit at first glance appear irrelevant to the judicial inquiry. This has been reiterated specifically in the context of recovery of unconstitutional taxes, where the resulting fiscal chaos of government has a more prominent role in the unjust enrichment analysis than the resulting position of the deprived party.37 However, as McLachlin J, also stressed in Peel, although the cause of action for unjust enrichment grew out of and is informed by these traditional categories, it is capable of going beyond them.38 The elements which a plaintiff must establish for breach of a fidu-

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ciary obligation in Canadian law are also well settled,39 but become murkier when applied against the Crown as fiduciary. In Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development),40 McLachlin J, (as she then was) further emphasized the notion of vulnerability at the core of the fiduciary relationship: The vulnerable party is in the power of the party possessing the power or discretion, who is in turn obligated to exercise that power or discretion solely for the benefit of the vulnerable party. A person cedes (or more often finds himself in the situation where someone else has ceded for him) his power over a matter to another person. The person who has ceded power trusts the person to whom power is ceded to exercise the power with loyalty and care. This is the notion at the heart of the fiduciary obligation.41

While it is possible for the Crown to establish a true trust by statute, from which fiduciary obligations flow, the mere fact of creating a statutory benefit such as a veterans' pension has been held not to give rise to a fiduciary relationship between the Crown and recipients. At most, this has been held to constitute an obligation 'in the higher sense' or a 'political trust.'42 This distinction between political trusts on the one hand and true trusts on the other was subject of the landmark Supreme Court decision in Guerin v. The Queen, which for the first time recognized a fiduciary relationship between the Crown and Aboriginal peoples in Canada.43 Guerin involved a land deal authorized by the Crown to lease certain reserve land in the territory of an Aboriginal band for a proposed golf course. Only the Crown had the power to alienate Aboriginal reserve lands. In this case, the Supreme Court indicated that fiduciary obligations generally will be limited to private law settings, and will not arise in the context of the exercise of ministerial discretion. Dickson J. (as he then was), writing for the majority, observed that It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires.the exercise of discretion, do not typically give rise to a fiduciary relationship.

Nonetheless, in Guerin, the Court did recognize a fiduciary obligation on the part of the Crown in its management of an Aboriginal group's

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surplus reserve land. The lease price was unfavourable for the Aboriginal group and the Court found that the Crown had breached its fiduciary obligation, even though the circumstances did not meet the standard of a true trust relationship. As Dickson J. (as he then was) explained, this exceptional use of the fiduciary doctrine was justified by the sui generis nature of the Aboriginal interest in the land in question. This was not due to the statutory language alone,44 but flowed also from the Crown assertion of sovereignty over Aboriginal lands, beginning with the Royal Proclamation of 1763. Notwithstanding the sui generis nature of the fiduciary obligation recognized in Cuerin, that case has been cited often as a general precedent in the field of fiduciary relationships. In Authorson, the fact that Guerin had become a well-recognized precedent suggested that its reach was no longer limited to the Crown-Aboriginal relationship. Whether implicitly condoned by the widespread reference to Guerin or not, Authorson nonetheless represented the first time an appellate Court in Canada has recognized a Crown fiduciary obligation arising merely from a statutory benefits scheme. While this is the clear implication of Authorson, it is fair to say that this is not how the Court viewed the reach of its judgment. Goudge and Austin JJ.A., writing for the Court, characterized the case in fundamentally private law terms. They explained: When it is directed to administer a veteran's pension the essential nature of the task undertaken by the Crown is clear. It must act for the benefit of the veteran in managing his funds because the veteran is incapable of doing so himself. This is quintessentially the kind of act, whether done by Crown or citizen, which courts have regulated using the law of fiduciary duty. This task simply cannot be said to be a governmental action or obligation to be regulated by Parliament or perhaps by public law*5

In other words, even though the funds may never have been in the hands of an individual veteran, and 'payments' could have consisted of a bookkeeping notation moving moneys from one part of the Consolidated Revenue Fund to another, from the Court's perspective, 'Once the veteran's entitlement to a pension is determined under the relevant legislation, the payments made to him are his.'46 This characterization contrasts sharply with the Court's understanding of the property at issue in Mack. There, even though the funds were taken from the savings of Chinese immigrants, they were construed first and foremost as

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part of the public purse. The Court uses the analogy of another unjust enrichment challenge to a tax - the G.S.T. Reference.47 The unjust enrichment argument was rejected in the G.S.T. Reference on the basis that if a statute is not ultra vires, it constitutes a juristic reason, and the Ontario Court of Appeal concludes a similar logic applied in Mack - quoting from Gumming J.'s decision, the problem is summed up as: 'To find that a statute does not constitute a juristic reason, it would be necessary to demonstrate that the legislation is unconstitutional or ultra vires.'48 Thus, in Mack, the challenge on equitable grounds ultimately boiled down to an issue of legality. In my view, the doctrinal differences between fiduciary obligations and unjust enrichment are not as significant as their kindred, equitable concern for those unjustly burdened by a party in a position of power over them. In Hodgkinson v. Simms,49 which concerned the relationship between a financial adviser and a client, La Forest J. stated: 'the law's response to the plight of vulnerable people in power-dependency relationships gives rise to a variety of often overlapping duties. Concepts such as the fiduciary duty, undue influence, unconscionability, unjust enrichment, and even the duty of care are all responsive to abuses of vulnerable people in transactions with others.'50 I see no reason why, where the power-dependency relationship involves state action, administrative and constitutional protections should not be added to this list of overlapping duties, or why principles from the duty owed under one doctrine may not be adapted to inform obligations associated with another. Indeed, in a host of recent cases, the Supreme Court has emphasized the benefits of unifying principles of public law from various constitutional, administrative, and international law fields.51 Similarly, the fiduciary concept itself represents an umbrella concept, bringing together a variety of distinct rules and principles,52 and the same has been said of unjust enrichment.53 Assuming doctrinal distinctions are not sufficient to explain the contrasting approaches in Authorson and Mack, one might also look to the difference in the proposed nature of the judicial intervention in the two cases. In Mack, the Court was being asked to retrospectively invalidate a statute which compelled Chinese nationals to pay a tax in order to emigrate to Canada, while in Authorson, the challenge was directed towards an omission, namely, the failure of successive Ministers of Finance to order interest to be paid on the pension accounts of disabled veterans. Redressing the effects of a discretionary omission arguably requires a less problematic judicial remedy than redressing the effects

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of a legislative act. Here as well, however, the public/private distinction appeared to be the more significant issue for the Court. Paradoxically, the Ontario Court of Appeal's willingness to assume an activist stance with respect to the public law doctrines and values at issue in Authorson, but not in Mack, appeared to turn on the Court's recognition of a private law duty owed by the Crown in Authorson but not in Mack. Indeed, the Crown's fiduciary obligation to the disabled veterans, recognized in Authorson, was held by the Court to trump even the core of parliamentary supremacy - the discretion of Parliament to legislate as it wishes. Brockenshire J., writing for the Ontario Superior Court in Authorson, held that, in discharging its fiduciary obligation, 'the Crown ... could have and ... should have, made whatever statutory or regulatory provisions might have been necessary to invest and to pay interest.'54 The implication of this passage is that the Crown fiduciary obligation extends not just to the full range of ministerial discretion, but also conceivably to Parliament's functions as well.55 Equity, in other words, provides a lens through which legality itself may be understood. Or, perhaps more appropriately, equity and legality are intertwined one may not be understood fully without reference to the other. This proposition is discussed further below in the third section. The Ontario Court of Appeal in Authorson not only appeared to view legality from an equitable vantage when it came to the statutory powers of the Minister in relation to paying interest on veterans' pensions, but was also willing to interfere with the legislature's discretion to legislate from a procedural perspective. The Court held that, where a group has a beneficial interest in a statutory benefit, the Bill of Rights 'due process' protection under s.l(a), together with the protection of a 'fair hearing' under s.2(e), combined to provide this group a procedural entitlement to be consulted before legislation is enacted to take away a cause of action to enforce that interest. To say that a government must consult with affected groups when deciding to expropriate their property through legislation, or, as here, to limit a civil right of recovery against the Crown, is both a novel and revealing assertion. No right to a civil action previously had been recognized under the Bill of Rights56 - nor under the Charter for that matter.57 Why was the Ontario Court of Appeal willing to extend a public law doctrine in such an activist and unprecedented fashion? Judicial motivations, of course, mostly are a matter of speculation, but in this case, the answer would seem plain - it was necessary to do so in order to ensure that the inequity before the Court was remedied. Relying blindly

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on legality, in other words, would have lead to injustice (and arguably did in light of the Supreme Court's decision to rule out recovery by the disabled veterans). Returning to Mack, I have suggested that the Court was not willing to apply unjust enrichment in the context of the head tax challenge because the Court had fettered its analysis of the equitable principles involved. The Ontario Court of Appeal relied solely on conceptions of legality and deference imported into its analysis from public law. In Authorson, the reverse took place - the Ontario Court of Appeal fettered its analysis of the public law principles with the conceptions of equitable obligations imported from private law.58 It is worth reiterating that in neither Mack nor Authorson did the federal government seek to justify the virtue or even the rationale of its policies. In both cases, rather, the Crown took the position that because those policies were legitimate at the time they were pursued - legitimate, that is, in the narrow sense of authorized by statute - no civil recovery could be permitted. Indeed, the Crown adopted this approach even more explicitly in the Supreme Court appeal in Authorson, where Crown lawyers opted not to challenge the Court of Appeal's finding that the Crown owed a fiduciary duty to the disabled veterans, and focused exclusively on the legality of the statutory bar to civil recovery. In each case, I argue, legality and equity were juxtaposed as mutually exclusive frameworks. For the Court, one had to prevail over the other. Major J. characterized the only issue before the Supreme Court in Authorson as 'the validity of a federal statute that purportedly extinguished the claims of disabled veterans.'59 The Supreme Court reversed the Court of Appeal's finding on the Bill of Rights and held that neither the due process nor the fair hearing protections contained in the Bill of Rights curtail Parliament's ability to enact a statute which expropriates a citizen's property without compensation. Major J. concluded, The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but no such rights are at issue

Redress for Unjust State Action 211 in this appeal. While the due process guarantees may have some substantive content not apparent in this appeal, there is no due process right against duly enacted legislation unambiguously expropriating property interests.60

One can point to differences in facts, circumstances, and the constitutional, administrative, and equitable doctrines at issue in the two cases, but the strong impression remains that in Mack, the Ontario Court of Appeal looked for reasons to frame the issues in terms of legality, and that this is what justified the lack of recovery, while in Authorson, that same Court looked for reasons to frame the issues in terms of the equities at issue, and that this is what justified the recovery in that case. I would suggest, further, that either case could have been seen in the other's terms. Relief could have been denied (and was, ultimately, by the Supreme Court) in Authorson on public law grounds - the statutory scheme in place made the non-payment of interest on veterans pensions legally valid, and it was always open to Parliament to require that interest be paid by the Crown, but this was not done. By the same token, relief could have been granted in Mack in light of the equities of the case - the savings (often life savings) of a mostly vulnerable group of Chinese immigrants were taxed for a pernicious purpose. On this view, it would have been inequitable to hold that a discriminatory piece of legislation constitutes a juridical reason for the purposes of the unjust enrichment analysis. My own view is that the issues are not really that different in the two cases. In each, the Crown acted within the bounds of its statutory authority at the time, but that action was, both in hindsight and arguably at the time the action was taken, unreasonable and unjust. In each, the Crown benefited at the expense of a vulnerable group. In neither case should 'legality' be an answer to the question of the public trust which the Crown failed to discharge. Neither existing public law nor existing private law frameworks allow for this critical question to be directly and fully addressed, and so, I argue, a third way is required, which captures the important insights of both public and private law doctrines without giving into the artificial limitations of either. In the next section, I sketch such an integration of public and private law principles. 3. The Future: Towards an Equitable Approach to Public Law I believe the approach to the public/private distinction in Mack as well as Authorson begins from the wrong premise. That premise is that the

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Crown must either owe a general duty to the entire public interest, in which case public law governs, or a specific duty to a discrete person or group, in which case private law governs. Why should the Crown's general duty to the public necessarily be incompatible with specific obligations owed by the Crown to vulnerable groups? Rather than simply attempt to graft doctrines such as unjust enrichment or breach of fiduciary obligation onto the context of state action, I suggest the better approach is to affirm and reinvigorate the equitable foundations of administrative and constitutional law and to view cases such as Mack and Authorson from the vantage of public trust.61 In 'The Forgotten "Trust": The People and the State' Paul Finn writes that 'much more so than in the private sector, it was - and is - in the realms of government that fiduciary power is the most pervasive, the most intense, and its abuse, the most threatening to the community and its trust in its institutions.'62 Finn provides a history of early English attempts to rein in the unlimited powers of the monarchy and subject all public authority to the rule of law.63 From at least the seventeenth century on, he reports, the 'trust' metaphor became a dominant paradigm for the description of public authority.64 This concept, however, was distinct from the evolution of trust and fiduciary doctrines in private law. As Finn explains: Now let me turn to the public trust concept directly. Its subject, as I have noted, is not property but rather fiduciary power and position. In regulating these it follows courses which, if not always parallel to those of equity's fiduciary law, are similar in their inspiration and purpose. And in some instances, as will be seen, it simply adopts (with or without adaptation) well known rules of equity.65

I believe these observations reflect a key principle which underlies an equitable approach to remedying unjust public policies. The Crown's public trust obligations exist along a broad spectrum. Determining where along the spectrum a particular Crown act is located is not a matter of box drawing but rather a contextual assessment of the competing values at stake (e.g. the equities of the case, the legitimate policymaking and legislative roles of the state, the vulnerabilities and capacities of the parties, etc.). Under such a framework, assessing the legality of state action becomes a part of assessing whether the Crown breached the public trust, and by the same token, assessing whether the Crown breached the public trust becomes a part of assessing the legality of state action.

Redress for Unjust State Action 213 Public authority, in short, is an exercise of public trust. Our understanding of the constraints on state action begins from the conviction that public authority must be put to legitimate purposes. As the Supreme Court explored most famously in Roncarelli v. Duplessis,66 any decision of a state official may be invalidated on judicial review if it was entered into in bad faith or for improper and/or ulterior motives.67 While usually considered part of an ultra vires analysis, these criteria have come to form the core of the determination that a public decision was 'patently unreasonable.'68 Similarly, a bad faith decision may ground a civil action for abuse of public authority.69 For Rand ]., curiously, there was no distinction between the public and private dimensions of the Crown's obligation. While the Court's language in Roncarelli emphasizes its concern for the bounds of legality, I would argue that the Court never lost sight of the Crown's equitable obligations in the discharge of its statutory powers. While the notion that administrative discretion is not 'untrammelled' is no longer controversial, Mack and Author son raise the more vexing question of the limits of legislative action. Parliamentary sovereignty remains a cornerstone of Canada's constitutional order. As Dicey memorably asserted, 'Parliament is [not] in any legal sense a "trustee" for the electors.'70 In light of this view, must Parliament act in 'good faith'; must its legislation be reasonable? Certainly, Parliament is entitled to deference when it comes to the 'wisdom' of its legislation, but this simply raises the question of where 'wisdom' stops and legitimacy begins. Some insight into this dilemma may be gleaned from the Supreme Court's decision in Wells v. Newfoundland, mentioned above. In that case, an appointee to a board was awarded compensation when, as a result of legislative restructuring, the member's position on the board was eliminated. The Court in Wells also dealt with an administrative law challenge to the legislative act itself. In obiter, Major J. offered the following explanation for his conclusion that the legislation was beyond judicial interference: This was not a situation where personal animus led those in government to use their authority unlawfully against an individual over whom they had power, as was the case in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140.71 Arguably, the only reason for Major J. to distinguish Roncarelli, or mention it at all, is if a legislative act could be subject to judicial review

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on grounds that it was enacted in bad faith (i.e., for an improper or ulterior purpose, etc.). However, the suggestion that legislation is not subject to a duty of fairness and therefore a bad faith argument could not succeed does not necessarily follow. Would not the 'constitutional requirements for valid law-making' include a requirement of good faith on the part of Parliament? At best, the obiter comments of Major J. reflect the fuzziness of the Court's view of its role in the legislative and policy processes. There are a variety of reasons why the application of the rule of law should not stop at the legislature's doorstep.72 From a public trust point of view, assuming the injustice of the policy is conceded (as it arguably was both in Authorson and Mack), the focus of the inquiry should be on the context in which the unjust policy was implemented and the consequences of the policy for the aggrieved parties. The modality of implementation, whether by statute, regulation, by-law, guideline, or exercise of discretion, is clearly relevant to this context, but it is not clear why it should be determinative of the Court's intervention. Certainly from the standpoint of those harmed by the policy, it matters little whether it was the result of a statute, a policy guideline, or the exercise of ministerial discretion. Even the Court of Appeal in Mack appeared to acknowledge (grudgingly) that context matters, and that in exceptional circumstances, a finding of legality may not end the judicial inquiry into the state's liability.73 Nonetheless, the Court in Mack approached the legality of the statutory measures before it as a one-dimensional inquiry. David Dyzenhaus has criticized such accounts as excessively formalistic for relying solely on the separation of powers as a basis for a determination of legitimacy, 'because of the very distinct roles it sketches for the different institutions of legal order, and because it does not build any moral values into its structure.'74 He also asserts that such accounts are hollow because they admit of 'no principled response to questions about the content of the rule of law.'75 The tension here is a familiar one. If Courts are to begin inquiring into the 'moral values' of legislation, and assess the equitable obligations owed by state actors, how can the values of parliamentary supremacy be preserved? In my view, the answer to this question turns on the context in which it is asked. In the Crown-Aboriginal context, for example, the Courts have developed a robust, fiduciary framework of constraints on governmental regulation (whether legislative or administrative in origin) which impinges on Aboriginal rights.76 While there are good arguments as to why this fiduciary context is sui generis, as

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Dickson J. (as he then was) observed in Guerin, he also stressed that other types of obligations along an equitable spectrum, suited to other legal, constitutional, and administrative relationships between the Crown and those affected by state action, may also be recognized by courts. The fiduciary doctrine, in other words, should be seen as evolving and not static. As for the concern that this framework distorts (or worse) the separation of powers by giving Courts quasi-legislative powers, I would offer two brief responses. First, this concern for the activism of judges has been diluted by two decades of experience of judicial intervention the Charter, under which Courts routinely have affected legislative powers and, more occasionally, have invalidate legislation itself.77 It is no coincidence that in the wake of the Charter, Courts have reinvigorated the once-moribund Bill of Rights,78 and the reach of unwritten constitutional principles such as judicial independence79 and protection of minority linguistic rights.80 While the constitutional instrument may differ in these cases, the rationale for the judicial innovation in each contains an undercurrent of moral opprobrium for the government's conduct. In other words, judicial intervention in the political process is motivated by the twin concerns of legality and equity even where the justification for the intervention is articulated in terms of legality alone. The second response to the concern over judicial activism is that the boundaries of judicial review in Canada are not a hard and fast series of territorial fences but rather signposts which point to the core province of institutional activities.81 For example, courts are assigned primarily adjudicative activities but will also, if requested, offer executive opinions in constitutional References. The executive is primarily assigned policy-making and policy-implementing functions, but will also engage in adjudicative activities where specialized expertise is desirable (e.g., labour boards, utilities regulators, human rights tribunals, etc.). The executive engages in legislative activity through its regulationmaking powers. While the legislature is primarily a law-making body, the Speaker will serve as adjudicator of disputes involving parliamentary privileges and conventions. Because Canada's separation of powers is not characterized by watershed compartments (even as an ideal), where disputes around justiciability arise Courts tend to approach them in contextual terms.82 Thus, the fact that Courts may constrain the discretion of public officials, or of Parliament itself, to ensure that statutes are enacted and applied in good faith, and not for improper or pernicious purposes, hardly seems out of place in Canada's distinctive

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constitutional landscape. This is not to say that deference has no place in an equitable approach to public law. If a statutory provision or a government decision is vague, perhaps a product of competing motivations, deference ought to remain the lens through which judges view their role in the executive and legislative domain. If, as the above analysis suggests, the moral and equitable facets of public law have been overshadowed by a narrow emphasis on legality, how might Mack and Authorson have been decided differently if a contextual analysis were adopted? I shall return to a brief discussion of how each case might be viewed in a framework in which public authority is approached as public trust. The Court of Appeal was clearly mindful of the social context of the disabled veterans who constituted the class in Authorson. The fact that none of the actions (or omissions) in that case violated the applicable statutory regime was not enough to answer the moral charge against the Crown - namely, that for no good reason it deprived a vulnerable group of a benefit which it had an obligation to provide. The flaw in the Court of Appeal's approach to Authorson's claim, in my view, was failing to appreciate the spectrum of equitable obligations which may operate to constrain government.83 The Court approached the issue, as indicated earlier, in strictly binary terms. Either the Crown was a fiduciary, no different from a private investment manager, or it was not a fiduciary, and in that event entitled to do whatever the governing statute permitted with the pension funds under administration. By integrating the concern for legality with the concern for the public trust, the Court would not have been limited to a private law understanding of the Crown's duty towards the disabled veterans. Under an equitable framework, it would have been possible to see the Crown (as represented by various Finance Ministers), not as a true fiduciaries managing private funds, but as public decision-makers, bound to discharge the public trust reasonably and fairly in their management of the statutory benefits of a vulnerable group. The Court could have concluded both that the Minister was legally entitled not to put the pensions in interest-bearing accounts given the applicable statutory scheme, and that by failing to do so, the Crown acted unreasonably in light of its equitable obligations.84 The Court could have recognized a 'political trust' or 'higher government obligation' owed to the veterans which might have provided the legal leverage necessary to obtain a political settlement.85 As La Forest J. observed in LAC Minerals Ltd. v. International Corona Resources Ltd., 'not every legal claim

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arising out of a relationship with fiduciary incidents will give rise to a claim for a breach of fiduciary duty.'86 Following the Supreme Court decision, the issue of legality raised by Authorson has been resolved. Parliament has the right to expropriate property unfettered by procedural obligations to those affected. The equitable issue raised by the case remains.87 As might be inferred from the discussion above relating to Mack, I would take issue with the Ontario Court of Appeal's conclusion that because the Chinese Immigration Acts were lawfully enacted by a democratic government, they cannot form the basis of an equitable claim for redress against the Crown. These statutes were not ambiguous; they were not subject to differing interpretations on the motivations of Parliament. They were pernicious attempts to single out a vulnerable ethnic minority for disproportionate state burdens and constituted a misuse of public authority. In short, these laws violated the public trust. While governments come and go, the Crown is constant. The legal obligations of one government are passed to the next; similarly, the violations of the Crown a century ago remain a wrong on the conscience of the Crown today. This is the principle underlying Crown-Aboriginal disputes, and it ought to apply analogously to other equitable obligations breached by the Crown in the past. Whether this requires a finding of civil liability against the Crown, a declaration that the laws themselves were void or voidable, or some other creative remedy such as an order compelling the Crown to negotiate a reasonable settlement in good faith is beyond the scope of this analysis. That appropriate redress might be difficult, of course, is no basis to avoid the determination that it is legally and morally required. Reading between the lines of cases such as Mack and Authorson (and seeing them in relation to one another), it seems to me clear that the Ontario Court of Appeal in fact did decide each case with concerns of equity in mind. The Court was convinced that a profound injustice had been done to the disabled veterans who were denied interest on their pension accounts in Authorson and that this injustice required a remedy. That same Court, however, was unconvinced that the injustice suffered by those Chinese subject to the head tax required a remedy. The Court's reference to the unjustness of the head tax was captured in the refrain, inserted twice for emphasis, that the tax constitutes a 'stain' on Canada's multicultural tapestry. This mea culpa, however, fails to engage with the equitable implications of acknowledging such public wrongs. Should the head tax be seen in isolation or in the broader context of injustices

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perpetrated by the Canadian government at the time? Were the Chinese subject to the head tax worse off than the many other ethnic and national groups denied the possibility of immigration to Canada altogether (or, perhaps more to the point, were they worse off than the Chinese who were not permitted to immigrate at all between 1923 and 1947, who of course would be entitled to no remedy even if the class action in Mack prevail)? Is it fair that today's taxpayers (who, of course, include descendants of those subject to the head tax as well as other previously disenfranchised groups) bear the burden of rectifying the century-old wrong? These questions go to the heart of the equities of the head tax claim but are nowhere discussed in the judgment.88 In the final analysis, I have argued that the Ontario Court of Appeal judgment in Mack was flawed in two respects. First, the Court justified its conclusion on the legality of the head tax in isolation from its view of the equities of the claim. I cannot see how a finding that a law is unjust can be construed as irrelevant to the analysis of its validity. The Court's approach, rooted in formalism and positivism, reflects the onedimensionality of Canadian public law. Second, there was more to the Court's reasoning process than was reflected in its reasons. The Court's attempt to disentangle the issue of legality from the 'stain' on the multicultural tapestry obscured what I suggest was a more ambivalent posture towards the equities of the head tax claim. As I have attempted to show, legality and equity may be distinct concepts, but in the context of claims for redress against unjust public policies, one cannot be understood in isolation from the other. Conclusion Authorson and Mack are but two examples of a growing and important wave of Canadian case law seeking to redress, through doctrines of private law, harm caused by public policies - other recent examples of this trend include Bonaparte v. Canada (2003) (in which the Ontario Court of Appeal overturned a decision striking claims by descendants of Aboriginal individuals taken to residential schools between 1934 and 1960 for breach of fiduciary obligation arising out of the failure of the Crown to preserve the Aboriginal culture, language and way of life);89 and Hislop v. Canada (2003) (in which the Ontario Superior Court granted judgment to the plaintiffs in a class action against the Crown for breach of their Charter rights relating to the exclusion of same-sex couples from

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survivors' benefits under the Canada Pension Plan; the Court did not find it necessary to rule on the further aspect of the claim relating to breach of fiduciary obligation and unjust enrichment, but did express scepticism regarding the existence of a fiduciary relationship where the Crown owes 'public' rather than private duties).90 Other class actions against the Crown, which have been filed but not yet ruled upon, deal with recent federal regulations which make new immigration standards retroactive, and a class action against the Ontario government by parents of autistic children who allege they must give up custody of their children in order to secure adequate treatment for them. What was once the exception in public law has become the rule. If this spate of case law leads to a reconsideration of the artificial boundaries courts have erected between the validity of state action on one hand and the Crown's liability for it on the other, this may be a desirable trend. It has been said that the public/private distinction in law is both untenable and indispensable.91 In my view, cases like Authorson and Mack illustrate why. Unjust enrichment in the context of government taxes cannot be treated as unjust enrichment in private areas. The Crown's management of statutory benefits for a vulnerable group is not the same as a banker's management of an individual or institution's savings. On one hand, public values and the Crown's obligation to protect and advance the public interest are not immaterial to how Courts should assess claims for redress based on public policies. On the other hand, any sharp line drawn which would insulate government from accountability for its wrongful, unjust, or unjustifiable acts is unsustainable as well. The way out, I have suggested, is to integrate the twin concerns for legality and equity through a contextual analysis of the policy in question, the group affected by it and the circumstances surrounding the dispute. If nothing else, then, a framework of analysis which takes the notion of a public trust seriously, and recognizes a range of equitable obligations owed by the Crown in exercising public powers, may be able to do justice to the complexities of legal and social contexts in cases such as Mack and Authorson. Unjust public policies cannot be addressed by public and private law doctrines incapable of responding to injustice. By placing the inquiry into injustice squarely at the heart of judicial review of public policies, courts may at last be able to articulate and justify a principled balance between the rule of law and the public trust.

220 Lome Sossin NOTES I wish to thank David Dyzenhaus and Mayo Moran for their kind invitation to participate in the conference, 'Achieving Human Rights in a Multicultural Society: Reparations, Human Rights and the Limits of Law' at the University of Toronto, Faculty of Law. I also wish to acknowledge the generous financial support of the Social Science and Humanities Research Council of Canada, the Connaught Foundation and the Faculty of Law, University of Toronto. This paper owes much to the very helpful suggestions and comments from those who attended the conference. Finally, I wish to acknowledge the superb research assistance of Aaron Delaney. 1 (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal to the S.C.C. denied. 2 Some contributors speak of 'reparations' cases, which I treat as a subset of the broader trend of civil actions for unjust policies. Reparations cases typically involve mass torts and/or human rights abuses against a discrete group based on their racial, ethnic, regional, or religious identity. The broader category of class actions against the Crown on which I focus in this paper will include, for example, the case of disabled veterans suing the Crown for unpaid interest on government pensions. While the policy to deny disabled veterans interest on their pensions could properly be characterized as 'unjust,' this would not be a case of 'reparations' in the sense in which the term is normally used. 3 See D. Mullan, "The Role of the Judiciary in the Review of Administrative Policy Decisions: Issues of Legality,' in M.J. Mossman, ed., The Judiciary as Third Branch of Government: Manifestations and Challenges to Legitimacy (Montreal: Les Editions Themis, 2000), 313-68. 4 See W. McLaughlin, 'Judicial Review of Administrative Interpretations of Law: How Much Formalism Can We Reasonably Bear?' (1986) 36 U.T.L.J. 343. 5 (2002), 215 D.L.R. (4th) 496, rev'd 2003 S.C.C. 39. For a discussion of the implications of the Court of Appeal decision, see L. Sossin, 'Crown Fiduciary Obligations, the Canadian Bill of Rights and the Implications of Authorson v. Canada for Administrative Law' (2002) 6 Regulatory Boards and Administrative Law Litigation 298-305. 6 Typically, 'equitable' may be used either to refer to the rules and principles applied in courts of equity, as opposed to courts of law, or to refer to principles of fairness, justness, and reasonableness more generally. See, for example, The Oxford English Dictionary, 2nd ed. (Oxford: Clarendon Press, 1989) at 5:357.1 wish to use the term in both senses. For a discussion of

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7

8 9 10 11

12 13 14 15

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the distinctly Canadian understanding on the place of equitable doctrines, see Hon. B. McLachlin, 'The Place of Equity and Equitable Doctrines in the Contemporary Common Law World: A Canadian Perspective/ in D. Waters, ed., Equity, Fiduciaries and Trusts (Toronto: Carswell, 1993). The goal of combining the best parts of public and private law is of course not unproblematic. Despite the many entanglements and unintended consequences of such a move, its appeal remains enduring. For a discussion, see M. Taggart, 'The Province of Administrative Law/ in M. Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997), 5-6, citing an earlier article which set out a similar argument: W.G. Friedmann, 'Public and Private Law Thinking: The Need for Synthesis' (1959) 5 Wayne L.R. 291. See also D. Wright, 'The Role of Equitable Remedies in the Merging of Private and Public Law' (2001) 12 Pub. Law Rev. 40. 2001 S.C.C. 79. 2001 S.C.C. 77. Cooper at para. 44. As McLachlin C.J. and Major J. later observed in Cooper in reference to how negligence must be assessed differently when the Crown is a defendant: 'It is at this second stage of the analysis that the distinction between government policy and execution of policy falls to be considered. It is established that government actors are not liable in negligence for policy decisions, but only operational decisions. The basis of this immunity is that policy is the prerogative of the elected Legislature. It is inappropriate for courts to impose liability for the consequences of a particular policy decision. On the other hand, a government actor may be liable in negligence for the manner in which it executes or carries out the policy.' See Cooper at para. 37. Ibid, at para. 53. [2001] 2 S.C.R. 281. Ibid, at paras. 39-51. Ibid, at paras. 47-50. Binnie J. concluded, There is a public law dimension to the law of estoppel which must be sensitive to the factual and legal context. Here the primary considerations are the wording of s.138 and the status of the decision maker. Estoppel is, in my view, not available on the facts of this case in the way in which it was applied by the Quebec Court of Appeal.' [2000] 4 F.C. 37 (C.A.) (Harris) The Defendants' application for leave to appeal this decision was dismissed by the Supreme Court of Canada on 26 October 2000, without reasons. (1997), 98 D.T.C. 6072 (F.C.T.D.), at 6077.

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33

34 35

[1999] 2 EC. 392 (T.D.). Harris, supra note 16 at 58-9. Ibid. See Harris v. Canada, [2001] F.C.J. No. 370 ('Harris No. 2') and Harris v. Canada, [2001] F.C.J. No. 782 (T.D.) ('Harris No. 3'). Among other rulings, the Federal Court in Harris No. 3 affirmed that disclosure of the identity of the taxpayer involved was not relevant to the claim. This ruling effectively precluded any hearing on the allegation that the advance judgment was issued in bad faith, as a benefit to a taxpayer known to be a major fundraiser and contributor to the Liberal Party. [2001] F.C.J. No. 1876 (T.D.) (Harris No. 4). Ibid, at para. 193. [2000] 1 S.C.R. 342. Ibid, at para. 46. 1885, S.C. 1885, c.71. See Chinese Immigration Act, 1923, S.C. 1923, c.38. That decision is reported at (2001), 55 O.K. (3d) 113 (Sup. Ct). Ibid, at para. 53. [1992] 3 S.C.R. 762. Ibid, at para. 51. This provision became section 5.1(4) of the Department of Veterans Affairs Act, R.S.C. 1985, c. V-l. It read: 'No claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1,1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act/ On 23 March 2003, Brockenshire J. issued a ruling that estates were not entitled to unpaid pension funds upon the death of veterans prior to 1986. This reduces the liability of the Crown, but the extent of the remaining liability remains unclear. (2001), 53 O.K. (3d) 221 (S.C.J.). The doctrinal complexities of unjust enrichment and their application to this case are discussed by Lionel Smith and Dennis Klimchuk in this volume. For a discussion of the particular type of unjust enrichment claim at issue in Mack, see D. Crerar, 'The Restitutionary Class Action: Canadian Class Proceedings Legislation as a Vehicle for the Restitution of Unlawfully Demanded Payments, Ultra Vires Taxes and Other Unjust Enrichments' (1998) 56 U. of T. Fac. L. Rev. 47; and Frederic Bachand, 'Restitution of Unlawfully Levied Taxes: Survey and Comparative Analy-

Redress for Unjust State Action 223

36 37

38 39

40 41 42

sis of Developments in Canada, Australia, and England/ (2000) 38 Alta. L. Rev. 960. Supra note 28 at 802. In terms of unjust enrichment in the context of recovering moneys taxed by the state, the leading case is Air Canada v. BC, [1989] 1 S.C.R. 1161 In that case, La Forest J. stated that even when dealing with a public body, it is appropriate to ask whether the principles of restitution would afford recovery to the deprived party (at para. 67). In deciding that Air Canada could not recover in this case, La Forest stated that 'the rule should be against recovery of ultra vires taxes, at least in the case of unconstitutional statutes.' However, he added that there may well be exceptions to that general rule 'where the relationship between the state and a particular taxpayer resulting in the collection of the tax are unjust or oppressive in the circumstances.' (at para. 77) Subsequent decisions have allowed an exception when the tax is paid under compulsion or protest. See, for example, Re Eurig Estate, [1998] 2 S.C.R. 565 at para. 47. La Forest J. argued that the policy reason for not allowing recovery - the risk of fiscal chaos exists independently of the law of restitution (at para. 72) He also noted that there may be a case for recovery when a valid law is misapplied (at para. 78) Thus, at least in the context of recovering unjustly paid taxes, the jurisprudence of unjust enrichment is far from clear. Ibid, at para. 42. In Frame v. Smith, [1987] 2 S.C.R. 99, Wilson J., in dissenting reasons, observed that relationships in which a fiduciary obligation have been imposed possess three general characteristics: (1) The fiduciary has scope for the exercise of some discretion or power; (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [1995] 4 S.C.R. 344. Ibid, at para. 38. This was the conclusion of the Federal Court in an action against the Crown based on the same facts as Authorson. In Callie v. The Queen, [1991] F.C.J. No. 120 (F.C.T.D.) ('Callie'), after a review of the relevant Canadian case law, Joyal J. concluded: Thus, as these cases demonstrate, a mere statutory direction to officers of the Crown to administer a fund or sum of money for the benefit of designated persons does not necessarily imply the existence of a fiduciary relationship between the two parties. In fact, I believe that this is the case with respect to the Crown's statutory duty to administer the plaintiff's pension for his benefit. While the Crown may

224 Lome Sossin have an administrative or governmental obligation to administer his pension funds accordingly, this obligation does not amount to a trust or fiduciary duty.' For a discussion of the political trusts jurisprudence in Canada, see L. Sossin, 'Public Fiduciary Obligations, Political Trusts and the Evolving Duty of Reasonableness in Administrative Law' (2003) 66 Saskatchewan L.Rev. 129 at 159-69. The leading cases on political trusts in the common law world remain Tito v. Waddell (No. 2), [1977] 3 All E.R. 129 and Kinloch v. Secretary of State for India (1882), 7 App. Cas. 619. 43 This relationship was subsequently elevated to constitutional status in R, v. Sparrow [1990] 1 S.C.R. 1075. 44 The Indian Act provided as follows: 18. (1) Subject to the provisions of this Act, reserves shall be held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band. 45 Ibid, at para. 73(h) (emphasis added). Goudge and Austin. JJ.A. added 'As administrator, the Crown must respond to only one imperative, that is to act for the benefit of the veteran. This is demanded by the legislation. The Crown as administrator cannot be moved by other policy considerations. It is not choosing between public policy alternatives and cannot be said to be discharging a governmental function or public duty. Rather, it is undertaking a precisely defined duty to a particular veteran, as the result of an individualized determination of incapacity. The essential nature of the task undertaken by the Crown as administrator is thus indicative of a private right, enforceable by the veteran, as opposed the performance of to a public duty by the Crown.' 46 Ibid, at para. 46. 47 Reference re Goods and Services Tax-(GST) (Can.), [1992] 2 S.C.R. 445 discussed in Mack at paras. 43,47. 48 Ibid, at para. 48. 49 [1994] 3 S.C.R. 377. 50 Ibid, at 412. 51 For example, in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Court spoke of unifying international human rights principles with domestic administrative law principles; and in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 S.C.C. 1 at para. 34, the Court adopted the common law framework for procedural fairness to analogous protections under the Charter. 52 Finn has characterized the term 'fiduciary' as a 'veil behind which indi-

Redress for Unjust State Action 225

53 54 55

56

57 58

59 60 61

62

63

vidiial rules and principles have been developed.' P. Finn, Fiduciary Obligations (Sydney: Law Book Co., 1977), 1. Mitchell Mclnnes, 'The Canadian Principle of Unjust Enrichment: Comparative Insights into the Law of Restitution,' (1999) 37 Alta. L. Rev. 1. [2000] O.J. No. 3768 (Sup. Ct.) at para. 34. (Emphasis added.) In upholding Brockenshire J.'s ruling, the Ontario Court of Appeal simply affirmed that the 'Crown' owed a fiduciary obligation, but did not elaborate on whether such an obligation could give rise to a duty to legislate. Neither, however, did they rule this out. See also Alexander Band No. 134 v. Canada (Minister of Indian Affairs and Northern Development) [1991] 2 EC. 3 and Sossin, 'Public Fiduciary Obligations/ supra note 42 at 171-4. For a discussion of the Bill of Rights case law on s.l(a) and its limits, see R. v. Bryan, [1999] M.J. No. 49 (Man. C.A.) at paras. 26-7. The Ontario Court of Appeal relied for the most part upon Singh v. Canada (M.E.I.), [1985] S.C.R. 177, under which s.2(e) was the basis for three of six Supreme Court judges holding inoperative a procedural structure for refugee determinations. There, it was the procedures enacted, not the procedures for enactment which were impugned. For a discussion of the Charter's limits in this regard, see Energy Probe v. Canada (Attorney General) (1994), 17O.R. (3d) 717 (Gen. Div). Indeed, in one telling passage from the judgment of the Superior Court, cited in the Court of Appeal's judgment, Brockenshire J. described internal government documents which discussed what to do about the failure to pay interest on veterans' accounts (which had been subject to a highly critical Auditor General's report in 1986). He observed: 'My reading of many pages of comments by one bureaucrat to another on "the problem," leads me to feel that for many of them, "law" meant only federal statutes and regulations. Indeed one of them, in a report, described "equity" as "mysterious."' Supra note 32 at para. 102. Supra note 5 at paras. 3, 6. Ibid, at paras. 62-3. For a discussion of a fiduciary approach to public sovereignty, see E. FoxDecent, 'Sovereignty's Promise: The State as Fiduciary' (S.J.D. Dissertation, University of Toronto, 2003). P. Finn, The Forgotten "Trust": The People and the State/ in Malcolm Copp, ed., Equity Issues and Trends (Sydney: Federation Press, 1995), chapter 5. Finn's conclusion is similar to that of Sir Anthony Mason, whom he cites, who wrote that 'Equitable relief, in the form of the declaration and the injunction have played a critical part in shaping modern administrative

226 Lome Sossin

64 65 66 67

68 69

70 71

72

law which, from its earliest days, has mirrored the way in which equity has regulated the exercise of fiduciary powers.' A. Mason, 'The Place of Equity and Equitable Doctrines in the Contemporary Common Law World: An Australian Perspective,' in D.W.M. Waters, ed., Equity, Fiduciary and Trusts (Toronto: Carswell, 1993) at 1-2. Ibid, at fn. 12. Supra note 62. The classic reference for this proposition remains Roncarelli v. Duplessis, [1959] S.C.R. 121. Ibid, at 143. Rand J. elaborated, '"Good faith" in this context... means carrying out the statute according to its intent and for its purpose; it means good in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purpose of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status.' See Suresh, supra note 51. While this aspect of the decision is discussed less often, Roncarelli was also a case about damages pursuant to a fault engaging liability under then art. 1053 of the Civil Code of Quebec. Rand J. increased the damages awarded at trial ($8,123.53) to $33,123.53. Roncarelli had claimed $118,741. A.V. Dicey, The Law of the Constitution, 10th ed. (1960) at 75. Wells, supra note 22, at paras. 58-9. Major J. added, 'Both the decision to restructure the Board, and the subsequent decision not to re-appoint the respondent, were bona fide decisions. The decision to restructure the Board was deliberated and enacted by the elected legislature of the Province of Newfoundland. This is fatal to the respondent's argument on bad faith, as legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate. The judgment in Reference re Canada Assistance Plan was conclusive on this point in stating that: "the rules governing procedural fairness do not apply to a body exercising purely legislative functions." See also Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, per Dickson J., at p. 628.' One doctrinal reason is that the 'rule of law' generally, and its interpretation in Roncarelli specifically, were referred to as part of Canada's unwritten constitution in the Secession Reference, [1998] 2 S.C.R. 217 at 257. For a normative justification of why Courts ought to review legislative action to ensure it comports with the rule of law, as elaborated by the Courts, see

Redress for Unjust State Action 227

73

74

75 76 77

78 79

80 81

T.R.S. Allan, 'Legal Authority, Textual Meaning, Conceptual Analysis: Parliamentary Sovereignty, Legislative Intention, and Judicial Review' (2003), Cambridge L.J. (forthcoming). See also T.R.S. Allan, The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretive Inquiry' [2002] 51 C.L.J. 87. Near the end of their judgment, in a footnote to their assertion that the Court was not prepared to 'reach back almost a century and remedy the consequences of laws enacted by a democratic government that were valid at the time,' Moldaver and MacPherson JJ.A. leave open the possibility of a different analysis where the 'facially valid' legislation of a 'totalitarian or other despotic regime' was at issue. Leaving aside not insignificant quibbles about the 'democratic' nature of Canadian government at the time of the legislation at issue, this addendum speaks to the limits of formalism. D. Dyzenhaus, 'Formalism's Hollow Victory' [2002] New Zealand Law Review 525 at 527. See also Dyzenhaus's discussion of Fuller's concept of the 'internal morality of law' in this volume. Ibid. See L. Rotman, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (Toronto: University of Toronto Press, 1996). This concern has been blunted by the academic and judicial embrace of the 'dialogue' approach, by which Courts are not seen as usurping Parliament's legitimate law-making function but rather as a participant in an institutional dialogue between the legislative and judicial branches of government, marked by mutual respect for the distinctive strengths of each. For summaries of the academic literature, see J. Hiebert, Charter Conflicts: What Is Parliament's Role? (Montreal and Kingston: McGillQueen's University Press, 2002), 20-51; and K. Roach, The Supreme Court on Trial (Toronto: Irwin, 2002). For examples of the judicial adoption of this approach, see Vriend v. Alberta, [1998] 1 S.C.R. 493; and R. v. Mills, [1999] 3 S.C.R. 668. See Singh v. Canada, [1985] 1 S.C.R. 177. See Provincial Court Judges Remuneration Reference, [1997] 3 S.C.R. 1, and most recently Mackin v. New Brunswick; Rice v. New Brunswick 2002 S.C.C. 13. For a review of this case law, see K. Lysyk and L. Sossin, 'Judges' in K. Lysyk and L. Sossin, eds., Barristers and Solicitors in Practice (Toronto: Butterworths, 1998) (looseleaf) at chapter 11. Lalonde v. Ontario (Commission de Restructuration des Services de Sante) (2001), 56 O.K. (3d) 505 (C.A.). See L. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Toronto: Carswell, 1999), 9-19.

228 Lome Sossin 82 See, for example, Borowski v. Canada (A.G.) (No. 2), [1989] 1 S.C.R, 342, in which the Court found that a case which had become moot could nonetheless be adjudicated by a court where the parties retain an adversarial stake in the dispute; where the issues are sufficiently important to justify the allocation of judicial resources and where it would not be inappropriate, in light of Canada's constitutional system, for a court to hear the particular matter before it. The mootness jurisprudence is also discussed in Boundaries, supra note 81 at chapter 3. 83 In 'Public Fiduciary Obligations/ supra note 42,1 advance the view that the administrative law duty of 'reasonableness/ principally as articulated in Baker, supra note 51, is best understood as a point along this equitable spectrum. Evan Fox-Decent in Sovereignty's Promise, supra note 61, offers a similar analysis regarding procedural fairness. 84 The dilemma inherent in this scenario is how unjust policies should be remedied. Typically, a finding that an exercise of discretion was unreasonable will lead to the remedy of certiorari (quashing the action) or mandamus (compelling the action if an omission was challenged). Damages are not normally available in these circumstances. However, the Court may issue the equitable remedy of a declaration to the effect that the government decision was unreasonable or, where justified, may issue damages for abuse of power, misfeasance of office, or similar heads of Crown liability. See Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263. For a discussion of money remedies against the Crown more generally, see D. Mullan, Administrative Law (Toronto: Irwin, 2001) at 403-24, 504-22. See also P. Hogg and P. Monahan, Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000). 85 Political trusts, in this sense, may be seen as akin to constitutional conventions - they are judicially cognizable, legal wrongs which the courts have no power to remedy, but which arguably give rise to a moral imperative on the part of the Governments to address. 86 [1989] 2 S.C.R. 574 at 647. 87 Following the decision, a lawyer for the class commented, 'It's a hard day and a bitter pill for the veterans and their families that we represent.' He added, 'We hope that Canadians will press their MPs to find out why the Crown and Parliament have decided to deprive these people, whom [sic] the Supreme Court says are lawfully owed this money. Why don't they stand up and do the right thing?' S. Thorne, 'Mentally-Disabled Vets May Not Sue, Court Rules' Toronto Star, 17 July 2003, Al. To the surprise of some, the Supreme Court decision did not conclude the litigation. In rulings subsequent to the Supreme Court decision, Brockenshire J. has

Redress for Unjust State Action 229

88

89 90 91

held that the statutory bar at issue before the Supreme Court may not apply at all and has proceeded to determine damages. See Authorson v. Canada, [2003] A.C.W.S.J. Lexis 10031 (Ont. Sup. Ct.). That these questions weighed on the minds of the Court is reflected in the questioning from the bench during the hearing of the appeal. These questions were not unproblematic and gave rise to a complaint with the Canadian Judicial Council against Justice MacPherson, which was made public following the release of the Ontario Court of Appeal's decision in Mack. See correspondence between Jeannie Thomas and Karen Chan, 25 October 2002, at http://www.cjc-ccm.gc.ca/english/news_releases/ 28_10_2002e.pdf, (accessed 29 June 2003). According to the complaint, Justice MacPherson engaged in 'positive stereotyping' of the Chinese, and expressed 'a kind of hierarchy of suffering making it clear that he believes the suffering of the head tax payers to have been less than that of others: Scots, Acadians, Germans and Jews from Hitler's Europe (all European in origin).' The Chief Justice of Nova Scotia investigated the complaint and concluded that no judicial misconduct or bias was in evidence. (2003), 64 O.R. (3d) 1. [2003] O.J. No. 5212 (Sup. Ct.) at para. 124. See C. Harlow, '"Public" and "Private" Law: A Distinction without a Difference' (1980) 43 Mod. L. Rev. 241.

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Legal Theory and Gross Statutory Injustice

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Gross Statutory Injustice and the Canadian Head Tax Case JULIAN RIVERS

It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant or impossible to be performed, the common law will control it and adjudge such act to be void.1

Introduction 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 in the European context) in which higher sources of law must be recognized as a condition of membership in a supra-national European Union,4 Dicey's insistence on judicial subordination to the wishes of the legislature becomes increasingly unreal. Martin Loughlin has identified a growing school of British constitutional thought ('liberal normativism') which challenges Diceyan orthodoxy.5 Judges and academic lawyers belonging to this school dispute the supposedly supine nature of the common law in the face .of illiberal legislation, arguing that judges already have the authority to remedy statutory injustice.6 But the recrudescence of the common law

234 Julian Rivers

on these accounts is generally displayed in enhanced interpretative vigour, by an abandonment of literalistic modes of statutory construction in favour of value-driven, Dworkinian, approaches. Re-interpretation, even radical reinterpretation, is accepted, but the question of statutory invalidity is dodged, or at least downplayed as insignificant.7 The relationship between interpretation and invalidity is admittedly complex, but it is hard to suppose that the question of statutory invalidity need never arise. In his third Blackstone lecture F.A. Mann asked the following question: Suppose Parliament enacts a statute depriving Jews of their British nationality, prohibits marriages between Christians and non-Christians, dissolving marriages between blacks and white or vesting the property of all red-haired women in the State. Is it really suggested that English judges would have to apply such a law? Do not evade the issue, do not avoid the legal test by asserting that, as we all hope and believe, no English Parliament would ever pass such a statute. Would the hypothetical question really have to be answered in the affirmative ...?8

Lord Woolf, formerly Master of the Rolls, and currently Lord Chief Justice of England, writing extrajudicially in 1995 cited that passage and went on to state: ... if Parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent. Some judges might choose to do so by saying that it was an unrebuttable presumption that Parliament could never intend such a result. I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold.9

Such candour is not nearly as rare in Germany. Twice in the twentieth century the German courts have had to consider the meaning and validity of grossly unjust laws, and the effect of that experience has been to make German legal philosophers articulate more carefully the limits of legislative authority. This paper outlines the views of two influential German legal philosophers, Gustav Radbruch and Robert Alexy, and considers some of the cases in which German courts have grappled with gross statutory injustice. The lessons to be learnt apply with equal force in common law jurisdictions, since they are ultimately

Gross Statutory Injustice and the Head Tax Case 235

rooted in the nature of law and adjudication. In the light of these lessons, it is possible to draw some conclusions pertinent to the Canadian Chinese Immigration Act 1885. Gustav Radbruch10 Gustav Radbruch was born in Lubeck in 1878. He held chairs in Konigsberg and Kiel before representing the Social Democrats in the Imperial Parliament from 1920 to 1924, during which time he was twice briefly Minister of Justice. In 1926 he was called to Heidelberg as professor, from where he was dismissed in 1933 on account of his previous political activities. He stayed in Germany (although spending a year at University College, Oxford in 1935-6) and was restored to his post in 1945 to assist briefly as Dean in rebuilding the post-war Law Faculty. He died in 1949. The popular conception of Radbruch is that he was a legal positivist who was dramatically converted to natural law theory by his experience of the Nazi regime.11 This view is quite inadequate. His major work is the Philosophy of Law of 1914, which reached a definitive third edition in 1932.12 Rather like Herbert Hart, he was working on a revision when he died, but all this amounts to are some fragments of changes of mind and a handful of relevant articles. These brief articles demonstrate a change of emphasis but no fundamental change of approach.13 His philosophy of law is strongly influenced by neo-Kantianism.14 This can be seen in the insistence, first, that law can only be recognized or understood as an expression of an a priori idea; secondly, that since law is normative, the idea of law must also be normative, or valuebased; but thirdly, that morality is relative, so the content of law must be subjectively determined.15 In all this, he corresponds to Hans Kelsen. But where Kelsen located the normativity of law in a single assumed basic norm, Radbruch asserted that the idea of law was justice (in the broad sense),16 and located law's normativity in three values: justice (Gerechtigkeit), purposivity (Ziveckmassigkeit), and certainty (Rechtssicherheit).17By justice at this point, Radbruch understood the formal, Aristotelian justice of treating like cases alike and unlike cases differently. Since this is contentless, law also requires purposivity to determine the purposes to which law is to be put: which classes are the appropriate ones, the sense in which people are like and unlike. This idea could even be understood as broadly as 'utility' or 'policy.' Because

236 Julian Rivers

justice and purposivity together remain disputed and controversial, and because we have a practical need for concrete answers to real problems, law is also based on certainty. Law must be expressed as a body of relatively precise rules. Radbruch recognized that different states laid weight on different aspects of the idea of law. Thus the police state gives more emphasis to the purposes of the government, natural law theory emphasizes formal justice, and legal positivism emphasizes legal certainty. His theory sought a balance between all three.18 It followed from his theory that an individual might not recognize as 'law' what a majority of fellow-citizens, or more problematically the government, recognize as law.19 Whereas a legal positivist would conceptualize conscientious objection as a moral dispute about the justice of a law which has a clear and agreed content, conscientious objection arises for Radbruch at a prior stage, in the initial identification of law. The values of justice, purposivity, and certainty can be reconciled in various ways, which gives rise to disputes (and hence majority and minority positions) about what the law z's. What made Radbruch look like a positivist was his insistence that judges are not free to engage in this process of reconstruction in quite the same way as individuals. They have a role-specific legal duty to uphold certainty, just as the legislature has the legal role of determining the purposes of law.20 There is a basic division of legal labour. Even here the division is not entirely strict, because Radbruch recognizes that when interpreting statutes, judges are seeking an 'objective legal meaning' which reconciles all three values.21 They are not just upholding legislative intent. But the judicial bias towards certainty could lead to a tragic paradox, in which 'the law' (as understood by the individual citizen) requires him or her to act in a certain way, and 'the law' (as understood by the judge acting in accordance with his or her official role) also requires the judge to punish the citizen for that act. At this point Radbruch reminds us of Antigone and Socrates and gives up.22 All that happened after the war was that his thoroughgoing subjectivism about the purposes to which law might properly be put was modified, and that his conception of the judicial role changed. In the face of the evil of Nazism, the idea that ethics were purely subjective had become untenable. Some purposes to which law could be put were too evil to count as lawful. Furthermore, in identifying something as law, judges did have a responsibility to 'justice' as well as certainty.23 In short, and this is 'the Radbruch Formula/ gross statutory injustice (gesetzliches Unrecht) is not law. His famous 1946 passage reads as follows:24

Gross Statutory Injustice and the Head Tax Case 237 The conflict between justice and legal certainty may be resolved in that positive law, secured by command and force, takes precedence even when its content is unjust and unreasonable [i.e., adopts improper purposes], assuming however that the positive law does not depart from justice to such an unbearable extent, that it has to give way to justice as 'incorrect law.' It is impossible to draw a sharper line between cases of statutory non-law and law that is still valid in spite of an inappropriate content, but a different boundary line can be drawn with great clarity: where no attempt is even made to achieve justice, where equality, which is the heart of justice, is consciously denied in the creation of positive law, then the law is not merely to be called 'incorrect,' it entirely loses its character as law.25

This passage gives rise to all sorts of interpretative difficulties. Quite apart from the long-standing debate about whether this contains two formulae or one,26 there is the question of what he means here by 'justice.' What Radbruch has really got to criticize are the purposes to which law is put (using racial categories instead of categories of criminal responsibility, for example). But what he seems to be focusing on is the absence of formal justice in the random orders of Hitler's regime. Perhaps the better view is that Radbruch elided formal justice and purposivity into a new concept of substantive justice which could be set against legal certainty. This results in a fundamental dyad of legal values rather than the pre-war triad. Ultimately, he may have seen even this tension as a conflict within a single idea of justice.27 Whatever the relationship between justice and purposivity, he continued to stress the importance of legal certainty, suggesting for example that his new approach could not be used to resurrect criminality by invalidating a potential defence.28 A conversion from legal positivism to natural law theory all this is most certainly not. Radbruch was never an analytical positivist, defending the possibility of explaining the nature and content of law in value-free concepts. He was a moderate political or constitutional positivist, who thought that judges acted improperly if they attempted to rework the content of law as determined by the democratically elected legislature. After the Second World War he softened this bright line rule concerning the judicial function in the face of gross injustice. It was still the prime governmental function to determine the content of law, and legal certainty was still of great value. But grossly unjust law has no legal validity. Indeed, it is best to see his post-war modification as

238 Julian Rivers

resolving the internal inconsistency in his 1932 Philosophy of Law, whereby the citizen had (potentially) a better grasp of the law than the judge, and where the judge could take full account of the idea of law in construing statutes, but not in determining whether they are law in the first place. There is not much in Radbruch's Philosophy of Law on the interpretation of statutes, and it would, of course, be anachronistic to suppose that his approach is interpretative or that it conforms to a 'common law method.' Nevertheless, in modern therms, his neo-Kantian definition of law brings him much closer to Dworkin's theory of law as integrity than to Hart's model of conventional rules.29 Robert Alexy Since 1986 Robert Alexy has been Professor of Public Law and Legal Philosophy at the University of Kiel. He is principally known in Englishspeaking circles for his association with Jiirgen Habermas through his discourse theory of legal reasoning.30 However, the work most relevant to this paper is his Begriff und Geltung des Rechts (1992)31 and a recent essay in defence of Radbruch's Formula.32 The former is a concise argument for a naturalist concept of law and legal validity, and the latter expands on that argument in the context of grossly unjust laws. Alexy starts his book by citing two cases decided by the German Federal Courts which pose a problem for legal positivism. The first case in 1968 determined that the formally valid laws stripping emigrant Jews of German citizenship were null and void from the beginning.33 The second case in 1973 decided that damages for non-pecuniary losses in defamation actions are available, even though the Civil Code expressly states that they are not.34 Alexy's argument is that these decisions are not aberrations, but reflect a correct understanding of the true nature of law. Concepts of law turn on the relationship between three elements: authoritative issuance, social efficacy, and correctness of content (i.e., justice).35 While Alexy accepts the possibility of an impartial observer's definition of law, which treats law as fact, simply recounting 'what happens' apart from questions of correctness of content,36 participants are required by the practices in which they are engaged to adopt a juridical, or normative, definition of law which combines three elements. He offers three arguments for including 'correctness of content' in the definition of law. The argument from correctness observes that

Gross Statutory Injustice and the Head Tax Case 239

law necessarily claims correctness for itself.37 A constitution which started off, 'X is a sovereign, federal and unjust republic/ or a judge who stated, "The accused is sentenced to life imprisonment, which [rests on] an incorrect interpretation of prevailing law,' would not simply be saying something technically or morally defective. These statements are conceptually defective, understood as violating rules constitutive of speech acts. The speech acts of framing a constitution and passing judgment respectively make an implicit claim to correctness. Of course, it is still an open question whether we should take this claim of correctness seriously, but Alexy thinks we should. The argument from injustice suggests that on balance, the benefits of denying legal validity to grossly unjust laws and systems outweigh the disadvantages.38 For example, judicial resistance might have quite an impact in moderately unjust regimes, and even given the fact that in tyrannies the law collapses anyway, incorporating correctness of content creates a 'risk effect' which might dissuade self-interested individuals in the future from wrongdoing.39 Thus, if a norm is unjust in the extreme, it ceases to be law. That is, of course, the Radbruch Formula. Finally, the argument from principles adopts the Dworkinian position that the totality of legal materials is not exhausted by the written rules, and that the nature of legal principles is such as to imply a necessary connection with morality in the course of normal legal reasoning.40 After developing his concept of law, Alexy applies this to questions of legal validity, which in turn leads to a general definition of law: The law is a system of norms that (1) lays claim to correctness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that are issued in accordance with this constitution, norms that manifest a minimum social efficacy or prospect of social efficacy and that are not themselves unjust in the extreme, and, finally, (3) comprises the principles and other normative arguments on which the process or procedure of law application is and/or must be based in order to satisfy the claim to correctness.41

From Theory to Practice While Alexy vindicates Radbruch's Formula, neither his nor Radbruch's theory gives us further indication of the level or type of injustice which

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has to be reached before the point of invalidity is reached. In fact, there are a host of related questions which need answering. But we should not expect a general theory to answer particular questions. That is a matter for each legal system to resolve over time. Once one accepts that it is possible to reject as invalid certain positive laws on grounds of gross injustice, cases in which this happens are not 'singularities.' They are not inexplicable ethical irruptions into an otherwise coherent web of law. The Radbruch Formula is not, as David Dyzenhaus suggests in his contribution to this volume, 'positivism with a minus sign.' The points at which prior positive law gets rejected are as amenable to judicial argument, precedent, and legal tradition as any other part of the law. The effect of Radbruch's and Alexy's theories of law is to accept the existence of a constitutional framework implicit in the nature of law which it is the unavoidable judicial task to articulate and clarify over time. Of course, given a reasonable level of moral and political consensus, the number of cases in which the judiciary find a statute fundamentally misconceived are going to be very few; the first time a modern system invalidates highest positive law, it is going to be (by definition) unprecedented. All the surrounding questions are going to seem up in the air to start with. So it is entirely unsurprising that we should be trying to find connecting points, albeit tenuous, within the common law, perhaps through seventeenth-century natural law theory, or judicial attitudes towards Acts of Attainder. Furthermore, where a constitutional framework has been codified, it will provide a positive legal basis for the vast majority of any judicial work necessary. But one can never assume that the expressed constitution and laws are truly exhaustive of the judicial obligation to avoid gross injustice. Indeed, one could see the Radbruch Formula as the unwritten analogue not to a codified constitution, which contains much material beyond the most basic requirements of justice, but to a clause along the lines of article 79 III German Constitution. This clause protects the core content of fundamental rights even from constitutional change, making the most extreme forms of injustice incapable of positive legal justification. What is striking about the German cases in which the Radbruch Formula has been applied is the emergence of a line of precedent, or at least a 'Radbruch-tradition,' which is capable of answering the questions left open by general theory. The very universality of the underlying assumptions of the Formula suggests that this tradition can be of value to other legal systems beginning to grapple with gross injustice in the past.

Gross Statutory Injustice and the Head Tax Case 241 Statutory Injustice in German Practice

As is well known, major forms of Nazi wrongdoing were dealt with under various post-war statutes as crimes against humanity. In his 1946 article, Radbruch discussed four types of case not covered by specific legislation at the time: (1) the grudge informer who had secured the death of another by denouncing him to the authorities; (2) the judge who had passed judgment in breach of human rights; (3) the executioner who had carried out unjust death sentences; and (4) the escaping army deserter who had shot the official who had tried to arrest him.42 In response to an early tendency by the post-war German courts and prosecutors to 'freewheel' and do 'natural justice,' Radbruch insisted on the need to do justice with as little cost to legal certainty as possible. Apart from the case of the army deserter, who might benefit from a post-war statutory amnesty for all those engaged in acts of resistance, the question was to be determined by careful application of pre-existing criminal law. So, if the grudge informer deliberately and voluntarily used what he knew to be the perverted interpretation of law offered by Nazi courts to secure his own private ends, that satisfied all the requirements of homicide: very unusual, but not unprincipled. If the judges deliberately and voluntarily misinterpreted the law to achieve political ends, that was the existing criminal offence of perverting the course of justice: very rare outside the Nazi context, but not unknown. If the executioners knew that a judgment had been passed in perversion of the law, they too could be guilty. By and large, the courts followed this type of approach, which, one should note, does not rely on the Radbruch Formula.43 But there are a small number of criminal cases which rule a relevant defence to be invalid - one, for example, involves the criminal liability of a civil servant in arranging the transportation of Jews to concentration camps44 although it is important to appreciate just how rare that was. For the most part, criminal liability depended on the application of normal principles of criminal law in the unusual context of a court system which had systematically perverted law to pursue Nazi ends. The more recent group of cases concerns prosecutions of East German soldiers and higher-ranking members of the army and government in the early 1990s for shooting civilians trying to cross the East German border.45 Once again, it is noticeable that the courts strained to avoid invalidating the entire law. In the border guard cases, there was a

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statute in place permitting soldiers to use force if necessary to prevent the commission of serious criminal offences. Crossing the border was treated by the East German criminal courts as a serious offence. After reunification, the German courts consistently found that various shootings were actually unlawful, but their reasoning differed. Only one court of first instance unequivocally relied on the Radbruch Formula to rule the statute invalid. When the Federal Criminal Court (the highest criminal court) came to rule on the matter, it reinterpreted the Radbruch Formula not to render the law invalid in its entirety, but to render the soldiers' defence based on the law inapplicable. In other words, the statute was read down to prevent it operating as a defence in cases of injustice. Rather confusingly, the court also went on to consider how the statute should be interpreted in the light of international human rights obligations. Although at first it seemed as if the court was trying to build an argument on East Germany's monist constitution, it later became clear that the reference to international human rights was subsidiary only.46 Although this is not clear from the cases, one has to go on to consider a human-rights-friendly interpretation of the statute just in case there were soldiers who shot in circumstances which would not have been criminal had they occurred in the West. This is a general problem with the invalidation of criminal defences, and consequent reassertion of the background offence. One may end up throwing out just babies with the unjust bathwater. I have also suggested that the German courts did not take sufficient account of the interest in legal certainty in their new interpretation of the East German law: as one can imagine, what the German courts said the statute meant departed quite considerably from what the young East German soldiers were taught the statute meant.47 The literature on the Radbruch Formula has focused almost exclusively on criminal cases, leaving civil consequences of injustice to one side. Once again, most of the post-war problems were dealt with in statutory schemes - this time of compensation and restitution - enacted in the immediate post-war years. Once these were in force, any resort to the Radbruch Formula was blocked.48 Nevertheless, in the brief window of time between the end of the war and the statutory schemes, the Radbruch Formula was used on occasion in civil as well as criminal contexts. Once again, it is noticeable how closely the immediate postwar litigation adheres to the structure of regular civil law. In one reported case, a contract made on 31 March 1939 for the sale of real property owned by a Jew was invalidated on grounds of duress.49 Most

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of the judgment focuses on the actual level of oppression experienced by Jews at that date; the existence of a law justifying the expropriation of property50 is noted but dismissed on account of its invalidity. Another case a year later found the state liable in damages for the actions of a local Nazi official in taking over and selling a Jewish confectionery shop.51 Ordinary law applied, except to the extent that the law authorizing compulsory acquisition and sale was invalid. Some of the cases arose from the notorious Decree 11, which deprived Jews living abroad of their German citizenship. According to the decree, their property was transferred to the Reich, they could not inherit property from a German citizen, it became unlawful to make them gifts, and any claims they might have against the state lapsed. This could have an impact outside the scope of compensation and restitution. An example of the type of case that could arise can be found in the judgment of the Federal Civil Court concerning securities left on deposit by a Jewish woman at a German bank. She had emigrated to Switzerland, but after the war returned and wished to reclaim her funds. The Court confirmed that she was the lawful owner of the securities in spite of Decree 11, which was from the outset void because of its iniquitous content.52 The case which gave rise to the leading judgment of the Federal Constitutional Court concerned a dispute between some relatives about the laws of intestate succession.53 The deceased was a Jewish lawyer who had emigrated to Amsterdam shortly before the Second World War. He disappeared in 1942 and was presumed dead on 8 May 1945. Under Dutch laws of succession, only his siblings alive at the time of his death would inherit; under German law the descendants of all siblings, alive or dead (including the applicants in the case) would inherit. Which law applied turned on whether he was a German citizen at the time of his death. The Constitutional Court confirmed that Decree 11 had not deprived him of his citizenship, because it was void. So one set of nieces and nephews got more, and another set got less. What is striking about the judgment is the way in which the private law consequences drop out of the picture. From the perspective of justice, one might think there was not much to choose between Dutch and German laws of intestate succession. But that is not the point. The relevant law was so abhorrent that the court could not countenance using it to resist the claim of the applicants. This connects to an interesting distinction drawn in German law between compulsory acquisition of property by the state and confisca-

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tion. Compulsory acquisition is effective to transfer property and can be lawful if carried out for the common good and combined with appropriate compensation. Confiscation is the unlawful removal of property for discriminatory reasons, a form of persecution because of who one is, rather than deprivation of what one happens to own. The distinction became significant again after reunification in 1990, because the statutory regime established on the basis of the Treaty of Union for the return of property and/or compensation protected the confiscatory acts of Soviet occupying forces in 1945-8 from restitution. It was unsuccessfully argued before the Federal Constitutional Court in 1991 that these confiscatory acts were akin to racist, because they targeted a suspect class.54 The Court in response effectively assumed that Soviet expropriation for socialist economic reasons could not be treated in the same way as persecutory confiscation of assets. Restitution in kind was not required, and moreover the government had a wide discretion in determining how much compensation was to be paid, and to whom.55 The notion of a wide statutory discretion in remedying injustice is also implicit in another judgment of the Federal Constitutional Court again involving Nazi Decree 11. Here a Jewish man who had gained American citizenship in 1951 sought a declaration in 1970 that he had never lost German citizenship so that he could qualify for a certain compensation claim. Article 116(2) of the German Basic Law provided that emigrant Jews who resumed residence in Germany, or who made an application for citizenship, would be deemed never to have lost it by virtue of Decree 11. The point behind article 116 was that if one assumes that the Decree is totally void, one might make emigrant Jews German nationals against their will, and possibly cause them to lose the citizenship of their adopted country This purpose was upheld by the Court not without dissent - and since the claimant had neither resumed residence nor made an application for citizenship, he was treated as having lost it from 8 May 1945.56 Invalidity, Interpretation, and Ineffectiveness We have already seen that, if necessary, Radbruch's legal theory is better understood along the lines of a common law model than as a form of positivism. In grasping a subset of social phenomena as legal, the theorist must be using a priori categories of justice, purposivity, and certainty. Relevant material is not simply, or straightforwardly, understood, but is constructed into an account of law by the lawyer. Accord-

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ingly, his Formula is not a 'minus sign' which operates occasionally, leaving swathes of judicial practice untouched, but is rather the limiting case of restrictive judicial interpretation of statutory materials. In his treatment of the Chinese Immigration Act, David Dyzenhaus makes two further claims: first, that within the common law tradition, judicial invalidation is not permissible, being reserved to the legislature;57 and secondly, that invalidation is not necessary, since it suffices in this case to deny the statute the legal effect of providing a continuing juristic reason for the retention of the unjust tax.58 Both of these claims are problematic. As to the first, one must be careful not to confuse a determination that a norm is invalid with a power to declare with constitutive force that the norm is invalid. It is true that common law judges do not have the power to repeal statutes, but this is not the same thing as determining their validity. The validity of a norm is simply the existence-condition of its membership in a normative system.59 Anyone seeking to apply the norms of a system must presuppose that the norms to be applied are valid, that they are members of the system within which one is operating. It is always an open question whether a norm which is alleged to be valid really is so. When judges determine that a norm is not valid they are not changing the status of the norm; they are declaring what has always been the case with respect to that norm and the normative system to which it is alleged to belong. In fact, the relationships between a judge and the question of validity and between a legislature and the question of validity are quite different. A judge must presuppose, and if necessary determine, the current validity of any norm to be applied in adjudication. But even a sovereign Parliament cannot affect the current validity of a norm. The most Parliament can do is to state of a valid norm that it is not valid for the future and that its repeal is also to have retrospective effect, which is to say that for the future we all must act as if the norm never was valid. What Parliament cannot do is determine that the norm never actually was valid in the first place. Parliament can enact a legal fiction, but it cannot change the past. In short, the possibility that a judge may say of any norm that it does not actually belong in the system as alleged is a matter of practical reason. It is a consequence of the nature of adjudication having nothing to do with the common law as a distinctive legal tradition. The second suggestion is that it is sufficient to focus on the legal effect of an Act. 'Effect' is a category of outcome. It refers to the impact of a norm on a state of affairs. It thus glosses over a potentially important

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distinction between interpretation and invalidity. As regards the effect or outcome, it matters little whether a norm is given a narrow interpretation which denies its application to a particular case, or whether it is partially, or completely, invalid. Yet we do tend to assume that a distinction can be drawn, and that judicial interpretative activity is legitimate in a way which invalidating activity is not. Before one can refer unproblematically to 'effect' one has to show that this distinction collapses. Positivists might like to think that the distinction can be drawn on the basis of substantive grounds, by referring to the reasons for limiting the legal effect of a statute. This ties the distinction to a positivistic theory of statutory interpretation which focuses on legislative intent and linguistic meaning.60 It excludes a value-driven interpretation, which would cross the boundary into illegitimate invalidation. The problem for this view is that the value-driven interpretation of statutes is such a wellrooted part of the common law tradition. One can argue how consistently it is applied (do judges always read statutes creating criminal offences narrowly?), but one cannot deny the many cases in which it does figure. And there is no substantive reason which one might have for denying the validity of a statute altogether which does not already figure somewhere in the case law as justifying a restrictive interpretation. So no distinction between interpretation and invalidity can be drawn on the basis of the reasons one might have for engaging in either. If the distinction collapses at the level of 'input' (reasons for treating a norm a certain way) and 'output' (effect of the norm on a case) the only possibility left is that it applies in relation to the text of the norm itself.61 A distinction can be maintained between interpretation and invalidity, quite simply for the reason that although words can mean many things they cannot mean everything. The boundary will be controversial, but some cases, at least, are clear. Judges involved in clarifying the meaning of general terms, such as 'reasonable/ are engaged in interpretation, even if their judgments of reasonableness depart from what is known of the wishes of the legislature or what most people understand as reasonable behaviour.62 The judges who determined that most East German soldiers could not benefit from the defence set out in the Border Act even though they fulfilled its conditions for the use of lethal force were partially invalidating that statute. One could imagine a constitutional theory which made the distinction between interpretation and (partial) invalidity determinative of the bounds of judicial authority. The judiciary should respect the choice of statutory language, in particular the

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natural limits to the possible meaning of words chosen. There are fairly obvious political reasons for a theory that tried to sustain this distinction. But there can be no doubt that common law interpretation is more robust than that. Words can be stretched, reduced, even omitted and interpolated in pursuit of the 'right answer.' What are really (from a linguistic perspective) cases of partial invalidity are treated as if they were legitimate interpretation. What the common law has (apparently) not done for centuries is to invalidate an entire norm. Once again, one could imagine a constitutional principle which stated that the judiciary may 'read down' norms, even where this is better characterized as partially invalidating the norm rather than simply interpreting it, but what they must not do is declare an entire norm invalid. The political reason for this would be that respect for the democratic legislature can still be displayed by the judiciary in that they give every norm at least some work to do. There must be some cases to which the norm applies. But this view is analytically indefensible, because it turns on the individuation of norms, i.e., the question of what counts as a single norm. Any single norm which is held partially invalid could have been perfectly well re-expressed as two norms one of which is entirely valid and the other entirely invalid. It seems a matter of pure convenience how norms are expressed. In fact, partial invalidity will be very much more common than complete invalidity, because few norms are enacted which are bad through and through. No doubt the East German Border Act could have been passed as containing two defences, one for soldiers fulfilling reasonable conditions for the use of force (valid), and another for soldiers fulfilling conditions for the excessive use of force (invalid). But one only needs to state the possibility to see how unlikely this sort of situation will be. Indeed, it is only likely to arise where the motivation for the statute was grossly unjust, where, as Radbruch put it, 'no attempt is even made to achieve justice/63 Finally, a focus on legal effect glosses over the difficulties raised by the prohibition on retroactivity. The assumption is commonly made that interpretation raises no question of retroactivity (since one is simply establishing the 'true meaning' of a norm) but invalidity raises big problems of retroactivity. From a purely formal perspective, this is false. When judges determine that a norm is invalid they are as much determining what has always been true as when they establish what the norm means. But rather than denying the relevance of retroactivity, one should accept that an unexpected interpretation is as problematic from

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the perspective of the Rule of Law as an unexpected determination of invalidity. In fact - and this is the important point - even an invalid statute can have a legal effect, precisely for reasons derived from the value underlying the ban on retroactivity, namely legal certainty. For example, where a public official raises a tax without any statutory warrant at all, knowing that there is no statutory warrant, he may open himself up to tortious actions for abuse of office. An invalid statute may have the effect of giving the official a legitimate ground of reliance. The tax will still have to be repaid, but the official will not be liable. To take another more extreme example, it was almost certainly the case that the entire Nazi order was unconstitutional according to the Weimar Imperial Constitution under which it was alleged to be operating. Yet the de facto success of that order meant that many of its (relatively) morally unproblematic orders had to be treated by post-war courts as if they were valid.64 They had legal effect in spite of invalidity. The Chinese Immigration Act 1885 The lawyers in Mack should have conceded that they were engaged in a frontal assault on the validity of the statute. Dyzenhaus's analysis suggests that a tax statute has two effects, a primary effect, which justifies the raising of the tax, and a secondary ('gravitational') effect, which justifies the retention of the tax after the statute is repealed.65 Since common law judges should deny the gravitational effect of statutes contrary to sound principles of political morality, they should deny that the Canadian Government is justified in retaining the tax, which at the time was presumably lawfully raised. Now one might think that if the obligation to return the tax only arises when the statute is repealed, that obligation must be derived from the repealing statute. It is not normal for the repeal of a tax statute to carry with it the implication that taxes raised under it should be returned, although such a requirement could be expressly enacted, and possibly implied. But Dyzenhaus is not interested in the repealing statute, and for good reason, since there is absolutely no case for thinking that it carried with it (impliedly, let alone expressly) an obligation to return the taxes. Thus the effect which Dyzenhaus seeks comes from an interpretation of the original tax-raising statute, which he must read as follows: 'for as long as this statute remains in force, the Canadian Government may raise certain sums of money from immigrant Chinese, but these taxes must be returned once the statute is repealed.' In short, the statute is

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taken to create an indefinite compulsory loan. This is very odd. Whether one chooses to see in taxing statutes an ongoing reason for the retention of money regardless of the future fate of the statute, or to see in the institution of property a permanent transfer of ownership, is irrelevant. Either way, the single legal effect of the Act must be to justify the retention of the taxes by the Canadian Government in perpetuity, unless a future statute requires their return, or unless the Act was invalid. And it has to be said that invalidating the statute is the less intrusive option. On Dyzenhaus's account of the common law approach, not only are the judiciary empowered to disregard the overwhelmingly evident meaning of the statute; they are also forced to replace it with a temporary racist loan. By contrast, declaring the statute invalid has all the virtues of honesty and clarity. Given the nature of law, which is conceptually connected to justice, given the fluidity of the boundaries between interpretation, partial invalidity, and complete invalidity, and given the existence of a strand in the common law tradition (albeit very minor) which does assert the right of courts in extremis to find highest positive law invalid, it seems preferable to take this route, rather than mangle the meaning of a perfectly clear but obnoxious statute. Whether the lawyers in Mack were right in the substance of their argument depends on the extent of the injustice perpetrated by the Act as balanced by the requirements of legal certainty. There is widespread agreement that the injustice of the Nazi regime was of a completely different order from that in the German Democratic Republic. The former was responsible for the deaths of sixty million people, many millions of innocent lives selected on grounds of the grossest racial and religious prejudice, their deaths positively desired as an instrument of state policy. The internal border regime in Germany was responsible for the deaths of a few hundred people who knew the risks they were taking and who had a reasonable alternative life in East Germany. The East German Government clearly considered their deaths 'unfortunately necessary' rather than positively desired. And yet the arguments from gross injustice prevailed in both cases. To the individual who dies, their death is their own, and there can be gross injustice in the sufferings of one as of millions. Furthermore, it is noteworthy that in the post-war civil cases the effect of the injustice is less significant than the symbolism of upholding the unjust law. Quite frankly, whether one set of relatives inherits over another set, i.e., whether Dutch or German laws of intestate succession prevail, is totally irrelevant from the perspective of justice. Yet it was the

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requirement to recognize the legal validity of gross injustice in one outcome that forced the court to adopt the alternative. Again, the compulsory sale of a business at an undervalue for the sake of the 'common good' is an injustice; but it was the anti-Jewish motivation for the sale that made it voidable as gross injustice. It is precisely the underlying racist sentiment that distinguishes what in effect might be indistinguishable. By the same token one can argue that it is the anti-Chinese persecutory sentiment behind the Chinese Immigration Act, and the willingness to countenance the resultant bonded servitude in conditions of extreme physical and emotional hardship, which makes the Act objectionable, rather than the precise degree of suffering it gave rise to in individual cases. It is thus at least arguable that the Act was invalid because grossly unjust, and the Canadian courts have been wrong to refuse to hear the arguments to that effect. Legal certainty protects the expectations of people relying on the actual validity of facially valid laws. In criminal cases, people may have acted in reliance on a defence, or believing that their actions were appropriate. In civil cases, innocent third parties may have gained ownership of property. In this case, no such difficulties arise, since the case is against the Government, which has no reliance in the security of its taxes worth protecting.66 If the statute is grossly unjust, there would seem to be no substantive reason why an action in restitution for mistake of law on the part of the tax-raising authorities should not proceed. However, legal certainty is not exhausted by taking adequate account of the interests of individuals. The rules of limitation express the value of legal stability in general. It is good that there should be an end to litigation, a line drawn under the legal reworking of the past. How long should victims of gross injustice be allowed to seek redress before matters must be left to history? Criminal cases have a certain inbuilt 'natural' limitation period - the life of the wrongdoer. By contrast, the consequences of civil wrongs are, in principle, indefinite, and thus some limitation is necessary. The problem is that periods of limitation are (within bounds) arbitrary. The common law traditions have tended to opt for shorter periods than continental European legal systems.67 Clearly, standard limitation periods running from the time the wrong was committed are inappropriate, not least because there may be no practical opportunity for redress within the period. For this reason, long limitation periods might be suggested, for example, a 'three generations' rule (i.e., ninety years instead of the normal continental one generation of thirty years). But one suspects that this is too formalistic. The purpose

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of limitation rules is to restrict the time available to a victim to bring legal proceedings, in the interests of legal certainty. Once legal proceedings may be brought, that time-frame need not be any different from those for remedying 'normal' injustice. Since there is nothing natural about such time periods, it might be better to leave that up to each system to determine. In the context of both England and Canada, one might assume then that victims claiming restitution of money paid under a mistake of law have six years from the date on which the action could reasonably been brought.68 However, it is not necessarily correct to assimilate the action for return of tax in the circumstances of gross statutory injustice to that of ordinary mistake of law. One could argue that in the wholly exceptional circumstances represented here, statutory periods of limitation can never apply, which would leave the courts to fall back on the equitable doctrine of laches.69 This prevents the pursuit of a claim after unconscionable delay, but it sets no fixed time period. Accordingly, the claimants would only be barred if their pursuit of the claim were unconscionable, which it patently was not. Conclusions The response of the Canadian courts to the action in Mack has been disappointing. This was never going to be an easy case, but the real points of dispute - the possibility that the Chinese Immigration Act 1885 might be invalid, the nature of the injustice committed, and the proper limitation period for the action - were never even addressed. Instead the claim was ignominiously struck. A fully mature legal system recognizes that the judiciary have a duty alongside the legislature to ensure the proper content of law, and this may in exceptional cases require them to deny the validity of procedurally sound statutes. Of course, should a reasonable statutory scheme of compensation be created, the courts would respect that as replacing the right to restitution for mistake of law. But it would seem that on both accounts the Canadian system has yet to reach full maturity. NOTES 1 (1609), 8 Co. Rep. 113b at 118; 77 ER 646. 2 A.V. Dicey, An Introduction to the Study of the Constitution, 10th ed. E.C.S. Wade (London: Macmillan, 1965), 40.

252 Julian Rivers 3 Under s.4 Human Rights Act 1998, British judges have the power to issue 'declarations of incompatibility' with rights under the European Convention of Human Rights. However, such declarations do not invalidate the statute. 4 Van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] E.C.R. 1; Costa v. ENEL, [1964] E.C.R. 1141, R v. Secretary of State for Transport ex • parte Factortame (no. 2), [1991] 1 A.C. 603. 5 Martin Loughlin, Public Law and Political Theory (Oxford: Oxford University Press, 1992), especially chapters 5 and 9. 6 See, above all, T.R.S. Allan, Law, Liberty and ]ustice (Oxford: Clarendon Press, 1993); among extra-judicial writings, see especially Sir Stephen Sedley 'The Sound of Silence: Constitutional Law without a Constitution' (1994) 110 L.Q.R. 270; id., 'Human Rights: a Twenty-First Century Agenda' [1995] P.L. 386; Sir John Laws, 'Judicial Remedies and the Constitution' (1994) 57 M.L.R. 213; id., 'Law and Democracy' [1995] P.L. 72. 7 T.R.S. Allan, 269-70: 'the point at which restrictive interpretation in particular cases should be described as disapplication cannot be given philosophic precision'; Sir Stephen Sedley, 'Human Rights: A Twenty-First Century Agenda/ 394: '[whether the then future Human Rights Act introduces legislative review] by entrenchment... or by infiltration ... may not matter very much.' Sir John Laws, 'The Constitution: Morals and Rights' [1996] P.L. 622 at 635: 'the judges have elaborated well accepted rules of construction within whose matrix such pressures [i.e., involving a conflict with Parliament over fundamental rights] may usually be resolved' (my emphasis). 8 F.A. Mann, 'Britain's Bill of Rights' (1978) 94 L.Q.R. 512 at 513. 9 Lord Woolf of Barnes, 'Droit Public - English Style' [1995] Public Law 57 at 69. 10 The most accessible German-language version of Radbruch's legal philosophy is now the excellent edition by Ralf Dreier and Stanley L. Paulson, Gustav Radbruch-Rechtsphilosophie (Heidelberg: C.F. Miiller, 1999). This contains a biographical sketch, an introduction to the Rechtsphilosophie, bibliography, and secondary literature. A good starting-point in English is Barend van Niekerk, 'The Warning Voice from Heidelberg - The Life and Thought of Gustav Radbruch' (1973) 90 South Africa L.J. 234. The most thoughtful discussion in English is still that of Julius Stone,'Human Law and Human Justice (London: Stevens and Sons, 1965), 235-62. See also Ian Ward, 'Radbruch's "Rechtsphilosophie": Law, Morality and Form' (1992) 78 Archiv fur Rechts- und Sozialphilosophie 332. 11 See, e.g., L.B. Curzon, Jurisprudence Lecture Notes (London: Cavendish,

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27 28

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1993), 45.1 am not concerned here with Radbruch's thesis that legal positivism contributed to Nazi dominance. That thesis was almost certainly incorrect, but to some extent depends on what is meant by legal positivism. See the discussion in Stanley L. Paulson, 'Lon L. Fuller, Gustav Radbruch and the "Positivist" Theses' (1994) 13 Law and Philosophy 313. Translated by Kurt Wilk in The Legal Philosophies ofLask, Radbruch and Dabin (Cambridge, Mass.: Harvard University Press, 1950). Stanley L. Paulson, 'Radbruch on Unjust Laws: Competing Earlier and Later Views?' (1995) 15 Oxford J. Legal Stud. 489. Ibid., 489-50. Philosophy of Law, section 2 (Dreier/Paulson, 13-20; Wilk, 53-9). In section 4 he defines law as 'the reality, the meaning of which is to serve legal value, the idea of law' (Dreier/Paulson, p. 34; Wilk, 73). Section 4 passim. Section 9 (Dreier/Paulson, 73; Wilk, 107). Section 9 (Dreier/Paulson, 77; Wilk, 111-12). Section 10 (Dreier/Paulson, 84; Wilk, 118-19). Ibid. Section 15 (Dreier/Paulson, 113; Wilk, 146-7). Section 10 (Dreier/Paulson, 85; Wilk, 119-20). Nachwort-Entwurf 1.2 (Dreier/Paulson, 194-208 at 202). See Thomas Mertens, 'Radbruch and Hart on the Grudge Informer: A Reconsideration' (2002) 15 Ratio Juris 186 at 190-1. 'Gesetzliches Unrecht und iibergesetzliches Recht' (1946) S.J.Z. 105 (Dreier/Paulson, 211-19). See R. Alexy, 'A Defence of Radbruch's Formula,' trans. David Dyzenhaus, in David Dyzenhaus, ed., Recreating the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999), 15-17; Mertens. I take it there is really only one formula and Radbruch is adverting to the difficulty faced by judges in determining when the line has been crossed. See the helpful discussion in Julius Stone, 247-51. See below. His discussion of how to resolve problematic post-war trials remains 'positivistic.' See 'Gesetzliches Unrecht und iibergesetzliches Recht' (1946) S.J.Z. 105 (Dreier/Paulson, 211-19) section IV. Radbruch's fascination with English law (Der Geist des englischen Rechts, 1945) is not irrelevant in this context and would repay further study. Theorie der juristischen Argumentation (1978; 2nd ed. 1991), appearing in English as A Theory of Legal Argumentation (trans. Ruth Adler and Neil MacCormick (Oxford: Oxford University Press, 1989). He is also well

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31 32

33 34 35 36 37 38 39 40 41 42 43

44 45

46

47 48 49 50 51 52 53 54

known in German constitutional theory through his Theorie der Grundrechte (1985; 3rd ed. 1996). For an English version, see A Theory of Constitutional Rights, trans. Julian Rivers (Oxford: Oxford Universitry Press, 2002). The Argument from Injustice, trans. Stanley Paulson and Bonnie Litschewski Paulson (Oxford: Oxford University Press, 2002). 'A Defence of Radbruch's Formula,' trans. David Dyzenhaus, in David Dyzenhaus, ed., Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999). BVerfGE 23,98. BVerfGE 34,269. The Argument from Injustice, 13. Ibid., 27-35. Ibid., 35-9. Ibid., 40-68. Ibid., 50-1. Ibid., 68-81. Ibid., 127. See the discussion in Mertens; Rivers, 41-5. H.O. Pappe, 'On the Validity of Judicial Decisions in the Nazi Era' (1960) 23 Modern L. Rev. 260 corrected Hart's earlier misrepresentation of the case law. BGHSt2,234. Discussion in Julian Rivers, 'The Interpretation and Invalidity of Unjust Laws,' in Dyzenhaus, ed., Recrafting the Rule of Law; Rudolf Geiger, 'The German Border Guard Cases and International Human Rights' (1998) 9 European Journal of International Law 540; Peter E. Quint, 'The Border Guard Trials and the East German Past - Seven Arguments' (2000) 48 American Journal of Comparative Law 541. A case arose concerning a shooting before East Germany had signed up to the International Covenant on Civil and Political Rights: BGH NJW 1994, 2708. See Rivers, 53. BGHZ10,340. Kammergericht, Judgment of 29 October 1946, SJZ 1947,257. Verordnung tiber den Einsatz judischen Vermogens, 3 December 1938. Oberlandesgericht Kiel, Judgment of 10 July 1947, SJZ 1947,511. BGHZ16,350. BVerfGE 23,98. BVerfGE 95,96. See the discussion in Walter Leisner, 'Das Bodenreformurteil des Bundesverfassungsgerichts' NJW 1991,1569.

Gross Statutory Injustice and the Head Tax Case 255 55 This judgment was the civil analogue to the criminal border guards cases. From a theoretical perspective it was disappointing that the 'Radbruchtradition' was not developed. 56 BVerfGE 54,53. 57 This volume, 270-6. 58 Ibid. 59 See J. Raz, Practical Reason and Norms (London: Hutchinson, 1975), 127. 60 See, for example, John Bell and George Engle, Cross on Statutory Interpretation, 3rd edn. (London: Butterworths, 1995), 49 61 If generic terms in normative statements are names for sets of instances, then the meaning of a legal norm simply is the set of cases it determines. If this is true, there is no gap between input/reasons and output/effect; there is no logical difference between determining that a norm refers to one set of instances and that the norm is invalid in respect of another set. Indeed, we often talk of the 'legal meaning' of a norm in precisely this outcome-orientated, nominalist sense. I am indebted to Mattias Kumm for drawing my attention to the connection between the problem of the meaning of normative statements and nominalism. 62 For example, the reasonable car driver apparently does not have a stroke. See Roberts v. Ramsbottom, [1980] 1 W.L.R. 823. 63 See the passage cited from Gesetzliches Unrecht und ubergesetzliches Recht, above. My point is not that a completely invalid norm could never be enacted without evil intent; merely that it is not likely. 64 See, for example, BVerfGE 3, 58 (reworking of civil service law effectively valid) and BVerfGE 6, 389 (reworking of sexual offences effectively valid). 65 This use of Dworkin's idea of 'gravitational effect' is (I would suggest) mistaken. Dworkin's use refers to the moral principle which underlies a precedential rule. See R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 111-15. One could extend this effect to statutes, but it still operates at the level of principle, not rule. 66 Within the law of restitution this is expressed in the proposition that the Government cannot benefit from the defence of change of position. 67 See the discussion in Izhak Englard, 'Restitution of Benefits conferred without Obligation/ International Encyclopaedia of Comparative Law, chief ed. Peter Schlechtriem (Tubingen: J.C.B. Mohr, 1991), Vol. 10, ch. 5, pp. 178-83. 68 See (in respect of England) Goff and Jones, The Law of Restitution (London: Sweet and Maxwell, 2002), para. 43-004. 69 See Brunyate, Limitation of Actions in Equity (London: Stevens, 1932).

The Juristic Force of Injustice DAVID DYZENHAUS

Introduction In 1885 Canada enacted the Chinese Immigration Act,1 which 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 new Chinese Immigration Act was 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 to the Chinese Canadian community, and so individuals within that community attempted to get redress through the courts - both repayment of the tax and an apology. The main argument made by the lawyers for the Chinese Canadians who sought redress - either individuals who actually paid the tax or their spouses or descendants - was that the government was under a legal obligation to disgorge the taxes collected because it had been unjustly enriched by the tax. That there was enrichment was clear, but in Mack v. Attorney General of Canada^ first the Superior Court of Justice and then the Ontario Court of Appeal found against the Chinese Canadians on the basis that the claim of unjust enrichment could not succeed because the statute was a 'valid juristic reason' for the enrichment. Both courts recognized that the head tax was substantively unjust. Indeed, the Court of Appeal said at the beginning of its judgment that the head tax was one of the 'more notable stains' on Canada's 'minority rights tapestry'5 and it rather curiously quoted this evaluation at the

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end.6 But the courts decided the case by acceding to the Attorney General of Canada's drastic motion to have the claim struck because it disclosed 'no reasonable cause of action.' The Supreme Court of Canada has indicated its agreement with this stance by rejecting an application for leave to appeal against this decision. As we will see, the seemingly insurmountable obstacle in the path of the litigation is retroactivity or retrospectivity. If in the past a law was valid by the standards of the time, there is a general intuition that there is something morally wrong with declaring it to be invalid because our current tests for the validity of law would find it so. All models of the rule of law share this intuition because they all agree that certainty is an important value served by the rule of law. And the intuition is particularly strong when the issue is criminal liability for acts which at the time they were performed were authorized, even required, by a valid statute. One should be loath to punish someone for doing something which was not legally proscribed at the time he did it and especially loath when he was legally required to do as he did. But the intuition also operates when the issue is restitution of property which was taken under a valid law. The stakes might seem lower when no one is at risk of loss of liberty, but that means only that the wrong is less egregious. When a legislature is asked to decide whether the moral wrong perpetrated by a past law is so bad that rectifying it outweighs the harm done in overriding the intuition, the intuition is an obstacle but not an insurmountable one. Where it seems to become insurmountable is when courts are asked to do the same thing. Courts are usually assumed to have neither the legitimacy nor the institutional capacity to make such a decision. There will be many situations, like that of the head tax, where there is an obvious injustice but no political will on the part of the government to provide redress for it, whether redress requires legislation, as in criminal matters or, as in Mack, an apology and restitution. In such situations, judges might be tempted to provide the redress. And if judges do this, they are subject to an additional problem. In criminal matters, or so it seems, both the legislature and the judiciary have to invalidate a past statute in order to prepare the way for a successful prosecution. But in civil matters, the government simply has to act; for example, to apologize and give restitution. One might think, rather oddly, that there is a kind of moral invalidation of the past in that the government says now that the reasons on which its predecessors acted were so bad that these reasons must be

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officially denounced or cancelled. But no legislative invalidation of an earlier statute is involved in such action, while in a civil matter the court has to make an order, which might then seem to involve legal invalidation. So it might also seem that judges who are tempted to rectify the injustice will be tempted in both civil and criminal cases to pretend that they are doing something other than invalidating a statute. Mack raises these important issues about how to address past injustice in an illuminating fashion. The lawyers did not argue that the Chinese Immigration Act was unconstitutional during the time of its operation. They were fully aware that the doctrine of parliamentary supremacy at the time the Act was in force likely precluded any challenge to the validity of the statute on the grounds of its substantive injustice. Nevertheless, they argued that the injustice of the statute was recognized by Canadian courts at the time, by international legal norms, and by Canadian governments which signed onto various international conventions which prohibited racial discrimination. In addition, they argued that in the absence of redress by the government, the discriminatory status inflicted by the head tax is perpetuated, and that such discrimination violates the equality protection in s.15 of the Charter of Rights and Freedoms. Their position was that the head tax's consequences reached into the present by perpetuating a discriminatory status on Chinese people.7 Their main argument was that the Chinese Immigration Act could not be relied on as a legal or valid juristic reason by the government to retain the taxes. Here they could deploy extensive common law authority, including Canadian authority, that the test for unjust enrichment is not a mechanical or formal one, determined by categories where past courts have found for a claimant, but one of 'good conscience.' The Court has an equitable discretion to adapt the common law so as to live up to the animating principle that no man should be allowed 'unjustly to appropriate to himself the value earned by the labour of another.'8 I will argue that the lawyers' argument mainly presupposes a model of the rule of law which holds, with Lon L. Fuller, that there is a morality internal to law, so that the rule of law is about the enforcement of that morality.9 This conception of the rule of law as an internal morality of law is an updated version of the ancient idea of the common law constitution - that positive law from whatever source is just evidence of the values of the law that have existed from time immemorial and that have their most explicit and main articulation in judicial rea-

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soning about the application of the law in particular cases. So I will refer to it as the common law model. I will also argue that the Court adopts a different model of the rule of law - democratic legal positivism or positivism for short. This model combines a democratic argument that it is for Parliament alone to decide on what values should have legal force with a positivist argument that the most fundamental value of the rule of law is certainty. On this model, values and norms have legal force only when they can be identified as law by hard or factual tests or criteria. Such tests prevent judges from relying on their own moral judgment, as legal values and norms are only those values and norms which have been explicitly incorporated into the law of the land. As we will see, the effect of this model is that the judges in Mack recharacterize the lawyers' argument so as to suggest that it can be answered definitively, so definitively that it could be said to disclose no reasonable cause of action. However, the recharacterization is not total. For, to the extent that the lawyers relied on yet a third model of law, that put forward by Gustav Radbruch, they laid themselves open to this recharacterization. Radbruch was one of Germany's most distinguished lawyers during the Weimar period. In the 1930s, he was dismissed from his Chair at Heidelberg by the Nazis but remained in Germany in what is often referred to as 'inner exile.' After the war, in the light of his experience of the deterioration of legality during the Nazi period, he argued that lawyers should see that an extremely unjust law loses its validity as a result of its injustice. Under the rubric of the Radbruch Formula, this idea has been deployed by German courts to invalidate the Nazi Nationality law which deprived emigrants of their nationality and property and which thus stood in the way of property claims after the Second World War. It was also deployed after reunification by courts which found East German border guards criminally liable for shooting people attempting to escape to the West, despite the existence of a statute which entitled them to use lethal force to prevent an escape.10 I will try to show that the Court's reasoning responds to the Radbruch Formula, rather than to the common law model. Since I will argue that the common law model should be adopted, I will also suggest that the lawyers, in so far as they relied on the Formula, gave the Court a toehold which it could deploy to avoid confronting the main part of their argument. However, we will see that my arguments confront a powerful objection - the common law model adopts the pretence that judges are not

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retroactively invalidating the bad law from the past. In contrast, proponents of the Radbruch Formula maintain, the Formula makes it clear that judges are involved in retrospective invalidation. It thus brings to the surface both the moral dilemma that should be faced up to in such situations - whether the moral good achieved by the act of retroactive invalidation outweighs the moral harm it inevitably causes - and the institutional issue of whether we should reserve to legislatures the right to confront that dilemma. I will start by setting out the three models in the context of the case. I will then show how the power of the common law model is revealed in the continuum of connections between law and morality which it exposes. However, these connections are not with a morality that has to be imported into law. The values are legal values - the values of legality or of the rule of law which legal order must aspire to realize. And once we see that the values are legal as well as moral, we will also see how the common law model can respond effectively to the objection about illegitimate judicial retroactivity. Three Models of the Rule of Law (i) Democratic Legal Positivism The important paragraph in Mack for understanding the Court's positivist stance is paragraph 46: The problem with these submissions [about unjust enrichment] is that they are not independent of the appellants' submissions relating to their customary international law and Charter claims. Indeed, as the above paragraphs make clear, the appellants' juristic reason argument is explicitly and inextricably linked to these two arguments.

The Court is saying that there was no legal argument available during the time the Chinese Immigration Act was in force that would have given a judge grounds to invalidate the statute. First, the Court held that the lawyers' claim that the customary international law of the time prohibited racism because it contained a norm of non-discrimination is false. But even were the claim true, so that the statute was in violation of such a norm, the Court pointed out that domestic statutes trump customary international law. Second, there was no bill of rights in force in Canada at the time, so the fact that the statute would violate the Charter were it enacted now is, according to the Court, irrelevant.

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In adopting this stance, the Court displays a positivistic, binary mindset, which forces it to characterize the issue in terms of the legal validity of the statute and in an all-or-nothing way.11 This positivist mindset leads to a position called dualism, the position that jurisdictions like Canada and the United Kingdom traditionally take on the question of the influence of international legal norms in the domestic legal order. The dualism is between the values or norms of the international legal order and the domestic legal order and it precludes entry of the former into the latter except in two situations. International norms enter, first, when the norms and values are part of customary international law, that is, when there is a practice among states which observes the values and norms and the states consider themselves bound by the values and norms. Second, if the values and norms have not achieved the status of customary international law, they will enter into the domestic legal order when and only when there is domestic legislation that explicitly incorporates or implements those values and norms. Even when norms and values have achieved the status of customary international law, the traditional position says that they will have no effect when it is the case that a domestic statute explicitly contradicts them. So what we see in dualism is the primacy given to law in the sense of domestic statutes. Such statutes play the crucial role even when international law has 'hardened' to the status of customary international law, since domestic statutes can exclude international law from having any effect. And when international law is still 'soft/ they play a role in that the only way for such law to become 'hard' is through a domestic statute. Hence, this dualist position is justified by the positivist model of the rule of law, which regards statutes as the primary, even the only, legitimate source of legal values. And it is this model which drives the resistance of the Ontario courts to the arguments made in Mack. Consider in this regard the positivist view of values and norms in a jurisdiction which has no entrenched bill of rights. Positivism says that judges should apply only those values and norms that have been explicitly incorporated into the law by statute. If the jurisdiction is a common law jurisdiction, then positivism will regard the norms and values of the common law in much the same light as it regards the norms and values of customary international law. The common law is binding in so far as there is a practice among judges that observes its values and norms and the judges consider themselves bound by the values and norms. But even when norms and values have hardened in this way, they will not apply if there is a statute that explicitly contradicts them.

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What we get here is a conception of the law, including the common law and international law, as a system of rules, a system which includes rules about how judges must deal with conflicts between subsystems, with the overarching principle being that statute is the primary kind of law so that, in a conflict between subsystems, statute always wins. Indeed, the interpretative question for positivism is always whether a law is valid or not, according to the criteria of validity or rule of recognition in the legal order.12 When a jurisdiction entrenches a bill of rights, positivism has to make sense of the fact that there is now legislative incorporation - indeed, a kind of super incorporation - of very general values and norms, and these now serve as part of the rule of recognition for law, part of the legal system's criteria for the validity of law. Positivism makes sense of this fact in a way that tries to serve to the greatest extent possible its conception of the rule of law as being above all about the value of certainty. According to positivism, the bill is an entirely novel legal event in the legal order, the introduction of a general value-based inquiry into judicial deliberations about what law is. But that inquiry should be treated in the same way as the inquiry generated by a statute which, for example, says that all transactions of a certain kind have to be governed by principles of fairness and good faith. That statute is not regarded as evidence of free-standing legal principles of good faith and fairness which should be relied on by judges even when the transactions in questions are not covered by the statute. The statute is the positive source or basis of the values and so they apply only within the explicit scope of the statute. Thus when it comes to a bill or charter of rights, positivism draws a distinction between the areas of law which have been rendered uncertain because they have to be evaluated for their compliance with the bill and the areas which are unaffected by the bill. In sum, for positivism the source of all value in a legal order is valid positive law and the scope of each value is restricted to the scope explicitly set out in the particular positive law. A bill or charter of rights poses a problem for positivism just because of the generality of the document. But that problem is dealt with to the extent possible by limiting the application of the values to the explicit scope of the document. (ii) The Common Law Model In contrast, the common law model holds that positive law from whatever source is just evidence of the basis of the law, the constitutional or

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fundamental values of the law that have existed from time immemorial and which have their most explicit and main articulation in judicial reasoning about the application of the law in particular cases. When this model makes the claim about time immemorial, it does not have a view of the value content of the law as frozen. The idea of time immemorial - time that stretches beyond memory - is meant to suggest that there is no particular moment in time when these values were, as it were, created or legislated. Rather, the values are constantly in play and also constantly interpreted in such a way that the stock of values is always updated. The sense of what those values are will change and sometimes change significantly over time. But at each point, interpretation of what those values are attempts to show that the interpretation is of the values both of the particular legal order - the order of the positive law of a jurisdiction - and of ideal legal order - the values to which any positive legal order must aspire. Thus the idea of the written constitution as a living tree - as constantly evolving - comes naturally to judges who operate with the common law model, since they already think there is an unwritten constitution which contains fundamental legal values which it is the judges' duty to interpret and update. It is important to make the distinction between 'the legal order' and 'legal order' because this model recognizes that one positive legal order will differ from another in terms of its (positivized) value content. But it also regards the idea of legal order, of government in accordance with the rule of law, as an aspirational ideal,13 as an attempt to make the law serve justice, so that judges legitimately understand the positive law in terms of that inspiration. Their interpretative duty then is not, as positivism has it, first to determine the content of the positive law without relying on their own moral sensibilities and then to apply that content. Rather, their duty is to determine the content of the law in accordance with the aspirations of (ideal) legal order. Notice that the common law model no less than positivism claims that when judges are faithful to the law, they do not impose their moral views on the law. The difference between the common law model and positivism is that the former does not demand that judges avoid moral deliberation unless the legislature commands them so to deliberate. Rather, it requires judges to engage in moral deliberation, but tells them to focus such deliberation on legal values - on the values of ideal legal order, which are partially manifested in the positivized law of particular jurisdictions. Put differently, common law judges have an obligation of fidelity to law, but law includes more than positive law, law con-

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ceived as rules with determinate content - law also includes moral principles which are intrinsic to the idea of legal order, principles which are given content or concretized by statements about legal value to be found in the positive law. I have already alluded to the fact that for these judges a new written bill of rights is to be regarded in the same light as their sense of the common law constitution of unwritten fundamental values. This fact means that, unlike their positivist counterparts, common law judges will not regard a new bill of rights as a radically novel legal event. Rather, they will regard the enactment and entrenchment of the bill as a democratic articulation of fundamental legal values, which might include the value of equality before the law of all those subject to the law. One needs to take some care in unpacking this claim. First, to regard the bill as an articulation of fundamental values is not to say that it is either a definitive or an exhaustive statement. It is not definitive because the bill becomes part of the interpretative context once enacted, so that it too is subject to deliberation and updating. And it is not exhaustive because it does not purport to say what all of the fundamental values are, something that has been forcefully recognized by Canadian judges, most notably in the Quebec Secession Reference.14Second, to say that the bill is a restatement does not mean that what it says makes no difference. There is one obvious difference, which is that most new bills will give judges an authority they lacked before, often an authority to declare statutes invalid which violate the rights. But it also seems clear that a statement of the right to equality such as in s.15 of the Charter of Rights and Freedoms requires an understanding of equality that is a lot more substantive than that involved in the claim of the common law model that the value of equality is a value that is intrinsic to the rule of law. It will likely require not only that judges update their common law understanding, but also that they will attempt to correct the more parsimonious understandings, even the misunderstandings, that are embedded in their particular legal tradition. In my view, the same sorts of points can be made about this model's attitude to other sources of legal value, for example, international human rights law, or domestic statutes that set up human rights regimes, for example, the Canadian statute that governs the federal government agencies, or the Canadian provincial statutes that establish human rights commissions. All of these positive legal sources of value are regarded as parts of a project shared between courts, legislatures, and international

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legal bodies, which is recognizably a continuation of the project on which the ancient idea of the common law constitution is predicated. (Hi) Radbruch's Model

The third model of the rule of law is Radbruch's, which says that extreme injustice is no law. In a powerful defence of Radbruch, relied on by the lawyers in Mack in their pleadings, Robert Alexy argues that the Radbruch Formula might be regarded as complementary to a Fullerian or common law model of the rule of law, as it deals with precisely those cases where the injustice of the positive law is absolutely explicit so that there is no room for judicial interpretation.15 Moreover, because the Formula is limited to cases of extreme injustice which the legislature will not redress, it does not put judges onto a slippery slope of imposing their own fallible moral judgments on the law. These are basically pragmatic points designed to rebuff positivist concerns about judicial activism, especially when such activism is disguised by claims by judges that they are simply declaring the law. But Alexy wants to go beyond pragmatic claims. According to Alexy, all law comes with a claim to 'correctness/ By correctness, Alexy seems to mean more than technical validity. Not only does Richtigkeit - the German term for correctness - come from the word for law, Recht, which means right or justice, but Alexy's example to support his argument asks us to imagine a constitution which has as its first provision, 'X is a sovereign, federal and unjust Republic.'16 He regards such a provision as crazy, and argues that the craziness comes about because the provision contradicts the claim to correctness, which, in his view, 'determines the character of law/ thus excluding any claim that law is a 'mere command of the powerful/17 For Alexy, then, the Radbruch Formula articulates the inherent connection between law and morality by setting a limit on what can count as valid law - the limit of extreme injustice. There is an important issue at stake in the question whether the Radbruch Formula does in fact complement the common law model or whether it is what we could think of as positivism with a minus sign. If it is the latter, then the difference between the Radbruch Formula and positivism is that the Formula simply subtracts extremely unjust laws from the category of the valid laws of the legal order. If it is the former, then what we have is a continuum of connections between law and

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justice of the sort that the common law model envisages, with the Radbruch Formula seeking to express what happens at the end of the continuum where the positive law is completely explicit about its injustice. And with the continuum, as I will now argue, the Radbruch Formula takes an interpretative turn which puts it at risk of losing its one pragmatic response to legal positivism - the claim that it confronts the dilemmas involved in dealing with past injustice by advocating an explicit and frankly retrospective invalidation of the law that permitted or required that injustice.18 Instead, it has to adopt the claim which positivism regards as a 'childish fiction' - that the judges are simply deciding what the law is.19 But, as we will also see as we move along the continuum, there is also one advantage gained as the Radbruch Formula is enveloped by the common law model. The values and principles on which judges rely in these cases do not seem imported entirely from outside of the law as the limit morality places on law. Rather the values and principles come from the inside of law. They are principles and values of legal morality, so that judges can plausibly argue that they are simply doing their job when they enforce these values and principles. The Continuum of Connections We can elucidate the different points on the continuum of connections between law and its morality by starting with judicial review of administrative decisions, where the question is whether judges should rely only on those controls which are explicitly mandated by the statute authorizing the official to act. Here we are at the beginning of the continuum, where the statute is more or less silent about the control which judges are asked to impose and so, to use a classic common law formulation, it might seem legitimate for judges to allow the justice of the common law to supply the omission of the legislature. I will then discuss the situation where a statute is half-explicit about its injustice and finally the situation of absolutely explicit statutory injustice which the courts encountered in Mack. My illustration of the beginning of the continuum is the situation that confronted the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration)20 - how to understand the authority of an immigration official who is delegated the task of deciding when someone subject to deportation should be allowed to stay in Canada on 'Humanitarian and

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Compassionate' grounds. In administrative law talk, we say that the official has a discretion. For years, and right up until Baker, such grants of discretion were regarded by courts as 'unfettered/ as subject only to the limits explicitly set out in the grant. As long as the decision was about the right sort of person, the official could make the decision as he pleased.21 And judges would often say that the legislature, in delegating such tasks to administrative officials, had unambiguously manifested its intention that the discretion be unfettered. In Baker, the Court regards the terms of the grant of the discretion as an occasion for interpretation in the light of 'fundamental values' of Canadian law and of the rule of law. On the basis of its understanding of those values, it found that the immigration officials had a duty to give reasons for their decisions and that those reasons should be assessed by a fairly intrusive standard of reasonableness. Moreover, the content of reasonableness was derived in part from a ratified but unincorporated convention, the Convention on the Rights of the Child, which required that administrative officials make the best interests of the children a primary consideration in any decision which affected those interests.22 It was on this point that two judges dissented on dualist grounds, claiming that to give any domestic effect to the Convention offended against the separation of powers which reserves lawmaking authority to the legislature.23 The dissent makes the mistake of supposing that legal authority can be exercised only in the all-or-nothing way which positivism contemplates. Further, the dissent is inconsistent with the judges' agreement with the majority's holdings on the duty to give reasons and the standard of review. From the positivist perspective, these holdings are just as offensive, since they are not based on explicit legislative statement, but on the judicial sense of what is required by the common law model. As this case illustrates, the point that marks the difference between positivist and common law judges is that the latter will regard it as part of their obligation of fidelity to law to update the common law constitution in the light of values that are arguably important articulations of fundamental legal values - whether these be sourced in written bills of rights, human rights treaties, or domestic human rights statutes. Their duty here is not the same as the duty to apply, say, the right to freedom of expression protected in s.2(b) of the Charter when considering a provision of the Criminal Code that criminalizes possession of pornography. It is a duty to treat as influential in their understanding of the content of the law fundamental legal values that are clearly relevant to

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the legal issues at stake. This understanding of the authority of fundamental values as influential authority, which I owe to my colleague Mayo Moran,24 is one which seeks to show that law's authority does not operate only in the all-or-nothing fashion with which positivists equate legal authority. Law's authority has another mode of operation, of demanding attention to fundamental values in the sense that they must figure in the judge's or other legal officials' deliberations either about the content of the law or, in the case of administrative officials, in the exercise of their discretion. Influential authority is less demanding than the peremptory authority of invalidation, but it is still much more demanding than a stance that says that if there is an ambiguity or gap in the law, judges may clear up the ambiguity/fill the gap by relying on whatever legal sources they find persuasive. Thus, according to the majority in Baker, the officials were under a duty to take the children's interests into account, and to give them substantial weight, but this duty did not dictate a particular decision. Next on the continuum of connections between law and its morality is the situation where a statute is half-explicit about its injustice. Consider the legal situation in Regina v. Mee Wah, one of several nineteenthcentury British Columbia cases relied on by the lawyers in Mack.25 Here the British Columbia Legislature had enacted a statute which gave municipalities the authority to make by-laws which would levy a licence fee from laundries and set the upper limit for the fee at $150 a year. The British North America Act, the statute which set out the terms of Canadian federalism and thus of the division of powers between federal and provincial legislatures and governments (now referred to as the Constitution Act, 1867), gave provincial legislatures the authority to raise revenue by way of taxation of 'shops, saloons... and other licenses.' And the argument to the Court was that the statute was unconstitutional because it was outside the jurisdiction of a provincial parliament. Begbie C.J. for the Court focuses initially not on constitutional arguments - whether the statute is invalid - but on the meaning of 'other.' He relies in part on the ejusdem generis rule of statutory interpretation the rule that says that if the phrase 'and other' is used in a statute, it includes only those items that are of the same kind as the items enumerated before the phrase. But he also points out that the kind can only be determined by using another rule of statutory interpretation - the 'mischief rule - which asks what the purpose of the statute is / what mischief it was designed to correct - and then determines the kind or class in that light.26 There has to be some restriction on 'other/ he

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reasons, because if there were not, the province could use taxes to exclude a group it considered undesirable from the province by way of a tax on some attribute peculiar to that group, without naming the group. His examples are Chinese men excluded by a licence fee for having long hair at the back of one's head, or Jews excluded by a licence fee for eating unleavened bread.27 So his argument is not really about what is a permissible member of the kind but what is an impermissible member. This becomes clearer when he makes the point that the licence must be for the purpose of raising a revenue, not for 'repression or suppression.'28 And he claims that if the object of the statute is 'to subject Chinamen to exceptional disadvantages it is clearly unconstitutional.' He relies on authority from American courts, while recognizing that these decisions are not binding on him, and are also based on the American Constitution. But he says that not only have these courts had much experience in this kind of matter, but 'their opinions and reasonings being also founded on international law, and, I take the liberty of saying, on natural equity and common sense, they are entitled to great weight beyond the limits of their own jurisdiction.'29 He acknowledges that the statute before him does not 'by its very title bind illegality upon its forehead/30 But for him the issue is not whether the statute states its injustice but whether the statute's object is to bring about injustice. And clearly the statute is 'specially directed' at Chinese men. In addition, the licence fee is extraordinarily high, which shows that the aim wasn't to raise revenue but to drive Chinese men out of business. So his conclusion is that the Provincial Legislature has under the B.N.A. Act no power to impose or authorize a tax for the purpose of driving any industry out of the city or the province.'31 Now Begbie's reasoning has a constitutional hook - the federal/ provincial division of powers - and so his declaration of statutory invalidity might seem premised on a fact of the matter about the positive law of the Canadian Constitution.32 But there was, as he acknowledges, nothing on the face of the statute that made it unconstitutional. In order to find it invalid, he had to read into the scope of the delegation to the province of the authority to raise tax revenues a requirement of generality which included the principle of equality before the law. So his assumption is that the Constitution includes an unwritten principle of equality or non-discrimination, which will invalidate a provincial statute when it uses a broad authority to achieve a particular purpose to punish a disfavoured group.

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Of course, once that same kind of injustice is perpetrated in a statute of the federal parliament, such as the Chinese Immigration Act of 1885, the legal stakes are changed in the absence of a right to equality which is protected by an entrenched bill of rights. Now we have moved to that end of the continuum where the statute is unequivocal about its injustice. So, as in the case of the Germans who had been stripped of their property by the Nazi Nationality law and the Chinese immigrants who had to pay the head tax, the issue of how to interpret the law might not seem to arise as a theoretical issue about the authority of law because whatever test one uses to interpret the statute comes out with the same answer. It is an answer in what H.L.A. Hart, a leading legal positivist, called the core of certainty in the law.33 It is precisely this aspect of the case that led the Ontario courts to adopt the drastic measure of striking the claim because it contained no reasonable cause of action. And it is for this situation - the situation where a valid law states its injustice altogether explicitly - that Alexy argues that the Radbruch Formula is needed. That is, the Formula is needed in those cases where the injustice of the law is crystal clear, since there the common law conception cannot help a judge. However, I want to argue that the stakes are not wholly changed by the fact that the injustice was perpetrated in a federal statute, nor does it follow that the clarity of the statutory injustice requires the Radbruch Formula. The British Columbia cases demonstrate that even at the time that the federal government was prepared to initiate unabashedly racist legislation, courts would strike down analogues of such legislation at the provincial or municipal levels, relying on arguments about the division of powers, often combined with common law grounds of judicial review. There is a common theme to these cases and the lawyers' argument in Mack. It is that a legal instrument which seeks to punish an individual on the grounds of his race is prima faciesuspect in a legal order in which all are assumed to be equal before the law, even in the absence of a bill of rights that explicitly protects the right to equality. Hence, the judges should be alert to the possibility that the instrument is legally as well as morally defective. My point is not that an argument made to a court which sought to invalidate the Chinese Immigration Act during the time it was on the books would have succeeded. A knowledgeable observer of the Canadian legal order at this time would surely have predicted that such an argument would fail, because any court would conclude that a statute which a provincial parliament was constitutionally barred from enact-

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ing was by definition one which fell within the federal parliament's jurisdiction. Canadian courts today would not so readily come to this conclusion. For example, Canadian courts have found constitutional protection of the independence of judges in s.96 of the Constitution Act of 1867, which reserves the appointment of superior court judges to the federal government. And recent jurisprudence of the Supreme Court seems clear that this protection is one against federal as well as provincial legislation. Put differently, the Supreme Court today is willing to find, as I think the Court did in Mee Wah, that there are normative protections in the division of powers. But where courts today might differ is that they are also prepared to find that in substance these protections are of values more usually associated with a general doctrine of the separation of powers.34 But even if a court today is prepared to entertain such arguments, one has to take into account that there might be, as Alexy puts it, a 'covert kind of retroactivity' in relying on a current understanding of the rule of law to interpret the law of the past in a way which we know the courts of that time would have rejected. Indeed, because the retroactivity is covert Alexy suggests that it is worse than an open retrospective invalidation.35 However, in Mack, the issue for a judge who follows the common law model is not the understanding of the rule of law which would have prevailed a century ago, but the understanding on which judges must today rely if they are to meet their obligation of fidelity to law. Further, it is highly relevant for a judge today that that the common law model is no novelty. Not only is it as old as the idea of the common law, but it is the model which animated Begbie C.J.'s judgment in Mee Wah. One should recall here the common law aversion to bills or acts of attainder. These are statutes which offend the rule of law requirement that all laws be general in nature, particularly when a law is punitive. A law which seeks to punish a particular individual or class of individuals is considered suspect from the point of view of the rule of law, at least from the perspective of the common law model, because it violates the principle of generality.36 In Mee Wah Begbie uses a bill-of-attainder-like argument to invalidate legislation, though he was able to base his argument in the statute that prescribed the Canadian division of powers, so that he could treat the delegation of authority to a province in an analogous manner to a delegation of authority to an administrative official. But the fact that such an argument would at that time or even today fail by itself to

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invalidate a federal statute does not mean that the Chinese Immigration Act's legal status was unproblematic. It is only unproblematic from the positivist perspective which says that a statute which is technically valid, valid because it complies with the criteria adopted by a legal order for recognizing law, has the same force as all other valid statutes. But from the perspective of the common law model, the same reasons which led Begbie C.J. to invalidate the provincial statute are reasons which make the Chinese Immigration Act legally problematic. That the problems arise at one extreme on the continuum does not make a difference to the substance of the connection between law and its morality, but rather to the way in which the connection affects judgment. Here Ronald Dworkin's distinction between the 'gravitational force' of a law and its 'specific authority' is useful. If a judge finds that the best interpretation of a law is one that shows the law to be a mistake from the point of view of the rule of law, but not sufficiently mistaken to be invalid, it will be the duty of the judge to try to confine the force of that law to the greatest extent possible, to its specific authority, in order to prevent the mistake spreading. Judges, Dworkin asserts, owe only a 'qualified deference to the acts of the legislature' even in a legal order where the legislature is supreme. Thus, when statutes contain mistakes judges should limit their deference to the absolute minimum.37 On the basis of this distinction, I have argued in an analysis of cases dealing with the discriminatory laws of apartheid South Africa that it was the duty of judges who had no constitutional authority to invalidate such laws to try to confine them to the narrowest possible reading when it came to deciding what the scope was of the authority officials had to implement the laws. And this duty came about precisely because of the gravitational force of the legal principles of their common law tradition, in particular, the principle of equality before the law which requires that legislation be implemented fairly and reasonably unless the statute explicitly excludes such values.38 Suppose, for example, that Canadian judges had in the 1930s to decide between two interpretations of an ambiguous provision in a general immigration statute, one which permitted officials to exclude Jewish immigrants on the grounds of their race and one which did not. Suppose also that the racist interpretation was to some extent better supported by the text of the general immigration statute and that if judges took notice of clearer exclusions, for example, in the Chinese Immigration Act of 1923, which excluded Chinese immigration almost altogether, the racist interpretation would look like the right one. My

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claim is that the judges would be failing in their duty as judges if they accorded that Chinese Immigration Act gravitational force in their interpretation of the general immigration statute. Rather, they should give the more egalitarian interpretation of the general immigration statute, resting it on common law authority such as the nineteenth-century cases from British Columbia. But if that claim is right, it follows that when a judge now asks about the legal force of the Chinese Immigration Act of 1885, she is under the very same duty to confine its force to what it most specifically enacted and thus not to give it any gravitational force at all. The reasons for taking this stance are strong. Not only was the statute during the time it was in force inconsistent with Canadian commitments to equality, as evidenced in ratification of international instruments, the common law, and the record of parliamentary debates, but to let that force reach into present is in flagrant violation of the explicit values of the contemporary Canadian political and legal order. It is true that a court which finds that the Chinese Immigration Act no longer constitutes a valid juristic reason for retention of the head tax is at the same time extinguishing the only possible legal effect that that statute still has - the continuation into the future of the particular injustice it brought into being. But this fact suggests not that there is something wrong with the court's finding, but that there is, and always was, something legally wrong with the statute. That is, the statute was legally flawed even at the time it was in force, because it was akin to an act of attainder. That a court at that time might have rejected this argument, even that such an argument might not by itself invalidate a statute today, should be irrelevant to a court dealing with the issue of whether a statute which is off the statute book, presents a valid juristic reason for retaining the head tax. The court dealing with the issue today is not confronted by the problem of whether it would accept this argument were it the sole argument that confronted it in a challenge to a statute that is still on the books. Nor is the court dealing with the issue about whether it is unfair to impose on the past its contemporary interpretative practice. The only issue for the court is whether a statute that has been taken off the books still constitutes a valid juristic reason. It suffices in this regard to show that the juristic force of the statute is severely undermined by the fact that the statute was akin to an act of attainder. The statute's formal flaw from the point of view of the rule of law is a flaw because it is very closely connected with substantive injustice. The

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term bill or act of attainder seeks to pick out, without naming the particular act of injustice, what goes wrong when the law is used as an instrument by government to give itself authority to punish an individual or group of individuals. Hence, the determination of whether a statute is a bill or act of attainder is not by the fact that the statute names an individual or group of individuals, but by the fact that it names them for the purpose of punishing them, where punishment means an affront to the value of equality. Such bills are presumptively tainted, whatever the particular injustice each wreaks. So I want to claim that in the class of cases where the statute is absolutely explicit about its injustice, the interpretative issue is not contentious because a contemporary court is imposing present standards on the past, but because of a theoretical controversy about the authority of law. This is the controversy about whether law and its authority - and hence our conception of the rule of law - should be construed more along positivist or common law lines. And here it should be noted that Canadian courts have in recent years not only explicitly adopted the anti-positivist view that the authority of law is constituted by principles, but have contended that these principles and more have always been part of the Canadian legal tradition. Thus, as the lawyers pointed out in argument, the Supreme Court of Canada said in its decision on the legality of Quebec secession not only that the rule of law and constitutionalism are and have always been organizing principles of the Canadian Constitution, but so also is respect for minority rights.39 Further, it was at this point in their argument that the lawyers adduced the record of British Columbia courts which had struck down provincial legislation and municipal by-laws that imposed equivalents of the head tax. So if the issue were one about how to interpret a present law or a past law, it seems that Canadian courts should adopt the anti-positivist, common law model of interpretation. It is of course understandable that judges are reluctant to recognize that in important respects their democratic country had something significant in common with the racist totalitarian regimes of the twentieth century. Indeed, this reluctance might well be manifested in the fact that both courts agreed to adopt the drastic legal measure of finding that the lawyers' arguments disclosed no reasonable cause of action. As the lawyers tried to argue, this measure meant that they were prevented from presenting the full moral record of the implementation of the statute to the courts. In particular, the courts then avoided being confronted properly by the kind of 'stain' that the head tax was and the

The Juristic Force of Injustice 275 tension inherent in the Ontario Court of Appeal's claim that the stain was on a 'minority rights tapestry.' For if there is such a tapestry, then the Court's position that human rights sprang into being after the Second World War like mushrooms is wrong. The tapestry was woven, as the Supreme Court claimed in the Quebec Secession Reference, from the time of Confederation in Canada. Further, as we have seen, the head tax was suspect from the point of view of the rule of law, as evidenced in part by the British Columbia cases. It is also understandable that courts are generally reluctant to put judges on the slippery slope where they are constantly confronted by arguments that they should be in the business of remedying the substantive injustices of the past. If, however, the issue is one about justice in the administration of the law, then the determination of what constitutes legal injustice, injustice from the perspective of the rule of law, is properly within their province. They will still have to make a judgment that there is substantive injustice. As the point about bills of attainder shows, the legal injustice is triggered by a substantive injustice. But the legal injustice is the form that a particular kind of substantive injustice one that is an affront to a moral value that is also a legal value - will necessarily take. What should matter to the judges at this point in their reasoning is not so much the enormity of the substantive injustice, but the fact that form of law was abused in order to wreak such a substantive injustice. The Ontario Court of Appeal failed to appreciate that the issue of how best to redress the legal injustices of the past cannot be addressed from the perspective of the past, since the issue is what a court should do now about a continuing injustice, and not what a past court might have done, or would have done, given the interpretative practices and legal resources of the time the injustice was enacted into the law. That the continuing injustice is condemned by international instruments as well as by the Charter of Rights and Freedoms may not by itself be a sufficient reason for a court to order redress for the injustice of the past. But it is a compelling basis for a court to take fully into account the legal reasons for not according the status of a valid juristic reason to the Chinese Immigration Act. Hence, there was a serious interpretative issue at stake in Mack. And so one can defer judgment on the issue of whether a court should have ordered redress, at the same time as one acknowledges that there is a strong argument against the dismissal of the claim on the basis that it disclosed no reasonable cause of action. However, that acknowledg-

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ment requires that one sees that there is an alternative conception of the rule of law to positivism in the common law view, and that the common law model does not reduce the question of the authority of law to the positivist validity/invalidity distinction which, in my view, is presupposed in paragraph 46 of Mack. Fuller, Radbruch, and Substantive Injustice I have tried to show that the common law model can help judges even in cases of explicit statutory injustice arid moreover do so in a way that connects legal injustice with substantive injustice without putting judges on to the slippery slope that ends with them taking a role as pure moral philosophers. Judges will decide such cases on legal considerations, considerations that come from the common law conception of the rule of law. The points in the lawyers' pleadings where they depart from the common law conception and talk in Radbruchian terms are points which, in my view, rightly concern judges who want to maintain that their role is to apply the law, not to be pure moral philosophers. And these points made the pleadings vulnerable to the response from the Ontario Court of Appeal that because no court would have invalidated the Chinese Immigration Act during the time it was on the statute book, it must be given all the force it can have. It might well seem that too much is going on in the common law model's characterization of the legal situation - that the model covers a judicial power grab by obscuring the fact that judges are invalidating a past law. But I still want to argue that the common law model makes better sense than the Radbruch Formula of Alexy's powerful example to support his thesis that law claims correctness. I will then attempt to show how the problem of judicial retrospective invalidation is itself largely a product of the positivist mindset. I want to start with a less dramatic example than Alexy's of a country which enacts in the first provision of its constitution 'X is a sovereign, federal and unjust Republic.' My example comes from administrative law, where the values that a common law conception of the rule of law finds to be intrinsic to the rule of law are values primarily of reasonableness and fairness. When administrative officials implement the mandate of their particular statutory regimes, such as a determination about whether or not Mavis Baker's deportation from Canada should be stayed on 'Humanitarian and Compassionate grounds,' their interpretation of those grounds must be reasonable. And they must display

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independence of judgment/freedom from bias in making their decision and give the subject of the decision a fair hearing. So the claim to correctness in the administrative law context would be that there is something crazy about a statute which delegates authority to an official to exercise his discretion about whether, say, X is a danger to the security of the state, and says that the official may act unreasonably, in a biased fashion, and so on. The point here is not about the impossibility of such a statute. Consider for example Australia's Migration Act 1958 (Cth), which provided in s.427 that the Federal Court of Australia has jurisdiction to review decisions made by immigration officials on very specific grounds, set out in subsection (1). For example, subsection (l)(f) says that the Court can review if 'the decision was induced or affected by fraud or by actual bias.' (That is, it would not be sufficient to show that the official made remarks during the hearing or gave reasons that smacked of racial stereotyping; one would need the official to say something like 'Ordinarily I would let you stay in the country but I hate Jews and so I'm ordering that you be deported.') Subsection (1) is explicitly made subject to subsection (2), which says: The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.' Subsections (3) and (4) seek to specify and narrow some of the grounds of review listed. For example, (l)(d) permits review for an 'improper exercise of power' but (3)(f) says that this does not permit review for 'an exercise of power in bad faith.' In my view, this statute is crazy, or at least close to being crazy, in the same way as Alexy's imaginary constitutional provision which dedicates the Republic to the pursuit of injustice. That judges might not have any choice but to abide by its provisions does not undermine this claim. For the claim does not depend on whether or not judges can always enforce a common law conception of the rule of law. Rather, it depends on our judgment that there is a violation of the rule of law when a domain of government action should be governed by the rule of law, but the positive law of the legal order makes it clear that the domain is not so governed. Moreover, one should not infer from the fact that common law judges are sometimes helpless in the face of legislative craziness that the common law model has no implications for practice.

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In this regard, we need to notice that the Migration Act did not oust the review jurisdiction of the Federal Court altogether, but simply limited severely the grounds of review. Moreover, Australia's Constitution protects the review jurisdiction of the High Court so that the legislature could not remove the grounds of review from the High Court. This is still not a very cheery prospect for those subject to these decisions, since their fate will depend on being able to make their way up to the equivalent of Canada's Supreme Court. But my point is that the Australian government was both unwilling and to some extent unable to have immigration law declared to be entirely outside the reach of the rule of law. Moreover, to the extent that a government is unwilling to make its desire to be unconstrained by the rule of law entirely explicit, judges are given toeholds in the law to impose rule of law constraints, if they are minded to do so. That is, since such judges operate on the assumption that government under the rule of law aspires to realize the values of the common law model, they will interpret legislation on the basis that it shares that aspiration unless they are forced by very explicit language to abandon that assumption. When the language is very explicit, it amounts to what I call a substantive privative clause. A privative clause is a provision in a statute which says that the courts shall not review the decisions of a tribunal. In the common law world, courts have come to accept the position that a privative clause is largely redundant, since a legislature cannot seriously intend that a tribunal be delegated legally unlimited authority, and so judges will hold that they are constitutionally entitled to review decisions that trench on those limits. The difference between this kind of general privative clause and the substantive one is that the substantive one ousts review only on particular grounds. What is suspect about the general privative clause is that it seems to oust altogether the guardianship role of judges over the rule of law. What is suspect about the substantive privative clause is that it ousts the judicial role of guarding particular rule of law values. But even if judges are forced to conclude that the legislature did in fact intend to oust their guardianship, they are still not helpless. They can, as I argued in the last section, confine the clause to its specific authority both by not letting its presence influence them in interpreting other statutes and by not permitting it to have force into the future, once it is no longer on the statute book. In both these cases, and in the case where the ouster is ambiguous, judges are enforcing the same set of values, and I would suggest with the same legitimacy, albeit in different ways.

The Juristic Force of Injustice 279 I find it interesting in this regard that it is possible to understand Radbruch's Formula in much the same way. The Formula in full is: The conflict between justice and legal certainty should be resolved in that the positive law, established by enactment and by power, has primacy even when its content is unjust and improper. It is only when the contradiction between positive law and justice reaches an intolerable level that the law is supposed to give way as a 'false law' [unrichtiges Recht] to justice. It is impossible to draw a sharper line between the cases of legalised injustice and laws which remain valid despite their false content. But another boundary can be drawn with the utmost precision. Where justice is not even aimed at, where equality - the core of justice - is deliberately disavowed in the enactment of a positive law, then the law is not simply 'false law,' it has no claim at all to legal status.40

According to Alexy, there are two different parts to the Formula. In the first, one finds the 'intolerability formula' that extreme injustice is no law. In the second, one finds the 'disavowal formula/ which is less objective, since it has to do with the intentions or purposes of the legislators. Alexy suggests that judges who have relied on the Radbruch Formula have generally applied it in the intolerability version, which he approves for the reason that an 'intention to warp justice' is Very difficult to prove in doubtful cases.'41 There is, however, another way to understand the second part of the Formula, as an elaboration of how judges should interpret the boundary that positive law has to cross before it ceases to have legal force, a boundary which is not set by pure moral considerations, but by considerations which are also legal. On this understanding, equality before the law is the fundamental value of the rule of law with other values, for example, certainty, generality, non-retroactivity, publicity, fairness, reasonableness, and so on, all values which have their place because of their service to equality. In addition, the separation of powers as well as other institutional arrangements of legal order should be understood in so far as possible as designed to serve this same model of the rule of law. It follows that judges should apply the Radbruch Formula only when they can make the case that the kind of justice that is violated by the positive law is legal justice, the internal morality of law. The better they can make that case in a common law legal order that all the interpretative work is internal, the more it will seem that they are not engaged in

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retrospective invalidation. Rather, they will simply be doing their job, which is deploying the resources of the law to resolve the legal questions put to them. Of course, one can charge them with using a childish fiction to cover up judicial legislation which retrospectively changes the rights and duties of those subject to the law. This kind of retroactive change requires that a body with authority to do so deems invalid a statute that would otherwise continue to be valid. The question then becomes whether, as positivists argue, legislatures alone have such authority or whether, as Radbruch and Alexy argue, judges also may have it when to do otherwise would be to perpetuate extreme injustice. Here the common law tradition agrees with positivism in that it holds that this kind of retroactive act belongs in the realm of the legislature, and is not part of what judges do when they interpret the law. So if the Radbruch Formula is, as Alexy suggests, complementary to Fuller's common law conception of an internal morality of law, it must do without the claim to candid retroactive invalidation of unjust statutes. However, at the same time it garners the legitimacy of basing the work done by the Formula on the intrinsic resources of the law. In contrast, if the Radbruch Formula is better viewed as positivism with a minus sign - extremely unjust laws subtracted from the category of technically valid statutes - then it can retain the claim to candid retroactive invalidation, at the cost of making judges into moral legislators.42 And this is not the only cost. If the Radbruch Formula gets aligned with the positivist model, then the other interpretative situations in which its analogues in the common law model do work should not be governed by that model, but by positivism. While I have argued here for the advantages of the common law model over its positivist counterpart, it is important to recognize that not all the work can be done internally by judges. Indeed, while I have equated Fuller's internal morality of law with the common law model, the model, at least on my understanding of it, adds to Fuller's list of eight principles of the internal morality of law at least the principle of equality.43 Fuller, I think, was intent on demonstrating that the principles of an internal morality of law do not import moral considerations from outside of the law. They are required to make sense of legal order. So I suspect that Fuller did not have as one of his principles of the internal morality of law the principle of equality before the law because he was concerned that it made his internal morality too substantive and thus dependent on external considerations. However, as I have sug-

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gested, that principle might be required to make sense of the package of principles, and in particular seems required to explain the principle of generality. If we assume that a formal principle of equality before the law is part of the internal morality of law that then raises the question of the connection between the formal principle and more substantive understandings of equality. And of course judicial understandings of equality will be deeply influenced by contemporary mores as well as legal developments. In this sense, judicial understandings of the formal principle of equality will necessarily import outside considerations. However, values such as fairness and reasonableness which are clearly going to be part of the internal morality of law are no more immune to outside influence. Even more to the point, it might be a mistake to think in terms of immunity, to think, that is, of the outside contaminating the inside, polluting the purity of the legal order. Rather, as I have already indicated, the common law tradition might well pride itself on continually updating its sense of the internal morality of law in the light of progressive understandings of its values. Thus judges will be influenced by their sense of justice and morality when they have to decide whether a statutory affront to a principle of the internal morality of law is sufficiently offensive for them to consider limiting the extent of the affront by reducing the juristic force of the injustice. But what is important for the common law tradition is that the judges should be able to justify their reasoning by pointing to the constitutional basis of their judgment - to the fact that from their perspective the injustice is in principle limitable because it is a legal injustice, an affront to the rule of law. In principle limitability does not, however, always lead to the conclusion that judges should in fact limit. Judges will encounter tensions on the common law model when dealing with past statutory injustice, but these tensions are not that different from tensions they encounter more generally. And in the case of past statutory injustice, they will experience intensified tensions where for them to limit the force of the statute would result in the loss of liberty for someone who had complied with an unjust 'positive law, established by enactment and by power.'44 But for the common law model, certainty is only one value served by the rule of law although it might get more weight in criminal than in civil matters. Radbruch indeed was concerned in articulating his Formula to allow other values into play when an extremely unjust law was in issue. On my argument, these other values are always in play, with the case of

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the extremely unjust law merely presenting the end of a continuum of connections between law and its morality. To suppose that, to deal with this law, a judge has to invalidate it retroactively is to strike the same kind of wrong moral note as in the thought I mentioned in the Introduction that there might be a kind of moral invalidation in an official condemnation of action that was in the past officially condoned or required. We do not ordinarily think that a judgment about past injustice, individual or official, amounts to moral invalidation. Rather, the judgment is that what people took to be a reason for acting in an unjust way was not a good reason, then or now. It follows both that we should condemn what they did and that if we have some responsibility for what they did, in particular if our failure to act would perpetuate the injustice, we should also provide redress. The difference, in my view, between judges and both the ordinary and the official moral actor is only one of role. Judges are limited to making judgments on the basis of legal reasons, which, from the perspective of the common law model, includes most fundamentally the values and principles of the internal morality of law. But it follows that in Mack there was a rather compelling argument that the Chinese Immigration Act did not present a juristic reason that could stand in the way of Mr Mack's claim for redress. NOTES I thank Jonathan Miller, Mayo Moran, and Julian Rivers for comments on a draft of this paper. 1 2 3 4 5 6 7 8 9

Chinese Immigration Act 1885, S.C. 1885. Chinese-Immigration Act 1923, S.C. 1923. Immigration Act, S.C. 1947. Mack v. Attorney General of Canada (2001), 55 O.K. (3d) 113 (S.C.J.), upheld (2002), 60 O.K. (3d) 737 (C.A.). Para. 1. Para. 52. They did argue, rather more tentatively, that s.15 also gives rise to a right of redress. Dickson C.J., in Petkus v. Becker, [1980] 2 S.C.R. 834 at 844. See Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969).

The Juristic Force of Injustice 283 10 See Robert Alexy, 'A Defence of Radbruch's Formula/ in David Dyzenhaus, ed., Recreating the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999), 15, and Julian Rivers, The Interpretation and Invalidity of Unjust Laws/ ibid., 40. 11 Here and below my understanding of legal positivism and the terminology I use to describe its model of law are heavily indebted to Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978), especially chapters 2 and 3, The Model of Rules I' and The Model of Rules II.' 12 For the term 'rule of recognition/ see H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), chapter 6. 13 See Fuller, supra note 9. 14 Reference re Secession of Quebec, [1998] 2 S.C.R. 217. 15 Alexy, supra note 10, especially 34-5. 16 Ibid., 27. 17 Ibid., 28. 18 For the idea of a Radbruchian interpretative turn, I am wholly indebted to Rivers, note 10 above. Rivers disagrees with me about the implication for retrospective invalidation. 19 See H.L.A. Hart, 'Positivism and the Separation of Law and Morals/ in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 49 at 66 quoting John Austin's jibe at Blackstone. 20 [1999] 2 S.C.R. 817. 21 There were some implicit limits: if one could show that the official was corrupt, a court would invalidate the decision. 22 For reasons I won't go into here, the majority was at pains to find alternative ways of expressing this duty. 23 lacobucci and Cory JJ. 24 Mayo Moran, 'Authority, Influence and Persuasion: Baker, Charter Values and the Puzzle of Method/ in Dyzenhaus, ed., The Unity of Public Law (Oxford: Hart Publishing, forthcoming). 25 Regina v. Mee Wah (1886), 3 B.C.R. 403 (Cty. Ct.) 26 Ibid., 405-7. 27 Ibid., 408. 28 Ibid., 409. 29 Ibid., 410. 30 Ibid., 411. 31 Ibid., 411-12. 32 He could also have relied on s.91(25), which reserved the power to control aliens to the federal parliament. 33 Hart, supra note 19, 71.

284 David Dyzenhaus 34 Reference re Remuneration of judges of the Provincial Court of Prince Edward Island, [1997] 2 S.C.R. 217. 35 Alexy, supra, note 10,21. 36 See T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001). 37 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978), 121-3,37. 38 Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Clarendon Press, 1991), ch. 3. 39 Supra note 14. 40 G. Radbruch, 'Gesetzlich.es Unrecht und iibergesetzliches Recht/ in G. Radbruch, Gesamtausgabe, ed. A. Kaufmann, vol. 3 (Heidelberg, C.F. Miiller, 1990), 89, quoted in Alexy, 'A Defence of Radbruch's Formula/ 15-16. Radbruch's famous essay was first published in 1946 in the first volume of the Siiddeutschen Juristen-Zeitung, 105-8. 41 See supra note 10,16. 42 hi Lon L. Fuller, 'Positivism and Fidelity to Law - A Reply to Professor Hart' (1958) 71 Harvard Law Review 630, Fuller suggested (at 36) that Radbruch's resort to notions of 'higher law' - a morality that transcends positive law but which functions as a test for the validity of law - may itself be 'a belated fruit of German legal positivism.' Someone with a positivist mindset might feel that the only way to 'escape one law is to set another off against it, and this perforce must be a "higher law."' Fuller thus seems to be claiming that, despite Hart's vehement critique of Radbruch, there is a deep similarity between their positions. Indeed, his thought might have been that the vehemence was produced by the similarity. Both Hart and Radbruch resort to the idea of higher law in order to deal with the problems created by past legal injustice. For them the higher law is a law which has the power or force to invalidate another law. Thus they both in fact prefer the legal solution to come in the form of a frankly retroactive statute. The only difference is that Radbruch is prepared to allow judges to do what the legislature has not done or will not do, which means that he finds himself compelled to present what they are doing as legal. Thus he argues that extreme injustice is a kind of higher law, since it also can invalidate a law. 43 That is, generality, publicity, non-retroactivity, clarity or intelligibility, noncontradiction, possibility of compliance, constancy through time, and congruence between declared rule and official action. See Fuller, The Morality of Law, especially the section replying to critics at 187-253. 44 See Rivers, supra note 10, 60-3.

Private Right and Public Wrong

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The Timing of Injustice LIONEL SMITH

1. Introduction Mack v. Attorney General of Canada1 arises out of a blatantly discriminatory chapter in Canadian history. Under the Chinese Immigration Act 1885,2 Chinese 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 been certified. The plaintiffs put forward three causes of action: (a) two violations of s. 15 of the Charter; (b) a violation of customary international law; (c) unjust enrichment.4 The Supreme Court of Justice and the Court of Appeal struck out the statement of claim as disclosing no reasonable cause of action. The task of this paper is to address the correctness of that decision, in relation to the claim in unjust enrichment. The unjust enrichment claim was described by the Court of Appeal as one that required the Crown to 'disgorge' the revenues raised under the head tax legislation. In this context, I prefer the term 'restitution' to 'disgorgement.' It is important to notice that the phrase 'unjust enrichment' has historically been used ambiguously, to denote two quite different juristic ideas.5 The first is the reversal of transfers which are, for some reason, defective. This is the part of the subject which is governed by the famous three-part test, established in Pettkus v. Becker.6 it requires (i) an enrichment of the defendant, (ii) a corresponding

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deprivation of the plaintiff, and (iii) that there be no juristic reason for the transfer of wealth identified by (i) and (ii). When this test is satisfied, the court will order restitution; that is, giving back. It is a central feature of this kind of liability that it does not depend on any wrongdoing by the defendant. This makes it a particularly useful juristic theory in cases based on historical injustices, where it may be difficult to show that there was wrongdoing by the defendant, when judged by the standards of the the time of the injustice.7 The other idea is the principle that defendants may be required to give up the profits of their wrongful acts. This has sometimes been described as 'unjust enrichment/ but it is increasingly accepted that this terminology is misleading in this kind of case.8 The three-part test for unjust enrichment is not needed in these cases, because the cause of action is not unjust enrichment, but rather the wrong. The plaintiff must prove the elements of the wrong. That being done, most wrongs allow the plaintiff to demand compensation for loss suffered. Some at least allow the plaintiff instead to demand that the defendant give up any profit derived from the wrong.9 The differences from unjust enrichment in the strict sense are two. First, one claim is based on wrongdoing and the other is not. Secondly, unjust enrichment is about reversing defective transfers. The plaintiff's loss corresponds to the defendant's gain, and restitution reverses that transfer. The profits of a wrong may (and usually do) come from a third hand, not from the plaintiff.10 So the requirement that a defendant give up (rather than give back) a gain may properly be called 'disgorgement' for wrongdoing.11 My examination of the application of the law of unjust enrichment to the facts of Mack will lead to the conclusion that the plaintiffs identified and made the right kinds of arguments. The logic of unjust enrichment required them to impugn the Chinese Immigration Act 188512 as a normative justification for the payment of the head taxes. The most direct argument is that the Act was inoperative at the time that head taxes were paid. This argument was made, on the bases of international law and Canadian constitutional law. The argument was rejected, although it is a matter for experts on those fields of law to consider whether it was rightly rejected. Building on elements of the arguments in Mack itself, I will suggest another possibility: that the payments of head taxes were always tainted by a seed of injustice, in that they were overtly discriminatory. When s.15 of the Charter came into effect in 1985, that seed of injustice germinated; it became (and it remains) impossible for the Crown to rely on a discriminatory statute as the normative justifi-

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cation for the enrichments it received under the Chinese Immigration Act 1885.13 2. The Normative Structure of Unjust Enrichment The law of unjust enrichment (excluding the law of disgorgement for wrongs, as described above) is concerned with the reversal of normatively defective transfers.14 Transfers can be defective for a variety of reasons. Many of them are defects in the plaintiff's consent to the transfer, as where the plaintiff makes a payment by mistake or under some threat. Some do not depend on any defect in the plaintiff's consent, but rather find their source in public law values. For example, one such value is that the State cannot collect money from citizens except with the authority of a statute. Where money has been collected in the absence of such authority, we might say that restitution is required in order to underline our commitment to the public law value. It is true that most such cases will also reveal a mistake on the part of the plaintiff, who usually assumes that there is some authority when he responds to the demand. Sometimes this may not be true, particularly when it is the plaintiff who has taken up the burden of challenging the validity of the taxing statute. This is illustrated by Woolwich Equitable Building Society v. Inland Revenue Commissioners.15 The plaintiff said all along that the taxing provision was invalid. Eventually it proved that the provision was indeed invalid. This plaintiff was obviously not mistaken; it was right. How then can restitution be justified? Possibly on the grounds of compulsion, although even this may be difficult, if the only compulsion exercised was the threat of due process of law.16 This is a threat which parties to a dispute are perfectly entitled to deploy, as long as they are in good faith. By a kind of process of elimination, therefore, the plaintiff's recovery in Woolwich was said to rest ultimately on the public law principle that there shall be no taxation without proper legislative authority.17 The public law nature of this principle is perhaps underscored by the observation that an opposite rule of public law has been suggested for Canada. In Air Canada v. British Columbia,18 La Forest J. discussed a 'fiscal chaos' principle.19 He said that although there should be a right to recover payments made under a mistake of law, this was denied for policy reasons in the case of taxes paid pursuant to legislation later found to be ultra vires. The policy is that recovery in such cases would cause an intolerable disruption to public finances. That principle, if

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correct, is opposed to the Woolwich principle. The status of 'fiscal chaos' seems uncertain, for several reasons.20 Perhaps the most significant of these is that the Court recently distanced itself from 'fiscal chaos' in Re Eurig Estate.21 In any event, La Forest J. excepted from the principle the case in which the relationship between state and taxpayer was oppressive, which seems clearly applicable in Mack. He also seemed to accept, and this was relied on Eurig, that a payment otherwise within the fiscal chaos principle could still be recovered if it was paid under circumstances of practical compulsion, in which the taxpayer had no practical choice. That also seems to apply to the facts of Mack. There is an unresolved issue in Canadian common law as to how the inquiry into whether a transfer was normatively defective is structured. The common law tradition has always answered this question by way of a list, not necessarily closed, of reasons for restitution. That is, of positive reasons which constituted normative defects in a transfer and justified its reversal. The roots can perhaps be found in Moses v. Macferlan.22The formulation in Pettkus v.Becker23stipulates that in order for there to be restitution, there must be 'no juristic reason' for the transfer. The implication, at least, is that instead of seeking to catalogue reasons for restitution, such as mistake or compulsion, we should be seeking to catalogue juristic reasons, which are reasons for non-restitution, or reasons why the transfer should be allowed to stand. Then, if no such reason is present, restitution should follow. This has caused a certain amount of confusion ever since.24 In normative terms, probably not much turns on this issue. It is a question of the doctrinal structure of the law, which does not mean it is unimportant, but the present inquiry is focused on a different theoretical level, and so this point can be left aside. Whether it be a positive reason for restitution or the absence of a juristic reason for the maintenance of a transfer, there must clearly be a normative flaw in a transfer in order for restitution to be appropriate. Moreover, the flaw must be in some sense a feature of the transfer in order that it should justify the reversal of the transfer. In the case of flaws based on defects in the plaintiff's consent, the defect must be causally implicated. A mistake, or a threat, will not justify the reversal of a payment of money unless the mistake or the threat caused the payment.25 There is one nuance to this proposition, which is the case of 'failure of consideration' or 'failure of basis.' In this case, the transfer is not defective at the time it is made, but only becomes so later. Even here, however, part of the story is in place at the time of the transfer. For example,

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the plaintiff might do work for the benefit of the defendant, in the expectation that the parties will ultimately enter into a contract pursuant to which the work will be compensated. For whatever reason, no contract ensues. If the expectation was entirely in the plaintiff's mind, there will be no claim in unjust enrichment. But it is different if the parties had a shared understanding that the work would be rewarded in the sense that a contract would supervene. Here we can say that the work was done, not as a speculative risk in the hope of securing a contract, but pursuant'to an understanding that there would eventually be a contract. A claim in unjust enrichment will lie when that understanding turns out to be false.26 In a case like that, the final piece of the normative flaw in the transfer falls into place only after the transfer.27 Even so, the condition (which later fails) must be in place at the time of the transfer. It is like a string which is attached to the transfer, which can later be pulled. The condition must be a shared understanding. A secret condition on the part of the plaintiff will not support restitution. Assume that following a call for tenders, a bidder goes to great expense to prepare a bid. He is certain he will succeed, and moreover he would not be bothering to do all of the work involved in preparing the bid if it was not for that certainty. In the end someone else gets the contract. These facts do not reveal unjust enrichment and do not support restitution. A one-sided condition is just a disappointment.28 Another way of making the same point is that a mistake must be a false belief about the present, not the future. Hopes for the future, to have legal implications, must either be reduced to contractual promises, or at the very least, made into a shared understanding as to the basis of a transfer. 3. Unjust Enrichment and Statutes The interaction of these principles with statute law adds another layer of complexity. It goes without saying that a statutory enactment is capable of changing the legal outcome which would prevail in the absence of the enactment. Statute law presents a normative order which is higher than the non-statutory common law. This derives from the legislative authority to change the law, which itself is founded on the principles of representative democracy. In general, if a transfer is mandated by a valid statute, it will not be possible to show that the transfer is normatively flawed. To take a simple case, I have paid my income tax for 2002, pursuant to federal and provincial legislation. The statute represents a democratic decision

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as to a payment that I must make. If we look for juristic reasons for transfers, the statute is one. If we look for reasons for restitution, I will not be able to demonstrate one. I might say that I have been forced to pay the tax, and this is true, but the force which has been used is lawful and legitimate, following a democratic decision as to the ways in which the costs of ordering civil society should be shared.29 There are cases in which restitution is granted even though the defendant's enrichment and the plaintiff's corresponding deprivation have arisen as a result of statutory provisions. In fact, this kind of case is pervasive in the law of unjust enrichment. It is the very effect of the statute which has created the problem which unjust enrichment is often able to solve. Two such cases were cited in Mack.30 In Deglman v. Guaranty Trust Co. of Canada31 the plaintiff contracted with his aunt on the terms that if he performed certain services, she would leave him a house on her death. He performed but she did not. He sued her estate for specific performance, but the contract was unenforceable because it was not in writing as required by the Statute of Frauds.32 He was therefore unable to have a claim which enforced his contractual expectation: the value of the house. The question which then arose can be understood in this way. It was the legislative intention to deny the enforcement of the aunt's promise; but was it the legislative intention that she (or her estate) should be allowed to keep, not only the house, but the value of the services which had been rendered by the plaintiff? The answer was no, and so the plaintiff was allowed a claim in restitution measured by the value of his services; presumably this was less than the value of the promised house, but it was better than nothing.33 The other case was Central Guaranty Trust Co. v. Dixdale Mortgage Investment Corp.34 The plaintiff was a first mortgagee, the defendant a second mortgagee of the same property. The plaintiff mistakenly discharged its mortgage even though it had not been paid. The defendant was thereby promoted to first mortgagee. The Registry Act35 provides that the mortgagee whose mortgage was first registered has priority. That gave priority to the defendant, since any re-registration by the plaintiff would be later in time than the defendant's registration. In other words, the enrichment of the defendant which came at the plaintiff's expense was dictated by the statute. But the substantial question was whether this enactment ousted any recourse in unjust enrichment. It was held that it did not. The priority rules of the Act were not understood to be intended to extend to the case of a mistaken discharge.

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It seems fair to say that while the result is probably correct, the outcome of Central Guaranty Trust Co. v. Dixdale Mortgage Investment Corp. was more arguable than that in Deglman v. Guaranty Trust Co. of Canada. Commercial parties like certainty, and in regard to things like priority rules and security interests, it is often argued that the value of certainty and predictability is paramount.36 The crucial point is that in both cases, the inquiry is effectively one of statutory interpretation. Does the statute, properly understood, exclude a claim in unjust enrichment? In these cases, the inquiry can be understood as one into 'negative implication.' The statute dictates a certain result, which enriches one party at the expense of the other; does it imply that this result is not to be contradicted by the law of unjust enrichment?37 To take the point even further, consider the case of wills. The testatrix makes a will leaving property to A. She changes her mind and wishes to leave the property to B instead. But a new will is never made and she dies. Within the succession proceedings, B might try to prove that the testatrix changed her mind and so the property should go to B. It seems clear that this claim will fail, no matter what proof is adduced. The reason is that the legislation regarding wills is understood to enact a comprehensive code for the proof of testamentary intention. In most jurisdictions, it would not help B to try to argue that A would be unjustly enriched at the expense of B; this would be an inappropriate circumvention of the statutory intention, because again it would countenance the adduction of evidence as to testamentary intention, without the required formal expression of the intention. But the point is at least arguable.38 Even if that claim fails, B might observe that the failure to make a new will is attributable to the carelessness of the testatrix's solicitor. That claim will, again, require A to prove that the testatrix's real testamentary intentions were not expressed in the required form.39 And so the same decision must be made, as to whether the legislative intention excludes such a claim.40 This discussion of the interaction of unjust enrichment and statute law is intended to show that the question is, and should be, one of statutory interpretation. For this reason, cases of this kind are not particularly helpful in a case like Mack. The statute required the payment of the head tax. If we ask whether or not the legislative intention was to exclude any claim in unjust enrichment to reverse the payment of the head tax, the answer must be that it was. In a case like Mack, the only route to unjust enrichment is by impugning the statute itself, as counsel attempted to do.

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4. Synthesis: Statutes and Timing If a payment has been made to the State pursuant to a statute, and the statute excludes any possibility of restitution of the payment, then only by getting rid of the statute's edict can a plaintiff hope to secure restitution. There are different ways in which this can be done. Take first the simple case of the repeal of the statute, after the payment. Ordinarily, repeal is prospective, and therefore will not justify the restitution of payments made while the statute was in force.41 The transfer was not defective at the time it was made. A trivial illustration would be a reduction in income tax rates. This would not normally justify restitution of taxes paid earlier, when the rate was higher. A statute could be repealed with retroactive effect. If the period of retroactivity included the payment, then the way would be open for a •claim in restitution. In some cases this could raise difficult questions about whether, at the time of the payment, the payer was mistaken in the sense which is required for a claim in unjust enrichment. This is because mistakes must be as to the present, not the future.42 But if the payment was of a tax, and if the tax was retroactively repealed, then the claim for restitution would be secure under the Woolwich principle which forbids the collection of taxes without statutory authority.43 The retroactive repeal would have the same legislative authority as the original enactment, and so would comprehensively undermine the authority of the State to retain the payment. In other words, the retroactivity is not simply a technical argument, but one which relies on the normative authority of the retroactive repealing enactment. Very often, a claim for restitution of money paid under a statutory enactment rests on an argument that the enactment was ultra vires. If such an argument is established, then the statute in question is negated in a fully retroactive way. Again, this is not a technical argument. It rests on the same logic which tells us that a common law claim must yield to the dictates of a statute because the legislator has the authority to vary the common law. There is a similarly hierarchical relationship between an ordinary statute and the constitutional order. If the constitutional order does not permit an enactment, then any attempt to create such an enactment fails. The failure, once authoritatively declared, forbade the enactment all along. There have been some attempts to soften the impact of this implacable logic. One is the fiscal chaos doctrine, its status now uncertain.44 More prominent, but perhaps more defensible, is the practice of suspending the effect of holdings of invalidity.45 Such a

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suspension has the virtue of following the logic of the subordination of ordinary legislation to the constitutional order. This is tempered by the pragmatism of the suspension, which amounts in substance to an 'authorized leak' of the court's decision, to allow action in response. Once the judgment takes effect, it is fully retroactive; but the court gives the public (and the legislature) advance notice of the holding. The coming into force of the equality provisions of the Charter could have been understood in this way. Clearly any existing or new legislation had to comply with those provisions. It would have been possible to hold further that those provisions, when they came into effect, had a retroactive effect on inconsistent legislation. The Supreme Court of Canada has made the contrary decision.46 That decision was probably the right one, taking account of all the circumstances. In particular, the equality provisions did not come into effect until three years after the rest of the Charter, in order to permit steps to be taken to ensure compliance. The point of that delay would be lost if, when the equality provisions took effect, they were fully retroactive. 5. The Timing of Injustice in Mack For all of these reasons, it seems that the only route to restitution of the head tax is by establishing that the Chinese Immigration Act 188547 was invalid at the time that the tax was collected. If not, the outcome, appalling to us now, is this: the legislative order, reflecting the principles of representative democracy, mandated that this discriminatory tax be paid. A subsequent change in the legislative order does not, by itself, have a retroactive effect, and cannot justify restitution. So the lawyers in the case quite naturally focused their arguments on different routes intended to show that the legislation was not operative at the time the tax was paid. One argument was that the legislation was always invalid, being inconsistent with customary international law at the time. This was addressed only in the Court of Appeal, but the Court rejected the argument on the basis that the evidence was insufficient, and in any event domestic law overrides customary international law.48 It seems that a stronger version of this argument was also made: namely, that the head tax legislation was inconsistent with a jus cogens norm of international law. This argument was rejected by the Court of Appeal in a footnote, with the suggestion that the point was taken only in oral argument.49 There is another intriguing footnote, at the very end of the judgment, after the court states its conclusion that validly enacted laws

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cannot be impugned due to changing values. Here the court said, 'We are not here concerned with facially valid laws enacted by a totalitarian or other despotic regime.'50 This point was perhaps inspired by the jus cogens argument, but it can also be understood as a reference to a different idea, that some attempts to make laws will always be invalid, no matter how perfectly correct be the process by which they were enacted. This is an idea with deep historical51 and philosophical52 roots. Whether such an argument could successfully be brought to bear against the Chinese Immigration Act 188553 is beyond the scope of this paper, but if it could, then the way would be clear for a claim in restitution, subject only to considerations of 'fiscal chaos' and limitation of actions.54 Unless this argument can be made, it seems that some kind of retroactivity is required to reach back and invalidate the legislation. On its face, this is discouraging, because retroactivity is not the ordinary mode of legislative change. On the other hand, it should be remembered that retroactivity is a legal tool which is used when some value is particularly important. There is no retroactivity in nature.55 It represents a policy choice for the protection of particularly important values. The possibility that the Charter generally operates in this way seems to be foreclosed by Benner.56 Short of seeking a reconsideration of that decision, the only prospect would appear to be an argument that notwithstanding Benner, our current commitment to equality is sufficiently strong that the head tax legislation can no longer serve as a justification for the enrichment acquired by the Crown pursuant to it; in other words, the legislation is effectively inoperative for the purposes of unjust enrichment, with retroactive effect. This argument does not have to rest on the Charter itself, though the Charter serves as a clear illustration of our current value system. This is clearly a difficult argument to make, but it is important to notice that it is not as dramatic in its effects as it might first appear. We no longer countenance capital punishment; it does not follow that every execution carried out by due process of law should now be seen as a wrongful act, with the liability consequences that would naturally follow. It is extremely difficult, perhaps impossible, to justify the retroactive conversion of lawful conduct into wrongful conduct; as Fuller said, 'It is the retroactive criminal statute that calls most directly to mind the brutal absurdity of commanding a man today to do something yesterday.'57 The important point is that liability for unjust enrichment does not depend on wrongdoing by a defendant; it only depends on the receipt of a normatively defective transfer from the plaintiff. To decide that an enrichment should be seen, retroactively, as

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normatively defective and hence unjustified is not to decide, retroactively, that the defendant has done anything wrong. Restitution is not punishment; it is not even compensation, which shifts a loss on to a defendant and so makes the defendant worse off. It is only giving back what ought not to have been received, returning both parties to their pre-transaction holdings. This reflection, however, leads to what might have been the most promising analysis from the point of view of the plaintiffs in Mack. In Benner, the Supreme Court of Canada held that s.15 of the Charter does not operate in a fully retroactive way. On the other hand, Benner himself was successful because he was subject to an ongoing regime which was inconsistent with s.15, even though some of the relevant facts (the circumstances of his birth) took place before 1985. The Court held that s.15 protected him, without retroactivity, against that ongoing discrimination. To transpose that reasoning to Mack, one could argue that the discriminatory tax was collected before the coming into force of s.15, but the enrichment of the defendant Crown (and the corresponding deprivation of the payers, and their successors) is an ongoing state of affairs. From 1985, this enrichment became an unjustified enrichment, because the only justification for the ongoing enrichment was the Chinese Immigration Act 1885,58 whose authority is subordinate to the Charter. The courts in Mack relied on Benner for the proposition that s.15 cannot be used to attack a discrete act which took place before the Charter came into effect.59 This was so even if the victims still suffer from the act of discrimination. Here we see the idea that a past act should not be made wrongful retroactively, in a way which could lead to punishment or a requirement to make compensation. But the case of a transfer of wealth is normatively different, because not only does the victim continue to suffer from the loss, but the defendant continues to enjoy the enrichment. This conjunction of loss and gain - a transfer, in other words - is not accidental, but is crucial to the normative foundation of liability in unjust enrichment.60 A transfer which has never been reversed is not a discrete act which took place in the past, but an ongoing state of affairs. Accepting this argument, therefore, would not open the door to claims for all harm suffered for pre-1985 governmental discrimination. The reason is that in the absence of a nexus of transfer, the only way to make a defendant liable to compensate for harm caused is by showing that it did something wrongful. If the source of the harm was some past act, then that act must be understood as wrongful, and retroactively

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characterizing conduct as wrongful is generally unjustifiable. But where there has been a transfer of wealth, there is no need to show that a defendant did anything wrong to make it liable in unjust enrichment. All that is required is to show that the transfer is normatively defective. In the case of money collected by the state, this only requires a showing that the money was collected without legal authority. It is true, of course, that the transfer took place in the past, and at that time, it was not normatively defective (assuming that the Chinese Immigration Act 188561 cannot be impugned at the time of tax payments, or retroactively to that time). But this is not necessarily decisive. The analytical structure of this argument is closest to the case of failure of basis, discussed above.62 In those cases, the transfer is not normatively flawed at the time it occurs. Rather, there is some shared understanding as to the basis of the transfer; only when that basis fails does the transfer becomes unjustified, and so must be reversed. There is only a seed of potential injustice at the time of the transfer, but the seed later germinates. In Mack, there is no shared basis, but we can also say that according to the morality of the then existing law, the transfers (payments of head tax) were not normatively flawed at the time. Later, however, due to a change in the constitutional order, which supersedes the ordinary legislative order, the transfers became unjustified and so should be reversed. On this view, it is no longer possible, as it was before 1985, for the Crown to rely on the Chinese Immigration Act 188563 as a justification for the enrichments and corresponding deprivations which took place when the head tax was paid. This leads to the further point that accepting this argument would not open the door to the recovery of income tax, simply because the rate of tax is later lowered. The reason is that the original payment of tax was not one which violates any constitutional norm (assuming there was no discrimination or anything comparable). Only where there is a seed of potential injustice in the original transfer is there the potential for later restitution. The question of defences to the claim would be another factor. We might ask whether it is correct to say that the defendant Crown remains enriched after all these years. This issue, however, is already addressed in the law and literature of unjust enrichment, through the defence called 'change of position/ If the defendant can show that it has somehow changed its position as a result of the enrichment, so that the enrichment was somehow dissipated, then it will have a defence to that extent.64 The defence is for the defendant to prove, however, and there is a serious question whether it can ever be used by the State where it has collected taxes which are unconstitutional.65

The Timing of Injustice 299

Another serious problem, which was not addressed in Mack, is that of limitation of actions. But it is important to notice another lesson from the cases on failure of basis. The cause of action does not accrue at the time of the transfer, but only when the basis fails.66 It is only then that all elements of the claim are in place. On that reasoning, the cause of action in Mack could not possibly have accrued until 1985, and it might be arguable that the cause of action was only reasonably discoverable after Benner in 1997. Limitation periods serve a range of normative goals.67 Some of these are social goods, such as the social interest in the finality of disputes, or the interest that litigation should be resolved on the basis of reliable evidence; the quality of evidence, especially where memory is involved, often deteriorates over time. Some are interests of the defendant: eventually, the defendant should be able to stop worrying about whether there will be a lawsuit. Related doctrines like laches and acquiescence also protect the defendant, according to a normative structure rather like that of estoppel; they may bar a claim even if no limitation period does so. The traditional approach to limitation periods makes them run from the moment that the facts occurred which could have allowed the plaintiff to sue. This may have harsh results when the plaintiff was unaware that the claim was available. That harshness may be tempered by a decision that the period does not begin to run until the claim was discovered, or reasonably discoverable. This potential postponement may be specified in a statute;68 sometimes, it is introduced as a judicial gloss.69 Even this, however, usually only delays the period until all of the relevant facts are discovered or discoverable.70 From the defendant's point of view, any discoverability principle means that a limitation period is potentially endless. To meet this, more recent statutes have two limitation periods, one of which provides an 'ultimate limitation' or 'long-stop' protection for the defendant.71 A final complication which might have been relevant in Mack is that it might have been arguable, under the Ontario limitations statute then in force, that there was no limitation period at all for a claim in unjust enrichment.72 This would have left the matter to be regulated by laches and acquiescence, which hardly seem relevant on the facts.73 6. Conclusion The logic of unjust enrichment entails that a normatively flawed transfer of wealth must be reversed. This does not depend on wrongdoing. Normally, the normative flaw must be present at the time of the trans-

300 Lionel Smith

fer. But the well-established idea of recovery for a failure of basis shows that it is not universally required. It is possible that the transfer is normatively sound at the time it is made, but that it includes some characteristic which lies like a dormant seed of injustice. In that case, later events can, in combination with the characteristics of the transfer at the time it was made, cause the seed to germinate. They can reach back in time to make the transfer normatively unsound. In the case of failure of basis, the latent characteristic is that the transfer is made subject to a shared understanding as to its basis. If the basis later fails, the transfer must be reversed. In Mack, the transfers of head tax were, in each and every case, characterized by the plainest discrimination on the basis of race. From 1985, the supreme law of Canada dictated that discriminatory legislation is of no force or effect. By analogy, it is certainly arguable that the effect is to undermine any legal justification for the payment and receipt of head tax so many years ago. The enrichment and corresponding deprivation represented by each payment of the head tax are, so far as we know, ongoing states of affairs which now stand exposed as normatively flawed. This argument does not imply that we will reach back in time to convert lawful conduct into wrongful conduct, any more so than in a case of failure of basis. To say that a transfer must be reversed is not to say that the recipient has acted unlawfully. This is important, because however repugnant we may now find the head tax legislation, we also have a strong commitment to the rule of law, and the rule of law is inconsistent with applying today's standards of wrongful conduct to actions taken long ago. In a case like Mack, the law of unjust enrichment can help us to correct historical injustices and to vindicate today's understanding of what is just. NOTES 1 (2001), 55 O.K. (3d) 113 (S.C.J.) (hereinafter 'Mack (S.C.J.)'); aff'd (2002), 60 O.R. (3d) 737 (C.A.) (hereinafter 'Mack (C.A.)'), leave to appeal refused (2002), 101 C.R.R. (2d) 375.' 2 S.C. 1885, c.71. 3 Chinese Immigration Act 1923, S.C. 1923, c.38. 4 Mack (C.A.), note 2, para. 3. 5 See P. Birks, Introduction to the Law of Restitution, rev. ed. (Oxford: Clarendon Press, 1989), 22-5; L. Smith, 'The Province of the Law of Restitution' (1992) 71 Can. Bar Rev. 672.

The Timing of Injustice 301 6 [1980] 2 S.C.R. 834,848; 117 D.L.R. (3d) 257. 7 See E. Posner and A. Vermeule, 'Reparations for Slavery and Other Historical Injustices' (2003) 103 Columbia L.R. 101,114-16. 8 L. Smith, supra note 5, especially 699; P. Birks, 'Misnomer' in W.R. Cornish et al., eds., Restitution: Past, Present and Future (Oxford: Hart Publishing, 1998), 1. 9 P. Birks, Introduction to the Law of Restitution, rev. ed. (Oxford: Clarendon Press, 1989), ch. 10; L. Smith, supra note 5, especially 683-94; E. Weinrib, 'Restitutionary Damages as Corrective Justice' (2000) 1 Theoretical Inquiries in Law 1. 10 See for example Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592,40 D.L.R. (3d) 371, esp. 621-2,391-2; Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, 146 D.L.R. (4th) 214; A.-G. v. Blake, [2001] 1 A.C. 268. 11 On this approach, 'compensation' is the reparation of a loss which need not correspond to any gain of the defendant; 'disgorgement' is the mirror image, the giving up of a gain which need not correspond to any loss of the plaintiff; 'restitution' is giving back, the reversal of a transfer which is constituted by a plaintiff's loss and a defendant's corresponding gain. A case involving a transfer (like Mack) can be approached as a disgorgement case if the facts reveal a disgorgement-yielding wrong. 12 S.C. 1885, c.71. 13 S.C. 1885, c.71. 14 For a full analysis, see L. Smith, 'Restitution: The Heart of Corrective Justice' (2001) 79 Texas L.R. 2115. 15 [1993] 1 A.C. 70. 16 The cases on pressure (or compulsion, or duress) require that the pressure which was deployed was 'illegitimate': see Gordon v. Roebuck (1992), 9 O.R. (3d) 1 (C.A.); A. Burrows, The Law of Restitution, 2nd ed. (London: Butterworths, 2002), chapter 5. 17 This immediately invites questions about the scope of the principle. Is it confined to taxes, or can it extend to other charges made by statutory authority? Is it confined to invalid statutes, or does it cover inapplicable ones (see Air Canada v. LCBO, [1997] 2 S.C.R. 581,148 D.L.R. (4th) 193, para. 80)? Is it confined to claims against the State, or can it extend to claims against regulated industries? See J. Beatson, 'Restitution of Taxes, Levies and Other Imposts: Defining the Extent of the Woolwich Principle' (1993) 109 L.Q.R. 401. 18 [1989] 1 S.C.R. 1161,59 D.L.R. (4th) 161. 19 This was noticed in Mack (S.C.J.), para. 44. 20 In Air Canada, La Forest J. spoke for only three of the six judges. Even in his judgment, it is not clear that it forms the ratio, because he also relied on

302 Lionel Smith the idea of 'passing on' to defeat the plaintiffs' claim, and in any event the whole discussion of restitution was itself obiter, since he held the taxing statute to be valid. Wilson J. registered a strong dissent on the fiscal chaos point, which has attracted favourable academic commentary (G.H.L. Fridman, 'No Justice for Taxpayers: the Paucity of Restitution' (1990) 19 Man. L.J. 303) and the support of Lord Goff in the majority in Woolwich. 21 [1998] 2 S.C.R. 565,165 D.L.R. (4th) 1. Major J. for the majority said (para. 47): 'Even i/this Court were to adopt the rule articulated by La Forest J., it would not prevent recovery by the appellant in this case. An exception has been recognized where taxes are paid under compulsion or protest: Air Canada, supra, at pp. 1209-10.' (Emphasis added.) The 'even if seems intended to express doubt, and an exception based on protest or especially compulsion could gut the fiscal chaos principle. 22 (1760), 2 Burr. 1005,1012,97 E.R. 676,681. 23 [1980] 2 S.C.R. 834, 848; 117 D.L.R. (3d) 257. The formulation first appeared in a minority judgment in Rathwell v. Rathwell, [1978] 2 S.C.R. 436, 83 D.L.R. (3d) 289. 24 L. Smith, The Mystery of "Juristic Reason"' (2000), 12 S.C.L.R. (2d) 211. 25 2984 Holdings Ltd. v. Surrey (District) (1996), 22 B.C.L.R. (3d) 233 (C.A.). 26 Magical Waters Fountains Ltd. v. Sarnia (City) (1990), 74 O.R. (2d) 682, 73 D.L.R. (4th) 734 (Gen. Div.), rev'd (1992), 8 O.R. (3d) 689,91 D.L.R. (4th) 760 (Gen. Div. - Divisional Ct.). The Divisional Court agreed with the General Division as to the law, but disagreed on its application to the facts. Even a gift may be made on some shared basis or understanding, and if this fails, the gift is recoverable: Clarke v. Moir (1987), 82 N.S.R. (2d) 183, 207 A.P.R. 183 (S.C.T.D.); P. Birks, Introduction to the Law of Restitution, rev. ed. supra note 16,224-5; A. Burrows, The Law of Restitution, 2nd ed. (London: Butterworths, 2002), 407-8. Similarly, if the parties do make a contract, but it turns out to be unenforceable, then work done or money paid pursuant to the unenforceable contract will support a claim in unjust enrichment (Deglman v. Guaranty Trust Co. of Canada, [1954] S.C.R. 725, [1954] 3 D.L.R. 785). The parties had a shared understanding that the work was non-gratuitous. The same is true if a contract is frustrated; work done or money paid before the frustrating event will support a claim in unjust enrichment(Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd., [1943] A.C. 32). Again, it was understood by the parties that such transfers were not gratuitous. The frustration case is now regulated by statute. 27 The distinctiveness of failure of basis, in that the injustice of the transfer may only be perfected at a later time, is noted in A. Burrows, The Law of Restitution, supra note 16,332-3.

The Timing of Injustice 303 28 The Civil Code of Quebec shows an interesting counterpoint. Under that regime, a gift can be revoked on account of ingratitude of the donee: arts. 1836-8. This principle is unknown to the common law. 29 See note . 30 Mack (C.A.), para. 42. It seems a strange coincidence that the corporate successor of the defendant in the first case was the plaintiff in the other case. Lose some, win some. 31 [1954] S.C.R. 725, [1954] 3 D.L.R. 785. 32 R.S.0.1950, c.371, s.4. 33 The same decision was reached in a similar context by the High Court of Australia in Pavey & Matthews Pty. Ltd. v. Paul (1987), 162 C.L.R. 221. 34 (1994), 24 O.R. (3d) 506,121 D.L.R. (4th) 53 (C.A.). 35 S.0.1990, c. R.20, ss.70(l), 71, 74(1). 36 See, for an example of this reasoning, B.M.P. & Daughters Investment Corp. v. 941242 Out. Ltd. (1992), 11 O.R. (3d) 81, 96 D.L.R. (4th) 741 (Gen. Div.). 37 For a full analysis of how this question applies, not only to the relationship between statute and common law, but between other legal orders, see L. Smith, 'Property, Subsidiarity and Unjust Enrichment,' in D. Johnston and R. Zimmermann, eds., Unjustified Enrichment: Key Issues in Comparative Perspective (Cambridge: Cambridge University Press, 2002), 588. 38 See Re Tolin, 622 So.2d 988 (Fla. 1993); now confined somewhat by Allen v. Dalk, 826 So.2d 245 (Fla. 2002). Some argue that B should seek rectification of the will: see E. O'Dell, 'Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again' (2002), 65 M.L.R. 360. 39 White v. fones, [1995] 2 A.C. 207; Hill v. van Erp (1997), 188 C.L.R. 159. 40 If the negligence claim is allowed, the strange result is that the estate is doubled: both A and B acquire the property, or at least its value (P. Matthews, 'Round and Round the Garden' [1996] L.M.C.L.Q. 460). And so the next question may be whether the negligent solicitor can establish a claim in unjust enrichment against A. The answer was 'no' in Earl v. Wilhelm (2000), 189 Sask.R. 71,183 D.L.R. (4th) 45 (C.A.), application for leave to appeal dismissed, [2000] S.C.C.A. No. 124, where the claim was characterized as a collateral attack on the probate court's approval of the will. 41 The only possible exception might be a payment made pursuant to the statute but under a mutual understanding between the payor and the State the payment was conditional on the continuance in force of the statute. It goes without saying that it would be difficult to establish such an understanding. 42 This issue animates the judgments in Kleinwort Benson Ltd. v. Lincoln City Council, [1999] 2 A.C. 349, addressing the presumptively retroactive effect

304 Lionel Smith

43 44 45

46 47 48 49 50 51

52

53 54 55

56 57 58 59 60 61 62

of judicial changes in the law. For further analysis, see L. Smith, 'Restitution for Mistake of Law' [1999] R.L.R. 148. See note 17 and text. In Canada this remains subject to the 'fiscal chaos' theory: see text at note 18. See text at note 19. Most famously in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1; see also Re Eurig Estate, [1998] 2 S.C.R. 565,165 D.L.R. (4th) 1, where retroactive legislation did indeed follow (Estate Administration Tax Act, 1998, S.0.1998, c.34, Schedule), though not covering the actual litigant who secured the holding (s.7(2)). Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358,143 D.L.R. (4th) 577. S.C. 1885, c.71. Mack (C.A.), paras. 18-33. Mack (C.A.), para. 32, note 6. Mack (C.A.), para. 53, note 7. See Coke's report of Bonham's Case (1610), 8 Co. Rep. 113b, 118a, 77 ER 646, 652: 'And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will conrroul it, and adjudge such Act to be void.' Coke later retreated from this position: J.H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 1990), 210-211. For later examples, see the paper by John McLaren in this volume. L.L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969). See the papers by David Dyzenhaus and Julian Rivers in this volume. S.C. 1885, c.71. On fiscal chaos, see text at note 18. At least in the observable world. Quantum physicists find that the activity of subatomic particles is often most elegantly described by positing that they sometimes move backwards in time. Note 46. L.L. Fuller, supra note 52,59. S.C. 1885, c.71. Mack (S.C.J.), paras. 15-20; Mack (C.A.), paras. 10-12. L. Smith, 'Restitution: The Heart of Corrective Justice' (2001) 79 Texas L.R. 2115. S.C. 1885, c.71. Text after note 25.

The Timing of Injustice 305 63 S.C. 1885, c.71. 64 See for example RBC Dominion Securities Inc. v. Dawson (1994), 114 Nfld. & P.E.I.R. 187, 356 A.P.R. 187, 111 D.L.R. (4th) 230 (Nfld. C.A.). 65 In Principal Group Ltd. v. Anderson (1997), 51 Alta. L.R. (3d) 45,147 D.L.R. (4th) 229 (C.A.), a trustee in bankruptcy established that certain parties who had received funds from the bankrupt were required by the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s.95, to make restitution. Those parties argued that they should be allowed to deploy the defence of change of position. It was held that they could not; the defence would subvert the policies inherent in the statutory framework. For a similar phenomenon, denying the availability of estoppel where it would be inconsistent with a statutory framework, see Maritime Electric Co. v. General Dairies Ltd., [1937] A.C. 610, [1937] 1 D.L.R. 609 (P.C.), which was distinguished by the majority in Kenora (Town) Hydro Electric Commission v. Vacationland Dairy Co-operative Ltd., [1994] 1 S.C.R. 80,110 D.L.R. (4th) 449. The idea is that the defence of change of position could not be used in a case like Mack, as it would be inconsistent with the very constitutional values which the claim aims to vindicate. 66 This was explicitly held in Deglman v. Guaranty Trust Co. of Canada, [1954] S.C.R. 725, [1954] 3 D.L.R. 785. 67 For a fuller discussion of some of the normative issues, see the paper by Jeremy Webber in this volume. 68 Royal Canadian Legion Branch 178 Norwood (Alberta) v. Edmonton (City) (1994), 16 Alta. L.R. (3d) 305, 111 D.L.R. (4th) 141 (C.A.) was a claim for taxes overpaid for a number of years. The then governing Limitation of Actions Act, R.S.A. 1980, c. L-15, s.4(l)(e) provided that 'actions grounded on accident, mistake or other equitable ground of relief had to be begun 'within six years from the discovery of the cause of action.' The Court of Appeal held, however, that this referred only to facts and not to law. The six years began to run when the plaintiff knew all of the relevant facts, even though it did not know about the law; much of the plaintiff's claim was barred. 69 Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147,224,31 D.L.R. (4th) 481, 535-6. 70 Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, 224, 31 D.L.R. (4th) 481,5356; Royal Canadian Legion Branch 178 Norwood (Alberta) v. Edmonton (City), (1994), 16 Alta. L.R. (3d) 305, 111 D.L.R. (4th) 141,149 (C.A.). This would suggest that the decision in Benner in 1997 would not assist the plaintiffs in Mack; it would not be a new fact, but only an interpretation of the effect of the coming into force of s.15 of the Charter in 1985. See note 42.

306 Lionel Smith 71 See for example Limitations Act, 2002, S.O. 2002, c.24, s.15. The 'ultimate limitation' is combined with a shorter period which does not run until discovery or discoverability, and the claim is barred when the first of the two periods expires. Under this statute, some claims have no limitation period (ss.16-17). 72 The Limitation of Actions Act, R.S.0.1990, c. L.15, which continues to apply to litigation commenced before 1 January 2004, did not refer to unjust enrichment or restitution. However, its s.45(l)(g) provided a six-year limitation for actions based on a 'simple contract.' In Westdeutsche Landesbank Girozentrale v. Islington LBC, [1994] 4 All E.R. 890, the question of limitation was raised at first instance (it was not in issue in the Court of Appeal (ibid.) or in the House of Lords, [1996] A.C. 669). Following a dictum of the Court of Appeal in Re Diplock, [1948] Ch. 465,514, Hobhouse J. held that a six-year limitation was applicable to a claim in 'money had and received' (as the English still say), under s. 5 of the English Limitation Act, 1980, c.58, when it was read and understood in historical context. The wording of s.5 is similar to that of s.45(l)(g) of the older Ontario statute. This assumes that Ontario law would govern limitations, which is another issue altogether. 73 As in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6,96 D.L.R. (4th) 289 (no limitation period under then Ontario law for breach of fiduciary duty).

Mack v. Attorney General of Canada and the Structure of the Action in Unjust Enrichment DENNIS KLIMCHUK

In 1885 the government of Canada enacted the Chinese 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 new Chinese Immigration Act that imposed an outright prohibition on immigration.3 The second act was repealed in 1947.4 In 2000 an action was brought against the government by a head tax payer and the widow and son of another head tax payer as representatives of a proposed class. The plaintiffs sought an apology, compensation for a number of harms brought about by the policies pursued under the Chinese Immigration Acts,5 and restitution of the money paid under the head tax. They based their claims on three causes of action: (1) two violations of s.15 of the Canadian Charter of Rights and Freedoms, (2) a violation of customary international law, and (3) unjust enrichment. The Attorney General brought a motion to strike out the plaintiffs' statement of claim on the grounds that it disclosed no reasonable cause of action or, in the alternative, that it was frivolous, vexatious, or an abuse of process.6 The Ontario Superior Court of Justice, per Cumming }., granted the motion on the first count, finding, as the applicable test requires, that it is 'plain and obvious' that the plaintiffs' claims could not succeed.7 Cumming J.'s holding and reasoning were upheld by the Ontario Court of Appeal.8 In the spring of 2003, the Supreme Court denied leave to appeal. As the contributions to this volume reflect, the Mack plaintiffs' claims and the courts' answers to them raise a broad range of questions. I will

308 Dennis Klimchuk

focus on one, the viability of the plaintiffs' third claim, namely that they are entitled under the law of unjust enrichment to restitution of the money collected under the Chinese Immigration Act in the various forms it took from 1885 to 1923. For the sake of brevity, I will hereafter refer to this legislation collectively as 'the Chinese Immigration Act' or 'the CIA.' In the first half of this paper, I argue that the courts did not provide adequate grounds on which to strike down the plaintiffs' claim in unjust enrichment. Both courts held that the claim in unjust enrichment inherited the fatal flaw from the plaintiffs' Charter and international law arguments, namely that it retrospectively applies laws and norms whose enactment and acceptance postdate the repeal of CIA. I will argue that the viability of the plaintiffs' claim in unjust enrichment does not rest on their being able to impugn the validity of the CIA at the time of its enforcement. It is sufficient to ground the claim that the CIA would not withstand Charter scrutiny in the present. This argument, of course, does not show that the plaintiffs' claim in unjust enrichment is beyond controversy. I focus in the second half of my paper on what I take to be the most significant problem internal to the structure of the plaintiffs' claim in unjust enrichment thus reconstructed. Two approaches to unjust enrichment coexist in uneasy alliance in Canadian law. Commentators have urged that the tension be resolved by jettisoning one - the approach that the Mack plaintiffs' claim in unjust enrichment, if accepted, would help entrench. I will look closely at the distinction between these approaches and ask whether the Mack claim is caught by this broader criticism of the state of unjust enrichment in Canadian law today. 1. Some Preliminaries 'Unjust enrichment' is sometimes used to name any gain to which a defendant is not entitled under law. In this broad sense we could say that both someone who profits through recording another's composition without permission and someone to whom another mistakenly repays a loan twice over are unjustly enriched at the expense of the other. But there is an important difference between these cases.9 The musician profits from a wrongdoing. The creditor, by contrast, violates no property right and commits no tort.10 Nor is she in breach of contract. Notwithstanding that she has committed no civil wrong, justice requires that the creditor make restitution. In the sense at issue in Mack,

Mack and the Structure of the Action in Unjust Enrichment 309

and in what is now settled usage, 'unjust enrichment' names the cause of action through which this claim in justice is articulated. The development of unjust enrichment as a distinct area of private law has rested on the articulation of a principled basis of this appeal to justice. In Canadian common law, we find this in the requirement that, having shown that she suffers a deprivation corresponding to an enrichment enjoyed by the defendant, the plaintiff must then show that there is 'an absence of juristic reason for the enrichment.'111 will call this third step the 'Pettkus test/ after the case in which it was adopted. Just what is a juristic reason? It was left unexplained by Dickson J. (as he then was) in the majority opinion of Pettkus, and the reasoning in the case itself did not rely on it. An important clue, however, was provided by Dickson J. in a dissenting opinion in an earlier case in which he first formulated the test that in Pettkus became law, Rathwell v. Rathwell.12 There Dickson J. gave, as two examples of a juristic reason, a contract and a disposition of law.13 What these have in common is that each provides a reason why the defendant is entitled to keep the disputed enrichment. Taken at face value, then, with the adoption of the Pettkus test, the Canadian law of unjust enrichment allies itself with the civilian tradition.14 Reflecting its roots in Roman law, the civil law of unjust enrichment follows what is commonly referred to as the 'legal grounds' approach. On the legal grounds approach, those enrichments must be returned that the defendant lacks a legal ground to retain. This orientation is reflected in the civilian preference for the name 'unjustified' enrichment. What a legal ground does is justify the retention of a disputed enrichment; its absence shows that retention to be unjustified. (For ease of exposition, I will at times fail to observe this difference in terminology.) Sometimes judges take the Pettkus test at face value. An example is Mack itself. The courts allowed, and the Attorney General conceded, that the Mack plaintiffs made out the first two requirements, that is, of an enrichment and a corresponding deprivation. The stumbling-block was the third step, the Pettkus test. Cumming J. held that, because the CIA was valid when in force, it constitutes a juristic reason for the retention of the money collected under it. Thus Cumming J. understood the dispositive question to be whether the plaintiffs could defeat the defendant's justification for retaining the disputed enrichment. But the alliance of Canadian law with the civilian tradition is at best incomplete. For the most part, Canadian law proceeds as it did before Pettkus, along the lines of the common law approach. That approach is

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Dennis Klimchuk

best illustrated by the model at work in English law, in which plaintiffs are asked to show at the stage analogous to the Pettkus test 'that the enrichment was unjust/ A plaintiff shows that the enrichment was unjust by pointing to one or another 'unjust factor' that obtained in the circumstances of the impugned transaction. Unjust factors are - or, perhaps, provide - reasons for the disputed enrichment to be returned to the plaintiff. The debtor above would invoke the unjust factor of mistake. By showing that she was mistaken, she provides a reason for the payment to be returned to her. Another unjust factor is failure of consideration. In the sense relevant to the law of unjust enrichment, consideration has failed when a party who has conferred a benefit on another fails to receive in counterperformance that for the sake of which she conferred the benefit. An example is a down payment made pursuant to a contract then frustrated.15 A plaintiff who shows that she only paid the defendant because she expected a benefit which she did not receive provides a reason why she should be paid back. In so doing she provides the unjust factor on which her claim for restitution is grounded.16 Now, there is more complexity in the details: the contrast between the unjust factors and legal grounds approaches is rather more nuanced and involved than I have so far recounted. There is controversy too: commentators have argued that Canadian law takes up the invitation of the Pettkus formulation to embrace the legal grounds approach at its peril.17 The Mack plaintiffs' claim, we will see, puts this all at issue - or, rather, it would if it is sound. Over the next three sections I will argue that the courts failed to show that it is not. Against that background I will return to the question whether, and if so in what way, it counts against the Mack plaintiffs' claim that it rests recovery on defeating the defendant's legal ground to the disputed entitlement. 2. The First Steps The courts' reason for rejecting the Mack plaintiffs' claim in unjust enrichment, again, was that because it was valid at the time of its enforcement, the CIA constituted a juristic reason for the taxes collected under its authority. To hold otherwise would be to apply present-day constitutional law retrospectively, and that is impermissible.18 There are two ways in which this argument could be challenged.19 First, we might argue that the CIA was all along invalid on legal principles to which the courts at the time ought to have adhered or which

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otherwise impugn its legitimacy at the time it was in force.20 If sound, such an argument would, I believe, allow the cause in action in unjust enrichment to be made out.21 Alternatively, we could question the courts' assumption that the plaintiffs' claim in unjust enrichment could succeed only if the CIA could be shown to have been invalid at the time it was in force. This is the line I will pursue. My claim is that, when the structure of the action in unjust enrichment is properly understood, a case can be made that contemporary standards need not be applied retrospectively to undo the government's claim to the money collected under the CM. Instead the claim can be based on the fact that, as Cumming J. held, 'quite clearly, the [Chinese Immigration] Acts, if enacted today, could not withstand Charter scrutiny':22 that, to use a philosophical term of art, the CIA is in 'counterfactual' contravention of the Charter. In this section I will set the stage for this argument by drawing attention to certain structural features of the action in unjust enrichment. The initial hurdle for the argument that the Mack plaintiffs' claim can rest on the fact that the CIA is in counterfactual contravention of the Charter is the rule that ordinarily the action in unjust enrichment is complete at the moment of the defendant's receipt of the disputed enrichment. While sometimes stated in general terms,23 the rule must be qualified at least enough to accommodate cases of failure of consideration. (I will return to failure of consideration below. For now, let us set it aside.) The rule undeniably holds in the case of mistake. So read down, I will refer to it as the Baker rule, after Baker v. Courage & Co, which is authority for the proposition that the payee's receipt of the mistaken payment completes the cause of action in unjust enrichment.24 That the rule obtains there is reason enough to merit its consideration here. Mistaken payment is the paradigmatic case of unjust enrichment. Thus one might reasonably hold that the application of the Baker rule elsewhere in the law of unjust enrichment requires no special justification but departures from it do. The Court's reasons in Baker, I suggest, proved the principles on which such departures are justified. The proposition that Hamilton J. rejected in Baker is that the cause of action to recover money paid under mistake of fact 'is in the nature of a breach by the payee of a duty to hand over money which ex xquo et bono does not belong to him, but belongs to the payor, and that there can be no breach of that duty where the facts which give rise to the duty have not been brought to the payee's attention.'25 Thus the point of holding, to the contrary, that the action is complete at the moment at which the defendant comes into receipt of the disputed enrichment, is to reject the

312 Dennis Klimchuk view that the defendant's liability to make restitution is triggered by her being in breach of the duty to return it. That is, the Baker rule uses a constraint on the timing at which the cause of action for recovery of mistaken payment is complete to enact a proposition about the nature of liability in such a case. That proposition is that such liability does not attach to the blameworthiness of the defendant's retention of the disputed enrichment - and thus does not await her awareness of being in its receipt - but rather simply to her being in receipt of it.261 will call this proposition the receipt liability principle. The receipt liability principle is sound. This is because the contrary view begs the question. The defendant can be said to 'retain/ rather than merely continue to be in receipt of, the disputed enrichment only if the plaintiff already has a right to its return. Put another way, anchoring the plaintiff's claim in the defendant's retention of the disputed enrichment is tantamount to explaining the duty to make restitution in terms of its - the duty to make restitution's - breach. This would be like explaining the tortfeasor's duty to make compensation in terms of her refusal to do so.27 So liability must attach merely to the defendant's being in receipt of the disputed enrichment.28 It follows from the above analysis of Baker that one can respect the Baker rule and also hold that, in a particular category of case, the cause of action is not complete at the moment of defendant's receipt of the disputed enrichment. What is at issue is the justification for so holding. As long as one's justification for the suspension of the completion of the cause of action is not that its completion awaits the defendant's awareness of being in receipt of the disputed enrichment so as to generate her duty to make restitution, one does not run afoul of the rationale of the Baker rule. Nothing in the Mack claim invests it in the idea that the government's liability issues from a breach of duty in the sense denied by the principle that, I have argued, the Baker rule enacts. So Baker is not a barrier to the Mack claim. Let's take a closer look at the receipt liability principle, again, the principle that liability in unjust enrichment attaches to the defendant's simply being in receipt of the disputed enrichment. 'Attaches to' needs to be unpacked. The idea is that, in a sense, the principal object of the unjust enrichment inquiry isn't the event by which the defendant came into receipt of the disputed enrichment, but rather her being in its receipt. A comparison with tort will help make my point. While sometimes it is said that the point of tort remedies is to set transactions right, there is something metaphorical about employing that locution in the

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tort context. The law's concern in tort is the event of the plaintiff's injury.29 The object of tort remedies is to repair that injury.30 Consider, in contrast, a case of mistaken payment. The point of restitution in such a case is not to repair or somehow make up for the plaintiff's having been mistaken when she did what she did. Instead is it to undo the resulting state of affairs. Of course, that state of affairs is suspect from the perspective of justice only because the plaintiff was mistaken when she did what she did. But restitution does not aim to set that right. Instead it sets right the parties' holdings, in light of how they came to be what they are. From this follows a crucial point. 'Being in receipt of the disputed enrichment' names a state of affairs that can endure, indefinitely. What endures, more precisely, is the state of affairs from which the duty to make restitution arises. Consider, again, the contrast with tort. Torts do not endure in the same way.31 The duty to compensate can. But in the case of a uncompensated tort, what endures isn't the state of affairs from which the remedial duty arises, but rather the duty to set right an injustice in the past. That is because torts are events. Enrichments, unjust or otherwise, by contrast, are states of affairs, notwithstanding that often it is a property of the event through which the defendant came into receipt of the disputed enrichment that makes that enrichment unjust. I say 'often' because, on this analysis, nothing in principle requires the event through which the defendant became enriched to be the source of that enrichment's injustice. So nothing in principle stands in the way of an enrichment being at first just and becoming unjust. In particular, worries about retrospectivity need not stand in the way. Because the duty to make restitution arises from an enduring state of affairs, we could hold that the enrichment in question was just and has become unjust without necessarily having to retrospectively redescribe the event through which the defendant came into its receipt. This, I argue, follows from the receipt liability principle. It is confirmed by positive law. The law of unjust enrichment already recognizes the category of enrichments that become unjust, by allowing that failure of consideration is an unjust factor grounding a claim to restitution. Failure of consideration, again, is the unjust factor relied upon by a plaintiff who conferred a benefit on another on the condition of a counterperformance that, for one reason or another, fails to materialize. One example, mentioned above, is the recovery of money paid under a frustrated contract. For example, a Polish company recovered a £1,000 down-payment made to an English manufacturer who could

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not deliver the promised goods owing to the outbreak of war.32 Other examples are provided by claims in quantum meruit - roughly, uncompensated services. For example, notwithstanding that their oral agreement was unenforceable owing to a provision in the Statute of Frauds, a nephew recovered the value of services he provided for an aunt who did not honour her promise to repay him by leaving her house to him in her will.33 In neither case did the plaintiff intend to confer a gift. In each case, however, at the time of receipt, the defendant was entitled to the disputed enrichment. That is, had war not broken out and the goods been delivered, and had the aunt bequeathed the house, we would not say that the manufacturer and the aunt were making restitution for unjust enrichments. So at the point of receipt (and for some time after), the enrichments were just. Thus in allowing failure of consideration as a ground of recovery under unjust enrichment, the law recognizes that enrichments can be just upon receipt but subsequently become unjust. It does so, further, without relying on a retrospective redescription of the circumstances under which the defendant came into receipt of the disputed enrichment. With this point and the foregoing analysis generally in mind, let us turn to the courts' analyses of the Mack plaintiffs' claim. 3. The Courts' Argument Both courts held that the claim in unjust enrichment inherited the fatal flaw of the plaintiffs' Charter and international law arguments, namely that each rests on retrospectively impugning the CIA. I will argue that a close look at Gumming J/s analysis of the plaintiffs' Charter argument which was accepted by the Ontario Court of Appeal without qualification - shows that that analysis does not impugn the plaintiffs' claim in unjust, enrichment. Even if we grant that the Charter claim fails for the reasons Gumming J. gives, it does not follow that the plaintiffs' claim in unjust enrichment fails to disclose a reasonable cause of action. Gumming J.'s argument consists in an application of the standard articulated by lacobucci J. in Benner v. Canada (Secretary of Stated for determining whether a proposed application of the Charter is retrospective. The core of that standard is the distinction between an event and an ongoing status or characteristic. Section 15 cannot be used to attack a discrete act which took place before the Charter came into effect. It cannot, for example, be invoked to chal-

Mack and the Structure of the Action in Unjust Enrichment 315 lenge a pre-Charter conviction ... Where the effect of a law is simply to impose an on-going discriminatory status or disability on an individual, however, then it will not be insulated from Charter review simply because it happened to be passed before April 17,1985. If it continues to impose its effect on new applicants today, then it is susceptible to Charter scrutiny today.35

lacobucci J. offered two diagnostic questions with which we could discern the side on which a particular case falls. Gumming J.'s reasons can be helpfully reconstructed - without, I believe, doing them disservice - as comprising answers to each. The first question asks whether 'the situation [is] really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect/36 Gumming J. answers: 'It is impossible to say that the plaintiffs' claim is grounded in the "contemporary application" of a historical statute, repealed long before 1985, when s.15 of the Charter came into force. The offending law was repealed in 1947. There can be no contemporary application of a repealed law.'37 Thus the plaintiffs' claim asks the court to redress an old event which took place before the Charter created the right sought to be vindicated. lacobucci J.'s second question asks 'whether, in all the circumstances, the most significant or relevant feature of the case is the past event or the current condition resulting from it.'38 Gumming J.'s answer is that 'the predominating act of discrimination itself ended with the repeal of the Chinese Immigration Act in 1947.'39 Because 'the claim is founded on a discrete act, that is, the levying of a fee on Chinese immigrants or the outright exclusion of Chinese immigrants under the Chinese Immigration Act in its various forms,'40 it rests on a retrospective application of the Charter, notwithstanding that the discriminatory effects of that act may well continue into the present. Now, implicit in Gumming J.'s reasoning is the view that the wrongs at issue in the plaintiffs' Charter argument are the losses that they argued were caused by the tax and the prohibition imposed by the Chinese Immigration Acts, which losses included 'significant financial loss, hardship, emotional distress, family separation, loss of companionship of spouse, child and parent, loss of opportunity and injury to dignity.'41 The conceptualization of the wrongs at issue as a set of losses is reflected most clearly in Gumming J.'s answer to the second diagnos-

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tic question. The harms enumerated above are, I hazard, the 'discriminatory effects' that, on Cumming J's telling, could be reached by the Charter only by retrospectively applying the Charter to their cause, i.e., the event of the enforcement of the Chinese Immigration Acts. The question we need to ask is whether in fact, as both courts held, Cumming J.'s analysis of the Benner-soundness (as we might call it) of the plaintiffs' Charter argument carries over to the claim in unjust enrichment, where the object of the sought remedy is not a set of losses but rather an enduring gain. Let me begin with lacobucci J.'s second question, 'whether, in all the circumstances, the most significant or relevant feature of the case is the past event or the current condition resulting from it.' As lacobucci J. notes, the question which is more significant can be a difficult one to answer. The analysis of the last section suggests that, at least in the first instance, in the case of an action in unjust enrichment the most significant or relevant feature is an enduring condition, namely the defendant's being in receipt of the disputed enrichment. I say 'in the first instance' because in some cases as the analysis unfolds we then focus on an event in the past, namely the event of the transfer through which the defendant became enriched. But, as we have seen, this is not necessarily so. It is not required by the conceptual structure of the action in unjust enrichment, and there are uncontroversial counter-examples in positive law, namely cases of failure of consideration, hi short, that the defendant's coming into the disputed enrichment was an event in the past does not settle the Benner question, because (1) so long as the defendant remains in receipt of the enrichment, the state of affairs from which the remedial duty (allegedly) arises endures, and (2) in some cases the claim can be made out notwithstanding that, at the moment of receipt, the defendant was not unjustly enriched, without having to retrospectively redescribe the event in which her being enriched consisted. That Mack can be plausibly understood as such a case is shown by a careful consideration of the application here of lacobucci J.'s first question, whether 'the situation [is] really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect.' Cumming J.'s answer, again, was that Mack fell into the former category because the final Chinese Immigration Act was repealed in 1947, and '[tjhere can be no contemporary application of a repealed law.' Certainly there is a plain sense in which there can be no enforce-

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ment of a repealed law. No one can be charged under a repealed statute, for example. But this sense doesn't exhaust the ways in which the legitimacy of state action can rest on a law. An example of another sense is provided by incarceration. The forcible confinement of a person requires justification. That she violated a criminal law provides it, and continues to throughout her confinement. It does so regardless of whether the statute remains on the books. Similarly, notwithstanding its having been repealed, the CIA is, if perhaps not 'applied' in the ordinary sense, then plainly relied upon in the present to justify the retention of the money collected under it. This is just what it means to answer the plaintiffs' claim by invoking the CIA as a juristic reason for the enrichment. That parallel I drew with criminal law might be thought to undo my argument, because it is settled that the Charter cannot be used to a challenge a pre-Charter conviction (unambiguously an event). But recall that the parallel is with incarceration, rather than conviction or, indeed, with sentencing. The more apt analogue here isn't with the challenge of a pre-Charter conviction but with the challenge of the legitimacy of one's current incarceration for a pre-Charter conviction on the grounds that it constitutes a violation, in the present, of the Charter's prohibition of cruel and unusual punishment. As was held in Re Mitchell and The Queen42 and R. v. Konechny,45 such a challenge does not rest on the retrospective application of the Charter. Mitchell illustrates two features of the parallel I mean to draw. Percy Mitchell was sentenced under a statute repealed before the Charter was enacted, several years before Mitchell launched his claim. But - this is the first feature - the statute under which he was sentenced still served as the justification for his incarceration, and so even though repealed was in some sense still applied to him. Second, the validity of the statute under whose provisions Mitchell was sentenced and the fact that it was repealed before the Charter was enacted did not undo the soundness of his claim that his ongoing incarceration was, owing to the length of time he had spent in prison, cruel and unusual punishment under the Charter. My suggestion is that a parallel argument can be made in respect of the Mack plaintiffs' claim under unjust enrichment. That the CIA was valid at the time of its enforcement does not answer the question whether it can serve in the present as a juristic reason for the retention of the taxes collected under it, as it must. That it would plainly fail to withstand Charter scrutiny in the present serves to ground the argument that it cannot.

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4. An Alternative Argument My argument to this point shows, I believe, that the courts did not provide adequate grounds to strike out the Mack plaintiffs' claim in unjust enrichment. This is because there is a way of structuring that claim that sidesteps the courts' objections, as follows. The government must make restitution because, owing to the fact that the CIA would not withstand Charter scrutiny, it cannot serve (as it must) as a juristic reason to justify the retention in the present of the money collected under the head tax. The remainder of this paper will be taken up with unpacking and assessing the Mack plaintiffs' claim thus reconstructed. For the sake of brevity, I will henceforth drop the qualification and refer to this reconstruction simply as the Mack claim. To begin, we should note that the Mack claim could be understood in either of two ways. I will call the first the entitlement argument and the second the standing argument. The entitlement argument holds that because if enacted today the CIA would not withstand Charter scrutiny, the juristic reason for the enrichment in which the taxes collected under it consists has in effect expired. In other words, on this argument the government is, simply put, no longer entitled to the money collected under the CM. The standing argument operates at another level. It holds that it follows from the fact that the CIA is in counterfactual contravention of the Charter that the CIA cannot now be invoked to justify retention of the disputed enrichment. On this argument what is at issue is not the government's entitlement to the enrichment, strictly speaking, but rather its right to have that entitlement enforced by a court. This formulation is deliberately ambiguous on one important point. I leave open here the question whether the standing argument is better understood as holding that the Charter constrains what the defendant can say or as holding that the Charter constrains what a court can hear. Either way, the standing argument is, strictly speaking, silent on the question that the entitlement argument answers, because either way what the standing argument denies is only that the defendant's claim can now be enforced. Which of the entitlement and standing arguments better articulates the Mack claim? I will set this question to the side for the moment, to consider first two objections that hold equally against both. I do so for two reasons. First, if either is sound, we needn't worry with the details. Second, the answer to the second objection, we will see, will

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put us in a better position to answer the question how the claim is better articulated. The first objection is that, however structured, the Mack plaintiffs' claim in unjust enrichment rests implausibly on the claim that the government is still in receipt of the disputed enrichment. Of course, both courts found and the Attorney General conceded that the plaintiffs had made out the first step of the cause of action in unjust enrichment, namely that the defendant had been enriched. But this is not quite the same as holding and conceding that it is still enriched, and I suspect that, owing to the focus on the validity of the impugned transaction, the question was not faced in a way that would permit us to consider it settled. There may be more than one worry collected in scepticism about the continued existence of the disputed enrichment. In the background, for example, are difficult questions about what it means to say that a state endures through changes in the persons who occupy its offices and (even substantial) changes in its institutional structure. As it is registered in the law of unjust enrichment, however, the question whether the government is still in receipt of the disputed enrichment raises somewhat less fundamental concerns. Defendants may show themselves to be disenriched in part or in whole by way of the defence of change of position. Change of position will be available to a recipient who spends some or all of the initial enrichment on something she would not otherwise have purchased in the bonafidebelief that she was entitled to her windfall. Her usual rent won't do, for example, but an unplanned (even better: also uncharacteristic) holiday will. Three considerations work against the availability of the defence to the defendant in Mack. The first is that, owing to the fact that the express purpose of the CIA was to deter immigration, it may be difficult for the government to show the required extraordinary expenditure. Perhaps this can be overcome by the fact that governments always spend whatever they have (and more). So necessarily the money was spent on something that otherwise would not have been bought. But note - this is the second consideration - this response would always work. Allowing it would permit the scope of defence of change of position to exceed its rationale. The justification of the defence of change of position is that it protects defendants' interest in security of receipts. If a class of defendant can claim that that interest is engaged in a way that merits protection with respect to every payment it receives, then in effect it gains

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protection of something much broader. It makes itself effectively immune from any claim in unjust enrichment. This second consideration casts doubt on the availability of change of position in Mack owing to the fact that the defendant is a state. The third focuses on another property of the defendant. While the only aspect of the defendant's conduct scrutinized by the defence of change of position is, strictly speaking, her reliance on her claim to the disputed enrichment - she must show it to have been in good faith - it seems to me that that the rationale for the defence contemplates the paradigmatic cases in which the defendant's hands are clean throughout, so to speak. It seems only fair to give due to the defendant's reliance interest when the plaintiff's claim for restitution rests on pointing to a flaw in the transfer from her (the plaintiff's) side or in circumstances beyond either party's control (circumstances, for example, that lead to the frustration of a contract). But it's not clear to me that the defendant's reliance interest merits the same protection in a case, such as Mack, where the plaintiff's claim for restitution rests on an alleged flaw in the defendant's claim to the disputed enrichment.44 The second objection to the Mack claim is that if either the entitlement or standing argument was accepted, it would result in entrenching in the Canadian law of unjust enrichment - in respect of one ground of recovery - the civilian legal grounds approach. On the contrasting common law unjust factor approach, recall, plaintiffs must point to an unjust factor in the transaction that provides a reason for the disputed enrichment to be returned to them. Both the entitlement and standing arguments, by contrast, follow a literal reading of the Pettkus test and take defeating the defendant's justification for retaining the enrichment to justify its recovery by the plaintiff. The standing argument bracks the legal grounds approach in a second, subtler way as well. The upshot of the standing argument, in short, is that the Charter ties the court's hands, and that this is in the plaintiff's favour. But this supposes - as, arguably, does the legal grounds approach generally45 - that enrichments are unjust unless shown to be otherwise. This is an objection because, as I noted above, some commentators argue that the Canadian law of unjust enrichment incorporates the legal grounds approach to its detriment. To assess this properly, we need to have a closer look at the distinction between the common law unjust factors approach and the civil law legal grounds approach. This distinction, I noted in section 1, is rather more involved than I there recounted.

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I turn to unpack it in more detail now, and return to Mack in the section following the next. 5. Two Approaches to Unjust Enrichment As I outlined above, some claims in unjust enrichment in Canada succeed on the ground that the plaintiff has provided a reason that the enrichment be returned to her - and thereby follow the common law unjust factors approach - and others on the ground that she has defeated the defendant's reason for retaining the enrichment - and thereby follow the civil law legal grounds approach. A snapshot of Canadian law might then suggest that a complete law of unjust enrichment can and perhaps must look both ways, so to speak. But in their home domains each approach is - or at least aspires to be - comprehensive. So to properly understand the contrast between the systems, we need to leave the heterogeneous context of Canadian law to the side. I will focus on England as the representative common law jurisdiction and Germany as the civilian one. I will draw three points of contrast between the two approaches. Drawing the last of these points of contrast will enable us, in turn, to distinguish between two kinds of legal ground justifications for awarding restitution. With this final distinction in hand, we will be in position to return to the question whether the Mack claim is caught by the criticisms levelled by critics of interpolation, with the adoption of the Pettkus test, of the civilian orientation to unjust enrichment into Canadian law. The first point of contrast between the unjust factors and legal grounds approaches is the one I have already drawn. The unjust factors approach requires the plaintiff to provide a reason that the disputed enrichment be returned to her. The legal grounds approach, by contrast, requires the plaintiff to defeat the defendant's justification for retaining the disputed enrichment. In short, the common law is oriented around reasons for restitution, the civil law around reasons for retention. The two approaches often (perhaps nearly always) reach the same result, though for different reasons. A good example is provided by the treatment in each approach of the case paradigmatic in both traditions, namely a payment made under what common lawyers call a 'liability mistake/ i.e., a mistake in fact made by the payor as to whether the payment was owed to the payee. On the common law approach, the plaintiff points to the unjust factor of mistake. Restitution, on this

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approach, is justified because her consent to the transfer was vitiated by her error. Civilians, by contrast, would point to the absence of a legal ground justifying the payee's retention of the payment, and hold that restitution is required simply because the payment wasn't, after all, due. A second example is the recovery by the plaintiff of money paid pursuant to an agreement for which she received no counterperformance and for which she cannot sue in breach of contract, for example a payment made under a contract later frustrated. As we have seen, this is an example of a situation caught by the unjust factor of failure of consideration. As with mistake, the justification for the claim for restitution lies in the fact that the plaintiff's consent to the transfer was compromised. Here, however, her consent was not vitiated but rather qualified: she made her payment on the condition that she would receive something she did not. Civilians would, again, focus instead on the defendant's entitlement to the disputed enrichment. On the civil law model, restitution in such a case is justified because the legal ground on which the defendant's claim to the disputed enrichment rested has ceased to exist.46 These examples nicely illustrate the second point of contrast between the common and civil law approaches. The point I have in mind is often put by saying that the common law approach is subjective whereas the civil law approach is objective.47 The core of the unjust factors approach, at least, is subjective in that the core unjust factors are subjective.48 They are subjective in that they pick out circumstances in which the plaintiff's consent is in one way or another compromised, as in the examples above. Some common law commentators argue that 'the law of unjust enrichment' properly construed is confined to such factors.49 At the least, they are paradigmatic of the unjust factors approach. The legal grounds approach is objective in the sense that it does not vest the plaintiff's claim for restitution in a fact about her consent to the disputed transaction. As in the examples above, on the legal grounds approach the final arbiter is the legal status of the defendant's claim to the disputed enrichment. Now, this contrast merits some qualification. On the one hand, it is not clear that even the paradigmatic unjust factors are purely subjective. A case can be made, for example, that recourse to objective factors is necessary to prevent the unjust factor of mistake from being overinclusive.50 Indeed, in at least one category of case, such recourse has been taken: the mistaken payor who discharges a debt but would not

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have done so had she known something she did not know (her true financial situation, for example) will not be allowed to recover.51 On the other hand, it would be misleading to characterize the civilian approach as purely objective. § 814 of the German Civil Code, for example, provides that '[w]hat was done with the object of fulfilling an obligation may not be demanded back if the person performing knew that he was not bound to effect the performance.' That said, the significance of these qualifications ought not to be overstated. A fundamental contrast remains. Take, again, the case of someone who pays another to discharge a debt that, it turns out, did not exist. On the common law approach, the payor is entitled to restitution because her consent was impaired, whereas on the civilian approach she merits recovery because payment was not due. At a basic level, then, the justification for restitution in the common law is subjective (again, it is worth emphasizing, at least in the core cases) and in the civil law it is objective.52 What is the relationship between these first two points of distinction? Let us focus on the common law approach. What is the connection between requiring plaintiffs to provide reasons why the disputed enrichment should be returned to them and a concern with subjective factors such as the degree to which the plaintiff consented to the impugned transfer? While I cannot see how or why the connection would be a necessary one, it is close. Or so is suggested by the fact that - as I will explain - in cases of unjust factors that are objective in the sense relevant here, it is difficult to see how the common law has notadopted, at least in a limited sphere and in some sense, a legal grounds approach. One example of such is the recovery under the law of unjust enrichment of taxes paid under ultra vires legislation. The ground and structure of the claim for such recovery merits a close look here, not only because it bears obvious parallels to the claim in Mack, but because it brings into relief the third point of contrast between the unjust factors and legal grounds approach. Until recently, plaintiffs seeking recovery of unlawfully demanded taxes through an action in unjust enrichment could succeed only if they made out their claims on the basis of one or another of the settled unjust factors. The main candidates were compulsion and mistake. Often both would fail. In many cases, the compulsion attending the payment of a tax levied by ultra vires legislation is no different from or greater than that attending the payment of a legitimate tax. Mistake was nearly ruled out in principle while the long-standing bar against recovery for mistakes of law was in place. Even after that bar was removed,53 not all

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claims would succeed. If the payor insisted all along that the demand was ultra vires, she would have made no mistake. The House of Lords was faced with just such a case in Woolwich Equitable Building Society v. Inland Revenue Commissioners.5* There the House of Lords held, per Lord Goff, that 'the right to recovery should require neither mistake nor compulsion' and that 'the simple fact that the tax was exacted unlawfully should prima facie be enough to require its repayment.'55 As commentators noted, the 'Woolwich principle' seems to provide an objective ground of recovery in the sense at issue here56 and to grant a right to restitution on the basis that the taxing authority lacks a legal ground to retain the disputed enrichment.57 Indeed, the parallel with the civilian approach was drawn explicitly by Lord Goff, who noted at the outset of his opinion that Woolwich was inter alia 'of importance for the future of the law of restitution, since your Lordships' House could have a profound effect upon the structure of this part of our law/58 The common law of unjust enrichment, Lord Goff argued, might have developed so as to recognize a condictio indebiti - an action for the recovery of money on the ground that it was not due. But it did not do so. Instead, as we have seen, there developed common law actions for the recovery of money paid under a mistake of fact, and under certain forms of compulsion. What is now being sought is, in a sense, a reversal of that development, in a particular kind of case.59

Lord Goff presented this as a criticism of the adoption of the Woolwich principle, to which he gave two replies: that retention of taxes collected under ultra vires legislation would be 'particularly obnoxious' because it would run afoul of the principle that 'taxes should not be levied without the authority of Parliament/ and that taxes are demanded under the implicit threat of unpleasant economic and social consequences if the taxpayer does not pay.60 It would be hasty, however, to conclude that with the adoption of the Woolwich principle the English law of unjust enrichment has to that extent adopted a civilian approach to unjust enrichment. There is more yet to the distinction between the unjust factors and legal grounds approaches. The third, and final, measure can be made explicit by a closer look at the rationales offered by their Lordships for granting recovery in circumstances such as that of the Woolwich plaintiffs. One rationale, alluded to by Lord Goff and explicitly relied on by

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Lord Browne-Wilkinson, is that recovery of taxes paid pursuant to ultra vires taxation could be recovered on the grounds of the unjust factor of 'absence of consideration' or 'no consideration.' Lord Browne-Wilkinson argued that there was no consideration given in exchange for the taxes paid by the plaintiffs because 'money paid on the footing that there is a legal demand is paid for a reason that does not exist if that demand is a nullity.' 'There is in my view/ he continued, 'a close analogy to the right to recover money paid under a contract the consideration for which has totally failed.'61 The analogy, however, rests on an equivocation. It will be helpful to see how. The 'consideration' in 'absence of consideration' or 'no consideration' is not the same as the 'consideration' in 'failure of consideration/ In the latter the 'consideration' that fails to obtain, again, is that payment or service for the sake of which the party bringing suit made the payment or provided the service in which the disputed enrichment consists. One might cast the 'consideration' in 'absence of consideration' in structurally analogous terms, by saying that what the taxpayer sought and failed to obtain was the discharging of a legal duty. But this is unhelpful. The discharging of a legal duty is not something that the recipient does, in exchange for payment or otherwise. In short, 'no consideration' is, as Peter Birks notes, 'equivalent to the civilian expression "sine causa,"'62 or 'without legal ground/ This, Birks argues, cannot be the right justification for the Woolwich principle. If adopted as an unjust factor, 'no consideration' would have a destabilizing effect on the common law of unjust enrichment. To begin, it threatens to be over-inclusive. The recipient of a gift offers no consideration, for example, in the sense of 'consideration' at issue here. More significantly, the 'no consideration' rationale grounds recovery in Woolwich simply on the nullity or voidness of the demand, and, in contrast with civilian systems, in the common law nullity as such does not trigger restitution. A finding that a contract was void, for example, is not sufficient to ground an action in unjust enrichment to recover payments made under it. This is because, as Thomas Krebs puts it, '[t]he reasons which underlie the voidness of [a category of] contract are directed at avoiding obligations, not at the return of benefits/63 Thus the plaintiff must also show, for example, that as a result of the defendant's being released from her obligations, the plaintiff did not receive that for the sake of which she made payment or otherwise enriched the defendant. This points to the third contrast between the unjust factors and legal grounds approach. The surrounding private law doctrines in a system

326 Dennis Klimchuk

in which the law of unjust enrichment takes the legal grounds approach collectively provide its doctrinal scaffolding. For example, as a general rule, the use of the word 'void' in the German Civil Code triggers the application of §§ 812-22, which contains the law of unjust enrichment proper.64 As Birks puts it, 'nullity elsewhere produces an absence of legal ground here.'65 The Code was drafted with this interlocking structure in mind. The question, whether a party left worse off after failed transaction is entitled to restitution, is ordinarily settled there by asking whether that failure was such as to render the disputed transaction void, and this latter question is answered in other parts of the law (those pertaining to, for example, frustration). Thus, in effect, other parts of the law bear the burden of determining which enrichments are unjust - or, rather, unjustified. The common law employs a different division of labour. It falls to the law of unjust enrichment, through the development of 'unjust factors,' to determine when nullity, or absence of consideration, ought to ground recovery. Thus, Birks argues, 'even if the automated civilian approach were thought equally good or better, it would be necessary for us [common lawyers] to put in some essential infrastructure.'66 In the absence of such infrastructure, 'no consideration' cannot serve as an unjust factor. The second rationale for recovery in Woolwich, given prominence in Lord Goff's judgment, is that it is required by the principle that taxes may not be levied without the authority of Parliament. On this view, 'ultra vires legislation' is itself an unjust factor, one grouped by Birks and others in the class of 'policy-motived' unjust factors. The language of 'policy' is meant to announce that neither the plaintiff's consent nor the defendant's conduct serves to justify recovery in the relevant category of case.67 But it seems to me that the locution 'policy-motivated,' at least as applied to the 'ultra vires legislation' unjust factor, threatens to mislead, on more than one count. First, it obscures the fact that the point of granting recovery in Woolwich is not to promote a policy, but rather to uphold a principle.68 Second, the relative bluntness of 'policy' as a ground of justification compares unfavourably to the precise structure of the ultra vires legislation unjust factor. The idea is that the same principle that defeats the government's claim to taxes collected pursuant to ultra vires legislation - that taxes should not be levied without the authority of Parliament - also supports the right to restitution. In short, rather than holding that the right to restitution proceeds directly from the nullity of the disputed demand as such, the 'ultra vires legislation'

Mack and the Structure of the Action in Unjust Enrichment 327 unjust factor justification for recovery in Woolwich vests the former in the same justificatory foundation as the latter.69 Does the adoption of the ultra vires taxation unjust factor rationale for recovery in Woolwich thereby answer the claim, noted above,70 that with Woolwich the legal grounds approach was accepted in one area of the English law of unjust enrichment? Only with qualification. The qualification issues from attention to the sense in which the ultra vires taxation unjust factor provides a reason for restitution, in contrast with the sense in which unjust factors such as mistake and failure of consideration do. The latter, we might say, provide agent's reasons. They pick out the reasons a particular plaintiff would give in asking that the impugned enrichment be returned to her ('I didn't mean for her to have it'; T only meant for her to have it if she gave me something she did not'). The reason picked out by the ultra vires taxation unjust factor operates at a higher level, the level of doctrinal reasons, we might say. It provides a reason that a legal system ought to grant restitution in a category of cases. At the level of doctrinal reasons, the reason for restitution in the case of mistake and failure of consideration might be something like the protection of the plaintiff's autonomy.71 It is difficult to see what the agent's reasons in the case of ultra vires taxation would be. That is because the ultra vires taxation unjust factor defeats the defendant's justification for retaining the disputed enrichment by picking out an objective feature of the impugned transaction. Thus, while the Woolwich principle need not be reckoned as granting restitution on the basis of the nullity of the impugned transaction as such, and to that extent squares with the common law approach to unjust enrichment, it does, in this qualified sense, mark the adoption of a legal grounds justification for restitution. Let me draw together this discussion of Woolwich by drawing a distinction between two kinds of legal grounds oriented justifications for the right to restitution in a class of cases. The first, which I will call an unqualified legal grounds justification, is exemplified by the 'absence of consideration'justification for the Woolwich principle. The second, which I will call a qualified legal grounds justification, is exemplified by the reading of Woolwich according to which it establishes the unjust factor of 'ultra vires taxation.' The distinction between the two is that the former, but not the latter, rests recovery on nullity as such, or on the absence of a legal ground simpliciter. What they share is that each justifies restitution by pointing to an objective feature of the defendant's claim to the disputed enrichment - to, that is, the legal ground on which

328 Dennis Klimchuk

she stands. Unqualified legal grounds justifications suppose a civilian division of labour between the law of unjust enrichment and the surrounding private law doctrines that buttress it. Qualified legal grounds justifications do not. They do not because they provide a reason why restitution is due. In exhibiting this feature, qualified legal ground justifications make their place in the common law approach to unjust enrichment. 6. The Justification of the Mack Claim The Mack claim asserts that it follows from the fact that if passed today the CIA would plainly run afoul of s.15 of the Charter that those who paid the taxes collected under its authority have a right to restitution. The fact that the CIA is in counterfactual contravention of the Charter bears on the government's claim to the taxes collected under it, I argued, because there is a sense (albeit an attenuated one) in which the CIA is applied in the present, namely to justify the retention of the money collected under the CIA, and it is at this - the continuing retention of the disputed enrichment - that the Mack claim is directed. The Mack plaintiffs' claim thus understood bears an important parallel with the second account of the justification for recovery in Woolwich considered above. On that account, recall, what justifies recovery in Woolwich is that the same principle that defeats the government's claim to taxes collected pursuant to ultra vires legislation - that taxes should not be levied without the authority of Parliament - also supports the right to restitution. Recovery is justified because the defendant cannot deny it and claim to stand for or put itself under the principle that impugns its claim to the disputed enrichment. Were restitution denied, the government's claim to respect the rule of law would ring hollow. In short, restitution must be granted because integrity requires it. The Mack claim is, I suggest, best understood to justify recovery on the same basis, broadly speaking. The fact that, if enacted today, the CIA could not withstand Charter scrutiny shows that the CIA runs afoul of the principles of equality given expression in s.15 of the Charter. The government announced its adherence to these principles by enacting the Charter. It cannot claim to respect those principles and justify retention of the taxes collected under s.15 by invoking the authorization of a statute that so plainly violates them. So it cannot answer the plaintiffs' claim that disputed enrichment is held in the absence of a juristic reason. I left unresolved in section 4 the question which of two ways in which

Mack and the Structure of the Action in Unjust Enrichment 329

we could understand the Mack claim better articulates it. The Mack claim could be understood to impugn the government's claim to the money collected under the CIA either directly (the entitlement argument) or indirectly, by way of the government's right to enforce it (the standing argument). Unpacked as it is above, the Mack claim is best understood as making a version of the standing argument. This is because the justification for recovery just outlined stops, so to speak, at the point of the enforceability of the government's claim. In other words, it does not, strictly speaking, deny the government's claim to the taxes. Rather it denies its right to enforce that claim. Now, clearly much more needs to be said. To begin, as I noted above, I have here left open an important question, namely whether the standing argument is best understood to hold that the Charter constrains what the defendant says, or that the Charter constrains what a court can hear. I cannot begin to do justice to the issues raised by this question here.72 The constitutional and jurisprudential aspects of the Mack claim as I have reconstructed it are beyond my focus, which is on the question whether the law of unjust enrichment can accommodate the Mack plaintiffs' claim. That said, I will note two aspects in which, however formulated, the standing argument is less controversial than it might at first seem. The first is that its structure is not particularly novel. Elsewhere the law recognizes the distinction between an entitlement and the right to enforce it. Estoppel is a good example.73 The second is that the standing argument does not, strictly speaking, amount to the claim that the Charter creates private law rights. Instead it operates at a point before they are asserted. This, I think, counts in its favour as against the entitlement argument, which, it might be argued, at least comes very close to applying the Charter beyond its scope. I argued above that the standing argument version of the Mack claim seems of the two to vest it more completely in the civilian, legal grounds approach. So the argument above makes especially pressing the objection - let us call it the orientation objection - that accepting the Mack claim would entrench the civilian legal grounds approach in one area of the Canadian law of unjust enrichment, to its detriment. I will turn to consider this next. 7. The Orientation Objection The adoption, however limited, of the legal grounds approach to unjust enrichment in Canadian law raises more than one worry.74 The most significant are akin to the worries Birks raised about the 'no consider-

330 Dennis Klimchuk

ation' or 'absence of consideration' rationale for recovery in Woolwich. Just as one can base recovery on absence of consideration as such only in the context of a body of law with the necessary supporting doctrines, recovery can be based on the 'absence of juristic reason' as such only in the context of a body of law in which 'juristic reason' is well defined. This broader context has not developed in Canadian law. Taking the Pettkus test at face value amounts, then, to starting afresh, not only in the law of unjust enrichment - which, in Canada, followed the common law unjust factors approach until Pettkus - but in significant aspects of allied domains of private law. And until this work is done, the 'no legal grounds' interpretation of 'absence of juristic reason' threatens to destabilize the principles of recovery in unjust enrichment, much as Birks warned the adoption of 'no consideration' as a ground of recovery would in English law. Does this speak against the Mack claim? Only if it rests on what I called an unqualified legal grounds justification. This is because, I suggest, these worries - again, as with Birks's criticism of the no consideration rationale for recovery in Woolwich - apply only to unqualified legal ground analyses. That is, while sometimes cast against orienting the law towards defeating defendants' justification for retaining enrichments, the real object of the worries recounted above is, I think, something else. It is that the Pettkus test seems to permit taking proof of the absence of a juristic reason simpliciter to be sufficient for recovery - that is, to grant recovery on proof of nullity as such. Now, the test has sometimes been read this way. That is worrisome, for the reasons given above. The question here is whether accepting the Mack claim would entrench this approach to unjust enrichment. In other words: does the Mack claim rest on an unqualified or a qualified legal grounds justification? The answer is: a qualified legal grounds justification. But matters are a bit complex. This is plainly the answer insofar as the Mack claim cannot be understood to rest on the voidness as such of the impugned transaction. Not only does the Mack claim concede the validity of the CIA, it does not, strictly speaking, reach the defendant's entitlement to the disputed enrichment. Instead it blocks the invocation of the CIA as a response to the plaintiff's claim. Furthermore, like Birks's justification for recovery in Woolwich, the Mack claim ends up providing a reason though an institutional reason rather than an agent's reason - why the plaintiffs merit recovery. On this measure, then, the Mack claim does not engage the worries above, because, in short, it is justificatqrily

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self-sufficient. In other words, it does not merely designate a condition under which restitution is due. It also explains why restitution is due when that condition obtains. In this sense, the Mack claim provides an unjust factor - though one which, like the 'ultra vires taxation' unjust factor, is unlike mistake and failure of consideration in important ways. Things get a bit more complicated, however, when we look more closely at the details. The Mack claim argues that restitution is due because the government cannot invoke the CIA as a juristic reason justifying the retention of the taxes collected under it. This seems to treat the Pettkus test as a defence rather than as a element of the cause of action. There is a practical worry here, remediable by making explicit that the burden of proof does not shift at the third stage of the cause of action. The plaintiffs' job, that is, will not be done merely by proving an enrichment and corresponding deprivation and alleging the injustice of the former. A second worry is more conceptual. Even if the question of burden of proof is resolved by making explicit that the standard rule applies throughout the cause of action in unjust enrichment, the Mack claim seems to rest on the idea - to which, arguably, the civil law of unjustified enrichment is committed - that the default position in the law of unjust enrichment is that enrichments are unjust unless shown to be otherwise (even if the plaintiff bears the burden in the particular case of defeating the defendant's claim to have rebutted the presumption).75 A case can be made tht this presumption is at odds with fundamental principles of the common law. The starting point of the argument76 is

that the duty to make restitution is, in effect, a limited duty to aid or rescue.77 Take, for example, a case of mistaken payment. The payee is in important ways akin to a finder. Rather than dropping her cash in a .garbage can, the plaintiff has dropped it in the defendant's bank account (say). Not only has the payee done nothing wrong, she need not have done anything. But nonetheless she is under an obligation to set something right for the plaintiff. Of course, the burden is minimal. But the duty to make restitution is, in this respect, at odds with the common law's resistance to granting through private law an entitlement to more than freedom from others' interference with one's affairs and holdings. It is not surprising, on this line of reasoning, that civilians are more comfortable with duties to aid and to rescue. Nor, then, is it surprising that the common law has developed the unjust factors approach. By requiring the plaintiff to adduce a positive reason why the disputed enrichment should be returned to her, the unjust factors approach miti-

332 Dennis Klimchuk

gates the tension between the duty to make restitution and the common law's aversion to duties to aid or rescue. This, I think, is a compelling argument. But I don't think it speaks against the Mack claim - or not, in any case, any more than it does against recovery for taxes paid under statutes that were ultra vires the taxing authority. This for two reasons. First, each, we have seen, does provide reasons for restitution. In both cases the reasons are what I called doctrinal reasons - reasons, that is, that a legal system ought to grant recovery in a category of case. So these are not agent's reasons, as are provided by core unjust factors such as mistake. But they are reasons for restitution nonetheless. Second, in neither case is the defendant's duty to make restitution a duty to aid or rescue in the way that it is in, for example, a case of mistaken payment. There the plaintiff's claim for the return of the payment is in effect a request that the defendant insure her against her (the plaintiff's) mistake, free of charge.78 But in the ultra vires cases and in the Mack case the plaintiff makes no such appeal. Instead she claims that something has gone wrong on the defendant's side of the transaction. As Wilson J. argued in Air Canada v. British Columbia, the law cannot permit the state to compel obedient taxpayers to insure itself against making illegitimate claims to the latter's money.79 In short, permitting recovery on the Mack claim would not vindicate the view that, contrary to the common law tradition, enrichments are unjust unless shown to be otherwise. Instead, along with making good the commitment to the principles of equality to which the government announced its adherence by enacting the Charter, it would vindicate the view - with which the common law often identifies itself - that when things go wrong, those responsible should set them right. 8. Conclusion I conclude, first, that the courts failed to provide adequate grounds to strike down the Mack plaintiffs' claim in unjust enrichment because there is a way to reconstruct that claim that sidesteps the courts' objections and, second, that the claim thus reconstructed is both plausible and can be accommodated in the Canadian law of unjust enrichment while respecting its relationship with surrounding private law doctrines. This is not to conclude that the claim would face no barriers, even if the constitutional and jurisprudential questions I left open above were settled. Limitation periods are one. Another is the Supreme Court of Canada's concern that fiscal chaos might result were every claim for

Mack and the Structure of the Action in Unjust Enrichment 333

restitution for ultra vires taxes allowed,80 which puts a heavy persuasive burden on those who seek recovery for payment made under statutes whose validity they grant. Similarly, the Mack claim, like claims against states to remedy historical injustices generally, faces the objection that its satisfaction in the present would come at the cost of persons who neither brought about nor benefit from the injustice sought to be set right. These considerations, however, amount to questioning whether restitution ought to be denied not because the disputed enrichment was not unjust but rather despite the fact that it was. This is not to say that they ought not to be taken seriously. My concern, however, has been with the more basic question whether the Mack plaintiffs have a claim in justice for restitution. Not all claims in justice can be answered, of course. How to sort those that can from those that cannot is a question I cannot begin to address here. NOTES I would like to thank the audiences at the conference from which this volume derives and at the June 2003 meeting of the Canadian Section of the IVR in Halifax, NS for their difficult questions and helpful comments. Thanks also to Hanoch Dagan, Gillian Demeyere, Mitchell Mclnnes, Mayo Moran, and Stephen Smith for the same, to Lionel Smith for very helpful discussion of questions in the comparative law of unjust(ified) enrichment, and to Ryan Warren for research assistance. 1 S.C. 1885, c.71. S.4 excepted diplomats and their employees, tourists, merchants, scientists and students. 2 'Whereas it is expedient to make provision for restricting the number of Chinese immigrants coming into the Dominion and to regulate such immigration ...' 3 S.C. 1923, c.38. S.5 excepted diplomats and their employees, children born in Canada of Chinese parents, merchants, and students. 4 By the Immigration Ad, S.C. 1947, c.19. 5 See below at note 41 and accompanying text. 6 Pursuant, respectively, to rule 21.01(l)(b) and 21.01(3)(d) or 25.11 of the Ontario Rules of Civil Procedure, R.R.0.1990, Reg. 194. 7 Mack v. Canada (Attorney General) (2001), 55 O.R. (3d) 113 (Ont. S.C.J.) at 129 (Mack}.

334 Dennis Klimchuk 8 Mack v. Canada (Attorney-General) (2002), 60 O.R. (3d) 737 (Ont. C.A.). 9 Actually, there are two differences, but the second is less important here. The composer is not materially worse off, because the musician's gain comes from third parties. The creditor's gain, by contrast, corresponds to an equivalent loss on the debtor's part. Thus the remedies the composer and the debtor would seek have different structures. Because, in bringing suit, the composer would ask the musician to give up his gain, the remedy in the first case is often called 'disgorgement.' Because the debtor asks the payee to give back what she received, the remedy she seeks is best styled as 'restitution.' See Lionel Smith, 'The Province of the Law of Restitution' (1992) 71 Can. Bar Rev. 672. The Mack plaintiffs' claim is, on this measure, like the debtor's, but the Ontario Court of Appeal referred to the remedy they sought as disgorgement. 10 It is settled law that mistakes of the kind in the example under consideration do not prevent title from passing from payor to payee. 11 Pettkus v. Becker (1980), 117 D.L.R. (3d) 257 at 274 (S.C.C.). 12 [1978] 2 S.C.R. 436. 13 Ibid, at 455. 14 Which, by way of Quebec private law, was perhaps its inspiration. See Lionel Smith, "The Mystery of Juristic Reason' (2000) 12 Sup. Ct. L. Rev. (2d) 211 at 215-19 (Smith, 'Mystery'). 15 Thus 'consideration' in 'failure of consideration' does not refer, as in contract law, to the promise of counterperformance in which consists the quid pro quo that makes the agreement enforceable, but rather to the counterperformance itself. This is one reason why some commentators suggest that 'failure of basis' be adopted as a substitute. Another is that the relevant condition need not be a counterperformance in any ordinary sense. Money settled on a trust established for a married couple, for example, can be recovered if the marriage is annulled: Re Ames' Settlement, [1946] Ch. 217.1 will omit mention of this qualification in what follows for the sake of brevity, and stick with 'failure of consideration' because it seems to me to be entrenched. There is a second terminological issue here. Graham Virgo suggests that 'failure of consideration' names three distinct grounds of restitution, namely total failure of consideration, partial failure of consideration, and absence of consideration. Graham Virgo, 'Failure of Consideration: Myth or Meaning,' in David Johnston and Reinhard Zimmermann, eds.,Unjustified Enrichment: Key Issues in Comparative Perspective (Cambridge: Cambridge University Press, 2002) (Unjustified Enrichment), 103 at 111. Here I mean the first, and use 'failure of consideration' without qualification to

Mack and the Structure of the Action in Unjust Enrichment 335

16

17

18 19

20

21 22 23 24 25 26

27

28

name it because doing so, it seems to me, tracks common usage. (I suspect that 'total failure of consideration' is a retronym, like 'acoustic guitar.') See Smith, 'Mystery/ supra note 14 at 219-32, for a catalogue of the reasons for retention (legal grounds) and reasons for restitution (unjust factors) recognized in Canadian law. Ibid.; Mitchell Mclnnes, 'The Canadian Principle of Unjust Enrichment: Comparative Insights into the Law of Restitution' (1999) 37 Alta. L. Rev. 1 (Mclnnes, 'Restitution'). Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358. There is a third. We might argue that the Charter ought to be applied retrospectively in the plaintiffs' favour, because the violation of the prohibition against doing so is here the lesser evil. A court couldn't accept this argument, however. It is really an appeal to Parliament to indict its own past by the principles under which it put itself in 1982. For example (to illustrate the latter option), the plaintiffs drew attention to the racially based restrictions on suffrage in place at the time of the CM's enactment. Which is not to say that it would succeed. On this construction, for example, it would face limitation period problems. Mack, supra note 7 at 128. See, for example, Ross Grantham in 'Restitutionary Recovery Ex JEquo Et Bono' [2002] S.J.L.S. 388 at 399. [1920] 1 K.B. 56. Ibid, at 65. This, I believe, is what Peter Birks has in mind when he argues that, because the cause of action in unjust enrichment is complete as soon as the payment is received, '[t]he model for unjust enrichment is set by the mistaken payment and applies throughout.' What applies throughout is that the payer's right to restitution arises from what Birks calls a 'not-wrong': There is no need to construct a wrong at the moment that knowledge of the mistake supervenes.' Peter Birks, 'Rights, Wrongs, and Remedies' (2000) 20 Oxford J. Legal Stud. 1 at 28 (Birks, 'Rights'). This general point has been made a few times, in various (roughly equivalent) ways. See, for example, Birks, 'Rights' at 28, Grantham, supra note 23 at 398, and Mitchell Mclnnes, The Measure of Restitution' (2002) 52 U.T.L.J. 163 at 190-1. I use 'liability' deliberately ambiguously here. A case could be made that the defendant cannot be properly said to be under a duty to make restitution until she is aware of the plaintiff's claim, and until that time she is under a liability in Hohfeld's sense, the plaintiff holding a Hohfeldian

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29

30

31

32 33 34 35 36 37 38 39 40 41 42 43

power to convert that liability into a duty to make reparation. So suggests Lionel Smith in 'Restitution: The Heart of Corrective Justice' (2001) 79 Tex. L. Rev. 2115 at 2127, note 51. This view, however, is compatible with the receipt liability principle, because it does not vest the source of the duty to make restitution in the defendant's knowledge of the plaintiff's claim. That source is still her being in receipt of the disputed enrichment. Her knowledge of the plaintiff's claim, in Smith's words, simply perfects the obligation. (See too, on these questions, Stephen A. Smith, 'Justifying the Law of Unjust Enrichment' (2001) 79 Tex. L. Rev. 2177.) We need not settle this question here, because the soundness of the receipt liability principle does not await its resolution. 'Liability' in the 'receipt liability principle' can be read, in Hohfeld's terms, as 'liability' or 'duty' or 'liability susceptible to conversion to duty by the plaintiff's notice.' This, I think, is reflected in the fact that the names of the nominate torts pick out both the event in which the invasion of the plaintiff's rights consisted and the cause of action under which she thereby has a claim against the defendant. 'Battery' and 'battery/ for example. Perhaps as a more complete description one would say that the object of tort remedies is (something like) 'to set right the defendant's wrong by undoing its manifestation in the plaintiff's injury.' This raises questions in tort theory that I will not engage here. My point can be made with the thin and relatively theory-neutral description 'repairing injuries.' Excepting nuisance. The exception is not ad hoc: A case can be made that on a narrow but well-motivated measure, nuisance isn't a tort, insofar as we might think of its remedy as making determinate property rights rather than repairing wrongs. Fibrosa Spolka Akcyna v. Fairbairn Lawson Combe Barbour Ltd., [1943] A.C. 32 (H.L.). Deglman v. Guaranty Trust Co. and Constantineau, [1954] 3 D.L.R. 785 (S.C.C.). Supra note 18. Ibid, at 383. Ibid. Mack, supra note 7 at 120. Benner, supra note 18 at 384. Mack, supra note 7 at 121. Ibid, at 120. Ibid, at 118. (1983), 42 O.R. (2d) 418 (Ont. H.C.J.). (1983), 6 D.L.R. (4th) 350 (B.C.C.A.).

Mack and the Structure of the Action in Unjust Enrichment 337 44 One might respond that this argument casts change of position as a defence not to the claim that the defendant is still enriched but rather to the claim that she was or is unjustly enriched. I will have to set this issue aside, along with the broader matter of the justification of change of position. In any case, I think that the second consideration above is the strongest, and it is independent of this issue. 45 Thomas Krebs, 'In Defence of Unjust Factors/ in Unjustified Enrichment 76 at 79 (Krebs, 'Defence'). 46 I am skirting a complexity here. A civilian would likely characterize recovery in such circumstances as contractual. In the German Civil Code, for example, the provisions bearing on frustration and rescission are in the 'Contractual Obligations' section (§§ 323-5 and §§ 345-61, respectively). But they may, at least from a comparative perspective, be fairly characterized as granting claims for recovery in unjust enrichment. (See Robin Evans-Jones and Katrin Kruse, 'Failure of Consideration', Unjustified Enrichment, 128 on the general civilian perspective; on the question in the German context in particular see Thomas Krebs, Restitution at the Crossroads: A Comparative Study (London: Cavendish, 2001), chapter 8 [Restitution].) In some cases, the link between the contract provisions and the law of unjustified enrichment is explicit: § 323(111) reads 'If counter-performance has been made which according to these provisions [which describe 'development of impossibility for which neither party is responsible'] was not due, insofar as the performance is made, it may be demanded back under the provisions relating to the return of unjust enrichment.' The German Civil Code, trans. Ian S. Forrester, Simon L. Goren, and Hans-Michael Ilgen (South Hachensack, NJ: Fred B. Rothman and Co., 1975). Reinhard Zimmermann and Jacques du Plessis argue that in the absence of this and like provisions, the circumstances they cover would have been caught in any case by the second sentence of § 812(1), the first provision in the Unjust Enrichment section of the Civil Code. Reinhard Zimmermann and Jacques du Plessis, 'Basic Features of the German Law of Unjustified Enrichment' (1994) 2 R.L.R. 14 at 19. The first sentence provides the general principle: 'A person who, through an act performed by another, or in any other manner, acquires something at the expense of the latter without legal ground, is bound to return it to him.' The second provides: 'This obligation subsists even if the legal ground subsequently disappears or the result intended to be produced by an act to be performed pursuant to the legal transaction is not produced.' 47 See for example David Johnston and Reinhard Zimmermann, 'Unjustified Enrichment: Surveying the Landscape,' in Unjustified Enrichment, 3 at 5.

338 Dennis Klimchuk 48 The exceptions are factors that focus on the defendant's conduct in receiving the disputed enrichment, such as free acceptance, and what are often called 'policy-based' unjust factors, which refer neither to the plaintiff's consent to the enrichment nor to the defendant's conduct in receiving it. (See below at notes 68 and 69 and accompanying text for some misgivings about the use of the language of 'policy' here.) It is noteworthy, in this connection, that the status of free acceptance is controversial, in part just because it does not protect consent in transfer. (For a review of the issues and literature, see Ross B. Grantham and Charles E.R. Rickett, Enrichment and Restitution in New Zealand (Oxford: Hart Publishing, 2000), chapter 11). I will discuss the most important example of the so-called policy-based unjust factors, ultra vires taxation, in some detail below. 49 Grantham and Rickett, ibid. 50 See Sonja Meier, 'Unjust Factors and Legal Grounds/ in Unjustified Enrichment, 37 at 37-54. In response see Krebs, Restitution, supra note 46 at 71-2. 51 Steam Saw Mills v. Baring Brothers, [1922] 1 Ch. 244. 52 One might object that this underestimates the significance of the § 814 defence in German law. Doesn't it just show that, in the end, it is the mistake that does the work? I don't think so. As Reinhard Zimmermann argues, the § 814 defence holds that a plaintiff who pays notwithstanding that she knows she need not is effectively estopped from then claiming that because payment wasn't due, it ought to be returned. Reinhard Zimmermann, 'Unjustified Enrichment: The Modern Civilian Approach' (1995) 15 Oxford J. Legal. Stud. 403 at 407. Indeed, one might go further and say that in such a case the payee does enjoy a legal ground for the enrichment, namely that it was a gift. 53 In Canada in Air Canada v. British Columbia, [1989] 1 S.C.R. 1161 (Air Canada) and in England in Kleinwort Benson Ltd, v. Lincoln City Council, [1999] 2 A.C. 349 (Kleinwort Benson). 54 [1993] A.C. 70 (Woolwich). Woolwich was heard before the mistake of law bar was abolished in England in Kleinwort Benson. One consideration offered by Lord Goff in favour of granting recovery simply on the basis that a demand was ultra vires was that even if the mistake of law bar had by then been abolished, on the traditional approach the plaintiffs in Woolwich would have had no claim. 55 Ibid, at 173. 56 Johnston and Zimmermann, supra note 47 at 5, note 9. 57 Meier, supra note 30 at 62-5. 58 Woolwich, supra note 54 at 163. 59 Ibid, at 172.

Mack and the Structure of the Action in Unjust Enrichment 339 60 Though Lord Goff does not make the point explicitly, I take it that this does not entail that the real unjust factor is compulsion, because it would then follow that all taxes paid would be subject to recovery. That is, the point is that even if the presence of an implicit threat of unpleasant economic and social consequences if the taxpayer does not pay does not sort cases in which restitution is merited from those in which it is not, the fact remains that its presence in both supports the justice of the claim that recovery should be allowed when payment was not in fact due. 61 Woolwich, supra note 54 at 197. 62 Peter Birks, 'When Money Is Paid In Pursuance of a Void Authority - A Duty to Repay?' [1992] P.L. 580 at 588. 63 Krebs, Restitution, supra note 46 at 248. 64 While this is the general rule, there are exceptions and complexities. See Krebs, 'Defence,' supra note 45 and Restitution, supra note 46, to which I am generally indebted in this section. 65 Peter Birks, 'Mistakes of Law' [2000] Curr. Legal Probs. 205 at 231. 66 Ibid, at 232. 67 Peter Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press, 1989), 294. 68 Thanks to Mayo Moran for this point. 69 A third problem with language of 'policy/ I suggest, is that it obscures the common ground between cases of ultra vires taxation and the core case of mistaken payment. In each, were the status quo upheld, the court would in effect enforce a gift where none had been intended. (It would only in effect do so because no remedy would have been available to the recipient had the enrichment not already passed.) More needs to be said here: there are difficult questions about the foundations and scope of the law of unjust enrichment lurking in the background. I will have to set this questions aside here. 70 At notes 56 and 57 and accompanying text. 71 On the justifying role of the protection of the plaintiff's autonomy in the law of unjust enrichment see Hanoch Dagan, 'Mistakes' (2001) 79 Tex. L. Rev. 1795 at 1798-9 and Peter Jaffey, The Nature and Scope of Restitution (Oxford: Hart Publishing, 2000) at 159. 72 See Mayo Moran's contribution to this volume. 73 Some criminal defences might be understood to operate the same way. I argue this was Kant's view of necessity in 'Necessity, Standing and Deterrence' (2002) 8 Legal Theory 339. 74 See Mclnnes, 'Restitution,' supra note 17 and Smith, 'Mystery/ supra note 14.

340 Dennis Klimchuk 75 Which claim the defendant makes, I suppose, simply by acting as though she is under no duty to make restitution. 76 Which was made to me by Mitchell Mclnnes. 77 See S. Smith, supra note 28. 78 Thus the mistaken payer's claim must reach outside of the transaction for its justification. I have argued elsewhere that it follows that her claim cannot be a claim in corrective justice. See 'Unjust Enrichment and Corrective Justice,' in J. Neyers, M. Mclnnes, and S. Pitel, eds., Understanding Unjust Enrichment (Oxford: Hart, 2004), forthcoming. 79 Air Canada, supra note 53 at 1215. 80 See the discussion in Air Canada, ibid, at 1204-10 and Re Euring Estate, [1998] 2 S.C.R. 565 at 586-7.

A Brief History of Mass Restitution Litigation in the United States ANTHONY J. SEBOK

1. Introduction For American audiences, the case of Mack v. Attorney General of Canada fits 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 as Brown v. Board of Education,1 there have also been great disappointments, such as San Antonio Independent Sch. Dist. v. Rodriguez.2 There are further similarities, as well, in the procedural form through which the case was brought, the class action. The class actions mechanism has traditionally been viewed as a device by which disempowered citizens could collectively force change on an unwilling majority.3 Finally, the target of the litigation, the government, is a familiar defendant in the history of American civil rights litigation, although often in the United States, the named defendant was more often a state or local government than the federal government. There is a deeper connection between the Mack litigation and American civil rights litigation than is revealed even through these three surface similarities. The plaintiffs in the Mack suit raised their claim not only as a matter of public law right under the Charter of Rights and Freedoms, but also as a matter of private law under a theory of common law restitution of the tax monies taken from the plaintiffs and their families, the retention of which had unjustly enriched the Canadian state. At first glance, it might seem that the use of private law claims in

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the context of civil rights is a novelty, especially in the American context, but a closer look at the history of civil rights litigation in the United States will show that class action private law litigation is now emerging as a new avenue of redress for many groups who feel that their claims have been ignored by the larger polity. This chapter will illustrate how private law claims have1 become a new paradigm of redress in the United States, and it will suggest some of the limitations of this paradigm. At the outset, it must be noted that for many years the strategy of 'discrete and insular' minorities - especially racial minorities - in the United States was to use class action litigation to demand injunctive relief from state actors, often by raising claims under the Fourteenth Amendment of the United States Constitution. During the 1960s and 1970s, litigation designed to secure equal rights or other types of basic liberties rarely turned on claims in private law. This pattern can easily be explained by the fact that in the United States all branches of government enjoyed (and still enjoy) tremendous protections under various doctrines of sovereign immunity; hence claims in private law, either for damages or equitable relief, were rarely permissible as a matter of standing. However, there may have been deeper reasons as well. During the 1960s and 1970s there was reason to hope that judges - especially federal judges - would exercise their broad authority when shaping injunctive remedies in response to various claims under either the Constitution or federal civil rights statutes. The 'public law class action' avenue seemed quite promising, and a lot of resources were directed towards it. However, by the 1980s the federal judiciary's response to 'impact litigation' (as the public law class action model came to be known) became more cautious. This was a result, in part, of the judiciary becoming more conservative, but also a result of the frustrating experience that many judges had in implementing the remedies that followed plaintiff victories in the cases. The public law remedies often required complex injunctive relief or, where laws had been struck down, sometimes unpleasant confrontations with legislatures who insisted on pressing the limits of judicial oversight by passing laws similar to those declared unconstitutional. One might say that, after a period of active litigation involving many losses and victories, groups who expected to use the law as an avenue for securing civil rights encountered an exhausted judiciary. While the turn to private litigation forces litigants to deal with a judiciary which has become more cautious over the years, it also allows

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groups to reframe their grievances in terms quite familiar to the courts namely, money damages based on claims for lost property or wrongful payments. However, in the new private law cases, as in the Mack litigation, the civil or political wrong underlying the claim for money damages is never far from the surface. Thus, cases for restitution should, in theory, operate like civil rights cases from an earlier era: as demands on the courts to address failures of democracy. Where the Mack suit differs from the American suits discussed in this chapter is that the defendant in Mack was the state itself, while in the American cases, it invariably has been a large economic entity, such as an entire industry. But the differences in the identity of the defendants are much less important than the similarities among the claims by the plaintiffs - in both the Canadian and American cases the class action mechanism has been used to channel demands for redress to the courts in order to resolve wrongs that otherwise would be left unaddressed by the political processes. The American experience with mass restitution litigation in the interest of civil or political justice is somewhat more advanced than the Canadian experience. This chapter focuses on a new development which has quietly been taking shape over the past ten years: class actions in equity, usually for restitution. The purpose of this chapter is to develop a tentative framework for the comparative study of class actions in equity for restitution, specifically by examining the political and historical context in which these suits were resolved. In the context of this chapter, the framework will shed some light on the past and future of one of America's great unfinished stories of restitution, the claims of African Americans for redress for the wrongs committed by the European communities in the era of American slavery. Claims for compensation or repair of the wrongs caused by American chattel slavery have been made in various forms ever since the early nineteenth century.4 Vincene Verdun has described five major 'waves of political activism' directed towards securing reparations for African Americans.5 In the first wave, which took place after the Civil War, the victorious North considered transferring to newly emancipated slaves land and wealth taken from the defeated South.6 In the second wave, which took place at the end of the nineteenth century, activists petitioned Congress to provide pensions to former slaves.7 In the third wave, which took place just after the Second World War, an effort was mounted by white politicians in the South to give African Americans land that had belonged to the Axis powers and thereby remove them

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from the United States.8 In the fourth wave, which took place in the civil rights era, claims for reparations were articulated along with the more familiar demands for equal rights and integration. For example, the Nation of Islam called for the federal government to set aside three states for a new and independent nation, while James Forman and the National Black Economic Development Conference demanded that white American churches and synagogues provide African Americans with $500 million in reparations.9 The fifth wave began in the late 1980s with the call for the United States Government to take steps to address the history of slavery.10 According to Verdun, the fifth wave was prompted by the 'revitalizing' effect of the US Congress's decision to award reparations of $20,000 per person and an apology to people of Japanese ancestry who were interned during the Second World War.11 At about the same time, other activists, such as the National Coalition of Black Reparations Activists (N'COBRA), were attempting to build a grass-roots movement for reparations. The fifth wave is still unfolding, and when Verdun wrote his history he could not have predicted the ways in which it would continue to develop. As Charles Ogletree has recently noted, after Rep. Conyers's legislative effort, the next most important factor in the recently revitalized movement for reparations was the publication of Randall Robinson's The Debt, a book which outlined the connection between modern economic underdevelopment among African Americans and the legacy of slavery.12 The fifth wave has not yet proven more successful than the first four, although it is still quite early and it may turn out that it will achieve gains that have until now eluded earlier efforts. Even at this early stage, however, two unique features that warrant special attention can be identified in the fifth stage. First, in the fifth wave the impetus for raising the question of reparations was the success of other racial and religious groups in achieving reparations for their historical grievances. In fact, both Verdun and Ogletree explicitly mention a causal link between the success of other victims in pursuing reparations and the 'reinvigoration' of the African American interest in reparations. Certainly, the decision by the US Government to provide compensation to Japanese Americans allowed African American activists to ask why there could be justice for some and yet continued inaction for them.13 The decision by the US Congress to pay reparations was remarkable simply because it was one of the first times that the United States government had compensated a spe-

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cific population for acts it had undertaken during wartime. Of course, Americans were familiar with the practice of reparations both before and after the Second World War. The United States, as one of the victornations in 1945, had played a major role in ensuring that the postwar German government adopted a healthy and constructive attitude towards its reparative obligations (thus removing the negative connotations that reparations may have had as a result of the Versailles experience after the First World War). What made the reparations program for Japanese Americans different was that the United States Government was paying reparations for its own wrongful acts, and doing so for acts that lay at least forty years in the past. The fifth wave also differs from all the other waves in that litigation especially private law litigation - has become central to the strategies of reparation activities. To be sure, the event that may have signalled the fifth wave - reparations for the internment of Japanese Americans was a purely legislative act, but it cannot be said that it was the norm. By the mid-1990s efforts to secure reparations were shifted from Congress to the courts. The most successful reparations campaign in the United States - and one which surely dwarfed the effort to compensate Japanese American internees - was the effort by activists from the Jewish community to recover assets which were wrongfully withheld by European corporations from victims of the Holocaust. With the fall of Communism and the advent of new democratic societies in Eastern Europe and Germany, Jewish groups wanted to revisit the question of reparations that had, because of the Cold War, never been fully resolved. However, unlike the Japanese Americans, who were able to work within the political structures of the US Congress, Jewish activists chose to pursue reparations claims in lawsuits filed in American courts. It would be very interesting to examine the importance of the success of other, non-black victims groups in helping to restart and redirect the African American reparations movement in America. Ogletree cautions against myopically thinking that the African American reparations movement is a 'recently developed political and litigation strategy resting on the shoulders of lawsuits and legislation designed to achieve justice for Japanese American World War II internees and victims of the Holocaust.'14 Of course he is correct, as the brief history above illustrates. In this essay I want to focus on a much narrower question. I want to ask simply about tactics, not historical origins or even political context. Since the African American reparations movement pre-dated the modern human rights era, it is very likely that the claims raised in the

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nineteenth century would have been raised again, regardless of what might have happened to the claims of others. But would they have been raised as lawsuits - especially in the particular way they are being raised today? That is the question which this essay will explore. After all, legal conflict and the use of law by interest groups to achieve their social ends intensified at the end of the twentieth century.15 The decision to take the path of law may have been overdetermined by the historical circumstances in which African American leaders found themselves, but it also determined a specific consequence: that the concepts through which African Americans framed their claims for reparation would be translated through the vocabulary of legal discourse. For good or for ill, this latest wave of activism has been defined by the decision to launch the reparations movement forward in explicitly legal forms.16 2. The Past of African American Reparations Although the first attempt to use litigation to secure reparations for African Americans for slavery was in 1915,17 efforts to use lawsuits to secure reparations did not begin in earnest until the 1980s and have continued to the present. The litigation has been brought by different sorts of plaintiffs using very different kinds of claims, but they can be roughly grouped into three categories. The first category of reparations litigation consists of claims directly against the United States Government for the injuries caused by slavery. Although slavery was begun while England, France, and Spain ruled the colonies that would ultimately comprise the United States, the United States Constitution and subsequent laws passed under its authority were clearly responsible for the maintenance of the institution of slavery until the Civil War.18 So it would seem that, as an initial matter, a claim could be made by African Americans against the United States itself. This avenue was shut down by the Ninth Circuit Court of Appeals in 1995 in Cato v. United States.19 The plaintiffs asked for $100 million in damages as well as various forms of injunctive relief (including an apology). The suit was rejected on the grounds that it did not satisfy the requirements of the Federal Tort Claims Act, the law which sets out the conditions under which the federal government has consented to be sued.20 More specifically, in addition to statute of limitations problems, the court pointed out that the plaintiffs lacked standing, since their claim essentially was that the US Government had failed

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to take certain steps to positively enforce the Thirteenth Amendment.21 While the Cato decision has been discussed frequently since it was issued, few commentators have argued that it is legally infirm.22 The decision, which was authored by a relatively liberal panel of the Ninth Circuit, would certainly be reaffirmed by most federal courts in the United States today. The second category of reparations litigation is made up of claims against private companies for damages resulting from slavery or disgorgement of profits wrongfully obtained from slavery. Slavery was not only a system of racially based political and social oppression, it was also an economic system which produced wealth for its practitioners. That wealth existed at the time it was created and, as a matter of logic, not only could have been preserved in the assets of corporations that took it from slaves, but could even have been used to produce more wealth, part of which rightfully belonged to the slaves who produced the original wealth.23 A quick survey of the names of defendants in the cases that have been filed in the most recent spate of lawsuits reveals an unusual number of claims against insurance companies. This is slightly misleading, since, although most of the lawsuits list insurance companies among the first group of defendants (sometimes as the first named defendant), they also include other types of corporations.24 Defendants are companies from a variety of industries including banking, transportation, textile, and tobacco. The plaintiffs are African American consumers who were formerly enslaved, are the biological children of enslaved Africans, and are descendants of enslaved Africans. They raise at least five claims: conversion, conspiracy, human right violations (incorporating common law intentional torts), unjust enrichment, and a demand for accounting. In addition, in a separate action under California's unfair business practices statute, plaintiffs are alleging that corporations should be forced to disgorge all wrongful gains resulting from slavery that have been passed down through the years to the current owners of the defendant companies.25 The third category consists of claims for post-Emancipation reparations. Although the main focus of recent reparations claims has been on repairing the injuries or losses that flowed from the practice of slavery itself, there has been a recent effort to pursue reparative claims for wrongs that were committed after the end of slavery. The most important of these efforts concern the Tulsa Race Riot of 1921. This event was nothing less than a racially based effort at ethnic cleansing: a white

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mob, supported by local government officials, attacked and destroyed the prosperous African American community of Greenwood in Tulsa, Oklahoma. The mob killed up to three hundred African Americans, injured many more than that, and destroyed twelve hundred buildings.26 The attack was too large and affected too many people for it ever to have been kept secret. There was a great deal of public discussion in Oklahoma after it occurred; white civic leaders declared that reparations ought to be paid to the victims, and some of the more prosperous (and assertive) black businessmen sued to force their insurance companies to cover the damage to their property. For all this, no significant amount of money was ever paid to the victims. Then, in 1997 - over seventy-five years after the riot - as a result of active pressure by community leaders and scholars, the State of Oklahoma finally created a Commission to study the events of 1921. In 2001, the Commission delivered its report and the Oklahoma legislature passed the 1921 Riot Reconciliation Act 0/2001, in which the legislature 'freely acknowledges its moral responsibility' to oppose racial subjugation, and promises to create an educational fund and a fund for a memorial. But nothing happened, despite that promise. So, in 2003 a lawsuit was filed by the 'Reparations Coordinating Committee' on behalf of around one hundred named plaintiffs, all of whom were at least eighty-two years old.27 It demanded that the governments of Tulsa and Oklahoma - as well as hundreds of other 'unnamed John Does' - compensate the survivors for loss of property and, in the case of four survivors, personal injuries. Of these three types of cases, I would argue that the second group the class actions against private corporations - are the most interesting examples of fifth wave activity. A claim like Cato, which names the people of the United States as the wrongdoer and demands damages rooted directly in the violation of African Americans' constitutional rights, is morally apt but very unlikely to develop into a legal claim with any real teeth or meaning. On the other hand, a claim like the Tulsa claim is very likely to succeed, for it is based on sound substantive and doctrinal legal grounds. It is not at all unthinkable that state and local officials violated the constitutional rights of African Americans in 1921, and it is very important from a procedural point of view that the wrongs suffered by the plaintiffs, who are living, occurred within living memory. But for all these reasons, it really is not a case that proves anything about reparations for slavery; it is a case which, if won, will (happily) prove something about the ability of African Americans to

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bring and win civil rights claims for wrongs done to them while they were under the protection of the Constitution. A Cafo-type case is righ from a moral point of view, but so unlikely from a legal point of view that it is really not fair to view it as an engine of reparations unless something else pushes the cause.28 A Tulsa'-type case is right morall and legally but is so easy to cabin away from slavery that it is not clear that it could serve as an engine for reparations for anything but itself. The second sort of claims are important because they have enough plausibility from a legal point of view to pose a serious threat to their intended target, and they have enough scope from a historical point of view that if they were to produce tangible results, those results could be leveraged into a serious movement for reparations. For this reason, they ought to be the focus of anyone who is seriously interested in following the course of slavery reparations efforts in the United States. 3. Successful Mass Restitution: The Recent Past It is important to understand that claims being raised in the private lawsuits against corporations have a specific character and pedigree. They are notable in three respects. First, they are targeted against private property holders, or, to be more specific, business entities that hold property produced by slave labour. Second, they are mass claims, that is to say, they are class actions brought against classes of wrongdoers. Third, they are, for the most part, claims about property, not wrong doing. To put this point differently, for the most part the suits do not demand compensation for wrongful loss but disgorgement of wrongful gains. These points will be developed below. If one were to grant that the characterization of the second class of claims is correct, then a further point would still need to be made. The three features described above - suing corporate defendants in response to a political wrong, using mass litigation, and demanding property-based remedies - are the defining features of a form of litigation I shall call 'mass restitution.' Mass restitution is a relatively recent phenomenon in American law. It developed throughout the 1990s as a powerful tool in the quest for reparations for social wrongs that were not being addressed through typical political channels. The two most significant examples of successful mass restitution that came about in the 1990s were the tobacco litigation and the Holocaust litigation. It wa the success of these mass restitution claims that provided the specific shape to the fifth wave of reparations demands.

350 Anthony J. Sebok (i) Tobacco: From Tort to Unjust Enrichment

Like the reparations movement, tobacco litigation has passed through a series of phases. In the first wave, between 1954 and 1965, individual smokers sued the manufacturers of tobacco products using a variety of warranty-based theories. In the second wave, between 1983 and 1992, smokers brought individual actions under a theory of strict products liability. In the third wave, between 1993 and the present, smokers changed their focus from product defect to the alleged fraudulent conduct that accompanied the development, manufacturing, and marketing of tobacco products. The theories of liability kept changing because, for the most part, the tobacco companies were winning in court. Yet, despite their many victories, it is clear that by 2000 Big Tobacco, as the tobacco industry was known, was in a much weaker position than it had been in 1950. The industry is now viewed with deep suspicion in the popular media and it has few political allies. In 1998 the industry agreed to a $260 billion settlement with the Attorneys General of fortysix states to end litigation that it had every reason to believe it could win. The paradox of the tobacco litigation is that, by bringing mass restitution claims against a defendant who had not really lost in court, plaintiffs were ultimately able to beat the industry without going to trial. The first 'wave' of litigation sprang from a flurry of early 1950s articles publicizing the relationship between smoking and lung cancer. There was a smattering of reports linking smoking to cancer in the 1930s, but by the 1950s such reports were more credible and widely read.29 The earliest plaintiffs brought actions based on this new information under negligence and warranty theories. Neither theory proved successful for plaintiffs.30 The greatest challenge to plaintiffs was not that juries and judges were rejecting their claims at trial. The vast majority of first-wave cases were dropped before reaching trial.31 This was because the plaintiffs were unable to spend as much as the tobacco industry, which used a variety of pre-trial litigation tactics to make discovery and motion practice as expensive as possible.32 As the first wave of tobacco litigation drew to a close, tobacco companies were subject to increasing governmental regulation after the Surgeon General released its pivotal 1964 report that officially confirmed the hazards of smoking. In the meantime, Americans had developed an unprecedented concern with toxic risk which was reflected in the products liability boom that revolutionized the American tort system be-

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tween the late 1960s and early 1980s. This boom included high-profile cases in which plaintiffs argued that exposure to toxic substances like Agent Orange, DBS, Dalkon Shield, and Bendectin resulted in disease.33 In these cases traditional doctrines of tort law and procedure - especially as they related to causation - were suspended or modified by activist judges, enabling victims to recover at least a portion of the cost of their injuries.34 Asbestos litigation was at the forefront of these cases the first cluster of asbestos cases represented the heaviest onslaught of litigation the tort system had ever withstood. The 'second wave' of tobacco litigation, spanning 1983-92, found its roots in asbestos litigation. One of the best-known cases from this era was tackled by a team of veteran asbestos attorneys who gained expertise on the link between lung cancer and cigarette smoking.35 Plaintiffs' lawyers believed that by focusing on tort rather than warranty they could rely on strict liability to concentrate on tobacco's inherent danger rather than foreseeability of harm to smokers. But tort turned out to have its own pitfalls for plaintiffs. The victories of the defendants in Cipollone v. Liggett Group, Inc. and Norton v. American Tobacco Co. illustrate how the second wave was distinct from but still not better than its predecessor. The plaintiff in Cipollone brought an action for breach of express warranty and negligent failure-to-warn. At trial the jury found that the defendant had been negligent in failing to warn before 1966 but also held that the plaintiff 'voluntarily and unreasonably encountered a known danger' and was 80 per cent responsible.36 In Horton, the plaintiff alleged design defect and persuaded the jury that the design of cigarettes makes them unreasonably dangerous, yet because of the assumption of risk argument, the jury awarded the plaintiff zero damages. Subsequent to 1992, plaintiffs brought three types of actions in thirdwave tobacco litigation: cases by individuals, nationwide class actions, and state health care reimbursement cases. The third wave was characterized by a complex interaction between two changes in legal strategy. First, plaintiffs began to shift the emphasis of their claim from the product (the cigarette) to the product's marketing (lying about the cigarette). The increased emphasis on allegedly fraudulent acts performed by the tobacco industry came about partly as a reaction to the failure of those legal theories which emphasized the defective nature of the cigarettes as a product and partly out of the increase in information relating to fraud that the first two waves of litigation generated. Third-wave plaintiffs had access to evidence of fraud unavailable to

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earlier plaintiffs. In the early 1990s, Merrell Williams, a paralegal working for the firm representing tobacco giant Brown and Williamson, procured documents containing evidence of the industry's knowledge of the health risks and addictive nature of smoking. Jeffrey Wigand, the head of research and development at Brown and Williamson, was fired in 1993 after years of battling the company's refusal to acknowledge publicly the health risks of smoking and nicotine's addictive qualities. Both Wigand's and Williams's revelations appeared in the New York Times, in the Wall Street Journal, in Congressional hearings on tobacco, and in the hands of anti-tobacco activists.37 The documents also surfaced at the same time as Congressional hearings during which several executive leaders in the tobacco industry denied knowledge of nicotine's addictive qualities. This kind of information energized individual smoker cases because it gave juries a reason to ignore the tobacco companies' assumption of risk defence - if the tobacco industry set out to fool smokers, it was argued, then smokers can be forgiven for acting foolishly. It also created a new dynamic in the calculation of damages. In a number of cases juries indicated that they thought that smokers still bore part of the blame for smoking but then granted multimilliondollar punitive damage awards in order to punish the industry for their antisocial conduct.38 The second change in legal strategy in the third wave was that plaintiffs attempted to recast their suits as class actions, thus turning them into mass claims on behalf of all smokers. In the first and second waves of tobacco litigation, courts determined liability on a case-by-case basis, whereas in the third-wave, cases like Castano v, American Tobacco Co. aggregated individual claims and challenged the entire industry in tort.39 Ultimately, the Fifth Circuit decertified the Castano class of nearly forty-five million smokers, but kept open the possibility that a plaintiff class could be certified at the state level.40 After the Fifth Circuit's denial of class certification, several plaintiffs filed 'son of Castano' cases in state courts, almost all of which were dismissed or remain stagnant in state court.41 The failure of 'son of Castano' cases at the state level was mirrored by their contemporary, the R.J. Reynolds Tobacco Co. v. Engle case.42 The Engle plaintiffs sued the tobacco industry on theories of product liability and fraud. In 1996, a Florida intermediate court of appeals upheld the certification of a class of up to seven hundred thousand smokers suffering from tobacco-related diseases.43 The issues at the subsequent trial were whether the industry had engaged in deceptive conduct, whether cigarettes as designed and marketed were

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unreasonably unsafe, whether there was a causal link between the plaintiffs' diseases and smoking, and whether punitive damages were warranted. The jury answered 'yes' to each question and found in mid2000 that the plaintiff class was entitled to $144.8 billion in punitive damages.44 On appeal, the same appellate court that had upheld the statewide class certification reversed its 1996 decision and decertified the class in May 2003.45 For all their sound and fury, throughout the 1990s the individual and class action fraud cases never rose to the level of true threat to the tobacco industry. The individual cases came few and far between, and where there were spectacular verdicts, the industry was confident that it could get the large punitive damage awards reduced and then pay off the compensatory awards if necessary. The first damage award the tobacco industry ever paid was a $750,000 award to Florida smoker Grady Carter in 2001, and since then the industry has only paid damages in a handful of cases.46 The real impact of the third wave of tobacco litigation came about as a result of the settlement of the state health care reimbursement cases. In 1994, Mississippi began a Medicaid restitution action against the tobacco companies. The suit, which was filed in chancery, contended that the state should recover restitutionary damages from the tobacco companies that sold the tobacco because the tobacco companies were unjustly enriched or benefited because the state's Medicaid payments saved them the money they ought to have paid the smokers. Within a year scores of other states filed similar lawsuits using much the same claim of unjust enrichment. Not all states chose to follow Mississippi's legal theory, however. Minnesota's Attorney General filed a suit in 1994 alleging that the tobacco companies violated Minnesota's consumer protection statutes designed to shield consumers from industry fraud and deception.47 Minnesota argued that the consumer fraud statute gave standing to the state to recover Medicaid expenses that accrued because of consumer fraud. The Mississippi lawsuit was settled in July of 1997 for $3.3 billion over twenty-five years. Florida next settled its suit with the industry in August 1997 for $11.3 billion, then Texas settled its suit in January 1998 for $15.3 billion, and finally Minnesota settled its suit on the eve of the jury's rendering its verdict for $6.1 billion. Following this trend, the Attorneys General from forty-six states (including the four that already settled) negotiated a $206-billion industry global settlement in reimbursement for Medicaid and related health care costs.48

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If results are the right measure of a lawsuit, the state reimbursement litigation was a huge success. It was, however, built to varying degrees on a very dubious foundation. The legal theories under which the state suits were brought were quite novel and remain, for the most part, untested. The factual basis of the suits was far more durable - in fact, the suits were very much a product of the extraordinary and shocking revelations that had resulted from the hard work of lawyers and activists in the various waves of the tobacco litigation. But it remains a simple fact - for what it is worth - that the tobacco industry settled all the state reimbursement litigation without a single case having gone to trial. That is to say, no jury ever passed judgment on what amounted, in the end, to a $206-billion claim, and for that reason, no appellate court ever had an opportunity to review the validity of the legal theories underlying the suits.49 To fully appreciate the ingenuity which produced such a remarkable victory for the opponents of Big Tobacco, one must come to terms with the way that the state reimbursement claims changed the legal grounds of their complaint against the industry. The architects of the Mississippi case, for example, shifted the focus from the harms caused to smokers to the harms caused to the health care system. They did this for two reasons. First, they believed that by focusing on the losses suffered by the state, the question of smokers' own conduct would be completely mooted, thus removing the single most important weapon in the tobacco industry's defensive arsenal.50 But second, and just as important, by making the state the plaintiff, all the issues of class certification which had been raised in the context of Castano would be mooted as well, since instead of millions of plaintiffs, there would be only one. By shifting the plaintiff, the lawyers also focused on a different injury. The State of Mississippi was not suing for the personal injuries suffered by the people of Mississippi, or even for the losses that were caused by the fraud that accompanied the sale of the cigarettes. It was for the return of property (money) spent by the state that it claimed should have been spent by the tobacco companies. The injury, as it had to be framed in order to avoid the fate of other tobacco suits, was no longer the illness and death caused by smoking, but the cost of medical care society might incur to ameliorate the declining health of someone who smoked. Framing the legal claim as one of restitution or a 'derivative' consumer fraud injury might not have survived on appeal in most of the forty-six states that sued the industry.51 But, framed in these terms, the tobacco industry was faced with not only an irresistible threat, but an

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irresistible opportunity. The irresistible threat was a mass action across most of the United States. As Judge Richard Posner has argued, a rational but risk-averse firm that believes that it has a winning case might be willing to tolerate the expected loss of an individual suit, even if it knows that that individual suit might be the first of many, but not a class action which contains the same number of plaintiffs as might ultimately sue it in serial order.52 Thus, by achieving virtual national class action status 'through the back door/ the plaintiffs were able to exert tremendous leverage on the tobacco industry. But the demand that the industry repay the states for medical expenses related to smoking allowed the industry to settle the cases simply by agreeing to recognize, in principle, that the states had a legitimate interest in using the tobacco industry as a mechanism to collect money from smokers to pay for their expected health care costs. In other words, if the states were saying in court that what they wanted was that someone other than the taxpayer qua taxpayer should pay for the health costs of smoking, then the states should have been indifferent to whether those costs were eliminated (by the elimination of smoking) or externalized (by raising the cost of cigarettes). As has been documented by many accounts, the Master Settlement Agreement (MSA) simply allowed the cigarette industry to negotiate a number which represented the amount of money it believed it could collect from smokers over a twenty-five-year period without reducing sales too severely.53 In other words, the MSA could be understood as a cigarette tax negotiated by the state Attorneys General and the cigarette industry.54 (ii) Holocaust Litigation: From Genocide to Unjust Enrichment Unlike tobacco, the litigation arising from efforts to recover reparations did not come in waves. After the end of the Second World War reparations for the harms caused by the German government were an issue that was dealt with by a series of treaties that were 'negotiated' between representatives of the defeated German nation and a constellation of Allied powers. The original approach to the question of reparations was quite punitive. The 'Morgenthau Plan' envisioned stripping Germany of all of its industrial capacity, partly in order to achieve repayment for what it had done to its foes, and partly to reduce it to a 'pastoral' state so that it could never again threaten its neighbours.55 The agreements that came out of the 1945 Potsdam Conference and the 1946 Paris Reparations Conference implemented this goal by setting aside most of

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Germany's material and financial assets for use either as reparations to the signatory nations or to aid the millions of stateless people dislocated by the war. The emphasis was on national reparation, not reparations for individuals: the Paris Agreement took into account the loss suffered by each claimant nation due to its population having been forced into slave labour - but only for purposes of calculating that nation's share of the reparations provided by Germany.56 Nonetheless, there were attempts made by the Allies to deal with the demand from those who had survived the Nazi terror that their property be returned. Law 59 on Restitution of Identifiable Property enacted by the United States Military Government in November 1947 was designed 'to effect to the largest extent possible the speedy restitution of identifiable property ... to persons who were wrongfully deprived of such property from January 30, 1933 to May 8, 1945 for reasons of race, religion, nationality, ideology or political opposition to National Socialism.' By 1947 the United States and its allies had rethought the wisdom of suppressing Germany's economy; already in that year the Western Zone occupying powers revised and lessened the amount of industrial assets they were demanding as reparations. In 1949 the Western-controlled portion of Germany was allowed to reconstitute itself under a new constitution and a new name. Between 1952 and 1954 the Federal Republic of Germany signed a series of treaties (called the 'Transition Agreement') with the Western portion of the Allied nations that were designed to (1) change the basis of German reparations payments to Western nations and (2) shift the responsibility for reparations to all other parties (e.g., individuals) to the Federal Republic, on the assumption that it would pass national legislation ensuring that it acknowledged its obligation to pay compensation to those (especially Jews) whom it had harmed.57 As a consequence of the Transition Agreement (and its companion treaty, the London Debt Agreement), by the mid-1950s West Germany's obligation to repay the national reparations set out in the Morgenthau Plan was deferred until a final peace treaty was signed between 'Germany' and all the countries with whom it had fought. Given the realties of the Cold War, that meant that West Germany would not have to worry about completing paying off all of its nation-to-nation reparations until the Soviet Union and the United States had resolved their global differences. On the other hand, the West German government, as anticipated, did take up its obligation to provide nation-to-individual reparations. In 1956 the Federal Republic of Germany adopted the

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Third Federal Law of Compensation of Victims of Nazi Oppression. Victims of Nazis meeting the residency criteria could seek compensation for such injuries as death, physical injury, property damage, financial loss, and loss caused to professional or economic life. In 1957 the Federal Republic adopted the Federal Law on the Settlement of Restitutionary Monetary Obligations of the German Reich and Equivalent Legal Entities ('BruG'). This law was designed to carry forward and formalize Law 59 on Restitution of Identifiable Property. In the late 1950s and early 1960s the Federal Republic concluded twelve treaties with Western European countries pursuant to which the Federal Republic provided funds to those countries for distribution to their nationals who had been victims of the Nazis. Finally, beginning in 1952 with the Luxembourg Agreement, the Federal Republic began to pay the State of Israel to help resettle five hundred thousand destitute Jewish refugees displaced from Germany and formerly Germancontrolled areas. Under the later Hague Protocol 1 and Hague Protocol 2, the Federal Republic established a separate obligation with the Jewish Claims Conference to pay for the support, assimilation, and resettlement of Jews.58 According to reliable estimates, by 1998 Germany (meaning really the Federal Republic) had paid at least $60 billion in reparations to the various parties entitled under the treaties described above.59 What might seem to distinguish Holocaust claims from the claims for African American slave reparations is that claims for Holocaust reparations in the 1990s were raised after a lengthy period in which both the German nation and major elements of German society were forced to accept responsibility in a variety of fora, ranging from criminal law (e.g., the Nuremberg trials) to cultural discourse (e.g., the rise of postwar artists Giinther Grass and Anselm Kiefer). That is to say, not only had the practice of genocide and slave labour which characterized the evils of Nazi Germany been identified as wrongful through treaties at the end of the Second World War, but Germany accepted and paid reparations for those acts on both the national and individual levels. Litigation relating to compensation arising from actions taken during the Holocaust began in the United States with the filing of a class action lawsuit naming a number of Swiss banks in 1996. The impetus for the lawsuit was the claim that there were thousands, perhaps tens of thousands, of 'dormant accounts' which the Swiss banks knew belonged to Jews before the war and which they were wrongfully withholding from their true owners, the heirs of those Jews killed during the war.60 Soon

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other suits were filed and the grounds for the suits widened. Claims were made that looted property, including gold taken from the bodies of Holocaust victims, was sold by the Nazi government to the Swiss banks during the war, that the profits of slave labour were similarly 'laundered' through the Swiss banks, and that through their active cooperation with the Nazi regime, the banks aided and abetted human rights violations including slave labour and genocide.61 The defendants tried to have the class actions dismissed on a number of grounds. Judge Ed Korman, who had been assigned the consolidated docket, expressed some doubts about the viability of many of the claims but postponed any dispositive ruling. In the meantime, political pressure was beginning to build on the Swiss banks to settle the case. Senator Alfonse D'Amato, a Republican who was chair of the Senate Banking Committee, began to hold hearings on the dormant Swiss bank accounts. New York's and California's comptrollers threatened to withhold business from the Swiss banks and their American subsidiaries unless they resolved the claims against them. In addition, the Swiss government, which had been embarrassed by revelations of documentshredding and other behaviour that suggested that the banks were actively trying to conceal wrongdoing, had commissioned a historian to produce a report reviewing the conduct of the banks during the war. The preliminary results of the report were damning in their description of the banks' shameful conduct during the war.62 In 1998 the banks and the plaintiffs settled the suit for $1.25 billion. The settlement, which was approved by Judge Korman, created a fund which allowed 'Victims or Targets of Nazi Persecution' to collect some form of reparations. The claimants included those who could prove that they or their families had deposited assets with the banks, but it also included payments of between $500 to $1,500 to anyone in the class who could prove that they were forced to perform slave labour for the Nazis, and it also provided $145 million to existing charities as a way to provide reparations to the community of victims for the looted property that had been laundered through the banks. hi March 1998 many of the same lawyers who were handling the Swiss bank litigation initiated a new set of lawsuits demanding reparations for victims of Nazi activities. These suits were filed against corporations that had used slave labour during the war. The legal claims were both similar to, and quite different from, the Swiss bank claims. They were similar in that they focused on private corporations that had taken advantage of the horrible acts of the Nazi government. For ex-

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ample, the first such lawsuit was against an American company, Ford, on the theory that Ford's German subsidiary benefited from slave labour organized, with its cooperation, by the Nazis.63 On other hand, the legal grounds of the claims were narrower than the Swiss suits, and utilized the legal theories from those suits that were the most tenuous and untested. The heart of the Swiss suits had been that there was money taken by the banks and never returned: the 'dormant accounts' themselves. Further claims concerning property taken by the Nazis and transferred .to the banks were an extension of the dormant account claim: the wrong at issue was the wrongful possession of someone else's property. These claims could roughly be described as actions for restitution based in replevin, where the proceeds of the wrongfully taken property had been held by the banks in a constructive trust on behalf of their true owners.64 The Swiss bank cases also included some claims for the restitution of the value of slave labour itself, and the settlement included a component of compensation for slave labour. Technically, they were claims for quantum meruit, or the value of labour performed by the plaintiff which unjustly enriched the defendant.65 Such actions were on a different footing in the law of restitution from actions for replevin, in part because the suit was not for the return of anything to which the plaintiff had title, but for the court to exercise its equitable powers to remedy a wrong which resulted in unjustly enriching the defendant.66 The Swiss bank claims also had an independent claim for damages not restitution - based on the Alien Tort Claims Act.67 The ATCA was originally enacted in 1789 but remained moribund until a path-breaking decision by the Second Circuit Court of Appeals in 1980 created the opportunity for it to be used by anyone in the world to pursue torturers in tort in federal court.68 Under the ATCA, jurisdiction exists when an alien sues for a tort committed in violation of the law of nations or a treaty of the United States. The tort does not necessarily have to be committed 'under colour of law' - that is, it need not be committed under government auspices. Some crimes against humanity - including war crimes, torture, and slave trading - have independent force and individuals may be liable for them under the ATCA regardless of whether they were acting in concert with an oppressor state. Others, such as slave labour, cannot form the basis of an ATCA suit unless the 'under colour of law' requirement is satisfied. It is unlikely that the receipt of property and money from Germany by the Swiss banks during the Nazi era would have satisfied the jurisdictional requirements of the ATCA,

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since it is unclear to whether the receipt of the property in question 'aided and abetted' a crime against humanity. Following the Ford lawsuit, fifty-six more suits were filed in California, Illinois, Indiana, New Jersey, and New York. The reaction by the German companies was, at first, to question the substantive rationale of the suits. Unlike in the case of the money left unreturned in the Swiss banks, after the war the German state had, through a series of negotiated treaties, agreed to pay reparations to Jews for the injuries they suffered during the war.69 Furthermore, they argued, suing German companies for injuries suffered by Jews was putting the blame on the wrong party: German companies had 'no choice' but to adopt the slave labour policies of the 'Nazi regime's economic production program.'70 The initial reactions by the German firms reflected their failure to appreciate the degree to which the Swiss bank cases had broadened the scope of the reparative obligations demanded by the lawyers and activists who were leading the litigation. Even though Jewish organizations took a leading role in bringing the suits and pressing for a negotiated settlement, the class was not primarily composed of Jews, Gypsies or other groups who were targeted for extermination. In fact, 80 per cent of the class members covered by the settlement which ended the slave labour litigation were non-Jewish Slavs from Eastern Europe.71 This result was entirely within the original purpose of the suits, since the suits were brought in order to secure restitution for benefits the German firms enjoyed because they employed slaves and to secure damages for having violated the fundamental human rights of the slaves who worked in their factories. Neither of these claims alleged that the German companies were engaged in genocide. Furthermore, the German companies underestimated the degree to which their defence that the issues of reparations had already been handled by prior treaties and national agreements sounded hollow to others. As with the Swiss banks, the relevant issue to many Jewish activists was not whether reparations had already been paid to individual Jews or to the state of Israel by the German government, but whether all the private actors who had benefited from and aided the Nazi regime had been brought to account. In their view, the $60 billion that had been paid was not an important figure. The important figure was the amount that the firms had paid since 1945. And, according to their best guess, that number was virtually nil.72 As with the Swiss bank cases, the defendant firms mounted a defence based on numerous technical objections. These fell primarily into two

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classes. The first might be described as the 'political question' defence. That is, the defendants argued that the fact that the reparations claims arose as result of activities by Germans while Germany was at war with the United States meant that, for purposes of American jurisdiction at least, these claims were subsumed under the Executive's power to make and enforce treaties. The second response of the German firms might be described as the 'statute of limitations' defence. That is, assuming that the suits were not barred because they implicated political questions that the court could not adjudicate, and assuming that jurisdiction could be established under the relevant statutes, the plaintiffs were still time-barred because they had waited too long to bring their claims. Unlike in the Swiss bank cases, where the judge had delayed answering the defendants' motions to dismiss, in the German slave labour cases a few judges came forward and ruled on the defendants' dispositive motions. Judge Debevoise dismissed the plaintiffs' suit in Burger-Fischer v. DeGussa AG73 because, for the most part, he accepted the political question defence, while Judge Greeneway dismissed the plaintiffs' suit in Iwanowa because, for the most part, he accepted the statute of limitations defence.74 All told, five lawsuits were dismissed by November 1999. And yet, on 19 December 1999, a deal was struck between the lead plaintiffs in all the slave labour suits and the defendants that was designed to end all current litigation and to ensure that no new litigation would occur. It was agreed that, in exchange for voluntarily abandoning all the lawsuits that were filed and not objecting to the dismissal of all similar suits, the German Parliament would charter, with the full cooperation of various German industry associations, a private, DM 10 billion 'German Fund Foundation' and that this foundation would be obliged to pay reparations to individuals and organizations who qualified under the principles established in the agreement.75 Despite having won in court, the Germans were willing to pay $5.2 billion for 'legal peace.'76 Why they chose to do so is a matter of some speculation. Some have opined that the Swiss experience made political and social pressure more effective: before the first suits were dismissed New York City was considering sanctions similar to those threatened against the Swiss banks; after the suits were dismissed legislation was introduced into the Congress threatening to overturn the decisions through federal law.77 I have a slightly different view. There is no question that the Swiss bank litigation set up a very specific pattern as well as set of expectations. At a certain level, American observers of the litigation had been

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taught from prior events to accept and perhaps even tolerate elected officials prejudging the merits of the suits by using their governments' budgets as tools to oblige the defendants to accede to the plaintiffs' demands. However, there is a way in which the dynamic which created the tobacco litigation also played a role. The tobacco litigation can be viewed primarily as the triumph of a certain kind of legal threat: the decision by Big Tobacco to settle was a rational response to a huge potential liability based on a weak or even non-existent legal claim. Another way to view the litigation is by focusing on the unique way it was concluded. The MSA, although brought about through the states' legal threat, generated a partnership between the tobacco industry and the states. By means of the MSA, the states and the tobacco companies negotiated a tax and regulatory regime that, in an ideal world, could have been achieved through public debate and legislative action. One can view the slave labour deal struck by the German corporate defendants in the same light. To understand how, one must focus less on the huge potential liability threatened by the suits or their arguably weak or non-existent legal foundations, and focus more on the way the suits were resolved. One must remember that in the end, the settlement that the German slave labour defendants grudgingly accepted was as much a negotiated deal with the German and American governments as it was a settlement between private parties. The German government's critical role in brokering the slave labour settlement came about partially a result of a change in the German government. In October 1998 the German government changed leadership, with the Social Democrats and their young, dynamic leader Gerhard Schroeder taking over from the conservative Christian Democrats (who had been very hostile to the slave labour suits). As a provincial governor, Schroeder had been instrumental in encouraging Volkswagen to settle a forced labour case brought in Germany. As soon as he took national office, he began to prod the nation's largest corporations to consider a global solution to the American lawsuits. The Clinton administration was a very eager partner in Schroeder's effort. And, in a four-sided negotiation between the German government, the American government, the lawyers for the plaintiffs, and the lawyers for the defendant corporations, the $5.2 billion deal was hammered out. The framework of the slave labour agreement reflects the particular interests of the four parties. The concentration camp survivors who were forced to work, of which there may have been 240,000 still alive, would each receive $7,800; Slavs and other civilians who were com-

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pelled to work when the Germans occupied their countries, of which perhaps 1.2 million may have still been alive, would each receive $2,600. The German government agreed to contribute one half of the $5.2 billion fund, but the fund was technically a non-governmental entity. In exchange, the government preserved its official position that it was not entering into a new reparations program outside of the obligations concluded by earlier treaties. For their part, the German corporations agreed to raise the other $2.6 billion from 3,500 large and medium companies (many which had not existed in 1945) on a voluntary basis thus preserving their position that they have no legal obligation to compensate individuals for lost wages, but are doing so based wholly on moral grounds instead. For its part, the Clinton administration promised to do everything in its power to ensure that any suit filed against a company in the future for recovery of damages or assets arising from the use of slave labour during the Second World War would be opposed by the US State Department. This last piece of the deal was critical because, like the tobacco deal (and unlike the Swiss settlement), this agreement was not a settlement. It was not supervised by a judge and it was not enforceable as part of the disposition of the class actions (although it certainly may be enforceable as a contract, as is the MSA). Unlike the tobacco deal, which was negotiated with a few defendants who had complete control over the price of their products and could determine with some accuracy what kind of price increases the market would bear, the slave reparations fund was concluded with far less exacting knowledge of who would ultimately bear the cost. But the rough outlines of the Fund suggest that, whether intended or not, it would function much like a tax: 50 per cent of the Fund was paid for directly by the German taxpayer, and the other 50 per cent was being paid for by the stockholders and customers of thousands of companies, many of which were either multinationals or had not existed until after 1945. In other words, it resembles a tax because the cost of restitution was spread quite thinly across many generations and many people. On the other side of the equation, the sums of money awarded by the plan had only the vaguest relationship with either of the original legal claims which motivated the suits. If the purpose of the suits was to recover damages for the human rights violation inflicted by the Nazis on those whom it sought to exterminate, then it is not clear that the $7,800 is anything but a symbolic substitute for a legal claim for compensation. It certainly bears no rational relation to the wrong, and since the Fund was the result of an extra-judicial deal, it need not. Although the back-

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bone of the slavery suit was a claim in quantum meruit, it seems plain that the suit was as much about collecting damages for the expressive harm inflicted by the various forms of Nazi slave labour on different populations of people. With this in mind, the relationship between the damages awarded and the wrongs must be viewed as symbolic. No one attempted to claim that the sums awarded - $7,200 or $2,600 - bear any concrete relationship to the injuries suffered. Like the tobacco deal, the legal theory of the slavery suit claimed recovery of a very precise thing - the value of labour taken or profits gained - and, like the tobacco suit, the slavery suit ended with damages being based on factors completely unrelated to the damages claimed. 4. Conclusion: Towards a Political Theory of Mass Restitution At the outset of this essay I suggested that two important structural features of modern mass restitution were the scale and the nature of the claims. This is evidenced by the particular pattern of claiming and settling that took place in the tobacco and Holocaust suits. Even when not technically class actions, the tobacco suits shared with the Holocaust suits 'massive' scale. The state reimbursement suits were, in effect, claims for millions of persons bundled (whether properly or not) in a claim for restitution. Furthermore, the reason that the tobacco and Holocaust suits were able to survive to the point of effective settlement was that, as claims for (in effect) restitution, various troublesome technical objections were, if not avoidable, delayed. When lawyers for the tobacco plaintiffs brought their 'mass' claims as suits for personal injury, they failed because the courts quickly recognized the impossibility of sustaining these claims as a class action. However, it is clear that when the tobacco claims were repackaged as claims in restitution on behalf of the state, the plaintiffs regained enough momentum to achieve a partial victory through settlement. Similarly, it was not until activists from the Jewish community repackaged their claims for reparations from private banks and corporations as claims in restitution that the suits developed enough momentum to achieve partial victory through settlement.78 But these features can only explain so much. It is important to recall that although the tobacco and Holocaust suits were not won on the basis of the legal claims they made as adjudicated by a court, they were 'won' - that is, settled for billions of dollars - on the basis of the advantageous bargaining position achieved by means of the specific

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legal claims they made. So the legal strategies of mass restitution could be said to have been necessary but not sufficient factors. I would like to suggest one other feature of the mass restitution claims reviewed above that, while non-legal, offers a further theoretical insight into the reason why, at the end of the twentieth century, mass restitution claims against the tobacco industry and those companies who profited from the Holocaust found success. The additional feature was the political context in which these suits were brought. The tobacco suits were begun in a peculiar political climate. On the one hand, Big Tobacco had been hailed throughout the modern era as a masterful player of the legislative process at both the federal and state level. As the former Surgeon General under President Clinton, Dr David Kessler, has documented, the tobacco industry wielded awesome power in Washington, DC.79 Yet, at some point that power began to crumble. Perhaps it was the sheer audacity of some of the misrepresentations that the tobacco industry was proven to have promoted, or perhaps it was the extraordinary coordination with which it set about promoting those misrepresentations, but there came a point where many elected officials found it more advantageous to run against the tobacco industry than to defend it. While this sometimes pitted Democratic Attorneys General against Republican Governors from their own states (as in Mississippi), often the Republicans acquiesced in the litigation campaigns (especially when they realized that the payoff could mean billions for their states).80 Some legislators actively tried to help the suits along. Florida, for instance, did not have as flexible a consumer fraud statute as Minnesota, and did not have as welcoming a chancery court as Mississippi. It therefore simply amended its common law to make it possible for the state to sue the tobacco industry in subrogation without having to worry about what otherwise would have been fatal affirmative defences.81 The Holocaust litigation was similarly marked by a specific political context. The companies sued in the Swiss bank and German slave labour cases, even though they were some of the worlds' largest and wealthiest companies, did not possess the kind of political capital held by the American tobacco industry at the beginning of the first wave of tobacco litigation. One does not need to invoke a theory of anti-foreigner animus to explain, in quite simple terms, why these foreign companies were at a disadvantage in the United States once they became the target of criticism by American-based Jewish groups. Local politicians are likely to take into account the interests of local constitu-

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ents. Furthermore, as in the tobacco context, the demands for reparations produced a cycle in which litigation unleashed more and more fresh information about the actions of the defendants that placed them in an extremely bad light. The efforts by politicians at the local, state, and federal level were quite significant. For example, as mentioned earlier, Republican and Democratic politicians from New York used the resources at their disposal to pressure the Swiss banks into settlement. In the context of the slave labour cases the pressure was less focused but perhaps even more pervasive. As the Wai/ Street Journal noted, firms like Daimler-Benz, which had just merged with Chrysler, could not afford to be viewed as part of the old Germany in an increasingly global market.82 After the Swiss bank and slave labour cases settled, California entered into the fray with legislation specifically designed to assist those who were trying to recover assets wrongfully withheld by European insurance companies who never paid out on policies purchased by Jews who were killed in the Holocaust.83 What does this additional feature of political context tell us about mass restitution litigation? To say that it is inherently political is both extremely important and banal. Why is this sort of mass litigation more political than, for example, asbestos litigation, which I would not describe as mass restitution, notwithstanding the fact that it too deals with a mass of claims and is often resolved through settlement? I suspect that there is an important connection between the legal form that mass restitution suits have taken - claims for unjust enrichment or the return of unjustly held property - and the degree to which they explicitly draw upon the political resources of the community in which they are brought. Mass restitution suits are remarkable because they are such extraordinary performances of a legal fiction.84 The real motivation behind the demand for reparation is not, in my opinion, fully expressed by the legal claim upon which the suit travels. The real wrong caused by the tobacco industry was not to the public fiscs of the various states.85 And although we might, after great reflection, conclude that the tobacco industry acted wrongfully towards the smoking public, the form of that wrong was not, strictly speaking, unjust enrichment or simple fraud. The wrongful conduct was something more amorphous. The wrong lay in the way the industry exploited the weakness of will of those who knew that they were the object of false and manipulative marketing and yet succumbed nevertheless. One might say the tobacco industry's greatest wrong was proving how susceptible American society was to marketing and addiction.

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Similarly, the wrong represented by the literal, technical claims in the Holocaust suits may have been the only or the most effective way to frame the issue of the role private industry played in the Holocaust, but I believe that few of those on whose behalf the suits were brought believed deeply that the point of the suits was to recover property or wages. The point is not to deny that the banks and corporations who were enriched by their receipt of property and labour torn from Jews and other victims during the Holocaust were 'unjustly enriched.' The point is that the law of restitution is rarely taken to such heroic lengths, and when it is, it is worth asking why. As Jeremy Waldron has noted, there are such large practical problems with performing the main task of restitution - which is the return of the lost property - that claims for reparation often bend to competing claims of distributive justice.86 To fully appreciate this point, recall that at least 80 per cent of the slave labour class in the Holocaust suit were non-Jewish nationals from nations conquered by Germany who were forced to labour without pay. Were it not for the fact that the other 20 per cent of the slave labour population were targeted for extermination, it is not clear that, except as a theoretical matter, the non-Jewish slaves would have had a claim for restitution of any value. This may seem to reveal a shocking callousness by the world community and its legal systems towards the wrong of forced labour, but if true, it confirms simply that not all restitutionary claims mean the same thing and perform the same redressive function. A claim for quantum meruit arising from a case of quasi-contract is different from one arising from a case of forced labour, which is different yet again from one arising from a case of slavery based on racebased classification. The question is, why? I suspect that the property and labour at the heart of the Holocaust slave labour cases were symbols, to the victims, of the way in which private firms - whether by banking for the Nazis in Switzerland, seizing the bank assets of Jews in France, or using slaves to build armaments in Germany and Austria - aided and abetted the Holocaust. It is noted even by the litigation's defenders that the class members in the Holocaust cases are ambivalent about the monetary awards and it is easy to see why.87 Not only is money always an inadequate substitute for injuries to the body and the psyche, but in this case the money comes out of a set of legal claims that strike at the defendants only at a tangent. The core wrongs (the violations of human rights) which were brought to light by the litigation were tenuously linked to the litigation through references to the ATCA, but these references were, in my opin-

368 Anthony J. Sebok

ion, unlikely to have moved the defendants to the multibillion-dollar settlement had they not been linked closely to the legally more cognizable, but morally less impressive, claims for the restitution of property. The lawyers in these suits had to achieve a fine balance between presenting their plaintiffs' demands in a form recognizable by the courts and preserving the unique historical and moral backbone of the claims. It may be that the extraordinary degree of political pressure that accompanied these suits allowed for the expression of the historical and moral claims that these suits, dressed up as 'mere' restitution claims, would not otherwise be able to fully express. If this was the case, then it is no accident that these mass restitution cases succeeded as settlements negotiated by politicians. The implication of the analysis above for the effort to achieve reparations for African Americans is that mass restitution is likely to fail as a strategy unless it is tethered to a genuine and effective political agenda. This agenda does not have to be one which frames the wrongs of the defendant in terms of historical human rights violations, as in the Holocaust litigation. The tobacco litigation organized its political allies around a more ambiguous claim. Nonetheless, both the tobacco and Holocaust litigations were able to demonstrate a relatively tight connection between their legal demands (the disgorgement of wrongfully held money or property) and a vivid moral story about how those wrongfully held assets ended up in the defendants' hands. The balancing act achieved by the lawyers in earlier successful mass restitution litigation may seem obvious to us today, after the fact. It was, in fact, a striking achievement, and one that was by no means destined to succeed. It may not be as easy to reproduce today, especially given the degree to which the opponents of mass restitution litigation have attempted to expose and criticize those very methods that helped lawyers secure reparations in the earlier cases.88 The failure of the plaintiffs in the Mack litigation to secure redress through private law claims may be usefully examined through the lens of mass restitution as practised in the United States. From this author's perspective, it seems that Canada has undergone remarkable changes with regard to the treatment of non-white immigrant and Native populations. Perhaps because the circumstances of racial minorities have improved in Canada, the Mack case did not seem - on the surface, at any rate - linked to a pressing set of political claims. Grateful as the Mack plaintiffs may have been that they did not need to use their suit to pursue additional political ends, this happy fact about the political context in which they operated may, ironically, have contrib-

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uted to the unwillingness of the courts to push the law as far as Holocaust and tobacco courts pushed doctrines of statute of limitations and restitution. Furthermore, unlike in the United States, the defendant in the Mack suit was the plaintiffs' own federal government, which may have put the plaintiffs in a double bind. First, if, as suggested above, the national institutions have made sincere attempts to address claims of social inequality through recent legal and political measures, then private law claims may not be a last resort made necessary by majority indifference. Second, it is important to recall that in the Holocaust and tobacco litigation political actors helped plaintiffs persuade the courts to bend the legal doctrines in order to resolve outstanding political conflicts at the cost of the defendants, who were private corporations. No such alliance was available to the Mack plaintiffs. For these reasons, it might be argued that the Mack plaintiffs could not reframe their restitution claims in terms that made the courts see them as demanding something more than 'merely' money. Of course, the Mack plaintiffs almost certainly did not see their case as about 'merely' money. But, like the current plaintiffs in the African American slavery cases, unless they can arrange the political context surrounding their lawsuit in the right way, the strategy of pursuing redress for human rights violations through class action private law claims is likely to fail. NOTES 1 347 U.S. 483 (1954) (holding that segregation of races in public education violated the Equal Protection Clause of the Fourteenth Amendment). 2 411 U.S. 1 (1973) (holding that public education was not a fundamental right under the US Constitution). 3 The class action, which had its origins in the ancient doctrines of equity, grew into prominence with changes in the Federal Rules of Civil Procedure and expansion of the judicial role in securing civil rights. See Richard L. Marcus, 'Reassessing the Magnetic Pull of Megacases on Procedure' 51 DePaul L. Rev. 457,462-3 (2001) (linking the civil rights era with changes in Federal Rule of Civil Procedure 23 in 1966 which significantly expanded the availability of class actions to a wider range of cases than ever before). 4 See Ewart Lanier, Book Review, 82 Yale LJ. 1719,1721 (1973) (reviewing Boris I. Bittker, The Case for Black Reparations (1973)). 5 Vincene Verdun, 'If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans/ 67 Tul. L. Rev. 597 (1993).

370 Anthony J. Sebok 6 Ibid, at 600-2. 7 Ibid, at 603, citing Mary F. Berry, Reparations for Freedmen, '1890-1916: Fraudulent Practices or Justice Deferred?' 57 J. Negro Hist. 219,220 (1972). 8 Ibid, citing S. 2231, 79th Cong., 1st Sess. (1945) and the comments of its sponsor, Senator Theodore Bilbo of Mississippi. 9 Ibid, at 604-5. 10 Ibid, at 606 (noting the work of U.S. Rep. John Conyers and Massachusetts State Senator William Owens). In 1989 Rep. Conyers introduced H.R. 40, which called for a commission to investigate the U.S. Government's responsibility for slavery and to make appropriate recommendations. No action was taken on the bill in 1989, and every year Rep. Conyers symbolically reintroduces the bill. 11 Ibid, at 606, citing the Civil Liberties Act of 1988, Pub. L. No. 100-383,102 Stat. 903 (1988). 12 Charles J. Ogletree, 'Repairing the Past: New Efforts in the Reparations Debate in America/ 38 Harv. C.R.-C.L. Rev. 279 (2003), citing Randall Robinson, The Debt: What America Owes to Blacks (2000). 13 See 'Demanding Repayment for Slavery/ Los Angeles Times, 6 July 1994, col. 1 ('Reparationists say the compensation of Japanese Americans is proof that the United States will, if pressured, address historic injustices.'). 14 Ogletree at 285. 15 See, e.g., Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights (2002). 16 See Anthony J. Sebok, 'Reparations, Unjust Enrichment, and the Importance of Knowing the Difference between the Two/ 58 N.Y.U. Ann. Surv. Am. L. 651 (2003) and Anthony J. Sebok, 'Prosaic Justice/ Legal Affairs 51 (September/October 2002). 17 Johnson v. MacAdoo, 45 App. D.C. 440 (1916), aff'd U.S. 643 (1917). 18 See Anthony J. Sebok, 'Judging the Fugitive Slave Acts/ 100 Yale L.J. 1835 (1991). 19 70 F.3d 1103 (1995). 20 28 USCS § 1346 (2003). 21 70 F.3d at 1109-10. 22 Chad W. Bryan, 'Precedent for Reparations? A Look at Historical Movements for Redress and Where Awarding Reparations for Slavery Might Fit/ 54 Ala. L. Rev. (2003); Brophy, Alfred L., 'Some Conceptual and Legal Problems in Reparations for Slavery/ 58 N.Y.U. Ann. Surv. Am. L. 497 (2003); Aiyetoro, Adjoa A., 'The Development of the Movement for Reparations for African Descendants/ 3 J.L. Soc'y 133 (2002). 23 Porter v. Lloyds of London, No. 02-CV-6180 (N.D. 111. filed 29 Aug. 2002); Carrington v. FleetBoston Fin. Corp., No. 02-CV-1863 (E.D.N.Y. filed 26 Mar.

Mass Restitution Litigation in the United States 371

24

25 26 27 28

29 30

2002); Farmer-Paellmann v. FleetBoston Fin. Corp., No. 02-CV-1862 (E.D.N.Y. filed 26 Mar. 2002); Barber v. N.Y. Life Ins. Co., No. 02-CV-2084 (D.N.J. filed 2 May 2002); Johnson v. Aetna Life Ins. Co., No. 02-CV-9180 (ED. La. filed 3 Sept. 2003); Hurdle v. FleetBoston Fin. Corp., No. 02-CV-4653 (N.D. Cal. filed 17 Jan. 2003); Hurdle v. FleetBoston Fin. Corp., No. CGC-02-0412388 (Cal. Super. Ct. filed 10 Sept. 2002). Almost all of these suits have been consolidated through a federal MDL (Multidistrict Litigation) order in Northern District of Illinois. See In re African American Litig., No. 02-CV-7764 (N.D. 111. 17 Jan 2003). Also, it is not uncommon (and is, in fact, prudent) for a lawyer bringing a class action with many victims to list 'John Doe' corporations - that is, leaving open the possibility of adding more defendants as the litigation progresses. Farmer-Paellmann v. FleetBoston Fin. Corp. lists 1-100 'John Doe' corporate defendants. See Hurdle, supra, which is based on Cal. Bus. & Prof. Code § 17200. See Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Race Riot of 1921 (2001). Alexander v. Governor ofOkla., No. 03-CV-133E (N.D. Okla. filed 28 Feb. 2003). In addition to the problems of sovereign immunity illustrated by Cato itself, a case against a government, either state or federal, for injuries suffered by African Americans before Emancipation would have additional procedural challenges. Who would have standing to bring suit? The claims against corporations described in the second category of litigation are being brought by the putative heirs of the property which was allegedly unjustly gained by the defendants. It is not clear that civil rights claims, or claims against the state in dignitary torts, survive beyond the period of time specified in any jurisdiction's wrongful death and survivorship statutes. To take this problem one step further, it is not clear if a Catotype claim could survive a statute of limitations challenge. Finally, to the extent that a Cato-type claim is based on federal civil rights laws, it is not clear why, even if the sovereign immunity problem were solved, there would not be a remaining ex post facto issue arising from the fact that the relevant federal civil rights laws under which such claims would be brought were not enacted until after Emancipation. Martha Derthick, Up in Smoke: From Legislation to Litigation in Tobacco Politics (2002). Actions in negligence failed because plaintiffs were unable to establish foreseeabiliry, as illustrated in the Lartigue v. R.J. Reynolds Tobacco Co. Early juries largely accepted the link between smoking and cancer, but the

372 Anthony J. Sebok Lartigue court refused to embrace the premise that the industry should have ensured against 'unknowable risks.' Derthick at 29. In Green v. American Tobacco Co., the Fifth Circuit held en bane that the alleged unwholesomeness of a product line, rather than an anomalous defect, did not constitute a breach of warranty claim. Green v. American Tobacco Co., 409 R2d 3,11 (5th Cir. 1969)(en bane). 31 See Robert L. Rabin, 'Institutional and Historical Perspectives on Tobacco Tort Liability/ in Robert L. Rabin and Stephen D. Sugarman, eds., Smoking Policy: Law, Politics, and Culture (1993) at 112. 32 Ibid, at 115. 33 The success by plaintiffs in these cases (either at trial or settlement) can be seen as part of a larger pattern through which mass torts became a tool for resistance to corporate power. See, e.g., Thomas H. Koenig and Michael L. Rustad, In Defense of Tort Law (2001) and Leslie Bender, 'Feminist (Re)torts: Thoughts on the Liability Crisis, Mass Torts/Power, and Responsibilities/ 43 Duke L. Rev. 848 (1990). 34 See Peter Schuck, Agent Orange on Trial (1985) and Michael D. Green, Bendectin and Birth Defects (1996). In some of these cases (DES, Dalkon Shield) judicial activism seemed justified in retrospect, while in others (Agent Orange, Bendectin) the weakening of traditional doctrinal rules resulted in a situation where, in retrospect, corporate defendants who were not the cause of plaintiffs' injuries settled cases simply to escape the risk of an unpredictable jury verdict. 35 Rabin at 119. Plaintiffs' attorneys for Cipollone v. Liggett Group, Inc. represented plaintiffs in several asbestos cases. 36 Cipollone v. Liggett Group, Inc., 693 F.Supp 208 (D.N.J. 1988). 37 Robert L. Rabin, The Third Wave of Tobacco Tort Litigation/ in Robert L. Rabin and Stephen D. Sugarman, eds., Regulating Tobacco (2001) at 184. 38 Williams v. Philip Morris, 48 P.3d 824 (Or. App. 2002) (upholding an $800,000 compensatory and $79.5 million punitive award) and Boeken v. Phillip Morris, 2001 WL1894403, Cal.Superior, 9 Aug. 2001) (upholding a $5.5 million compensatory and reducing $3 billion punitive award to $100 million). 39 Castano v. American Tobacco Co., 160 F.R.D. 544 (E.D. La. 1995), rev'd, 84 F.3d 734 (5th Cir. 1996) 40 Ibid. 41 Rabin (2001) at 188. 42 R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39 (Fla. Dist. Ct. App. 1996) 43 Ibid.

Mass Restitution Litigation in the United States 373 44 See Tobacco Suit Award: $145 Billion; Florida Jury Hands Industry Major Setback/ Washington Post, 15 July 2000, Al. 45 Liggett Group Inc. v. Engle, 2003 WL 21180319, Fla.App. 3 Dist, 21 May 2003. The appellate court also held that the trial court had permitted enough errors on the part of the plaintiffs that it declared a mistrial, and it held that the punitive damage award produced by the trial violated the US Constitution. 46 See 'High Court Upholds Award of 750K in Smoking Case/ Los Angeles Times, 30 June 2001, A2. 47 See also G.L. Wilson and J.A. Gillmer, 'Minnesota's Tobacco Case: Recovering Damages without Individual Proof of Reliance under Statutes/ 25 William. Mitchell L. Rev. 567,568 (1999). These acts were the Prevention of Consumer Fraud Act, the Unlawful Trade Practices Act, the False Statement in Advertising Act, and the Uniform Deceptive Trade Practices Act. Ibid. 48 Rabin (2001) at 193. 49 The case that came closest to verdict was the Minnesota case. It settled literally after the judge instructed the jury but before they could begin deliberating. According to one news report, the jurors felt angry at having been usurped and were also surprised by the size of the settlement, suggesting that they would not have awarded such a large sum. See David Phelps and Deborah Caulfield Ryback, 'Jury Instructions Spurred Settlement Talks/ Star Tribune, 25 November 1998, ID. 50 "The states could not successfully frame their claims against the tobacco companies in terms of either the traditional tort doctrine of subrogation or the codified version of the doctrine that allows most state governments to seek reimbursement for medical expenditures. Subrogation ... would put the states in the shoes of smokers - who, as we know, had uniformly failed in their lawsuits against the tobacco companies up to that point.' Michael DeBow, The State Tobacco Litigation and the Separation of Powers in State Governments: Repairing the Damage/ 31 Seton Hall L. Rev. 563 (2001). 51 'In reality, these theories were largely untested, and the claim that the state's interest was independent of and distinct from the individual smoker's generally rested on a shaky foundation.' Rabin (2001) at 190. See also Doug Rendleman, 'Common Law Restitution in the Mississippi Tobacco Settlement: Did the Smoke Get in Their Eyes?' 33 Ga. L. Rev. 847 (1999) (detailing the many flaws with the Mississippi unjust enrichment claim) and DeBow, supra at 570-2. Two state supreme courts did hear

374 Anthony J. Sebok challenges by the tobacco defendants of the state reimbursement claim. Iowa ex rel Miller v. Philip Morris Inc., 577 N.W.2d 401,407 (Iowa 1998). 52 See In re Rhone-Poulenc Rarer Inc., 51 F.3d 1293,1298 (7th Cir. 1995); see also Hanoch Dagan and James J. White, 'Governments, Citizens, and Injurious Industries/ 75 N.Y.U.L. Rev. 354,378-9 (2000) (footnote omitted). 53 See Debow, supra at 569; Dagan and White, supra at 372-3; and Ian Ayres, 'Using Tort Settlements to Cartelize/ 34 Val. U.L. Rev. 595, 599 (2000). 54 Ayres, supra at 599 ('Viewed as a tax, the settlements might be criticized on the ground that the taxing power belongs to the legislature - not to the executive, and certainly not to the industry'). 55 This history is drawn from the excellent summary in Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248,265-72 (D.N.J. 1999). 56 Burger-Fischer at 266: 'Among other circumstances demonstrating that the consequences of forced labour were covered by the Agreement was the fact that each signatory state was asked to specify the value which it attached to forced labour of its nationals.' 57 See Burger-Fischer at 268: 'Reflecting the decision not to reduce Germany to a pastoral status the United States, the United Kingdom and France agreed "that they will at no time assert any claim for reparation against the current production [i.e., goods and capital generated by private industry] of the Federal Republic." Transition Agreement, ch. 6, Art. 1. Previously responsibility for seeking compensation for the victims of Nazi oppression rested with the occupying powers, which implemented this responsibility by such measures as adoption of Law No. 59 and setting aside in the Paris Agreement a portion of each nation's seized assets for compensation of stateless persons. Under the Transition Agreement responsibility to compensate victims of Nazi oppression was shifted 'to Germany itself.' 58 Burger-Fischer at 268. 59 See Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America's Courts (2003) at 291. This figure is consistent with the numbers provided by Judge Debevoise in Burger-Fischer. 60 Bazyler at 7. 61 See In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139,141 (E.D.N.Y. 2000). 62 See Elizabeth Olsen, 'Report Says Swiss Knew Some Nazi Gold Was Stolen,' New York Times, 26 May 1998, A6, col. 5. 63 Iwanowa v. Ford Motor Co., 67 F.Supp. 2d 424 (D.N.J. 1999). 64 Dan B. Dobbs, Law of Remedies: Damages, Equity, Restitution, 2nd ed. (1993) at §4.2(2). 65 Ibid, at §4.2(3).

Mass Restitution Litigation in the United States 375 66 At an earlier time, these claims would have been made under a claim in assumpsit. 'Restitution at law proceeded mainly in two large streams. The first dealt with cases in which plaintiff had legal title.... [The other] derived from assumpsit. This kind of claim dealt with case in which the plaintiff could not assert title.' Ibid, at §4.2(1). 67 See In re Holocaust. The original class action complaints were amended and refiled in July 1997 as four separate actions, consolidated under Master Docket No. 96 Civ. 4849: Sonabend, et al. v. Union Bank of Switzerland, et al; Trilling-Grotch, et al. v. Union Bank of Switzerland, et al.; Weisshaus, et al. v. Union Bank of Switzerland, et al.; and World Council of Orthodox Jewish Communities, Inc., et al. v. Union Bank of Switzerland, et al. 68 Filartiga v. Pena-lrala, 30 F.2d 876 (2nd Cir. 1980). 69 Bazyler at 69 n.27. 70 Bazyler at 69 n.28 quoting Gerald M. Steinberg, "The Holocaust Did Not "Just Happen,"' Jerusalem Post, 23 October 1998,9. 71 Bazyler at 297. There were two kinds of slave labour practised by the Nazis. The Nazis employed slave labour against Jews, Gypsies, and others as a means of extermination that, as a side benefit, produced industrial resources. The Nazis also compelled millions of people who were citizens of nations that had been occupied by their armies to move to Germany and Austria to work for firms under inhumane conditions. See Benjamin B. Ferencz, Less Than Slaves: Jewish Forced Labour and the Quest for Compensation (1979). 72 Of course, it was well understood that any money paid by the German government was funded by taxes from the general population, including corporations. 73 65 ESupp.2d 248 (D.N.J., 1999). 74 The lawyers for the plaintiff were confident that these district court decisions would be overturned on appeal. For a vigorous statement of their views see Michael J. Bazyler, 'Nuremberg in America: Litigating the Holocaust in American Courts,' 34 Univ. Richmond L. Rev. 19 (2000). 75 Roger Cohen, 'Payback for Nazis' Slave Labour Approved: Claimants Expected to Get about $2,500,' Globe and Mail, 24 March 2000, All. 76 See Stuart E. Eizenstat, Imperfect Justice (2003), 257 (quoting Roger Witten, the German firms' lead lawyer in negotiations for a settlement). 77 Bazyler, 'Nuremberg in America' at 78. 78 The best example of this comes from a third type of Holocaust reparations litigation, the French bank litigation. Begun in 1997 (but inspired by the Swiss bank litigation), this class action claimed that French banks 'Aryanized' up to eighty thousand bank accounts that were the property

376 Anthony J. Sebok

79 80

81

82 83

of Jews. By seizing their customers' property and allowing it to be given to others (or left ownerless), the banks performed 'thefticide.' See Symposium, The Evolution and Objectives of the Holocaust Restitution Initiatives' 25 Ford. Int. L.J. 145,159 (2001) (quoting Professor Vivian Curran). Of all the various Holocaust-related lawsuits, this was one of the only suits to receive positive treatment by a judge. In Bodner v. Eanque Paribas, 114 F. Supp.2d 117 (E.D.N.Y. 2000) Judge Johnson ruled against the defendants' motion to dismiss (settlement soon followed). Unlike Judge Greeneway in Iwanowa, Judge Johnson ruled that the statute of limitations had not run on the plaintiffs' claims. However, this ruling was dependent on the nature of the suit: the suit named the deposited assets only, and as such, the suit was for replevin. Judge Johnson agreed that whether the defendant was continuing to wrongfully hold the plaintiffs' assets was a matter of fact, and thus he could not rule that the plaintiffs' claims were time-barred as a matter of law. Bodner at 134-5. David A. Kessler, A Question of Intent: A Great American Battle with a Deadly Industry (2001). Illustrative of the splits among elites within the states over suing Big Tobacco is the fact that Richard Scruggs, the lawyer contacted by the Democratic Attorney General of Mississippi to lead the state's restitution suit, was the brother-in-law of Senator Trent Lott, at the time the highestranking Republican senator in the U.S. Congress. See Curtis Wilkie, 'A Bitter Battle for Tobacco Spoils; In Mississippi Suit, Lawyers Fight for Share of Industry Settlement/ Boston Globe, 18 October 1998, A14. In 1994 the legislature passed the Florida Medicaid Third-Party Liability Act, 1994 Fla. Laws ch. 94-251, s.4 (codified at Fla. Stat. Ann. 409.910). It provided, in part, that 'principles of common law and equity as to assignment, lien, subrogation, comparative negligence, assumption of risk, and all other affirmative defenses normally available to a liable third party are to be abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources.' The state brought suit in 1995. Holman W. Jenkins, Jr, 'Once More into the Dock with "Nazi" Companies/ Wall Street Journal, 24 March 1999, A27. In 1998 California enacted the Holocaust Victim Insurance Act (HVIA) (Cal. Code Civ. Proc. Section 354.5). The HVIA nullified forum-selection clauses in a Holocaust-era policy and extended until 2010 the statute of limitations for filing a Holocaust-era insurance suit. In 2003 the U.S. Supreme Court held that the HVIA was pre-empted by the President's authority to make foreign policy. See Am. Ins. Ass'n v. Garamendi, 123 S. Ct. 2374 (2003).

Mass Restitution Litigation in the United States 377 84 For a defence of legal fictions, see Lon L. Fuller, Legal Fictions (1967). 85 This is not to say that the fiscs of these states were not affected. It is to say that I am sceptical that these states suffered an injury, in either the legal or commonsense meaning of the term. From a legal point of view I think that, ultimately, a court would be reluctant to uphold a claim for restitution outside of subrogation on behalf of health care providers who were aware at the time they provided care of the risks accepted by their patients. From a commonsense point of view, Big Tobacco was guilty of many things, but deceiving state governments is not one of them. The health officials of the states were among the first to know about the real risks posed by cigarettes. Instead of moving to suppress smoking, state elected officials for many years were the grateful recipients of campaign contributions from the industry and the states were the major beneficiaries of taxes collected from the sale of cigarette products. 86 See Jeremy Waldron, 'Superseding Historic Injustice/ 103 Ethics 4 (1992) at 7-9. By 'distributive justice/ Waldron does not mean that the claimants get nothing. He means that the claimants, if they were to get something, would get resources from society if and only if the provision of those resources could be based on prospective, not retrospective, claims of right. Waldron reserves the possibility that conditions in a state may have changed so much that even if it were possible to untangle the tracing issue, it may still be the case that there would be no reason in justice to move all of the society to a less just state of affairs for no other reason than to satisfy the demands of historical justice. 87 See Bazyler, 101-6. 88 See, e.g., 'Symposium: Regulation through Litigation/ 71 Miss. L.J. 613 (2002).

Time, Place, and Values: Mack and the Influence of the Charter on Private Law MAYO MORAN

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, particularly in private law, have historically placed such questions beyond the scope of legal inquiry. However, changes in our conceptions of responsibility are reverberating throughout private and criminal law. And one important result of this is an erosion of many of the very barriers that used to place difficult questions of widespread historic injustice beyond the reach of legal responsibility, particularly private law.1 Nonetheless, the recent experience particularly in the United States suggests that courts often decide reparations cases on procedural grounds, thereby avoiding the difficult broader questions of accountability that such cases raise.2 Viewed in this light, the Chinese Canadian head tax case, Mack v. Attorney General of Canada,3 has special importance. Mack is in some important sense an easy reparations case. This is, of course, not the same as saying that it is an easy case. But unlike some of the more longstanding reparations issues, the claim for the recovery of the onerous head tax selectively imposed on immigrants of Chinese origin is relatively recent in that it involves the claims of those who actually paid the tax and their direct descendants. Thus, it is not beleaguered by the

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difficult questions of tracing both the wrong and the harm that characterize cases such as the recently filed claims involving slavery in the United States and claims by Aboriginal peoples for the return of land. One consequence of this feature of Mack is that the courts are forced to directly confront the substantive questions implicated in redressing historic injustice. However, if the ease of tracing makes Mack look somewhat exceptional, there is another very important respect in which it is characteristic of reparations claims more broadly. The heart of the argument in Mack seeks to harness the power of the old principle of unjust enrichment to redress widespread historic injustice. So the Mack decisions are important in part because of the judicial response to the restitutionary basis of the claim for redress. This is particularly so since Mack faces the characteristic difficulty of virtually all reparations claims that invoke the principle of unjust enrichment. The principle of unjust enrichment has many virtues for redressseekers, not the least of which is that its focus on the retention of an unjustly exacted benefit avoids the difficulties inherent in extending more culpability-based notions of responsibility (wrongdoing, for example) across time and, even more problematically, persons. Thus, the proprietary nature of the restitution claim responds to our sense that there may be a justification for responsibility even where it would admittedly be impossible to invoke any robust conception of personal blame. But more importantly, the principle of unjust enrichment seems intuitively apt to capture what strikes us as at the heart of many reparations issues. This sense of aptness springs as much from the principle's explicit invocation of 'injustice' as from its focus on retained benefits. Yet, as Mack reveals, there are significant difficulties establishing that the enrichment was unjust in the sense required by the law of unjust enrichment. So ironically, the very source of the principle's intuitive appeal is also the source of greatest difficulty. For as both courts in Mack point out, the fact that a valid law sanctioned and even required the relevant enrichment ordinarily rules out any finding that that enrichment was unjust. This difficulty is not simply attributable to the sometimes arcane principles of private law. Indeed, it seems undeniable that the problem with giving content to the unjust inquiry in cases for redress of historic wrongdoing ultimately engages a set of extremely difficult moral, political, and legal questions. The core problem revolves around the fact that much of the conduct that we now unequivocally recognize

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as 'unjust' was not only broadly considered right but also, as in Mack itself, often enshrined in law. The 'unjust' of the time of the transfer or enrichment and of the adjudicating court are in this sense radically incompatible. There is no unproblematic response to this difficulty. And the impossibility of any simple journey across the moral and legal distance between now and then is a central dilemma of all such cases. The problem of the past thus pervades the claim for redress and undermines at least some of the intuitive appeal of the 'unjust' aspect of unjust enrichment. But the past is not quite yet at the heart of the problematic relationship between the redress case and unjust enrichment. The heart of the problem concerns the troubling complicity of law as a tool of massive discrimination and injustice. How ought law now respond to law then? The relationship of contemporary law and legal values to their disconcerting predecessors engages fundamental questions of law's selfidentity. These are questions we have not generally confronted. Our own past feels to us in these moments like foreign, uncomfortable terrain. Thus it is unsurprising that we see institutional anxiety on the part of the courts augmenting more general collective anxiety about the scope and implications of our own historic wrongdoing. We may be tempted, as are the courts in Mack, to sidestep the confrontation with our past by insisting on the impossibility of any direct engagement on the wisdom of our legal past. Yet the law does seem to possess the resources for a more nuanced and defensible response to our own past unjust laws. And in a constitutional order like Canada's, the radiating effect of constitutional values is one particularly important such resource. In fact, our own jurisprudence reveals the influence of constitutional values in cases where courts are faced with demands to 'blindly' enforce some other legal act or exercise of sovereignty - be it of the past or elsewhere. Paying attention to the resources that courts bring to bear in such moments may thus provide a way of thinking about how to respond to the unjust laws of our past without undermining our contemporary constitutional order. Of course, the journey back to our legal past may well be one which many of us - citizens a's well as courts - would prefer not to take Yet acknowledging the respects in which our past is indeed another country may provide important inspiration here. It may even assist us in reconciling the need to respect our own fundamental values with an acknowledgment of the complexity of judgment across the difficult moral distance of time. This task holds great significance for the very

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meaning of law. Indeed, it is precisely because reparations cases remind us of the complicity of the legal system in the enforcement of mass injustice that they so pointedly call for law itself to reassert its own moral self-understanding. And so, we might rightly think of Mack as the easiest version of the hardest question posed by the reparations case. Mack and the Reparations Context Mack began as a class action involving the infamous head tax that Canada selectively imposed on immigrants of Chinese origin from 1885 until 1923. (From 1923 until 1947, immigration to Canada from China was effectively prohibited.)4 The plaintiff class was composed of those who paid the head tax and their heirs and descendants. They sought, among other things, restitutionary damages on the ground that the Government of Canada was unjustly enriched at their expense. The Attorney General of Canada brought a motion to strike out the statement of claim on the basis that it disclosed no reasonable cause of action. On 9 July 2001, Cumming J. ruled in their favour, finding that the statement of claim disclosed no reasonable cause of action. The plaintiffs appealed to the Ontario Court of Appeal, which dismissed v the appeal. The Supreme Court of Canada dismissed leave to appeal.5 Unsurprisingly, the courts find it straightforward to conclude that the Government of Canada benefited at the expense of the plaintiffs. The fact that the first two elements of unjust enrichment are so easily established illustrates the sense in which Mack is an easy reparations case. Because the plaintiffs in Mack are the actual payers of the tax or their spouses or direct descendants, the case does not face the difficult 'tracing' questions that characterize claims involving older wrongs. Indeed, in the recent debate about reparations for slavery in the United States, the question of who would even be the plaintiffs and defendants is very complex, reflecting how the passage of time complicates the ability to establish 'enrichment at the expense of the plaintiff.'6 Similarly difficult problems of tracing harm through several interceding centuries plague questions of how to redress the wrongful appropriation of the land of Aboriginal peoples throughout the world by settler societies.7 And though there may well be a solution to this, the problem of tracing harm is daunting and it considerably complicates the claim for redress. There also other important complications that are absent from Mack. Because reparations claims often involve the adjudication of the acts of

382 Mayo Moran foreign governments in American courts, foreign sovereign immunity and questions of comity frequently work to defeat the claims.8 Once again Mack is a contrast. In common with the American claims for reparations for slavery, it is distinguished by the fact that the claim for reparations is brought against the plaintiff's - and perhaps as importantly, the court's - own government. Given the reluctance of courts to pass judgment on the acts of another sovereign, this too simplifies cases like Mack. Yet in place of anxiety about offending a foreign sovereign and in the absence (in Canada at least) of a formal doctrine of sovereign immunity,9 cases like Mack are animated by a more complicated kind of worry associated with judging the past. Our legal system possesses considerable resources that could be brought to bear in a principled way upon the problem. Of particular significance here is the fact that courts in Canada are adjudicating these claims in a context in which there are overarching constitutional values 'radiating' throughout the legal system. As we see in other cases, these values provide important conceptual resources for enabling traditional private law doctrines to respond to cases with a backdrop of profound discrimination. Yet when poised against issues involving the past discriminatory behaviour of private actors in Canada and 'evil regimes' elsewhere, the decisions in Mack suggest that courts feel more disabled outside the direct sphere of Charter operation than they may have before the Charter came into operation. Thus, oddly, past legalized discrimination actually looks more immune from judicial scrutiny in the Charter-era than it was when courts only had the apparently less powerful tools of 'public policy' and 'division of powers' at their disposal - at least where the courts of a state that does not consider itself to have an 'evil past' are sitting in judgment on their own history. The Decisions in Mack The unjust enrichment claim failed in Mack because the enrichment of the federal government was accomplished by validly enacted positive law that was not contrary to any norm that straightforwardly applied at the time. It is ordinarily uncontroversial, as Gumming J. notes, that a statutory provision constitutes a valid 'juristic reason' which thereby precludes a finding that the relevant enrichment was 'unjust.'10 In his view, the legislation constitutes a juristic reason unless it is unconstitutional or ultra vires. However, Gumming J. holds that s.15 of the Charter

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does not apply prior to 1985 and that at the time of the head tax legislation there was no clear international norm that was capable of overriding explicit legislation to the contrary. The result is that the head tax legislation must be counted as a juristic reason which thereby 'justifies' the enrichment of the federal government and precludes a finding of unjust enrichment. The Court of Appeal upholds the reasoning of Gumming J. on this issue. They too conclude that the heart of the unjust enrichment analysis in this case turns on the 'unjust' inquiry. So the core question is whether the head tax laws constitute a 'juristic reason.' The Court notes that the plaintiffs made the argument that the principles of international law and the provisions of the Charter were of assistance in the 'moral balancing' that is required under the analysis of juristic reason in unjust enrichment. It was clear, the plaintiffs pointed out, that private law ought to develop in accordance with the Charter. This in turn dictated that unjust enrichment ought to be construed to maximize consistency with Charter values. However, the Court of Appeal finds these submissions fatally flawed because they are not independent of the customary international and Charter arguments. Because the two claims are 'inextricably linked/ the Court of Appeal assumes they are identical. And if they are identical, then the failure of one automatically entails the failure of the other. So, on the Court of Appeal's reasoning, the 'duplicative quality' of these two arguments means that Gumming J. was correct in holding that since the legislation cannot be challenged on either constitutional or international law grounds, it must constitute a juristic reason. Thus rejection of the argument that the legislation was invalid during the time of its operation 'necessarily entails' that neither the Charter nor international law plays any role in determining the contemporary meaning of juristic reason. The 'Unjust' Factor On the face of it, this seems rather odd. One of the central problems in the law of restitution has always been how to conceive of the unjust inquiry. The extreme possibilities at both ends of the spectrum seem untenable. It is clear that the reference to injustice and the invocations of the test of 'good conscience' cannot be taken literally and so the 'unjust' inquiry cannot be read as an invitation to engage in freestanding moral reasoning. Nonetheless, the reference to 'unjust' undoubtedly points to

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an important quality of the inquiry, a quality that it shares with other 'value terms' such as reasonable, legitimate, and the like.11 Indeed, it is in the very nature of such terms that they invite attentiveness to larger more explicitly normative considerations.12 This, along with the fact that the roots of unjust enrichment lie in the common law and in equity and invoke the touchstone of 'good conscience/ militates strongly against an overly rigid or restrictive interpretation of the unjust factor. The passage that the Court of Appeal in Mack cites from Peel illustrates the inherently complex and hybrid nature of the resulting inquiry. As Madam Justice McLachlin (as she then was) puts it, the inquiry into what is 'unjust' for the purposes of unjust enrichment cannot be a simple broad determination of what is required by general conceptions of 'fairness' or some other form of 'palm tree justice.' Instead she advocates shaping the relatively indeterminate unjust inquiry by adhering to 'legal principles.' Nonetheless, the legal principles in play in the unjust inquiry ... must be sufficiently flexible to permit recovery where justice so requires having regard to the reasonable expectations of the parties in all the circumstances of the case as well as to public policy.13

The Court of Appeal in Mack cites this passage to make the point that the unjust inquiry is not simply a matter of freestanding 'moral balancing.' Yet the core of McLachlin J.'s point is that the way to solve the apparent tension between the necessary openness of the inquiry and the concomitant need to render it certain and consistent with 'accepted principle' is to draw on background legal principles to determine when restitution is required.14 What this suggests - and it is partly this that has always accounted for the complexity of the unjust inquiry - is that other legal principles and rules, not themselves directly applicable, necessarily figure in the unjust inquiry including the public policy to which McLachlin J. refers. Indeed, as discussed below, the most principled approaches to public policy have always drawn on background legal principles not themselves directly applicable to give content to the idea of fundamental legal values that provide the best understanding of the elusive idea of public policy. But this suggests that that broader legal values and principles inevitably play an important role in the unjust inquiry. The reduction of that inquiry to a matter of the applicability of binding legal rules thus seems at odds with the conventional understanding of the relation between

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the unjust factor and the principles of other areas of law as well as overarching principles of public policy. And it is just this possibility that fundamental principles and values from other areas of law might play an important role in shaping the unjust inquiry that the decisions in Mack overlook when they insist that the Charter and international law arguments either succeed in a frontal attack on the head tax legislation or fail to have any effect at all. The Influence of Charter Values These difficulties with Mack'sunderstanding of the unjust inquiry are exacerbated when we consider the significance of the plaintiffs' claim that the values of the Charter play a special role in the unjust enrichment claim. The Charter, in common with other constitutionalized human rights norms, occupies a distinct place in t e legal landscape. And that in turn entails a distinct set of demands. T ee the significance of this, it is important to pay attention to the fact that the plaintiffs in Mack made two very different Charter arguments. First, the plaintiffs argued that the head tax legislation actually violated s.15 of the Charter and that this violation gave rise to a continuing wrong that had not been redressed. The remedy for this direct Charter claim, which I will call the 'right of redress,' were it successful, would be found under 24(2) of the Charter. However, both courts rejected the argument that s.15 itself gave rise to a right of redress. They held that the Charter could not apply directly and give rise to a right of redress because it was not retroactive or retrective. I will not take up the wisdom of the decisions regarding the Charter right of redress for I want to focus on the second Charter argument in Mack. This second Charter argument arises in t e context of the unjust enrichment claim. And the role of the Charte in this claim differs in a number of important respects from its role in the right of redress claim. Most obviously, unjust enrichment is a claim in private law, not public law. So while the legislation is crucial, the basis and structure of the claim are found in private law. The private law argument therefore does not directly engage the independent validity of the legislation under the Charter. Rather, it asks a different question - can the legislation (valid or not) constitute a 'juristic reason,' a legal justification in other words, for the enrichment? Thus, the question here does not concern the Charter's impact on the validity of the legislation but rather what kinds of demands the Charter exerts on how the legislation can

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figure in unjust inquiry. The Charter thus enters the private law equation because it is clear that private law, particularly its value terms like 'unjust/ must be construed in a manner that is consistent with 'Charter values.'15 So while the structure of the claim is found in the private law cause of action, it is also shaped and constrained by the demands of the Charter. In this sense, although the two Charter arguments are undoubtedly related, they are by no means 'duplicative.' In fact, the failure to distinguish between these two Charter arguments reveals a fundamental misunderstanding about the difference between the/orce of the Charter and its effect.Elsewhere I have argued that the distinctive effect of the Charter, which I termed 'influential authority,' cannot be properly grasped within the 'traditional model' of legal reasoning that posits the exclusive salience of 'force' or so-called binding authority.16 Indeed, this model underlies the decisions in Mack. For if the argument that the Charter exerts a- kind of mandatory eff t on what a contemporary court can count as a juristic reason is redu d to an argument about the binding force of the Charter, one is left with a model which has it that the Charter either has binding force or has no effect at all. Yet it is clear that whatever power the exclusive binding sources model may have, it cannot explain the legal significance of the Charter in the contem rary Canadian legal regime. In fact, the effect of the Charter on the elaboration of private common lawvides the clearest and most doctrinally accepted illustration of the p nomenon of influential authority. Accordingly, a brief overview of how influential authority operates is crucial to understand g the significance of Mack'sapproach to the role of theCharteraothervaluesinthe unjust enrichment analysis. Influential Authority: A Brief Overview It is by now uncontroversial in Canada that although the Charter does not apply directly to private common law,17 it is centrally important to its elaboration. This is because the Charter exerts a kind of mandatory influence or 'influential authority' over the manner in which private common law rights are articulated and developed. This may seem unremarkable but it is worth noticing the specific nature of influential authority and how it takes hold in legal reasoning. The source of its distinctiveness is found in the way that influential authority conjoins 'insistence' on attentiveness to it with the fact that this demand cannot be understood in terms of binding rules. Thus, influential authority,

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although 'insistent' in a manner often associated with 'binding' sources or rules of law, is nonetheless distinguished from such rules because of the way it takes hold. Rights and obligations in private common law operate between parties - private or not - engaged in certain kinds of interactions, and these rights and obligations have their own distinctive structure.18 And although it has been and continues to be the subject of considerable debate, particularly in the post-Second World War constitutional models, the prevailing and in my view better approach is that constitutional human rights do not generally apply directly to private (common law) interactions between purely private parties.19 This position has been accepted by courts, including those in Canada, considering the relation between constitutionalized human rights norms and private or common law. So, individuals do not recover Charter damages against other individuals for violating their right to freedom of expression or their equality rights. Instead, Charter rights matter to private relations because, for instance, they may affect the appropriate scope of the private law of libel and defamation.20 Similarly, the right to equality may be relevant to determining the kinds of agreements a court might be called upon to enforce or the form of deference extended to the exercise of political choices by public authorities.21 In cases such as these, the Charter does not val ate or invalidate the relevant legal acts because it does not directly apply to them. Nor is the structure of justification under s.l applicable in any straightforward way. So in this realm, the Charter has no force. And where force and effect are equated, as they are in the Mack decisions, this lack of force disposes of the question of the Charter. Perhaps there are settings where the automatic equation of force and effect is compelling, though I suspect that closer examination will often suggest that this is more unlikely than it might seem. But whatever might hold elsewhere, this equation is not available where the Charter applies. Indeed, the absence of force and presence of effect is constitutive of the relationship between the Charter and private common law. The effect of the Charter, moreover, is of a distinctive kind. This effect is not permissive - that is, it would misstate the relation to suggest that judges elaborating private common law could look to the Charter. Instead, the effect is mandatory or insistent. Thus it is not simply that it is open to judges to look to the Charter if it seems significant or useful. The nature of the Charter-common law relation is that judges must elaborate the common law in light of the Charter. The Charter therefore does not

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grant to judges the power to look to its terms when elaborating private common law, it imposes an obligation to do so. Thus, the influential source (here, the Charter) demands attention and consideration in arriving at a decision. And this insistence is in no way diminished by the fact that it does not give rise to discrete rights and obligations. This brings up two other features of the influential authority of Charter that are relevant here. Both arise because of the way that influential authority conjoins insistence along with the fact that it cannot be conceived of in terms of a binding 'decision rule.' If the obligations that the Charter imposes on private common law adjudication do not take the form of a 'rule' dictating an outcome,22 then how do they make themselves felt at all? While the mandatory nature of influential authority distinguishes it from purely persuasive authority, persuasive and influential authority also share a feature in common - both are brought to bear on the process of reasoning or decision-making. What influential authority demands is that the influential source be respected, attended to, and considered in decision-making. To satisfy these demands, the decision-maker needs to state in the course of her reasons how she paid attention to the influential source and why she understands her decision as consistent with it. In this sense then influential authority takes hold primarily at the level of justification - a feature it shares with persuasive authority. Unlike persuasive authority, however, influential authority can demand that it be addressed and respected in a way that purely persuasive authority cannot.23 There is one more related feature of influential authority that we should note before considering its significance for Mack. Where the authority of the Charter is influential there is no argument that its provisions are violated or the rights it guarantees infringed. This accounts for a feature that courts and commentators have noted and sometimes decried as incoherent.24 It is not Charter rights that necessarily influence the shape of private and common law, it is rather its fundamental values. Thus, when the Charter exerts influential thority on the common law, what it demands is attentiveness to and respect for the core or fundamental values of the Charter. This focus on fundamental values should not be read as a weakness or limitation but rather as signalling the distinctive nature of influential authority and the fact that it takes hold primarily at the level of justification. So what the Charter insists is that the articulatiod n justification of specific rights and duties in private and common law proceed in accordance with the fundamental values of the Charter which are, after all, the supreme law of the land.

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The Charter in this sense can be conceived of as giving rise both to discrete rights and obligations within the 'force field' of its operation and as having a broader systemic effect associated with its authoritative expression of our most fundamental values. In the German system, they speak of this latter effect as 'objective' or, more poetically, as the 'radiating' quality of fundamental constitutional rights. And though what this entails in any particular situation may be complex, the animating idea is simple enough: in a system of law unified by an express overarching commitment to certain fundamental ideals, those ideals place demands and limits on how the exercise of any public power can be justified and this must include the judicial power to develop ancient common law doctrines including the doctrines of private law.25 Influential Authority in Mack Attending to the distinctive nature of the Charter's influential authority and its impact on the meaning of traditional private common law doctrines helps to illuminate the Court's misreading of the second Charter argument in Mack. Indeed, focusing on the influential authority of the Charter in Mack suggests that a court bound to read private common law in line with the fundamental values of the Charter may be obliged to refuse to count as a juristic reason a piece of legislation that is explicitly discriminatory and racist. The possibility of this kind of estoppel-like effect may seem radical but it is worth noting the continuity both with how courts in other jurisdictions have responded to the problem of 'evil law' and with what courts, including our own, have done when asked to give their imprimatur to laws or legal arrangements that violate the most basic values of the legal order. The existence of these possibilities directs our attention to a particular constellation of difficulties that may account for why Mack seems so hard: it asks us to reexamine the past, to pass on the wisdom of long-defunct laws, and laws that are - significantly - our own. The unjust enrichment gument in Mack thus presses the outer limits of the effect of Charter values on the articulation of private common law. It seems important to begin to examine the relat between Charter values and the unjust enrichment argument in Mack by noting that the courts called upon to treat the head tax legislation as a juristic reason themselves describe that legislation as contrary to our most cherished legal values. Gumming J.'s closing remarks are especially instructive. As he points out, the acts that imposed the head tax were

390 ayo Moran patently discriminatory against persons of Chinese origin. By contemporary Canadian morals and values, these pieces of legislation were both repugnant and reprehensible. The Chinese Immigration Act, 1885, and its successors have come to symbolize a period scarred by racial intolerance and prejudice.26

When viewed in light of the demands that the influential authorit of the Charter places on the articulation of private common law, it is telling that Cumming J. characterizes the legislation as violative of our most fundamental values. In fact, Cumming J. explicitly engages the values of the Charter when he notes the 'discriminatory' character of the legislation - discrimination which not only is now explicitly ruled out by s.15 of the Charter but also undercuts the commitment to equal human dignity that is at the heart of the entire Charter order. Similarly the judgment of the Ontario Court of Appeal begins with the statement that 'Canada's treatment of people of Chinese origin who sought to immigrate to this country between 1885 and 1947 represents one of the more notable stains on our minority rights tapestry.'27 And the Court returns to this at the end of the judgment, stating 'We say that again.'28 So if there is one matter on which there is no ambiguity, it is the recognition by the very courts called upon to pronounce on whether the legislation is juristic reason that that legislation was not only profoundly wrong but also runs directly contrary to the values of the Charter. Bringing the courts' own description of the legislation together with the fact of their positive duty to develop private common law in accordance with the fundamental values of the Charter helps to account for the difficulty of Mack. It also suggests that the judicial insistence that the two Charter arguments are 'duplicative' effectively counts out thost challenging and ultimately most central question in the case. T core dilemma for the courts is surely found in the legal tension at the heart of the case: while a facially valid positive law will ordinarily be a relatively uncontroversial justification for an enrichment, a court bound to construe private common law to render it consistent with the fundamental values of the Charter will of course have difficulty counting a profoundly discriminatory piece of legislation as a legal justification. Resolution of the tension between private or common law doctrines and the influential authority of the Charter typically takes the form of a requirement that courts maximize consistency with fundamental legal values, especially authoritative Charter values.29 So courts are obliged to make 'C/zarter-positive' choices in whatever room to manoeuvre that

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private common law, for instance, gives them. This means that the openness of private common law, especially but not exclusively in its explicit invocation of 'value terms' like reasonable, legitimate, and unjust, should always be construed to give maximum effect to the values of constitutional human rights.30 Thus in a case like Mack, the influential authority of the Charter means that courts are under a constitutional duty to give effect to the values of the Charter in construing such terms if at all possible. If the courts truly are bound in the way that they suggest to give effect to the fundamental values of the Charter in filling out the meaning of 'value concepts' in private law such as 'unjust/ then how ought they to treat a piece of legislation that they themselves describe as racist, discriminatory, and contrary to our most fundamental legal values? There is no understanding of the relation of public and private law that will make this an easy question. However, by equating the direct application argument of the Charter with the argument that the Charter exerted influential authority on the private law of unjust enrichment, the courts in Mack avoided this question almost entirely. Since the Charter lacked the force to render the head tax legislation unconstitur tional, on their view it also lacked any effect over what they could count as a juristic reason. Let us consider two reasons why the Mack courts did not consider the influential authority of the Charter more seriously: first, they may have felt that the Charter could not exert influential authority because of 'the problem of the past,' and second, they may have felt that the 'problem of the sovereign' precluded reliance on influential authority. Exploring these difficulties will help to illustrate both the inherent challenges and the special importance o attending to the influential authority of the Charter in a case like Mac The Problem of the Past The 'problem of the past' may seem to account for why the courts in Mack did not take the Charter'sinfluential authority more seriously. The issue of how to view the past is undoubtedlyong the central legal, political, and moral difficulties of all such reparations cases. However, it seems unlikely that the fact of the past alone can account for the unwillingness to recognize the influential authority of the Charter in the decisions in Mack. In order to see why, let us contrast Mack with another case that involved applying the influential authority of the Charter to the past - Canada Trust Co. v. Ontario Human Rights Commission.31

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In that case, post-Charter Ontario courts had to consider the contemporary validity of the 'Leonard Foundation Trust/ an explicitly racist charitable trust established in 1923. The trust, which provided educational scholarships, excluded from its benefit a number of different groups, including 'all who are not Christians of the White Race.' The trust was valid according to all of the standard requirements of the law of charitable trusts and had been in operation for many decades. However, concern about the terms of the trust became more and more widespread and eventually a complaint was filed under the Ontario Human Rights Code. The trustee then applied to the court for advice and direction. The primary question was whether the terms of the trust violated public policy. It seemed clear that when the trust property vested in the trustee in 1923, the terms 'would have been held to be certain, valid and not contrary to any public policy.'32 At trial, McKeown J. noted that there was no positive defect with the trust at the time of its formation. Thus, he held that the settlor was within his rights to dispose of his assets as he wished, however invidious those wishes may have been. However, the Ontario Court of Appeal unanimously rejected this approach and instead held that at least when a court is called upon to pronounce upon the validity of a trust, a settlor's freedom to dispose of property is limited by 'current principles of public policy under which all races and religions are to be treated on a footing of equality.'33 The Court of Appeal is thus explicit that it is not applying the public policy of the time when the trust was created, for according to that public policy the trust would be valid. Instead it applies contemporary norms to an act which gained its legal significance in 1923, ironically, the very year that the head tax was abolished in favour of legislation that effectively precluded Chinese immigration to Canada. And in common wit the plaintiff's unjust enrichment argument in Mack, the Court of Appea in Canada Trust looks to con mporary rights-protecting documents incl ding the Charter to fill ou its conception of public policy. The judgment of Justice Tarnopolsky is particularly illu nating for its attentiveness to the sources of public policy. Public policy, in his view, 'is not determined by reference to only one statute or even one province, but is gleaned from a number of sources, including provincial and federal statutes, official declarations of government policy and the Constitution.'34 Thus, he draws not only on the Human Rights Code but also on various other pieces of legislation, policies, and the like. Unsurprisingly, in grounding a public policy against discrimination he

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gives explicit recognition to the provisions of the Charter that guarantee equality rights and multiculturalism. He also links these guarantees to a number of international instruments and sources, particularly noting those which Canada ratified.35 It is possible to discern the contours of the Charter's influential authority in much of Justice Tarnopolsky's method of giving content to 'public policy.' This is because it is clear that Justice Tarnopolsky is not simply giving effect to broad policy concerns - what the Supreme Court in Burns termed 'general public policy.'36 Rather by invoking the background influential and persuasive authority of a variety of legal sources, he articulates a specifically juridical conception of public policy that is an expression of basic legal principles and values. A further congruence with influential authority is found in the way that he views the relevance of these sources. That his concern is not with their discrete provisions and regimes is evident when he states, 'It would be nonsensical to pursue every one of these domestic and international instruments to see whether the public policy invalidity is restricted to any particular activity or service.'37 Instead, it is the general commitments or values, especially regarding equality, that he draws from these sources. And as in more recent cases that explicitly address the Qzflrfer-private common law relation, the judgment of Tarnopolsky J. in Canada Trust notes the analogical role of equality analysis under the Charter and human rights codes in fleshing out the meaning of that principle in the context of determining what kinds of trusts might violate public policy. Although it is certainly not on all fours with Mack, Canada Trust does illustrate that the influential authority of the Charter can indeed extend to acts that long pre-date the coming into force of the Charter. The resultant duty to respect the fundamental values of the legal system is expressed in terms of public policy. And that policy is that of the contempor y court, not of the settlor's time. So through the vehicle of this juridi l policy, the influential authority of the Charter comes to exert itself on long-established charitable trusts. The consequence in Canada Trust itself is that the values of the contemporary court, most authoritatively expressed in the Charter, are the court's justification for refusing to enforce the racially repugnant restrictions of a trust set up in 1923. So even though the trust itself was governed by the private law of charitable trusts and even though that trust was valid at the time that the property vested, decades before the Charter, the Ontario Court of Appeal gave effect to the influential authority of the Charter Canada Trust thus illustrates that the influence of the Charter can

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indeed extend back into the past, to a time long before the Charter c me into effect. And the fact that this seems odd when viewed from the perspective of the settlor of the trust actually points us toward the underlying implication of influential authority's hold over the st influential authority operates at the level of the norms of the adjudicating court. Though this is implicit in the fact that such authority operates at the level of justification, and that it is so often expressed in terms of public policy, Canada Trust makes us more keenly aware of it. At bottom the Court is not asking whether what the settlor did was invalid at the time that he created the trust. The inquiry is not primarily directed to what would have been possible at the time, or to what a settlor on his own could do then or now. At bottom Canada Trust seems to concern what a court acting judicially and bound to fundamental legal values can recognize. Perhaps a settlor in 1923 would be within his powers in the creation of a white supremacist trust, but a court bound by a constitutional regime that gives pride of place to equality cannot be called upon to enforce or give legal significance to those elements of the trust that contravene fundamental legal values. Perhaps there was no clear legal norm that could have been called upon to invalidate the trust at the time; yet a court situated in a legal order premised on equality cannot discharge its role in that legal order and enforce terms that violate one of the law's most basic values. The fact that influential authority operates at the level of the norms of the court helps to account for its ability to reach into the past. The court faced with a question like that in Canada Trust is forced to ask not just about what was open to the settlor but also about the range of responses open to the court. And the answer to this question is inevitably shaped by th obligation that the Charter imposes on such a court to act consistently ith those basic values of the legal order. Canada Trust also illuminates another feature of influential authority - what we might think of as its outer limit. And it is this outer limit that arguably makes Mack so hard. As noted above, the influential authority of the Charter will typically require a court to choose the 'Charterpositive' precedent or inter etation of a value term over the available alternatives. However, at times a court may be confronted with a demand to give legal effect to an act that runs contrary to theharter's most basic values. And in such a case, whatever the rang ctions, reasons, and motivations that may be - or have been - o n to legal actors and whatever freedom they may possess acting on their own, Canada Trust calls our attention to the difference that it makes when the

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court is engaged. For a court, especially in an egalitarian constitutional regime, is constrained in ways that are uniquely linked to the meaning of law in such a regime. The influential authority of the Charter is the authoritative and doctrinal expression of this demand of all law. And whatever else may be done or have been done by others, a court may have to decline to give legal significance to claims that contravene law's most basic values, among which equality is perhaps the most prominent. Canada Trust thus directs our attention to the fact that although the influential authority of the Charter typically assumes the kind of interpretive significance described above, at its outer limit it possesses this estoppel-like quality.38 And it is this quality that, in a case like Canada Trust, effectively precludes the court from giving effect to acts, arguments, and reasons that contravene fundamental legal alues, such as those contained in the Charter. Although this estoppel-like feature of the Charter's influential authority is in some sense novel, it has very important conceptual and genealogical links to a venerable judicial tradition often associated with the invocation of public policy. However, this ancient jurisdiction is significantly fortified and its apparently tenuous foundation strengthened when a legal regime chooses to entrench fundamental human rights including the right to equality or non-discrimination. It thus does not seem accidental that Canada Trust uses public policy to give expression to the influential authority of the Charter. And although I shall not detail the matter here, a like idea of 'juridical' policy has long played a similar estoppel-like role, effectively refusing to countenance as legal those reasons and justifications that cut against the very foundation of the legal order. In Canada, this can be seen in cases like Drummond Wren, which struck down a racially restrictive covenant on public policy grounds. In fact, the explicit link to constitutional human rights ideals is evident in Drummond Wren where the court argues that it is the very ability of judges to invoke public policy in such cases that obviates the need for the kind of constitutional protections of human rights that prevail elsewhere.39 Similarly, it does not seem accidental that the United States Supreme Court approached a similar situation by invoking the idea that the Constitution precluded judicial enforcement of agreements that violated fundamental constitutional guarantees.40 Understandably, there is and should be considerable debate about the exact nature and scope of this estoppel-like quality that the values of fundamental human rights might exert on what a court can countenance. But the essential point here is simply that there is a long tradition

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behind the idea that the fundamental values of the constitutional and legal order impose some limits on what courts can treat as valid legal reasons and acts. And this venerable idea is effectively given new force and legitimacy in an order with a written bill of rights that is acknowledged to have a 'radiating' effect throughout the legal order. Bringing this back to the influential authority of the Charter reveals how the Charter itself can exercise a similar estoppel-like effect on the meaning of private common law, even though it does not explicitly apply. And, as we have seen in Canada Trust, because this effect attaches to what an adjudicating court can countenance, it is no response that the act may have taken place at a time when the Charter was not in force. Instead, when a court is faced with a contradiction of its o fundamental values, particularly the values of constitutionalizedan h rights, as Canada Trust illustrates, the fact of the past alone will not be sufficient to preclude the ordinary operation of the influential authority of the Charter on private common law. This effect may even go so far as to 'estop' a court, as in Canada Trust, from giving contemporary legal significance to an act that violates that court's most fundamental values. The Problem of Acts of the Sovereign Influential authority can thus be understood as part of a larger picture of the judicial role and the extent to which constitutional commitments to equality in particular might place certain demands and limits on that role. And as Canada Trust illustrates, influential authority also encompasses the possibility of an estoppel-like effect where a court would otherwise have to issue a decision that would run contrary to its own fundamental values. But we do not yet have an account of why the Mack courts, especially given their view of the legislation, were so reluctant to recognize the Charter's influential authority. As we have seen, the past alone seems unlikely to explain this reluctance. There is, however, one other obvious explanation for the hesitation of the courts in Mack. Perhaps it is because the purported justification in Mack is in legislative form. Thus, the fact that cases like Canada Trust, Shelley v. Kramer, and DeKlerk involved private action may have made it easier to acknowledge the influence of constitutional norms precisely because there could never be a question of actual constitutional validity. So where the act is 'doubly' outside of direct Charter effect, as in Canada Trust where it is both past and private, it may actually be less troubling for the courts to extend the influence of the Charter, even out to its estoppel-like boundary.

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It is possible to see the logic in this: so long as the action is private in nature and the Charter does not apply directly, concerns about the nonretroactivity of the Charter are not implicated. So outside of the force field of direct application, the preservation of the non-retroactivity of the Charter seems relatively unproblematic and thus the influence of the Charter is given full play. However, when official action is at issue and along with it at least the possibility of direct Charter application, it may seem that the simplest way to avoid undermining the principle of nonretroactivity is to refuse to allow the Charter to exert any influence over our judgments about the pre-Charter acts of the state. But even allowing the force of the non-retroactivity concern, this solution seems paradoxical. In part this is because past state acts are 'immunized' from the demand for consistency with Charter values precisely because the Charter applies directly to the state's present-day acts. But it surely grants the non-retroactivity concern too much if it ends up ensuring that public officials and bodies - the very entities for whom the salience of the Charter is indubitably greatest - actually turn out to have greater protection from the influence of Charter values outside the field of direct application than do private actors. It would also seem paradoxical if enacting the Charter effectively gave past state action even greater protection from legal scrutiny than it had before the Charter came into effect.41 Even beyond these conceptual problems, the implications of such a stance would also be very significant. The problem of legalized historic injustice is central not only to Mack but also to many reparations claims and other claims of historic injustice. The very fact that the relevant injustice was often widespread or systemic means that it was extremely common. But more usually it was also legislated and enshrined in law in various ways. Examples are sadly easy to identify: the various decrees of the Nazi era including infamous Decree 11 which stripped Jews of their citizenship, the extensive legal apparatus of slavery and its aftermath in the United States, the residential schools policy in Canada, and the legalization of apartheid in South Africa are but a few examples. If the approach taken by the courts in Mack is correct, then the legalization of injustice - often thought by lawyers and philosophers least to be the ultimate ty nny of systems like those of the Americ South, th Nazis, and apartheid South Africa - effectively means that law provi es the definitive refuge for historic injustice. In fact sensitivity to this danger is apparent in the fact that the 'valid positive law' argument that seemed to so beguile the courts in Mack has not always been considered so compelling in cases involving extremely

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discriminatory laws. Indeed, German cases involving Decree 11 and the like and the closely related House of Lords decisions in Oppenheimer suggest that the deference to 'valid positive law' of the kind that we see in Mack is by no means absolute.42 The Decree 11 cases confronted judges in the post-Nazi era who had to consider various kinds of laims related to inheritance, taxation, and the like that found their source in the infamous Nazi Decree 11. That Decree, which stripped German Jewish emigres of their citizenship and hence their proprietary rights including the right to inherit, invidious though it was, was also acknowledged to be validly enacted positive law. It was never found unconstitutional and did not contravene any clear prevailing norm extant at the time of its operation. Nonetheless, when faced with the prospect of giving legal effect to that Decree, both post-Nazi German courts and the English House of Lords refused to do so on the ground that its provisions 'contradict the fundamental principles of justice in such an evident manner that the judge applying or acknowledging their legal consequences would administer injustice instead of law.'43 Relying on this reasoning, judges in these and related cases such as those involving the East German border guards suggest the limits of the 'valid positive law' argument.44 Like Canada Trust and the other private discrimination cases discussed above, these Decree 11 cases also seem best understood as implicating some principled limitations - understood in terms of fundamental legal values - on what a court can give effect to. They confirm the propriety of an estoppel-like response to a contradiction between the act that is claimed to have legal significance and the fundamental values of the court. And they also illustrate that this effect is not displaced simply because the claimed legal act takes the form of legislation. So this suggests that neither the fact of the past nor the fact that the discrimination is contained in validly enacted positive law will necessarily preclude courts from refusing to give effect to legal acts that profoundly violate the basic values and principles of the legal order. There is, of course, one more possibility. Perhaps the estoppel-like effect is not open to a court when it is the legislation of the court's own jurisdiction that violates that court's fundamental values. That is, contemporary courts that are estopped from giving legal effect to private discrimination even when it occurred long ago and from giving legal effect to foreign laws that violate the fundamental values of our legal order as enunciated in the Charter must nonetheless give effect to our own past laws that similarly violate the court's and our fundamental

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values. If the discriminatory act is private, a court will not enforce it; if the law of another state is profoundly discriminatory, the court will not enforce it; but if it is a law that we ourselves promulgated at some time in the past, the court must give effect to it no matter how profoundly it contradicts our fundamental values. The sovereignty of our ow past thus looks uniquely and somewhat surprisingly inviolable. It would seem odd, however, if our constitutionalization of nonretrospective norms of equality were to debilitate our courts from exercising the kind of critical scrutiny of our own past political choices that we exercise when the past discrimination is private and even, perhaps, when the laws are those of elsewhere. There is of course a worry in the background here about our unwillingness to examine our own past in the way that we might examine - and encourage examination of - that of others. But let us for the moment focus on a more principled version of why the courts might be worried about this. In the discussion of the difference between public and private discrimination we noted how the fact that past private discrimination is 'doubly' outside of direct Charter application may have made it easier to recognize the force of the Charter's influence without calling into question the doctrine of non-retroactivity. If we think of courts refusing to give full (or any) legal effect to the laws of another state, we can see an analogous phenomenon. That is, just as the privacy of the activity precludes direct applicability, so too does the fact that the legislation in question is the legislation of another state. In the absence of any direct applicability argument, one finds a nicely streamlined question about whether to give judicial effect to such acts or not. But where there is even a possibility of direct application of the Charter, the shrinking distance between direct application and influential effect gives rise to an understandable anxiety about preserving the difference between the full retroactivity of direct application and influential authority. This suggests, however, that paying closer attention to how we approach to the acts of other states may enable us to respond in a more principled way toown official past. The Past Is Another Country This suggests that the most difficult problem of the past revolvesnd how we ought to resolve profound contradictions between our own fundamental values and our legal past. Ironically, we generally embrace the idea that coming to terms with the past is one of the central moral tasks of regimes with evil pasts. But perhaps to preserve the

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sense of our historical superiority, we avoid this imperative ourselves. And yet our anxiety not to entirely reopen our own legal past leaves us prey to the charge of hypocrisy. It thus seems important to find a way to avoid the most troubling kind of deference to the past without entirely opening it up to legal scrutiny. Some of our hesitation about judging our own past comes from the sense that the past looks, from here, to be foreign and often incomprehensible terrain. Like foreign terrain, our own past is a world we may strive to understand but can never fully inhabit. There, we will always somehow live as strangers. Our awareness of the way that this distance inevitably limits our comprehension of the past also makes us rightly humble about our capacity for judgment. The moral distance of the past and its consequent inacces ility to us in the full sense parallels in this way the more generaoblem l of judging the 'other.' The limits to our understandin of the past also inspire a kind of respect and restraint, even humility, that may not make itself felt in the same way when we judge the 'here and now.' And so, although one need not entirely equate the past and the foreign, it is possible to glean some insight from thinking about our own past as 'another country.' This analogy suggests that we may find some illumination in thinking about how to approach our own legal past by examining how courts approach the problem of when to give effect to the laws of other countries, to 'foreign law.' Courts in these cases are explicitly concerned, not with the validity of the foreign law (which is generally acknowledged), but rather with the extent to which they can give effect t he relevant law. Thus, the mandatory influence of the court's ow f damental values can be felt as courts negotiate the tension between respect for those values and treating foreign laws with the deference they seem to require. Let us exa ine more closely how cour attempt to recognize both the limitations at moral distance places on the ability to judge across geographical distance and the concomitant moral and legal fact that it is ultimately the task of contemporary judges to decide what can have legal effect in their courts and justify those decisions. As we shall see, the courts that seem so timorous about judgment in the face of the distance of history may have something to learn from the judicial encounter with the distance of place. The distance of place, the legal significance of another country, figures prominently in adjudication when courts are faced with questions about whether and to what extent they ought to give ffect to foreign laws. The salience of 'distance' is apparent in the fact that differences between the law of the court and the foreign law, far from justifying

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non-application by the court, actually give rise to the need for deference. As the House of Lords recently put it, 'the existence of differences is the very reason why it may be appropriate for the forum court to have recourse to the foreign law.'45 Thus, in its simplest form, the principle of comity requires a kind of deference to the judgments of the other. It is in the very nature of this deference that it requires courts to give legal effect to foreign law that their own jurisdictions may well view as ill advised, even erroneous. But that deference is inherently reasoned, not automatic, for its exercise must ultimately be consistent with the court's understanding of what it is that it will enforce.46 Thus, it is central to this idea of reasoned deference that 'blind adherence to foreign law can never be required of an English court.'47 Instead, 'Exceptionally and rarely, a provision of foreign law will be disregarded when it would lead to a result wholly alien to fundamental requirements of justice as administered by an English court/48 So in the case of foreign law, while the underlying principle of comity generally requires a judge to 'defer' and give effect to foreign law, that deference is inherently limited at least by the fact that a court cannot give effect to laws that profoundly violate its own core legal values. Decades ago, Justice Cardozo pointed out that courts will refuse to recognize a foreign law that violates 'some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.'49 Similarly, in Kuwait Airways the House of Lords explains its own earlier decision in Oppenheimer v. Cattermole on th asis that the courts must possess a residual power to 'disregard a pro sion of foreign law when to do otherwise would affront basic principles of justice and fairness which the courts seek to apply in the administration of justice in this country.'50 As with the approach to domestic legal problems discussed above, inconsistency with fundamental values is typically expressed in the language of public policy that we find in cases like Canada Trust. And here as there foundational inconsistency has the estoppel-like consequence that the relevant legal act must be denied its claimed effect. The consequence is that here too an estoppel-like effect precludes a court from recognizing or giving legal effect to foreign laws that violate the fundamental values of the court itself. These limits on the recognition of foreign law parallel in important ways our earlier discussion of Canada Trust and other examples of influential authority. The underlying view in all of these situations does not see courts as simple neutral enforcers or appliers of values gleaned

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elsewhere. Instead, the values of the court itself, including prominently the fundamental values of the legal order as most authoritatively expressed in the Charter, are inevitably engaged. This is so even if much of the time it may not be visible because through 'Charter-positive' interpretive choices courts seamlessly ensure general consistency with their own values. And in the foreign law cases, as in Canada Trust, the insistence on the 'contemporary' nature of public policy serves as a reminder that it implicates the values of the court asked to give effect to the relevant act.51 Thus, cases such as Oppenheimer and the post-Nazi Decree 11 cases also illustrate this dynamic. Although bound by the principle of comity to respect the other and to acknowledge the limitations of their own capacity for judgment, courts in those cases nonetheless recognize that it would be inconsistent with their role to give automatic deference to the legislation of other regimes In ad, as the House of Lords suggests, it is implicit in the j icial le at a court must decline to give 'effect' to foreign law that v lates that court's own fundamental values. 'Blind adherence/ on this view, is no part of the judicial role. Thus the foreign law cases can be read with cases like Canada Trust to suggest both the outer limit of influential authority and the continuity of that limit with the more general ju ial imperative to give expression to and act in accordance with the fundamental values of the legal order. This also suggests that the t atment of 'evil law' in the recognition of foreign judgments may prov e an analogy for thinking more systematically about our own past. It is crucial to the form of deference extended by the courts in the foreign law cases that it is their deference. This is why the relevant norms are those of the time (contemporary) and the place of decision-making. And since this deference is a kind of reasoned or principled respect for some 'other,' the reasons for respect must ultimately be ours, not theirs. So the adjudicating court must give its own reasons to accord respect to the decision of another, even though that decision may be one the court considers unwise - a decision that we would not ourselves have made. Importantly, however, our reason is not theirs. This means, first that our reason need notndprobe ably sho no rest on the wisdom of the relevt l . Bit also means th since it must be a reason for us,it will not be ough to restate the reason that prevailed for them. This difference may well often be obscured because reasons will often equally hold for us and for them. But where there is a divergence, our courts must give their own reasons to accord respect to the relevant acts. To simply say it was their

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decision will not be a sufficient reason for us - that would amount to the 'blind adherence' that courts in recognition of foreign judgments cases describe as inconsistent with their role. And because the reasons for respect must ultimately be reasons why we should accord respect to decisions we may disagree with, those reasons must engage the fundamental values of the legal order asked to accord that respect. We must be able to articulate reasons to respect those decisions that invoke the basic values of our legal order and are, at a minimum, not inconsistent with any such values. Viewed in this way, we might pose the question of our legal past as presented in Mack somewhat differently: why should our contemporary courts respect the decisions of our past legislatures? Ordinarily of course there are reasons of institutional legitimacy grounded in democracy for courts to respect the acts of the legislature. Although the judgments in Mack resist the idea that they need to give a reason to respect the head tax legislation and instead prefer the 'blind adherence' model, they actually do seem feel the need to give some kind of a reason. It is thus illuminating to reexamine the response of the Court of Appeal in Mack to the analogy between their task and that of the courts that had to determine what contemporary legal effect should be given to the Nazi regime's Decree 11. The Court of Appeal closes with a statement that even the broad doctrine of equity does not allow a contemporary court to remedy the consequences of 'laws enacted by a democratic government that were valid at that time/ an t th end of this statement they place a footnote. That footnote, effect ely the Court's last word in the case, reads as follows: 'We are not here concerned with facially valid laws nacted by a totalitarian or other despotic regime/52 So, unsu isingly, in response to the pressure - felt though not acknowledged - to give its own reason for deference, the Court gestures towards a contemporary democratic reason for deferring to the legislature of the past. The Court of Appeal, thoug strikingly timorous about this democratic justification, and rightly so. In fact it is extremely difficult to rely on democracy to justify deference to the legislatures that enacted the head tax legislation. Both federal and provincial legislatures restricted the right to vote on racial grounds, disenfranchising citizens of Chinese origin until decades after the head tax legislation was repealed.53 Recalling the analogy to another country, we should ask ourselves whether we would accord apartheid era laws in South Africa respect on democratic grounds because the franchise existed for whites. If not,n we

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ought to question why in Mack a similarly limited form of democracy justifies respect for a legislature's treatment of those it explicitly excludes. In fact cases like Mack, like the residential schools cases, like the legal treatment of the mentally disabled, in this way raise profound reasons to doubt the adequacy of the democratic justification for the relevant laws. In all of these cases and many others, the legislation we now recognize as profoundly dehumanizing was passed by political bodies that explicitly excluded the 'subject' groups from political participation. This 'democratic deficit' thus seems to fatally undermine any attempt to argue for respect on democratic grounds. That s.15 specifically advises courts to be on the lookout for discriminatory treatment of the very groups at issue in so many of the laws and political exclusions only adds to the untenability of the democratic justification for deference. This does not mean of course that every legislative decision from an imperfectly constructed political body will be deemed unworthy of respect on this view. It may well be that in matters of general welfare the legis tures were often sufficiently representative to be worthy of our cont porary respect. Thus, many decisions that would now count as unconstitutional may well have been made on a sufficiently inclusive basis for the purpose of those decisions that we could say there exists a democratic justification for extending our contemporary respect to them despite their inconsistency with contemporary constitutional values. But this justification does not seem plausible in cases where decisions concerning a particular group are made by political bodies that explicitly exclude the political participation of he very group that is specifically disadvantaged by the relevant decision. When such a legislature enacts a law to the profound disadvantage of the very groups it has excluded, a contemporary court bound to respect the fundamental value of equality should have great difficulty giving any legal significance to a law whose main message is the denial of full personhood to those it has excluded. The analogy to the recognition of foreign laws also highlights a somewhat para xical possibility. Do we really mean to invoke the nonretroactivit equirement of the Charter to immunize our own past laws fromnsistency with its fundamental values, even though we demand such c sistency from foreign laws, past or present? Indeed, something like this worry may be behind the limit that the South African Constitutional Court places on the non-retroactivity of their constitutional guarantees. Thus, while the Court in Du Plessis v. De Klerk holds that the

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operation of the Constitution is not retroactive or retrospective, it also explicitly provides for just the kind of 'exception' that would respond to the concern above: But we leave open the possibility that there may be cases where the enforcement of previously acquired rights would in the light of our present constitutional values be so grossly unjust and abhorrent that it could not be countenanced, whether as being contrary to public policy or on some other basis ...54

It does not seem accidental that the nature of this exception seems to draw on something very like the influential authority of constitutional human rights. The Court thus recognizes that implicit in a system committed to overarching constitutional values is the idea of some principled limits - significantly phrased in terms of basic constitutional values - on what a court can countenance and enforce. Here too the Court allows that this may entail the estoppel-like consequence that previously acquired rights could not be enforced. And public policy is invoked to justify the idea that the court will refuse to enforce claims that violate the basic values of the contemporary constitutional order. De Klerk thus suggests that this approach is compatible with the general non-retroactivity of constitutional guarantees. And this seems plausible, for it is simply another expression of the familiar idea that the fundamental values of the adjudicating court inevitably impose some principled limitations on what that court can implicate itself in. This way of thinking about our own past laws only seems strengthened by recognizing that, if there is anything to the analogy to comity, it surely suggests that the reasons for deference to the laws of another tate are more pressing than the reasons for deference to our own past aws. While we may legitimately worry about embarrassing another state, the underlying basis of the claim to deference to our own collective past is not so clear. Indeed, the analogy to another country may lead us to ask ourselves what exactly the reason for such uncritical respect might be. We cannot 'embarrass' our past; significantly perhaps, the only embarrassment may well be ours. And if so, then we may well worry that when we uncritically defer to our past, we are resisting the kind of accounting for our own past wrongs that we advocate for regimes that have explicitly acknowledged their racist past.

406 Mayo Moran Conclusion Canada is a constitutional order that places primacy on equality and that expresses that primacy in legal form both domestically and internationally. And this fact cannot be without significance when our courts are charged with evaluating our legal past. Regardless of the status of the head tax legislation during the period of its tenure, it is not open to a contemporary Canadian court to give it current legal significance in a constitutional order committed to the radiating value of equality. Such a court can no more 'blindly adhere' to the political choices of our past legislatures than it can so adhere to the choices of foreign legislatures or of individuals. The hardest question in Mack and many other reparations cases thus seems to engage our attitude to our own past. Why would we, judging in our own cause so to speak, be so deferential to our own past 'sovereigns' even when we acknowledge that the acts they proclaimed in our collective name were profoundly wrong and invidious? Indeed, respect for our collective polity may be better expressed by frankly acknowledging now where we went terribly wrong. Our law - a formidable weapon in our past wrongdoing should no longer serve as a shield to protect the unassailable sovereignty of the past, but rather as a means of rectifying now what we did so terribly wrong then. Periods in our history like that implicated in the Mack case are generally recognized as moments not only of collective political failure but also of the failure of law in particular. But this suggests that part of the task here, as in other cases of 'transitional justice/ is to ask how law can best reassert the possibility of its moral meaning. Though the temptation to do so may be strong, it seems unlikely that this will be accomplished by ignoring law's contemporary imperatives and deferring to the sovereignty of our racist past. Reasserting the primacy of law's own fundamental values and its substantive, now constitutionalized, commitment to equal human dignity thus seems more promising as a path towards the law's reconciliation with its own ignominious past. NOTES 1 I discuss this phenomenon and what it reveals about the mise and the limits of private law in responding to the reparations challenge in The Moral Imagination of Private Law' (draft manuscript on file with the author).

Time, Place, and Values 407 2 See for instance Alfred L. Brophy, 'Some Conceptual and Legal Problems in Reparations for Slavery' 58 N.Y.U. Annual Survey of American Law 497 (2003). 3 [2001] O.J. No. 2794. 4 The Chinese Immigration Act, referred to as the Chinese Exclusion Act, which came into effect in 1923, was repealed in 1947: Immigration Act, R.S. 1947, c.19, s.4. 5 See [2001] O.J. No. 2794, and the Supreme Court decision at [2002] S.C.C.A. No. 476. 6 See Brophy, supra note 2 at 501-5; Eric A. Posner and Adrian Vermeule, 'Reparations for Slavery and Other Historical Injustices' 103 Columbia L. Rev. 689 (2003). 7 These questions are considered i etail in the New Zealand/Maori context by Jeremy Waldron, 'Redres g Historic Injustice' (2002) 52 U.T.L.J. 135 at 143ff. 8 See for example the dismissed complaint of the so-called comfort women, Hwang v. Japan, 172 F. Supp. 2d 52,55 n.l (D.D.C. 2001), and a case of an American citizen seeking damages for injuries sustained and slave labour performed when held in Nazi concentration camps, Princz v. Federal Republic of Germany, 26 F.3d 1166,307 U.S. App. D.C. 102. 9 This is not true of the slavery cases because American courts still extend significant immunities to the domestic sovereign as well. So eign immunity is a primary procedural obstacle to reparations for slavery that implicate the government: Cato v. U.S. 70 F.3d 1103 (9th Cir. 1995). Thus, most of the recent claims and the strategies surrounding other possible reparations claims for the harms of slavery are focused on private defendants who cannot invoke the protection of sovereign immunity: In re African-American Slave Descendants Litigation, 231 F.Supp.2d 1357; Deadria Farmer-Paellmann v. FleetBoston Financial Corp., et ai, C.A. No. 1:02-1862; Andre Carrington v. FleetBoston Financial Corp., et al., C.A. No. 1:02-1863; Mary Lacey Madison v. FleetBoston Financial Corp., et al., C.A. No. 1:02-1864; Richard E. Barber, Sr. v. New York Life Insurance Co., et al, C.A. No. 2:02-2084; Willie E. Gary, et al., 'Making the Case for Racial Reparations,' Harper's Magazine, Nov. 2000 at 37-51; Brophy, supra note 2 at 514-17. 10 Mack v. Canada, supra note 5 at para 46. 11 I borrow the reference to 'value term' from President Barak of the Supreme Court of Israel, who uses it in his discussion of the interaction constitutional human rights and private law: A. Barak, 'Constitutiona Human Rights and Private Law' (1996) 3 Rev. Constit. Studies 218 at 236-7. 12 Ibid.; M. Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruc-

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tion of the Objective Standard(Oxford: Oxford University Press, 2003) at 283-6 (discussing the meaning of reasonableness). Mack v. Canada (2002), 60 O.K. (3d) 737 (C.A.) para. 51 citing Peel (Regional Municipality) v. Ontario [1992] 3 SCR 762 at 802Ibid. Factum of the Appellants, para. 78. M. Moran, 'Authority, Influence, and Persuasion: Baker, Charter Values and the Puzzle of Method/ in D. Dyzenhaus, ed. The Unity of Public Law (Oxford: Hart Publishing, 2003). I refer to 'private common law/ since the cause of action in unjust enrichment is both private in the sense that it is the source of private obligation and also finds its source in cmon law and equity. Although in the text at times I shorten the phrase 'private law' or to 'common law/ it is worth pointing out that the Charter does not apply directly to common law itself or generall private relations unless there is legislation that governs those relatio . As both private and common law, unjust enrichment, like other private law causes of action, is doubly outside the direct application of the Charter. Although I focus on Canada and the Charter here, this understanding of the relation of constitutionalized human rights norms to private and common law is more broadly characteristic at least of post-Second World War constitutional regimes: L. Weinrib and E. Weinrib, 'Constitutional Values and Private Law in Canada/ in Daniel Friedmann and Daphne Barak-Erez, eds. Human Rights in Private Law (Oxford: Hart Publishing 2001), 43; Barak, supra note 11; Murray Hunt, 'The Horizontal Effect of the Human Rights Act' (1998) Public Law 423-43; R. Buxton, 'The Human Rights Act and Private Law' (2000) 116 L.Q.R. 48. For some important understandings of that structure see, for instance, E. Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard University Press, 1995) and A. Brudner, The Unity of the Common Law (Berkeley: University of California Press, 1995). Indeed, it seems plausible that at least some of the differences between the various possibilities in this debate are not as significant as they seem. This is because even assuming, as I do, that in their nature constitutional bills of rights are not directed exclusively to state actors, nonetheless, the very nature of many of the rights is such that it makes little nse to think of them outside of the state-individual interaction. The ny rights directed to the nature of the criminal procedure seem obvious ex ples. Further, the differences between the various views are also somewhat blunted by the fact that at some point even the most confined understandings of the effect of constitutional guarantees are pressed to admit some limits on

Time, Place, and Values 409

20

21

22

23

24

25

26 27 28

29 30

31

what a court can be called upon to enforce, however unremittingly private the relevant acts might be. This argument is elaborated below. See for example Hill v. Church of Scientology, [1995] 2 S.C.R. 1130. In other jurisdictions, see DM Plessis v. De Klerk, 1996 (3) SA 850 (CC); Douglas and Zeta-Jones v. Hello! Magazine, [2001] QB 967 (C.A.), A v. B, [2003] Q.B. 195 (C.A.). Canada Trust Co v. Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321 (Ont. C.A.), Jane Doe v. Toronto (Metropolitan) Commissioners of Police (1989), 58 D.L.R. (4th) 396. I discuss the more general difficulties with understanding adjudication in terms of binding rules in 'Authority, Influence and Persuasion,' supra note 16, drawing on work by David Dyzenhaus, Murray Hunt, Stephen Perry, and Brian Simpson, among others. Though these are not best conceived as water-tight categories, for even notionally persuasive sources may exert themselves in a fashion that approaches the insistence of influential authority and the like. J. Brunnee and S.J. Toope, 'A Hesitant Embrace: The Application of International Law by Canadian Courts,' in Dyzenhaus, ed., The Unity of Public Law, supra note 16; P. Macklem, 'Secondary Picketing, Consumer Boycotts, and the Charter' (2000) 8 Can. Labour and Employment L.J. 9. Though I do not elaborate the links here, this idea has important affinities with John Rawls's conception of public reason: John Rawls, Political Liberalism (New York: Columbia University Press, 1993) especially Part Two, Lecture VI, The Idea of Public Reason' at 212-54. Supra note 5 at 9 (para. 52). Mack Appeal, supra note 13 at para. 1. Ibid, at para. 52. However, while they share a denunciatory quality, in one respect Gumming J.'s statement may be more significant. This is because he puts the wrong in terms of discrimination and prejudice - values which have contemporary legal, especially constitutional, significance. The way that the Court of Appeal describes the legislation seems to focus instead on the negative light it casts on our history, rather than on its incompatibility with contemporary legal values. 'Authority, Influence and Persuasion,' supra note 16 discussing Hill v. Church of Scientology, supra note 20 and Du Plessis v. De Klerk, supra note 20. Barak, supra note 11; David Dyzenhaus stresses a similar point regarding the fundamental values that together constitute what Fuller called the 'internal morality of the law': "The Juristic Force of Injustice,' in this volume. For the implications of this for views for the meaning of 'reasonableness,' see M. Moran, Rethinking the Reasonable Person, supra note 12. (1990), 74O.R. (2d)481.

410 Mayo Moran 32 33 34 35

36 37 38

39 40 41

42

43 44

45 46

Canada Trust Appeal, supra note 21 at 11 (O.J.). Ibid, a 96 (per Robins J.A.) (emphasis added). Ibid, at 21 ( .J.). In 'Authority, Influence and Persuasion,' supra note 16,1 discuss two instances of influential authority, beginning with ratified but unincorporated treaty obligations of the kind discussed by the majority in Baker v. AG Canada. I note how the act of ratification may impose a mandatory obligation of respect for fundamental values that bears an important similarity to the Charter's effect upon private and common law. United States of America v. Burns, [2001] 1 S.C.R. 283. Canada Trust Appeal, supra note 21 at 22 (O.J.). The basic idea of estoppel is that a court is barred, for institutional reasons, from giving legal significance to certain kinds of arguments and acts. Although he does not use the language of estoppel, President Barak notes that constitutional human rights will unavoidably have a similar restrictive effect on the freedom of the judiciary although this will typically only be used when other mechanisms fail: 'Constitutional Human Rights and Private Law,' supra note 11 at 280. [1945] O.R. 778 (H.C.). Shelley v. Kramer, 334 U.S. 1 (1948). For a pre-Charter articulation of rule of law values including equality, see John McLaren, 'The Head Tax Case and the Rule of Law: The Historical Thread of Judicial Resistance to "Legalized" Discrimination/ chapter 5 in this volume. Julian Rivers, 'Gross Statutory Injustice and the Canadian Head Tax Case,' in this volume; Robert Alexy 'A Defence of Radbruch's Formula' and Julian Rivers 'The Interpretation and Invalidity of Unjust Laws/ in D. Dyzenhaus, ed., Recrafting the Rule of Law: The Limits of the Legal Order (Oxford: Hart Publishing, 95), 15-39; Oppenheimer v. Cattermole, [1976] A.C. 249 (H.L.). Order of the Second Senate, 14 Feb. 1968, citing BVerfGE 3,58 [119]; 6,132 [198]. For a discussion of these and related cases see ibid. R. Alexy, 'A Defence of Radbruch's Formula/ in D nhaus, supra note 42 at 15; J. Rivers, 'The Interpretation and Invalidity of Unjust Laws/ supra note 42 at 40; J. Rivers, 'Gross Statutory Injustice/ supra note 42. Kuwait Airways Corpn v. Iraqi Airways Co (Nos 4 and 5), [2002] WLR 1353 at 1360 (per Lord Nicholls). In this sense it is possible to recognize a similar conceptual structure, also expressed in terms of deference, in the issue of judicial review of administrative action in the administrative law context. The structure of both

Time, Place, and Values 411 inquiries reflects a delicate mediation between the need to respect the integrity of some 'other' and respect for one's own fundamental values values most authoritatively expressed in the influential authority of the Charter. The inherently reasoned idea of deference I draw on here is that of 'deference as respect' which has been developed by David Dyzenhaus in the administrative law context and embraced by the Supreme Court of Canada in Baker. See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and Dyzenhaus, The Politics of Deference: Judicial Review and Democracy/ in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997), 279. 47 Kuwait Airways, supra note 45 at 1360, discussing Scarman J. in In the Estate ofFuld, deed (No 3) [1968] P 675. 48 Ibid. 49 Loucks v. Standard Oil Co of New York, 120 NE 198 at 202 (1918). 50 Oppenheimer v. Cattermole, supra note 42, as explained in Kuwait Airways, supra note 45 at 1360-1 (emphasis added). The Radbruch Formula can be understood as a more theoretical account of this limit. In Canada and other post-war constitutional regimes, the most fundamental values are expressed in the constitutional document, and so in those regimes that formula would at a minimum demand that courts could not enforce as law positive norms that violate those fundamental constitutional values. This of course does not necessarily entail that only violations of fundamental constitutional values will engage this limit but simply that such a violation is necessarily problematic under any interpretation of the Radbruch Formula. As the House of Lords indicates in Kuwait Airways, violations of international law will also engage the public policy exception and have the estoppel-like consequence discussed in the text: Kuwait Airways at 1363 discussing Oppenheim's International Law, 9th ed (1992), vol. 1, ed Jennings and Watts, 371-6, para. 113. 51 See, for instance, Kuwait Airways, ibid, at 1363 discussing Lord Wilberforce in Blathwayt v. Baron Cawley, [1976] A.C. 397, 426 ('The acceptability of a vision of foreign w must be judged by co porary standards'). 52 k Appeal, suprae13 at n . 7 . 53 History of the Vote in Canada (Ottawa: Minister of Public Works and Government Services, Canada, 1997) at 47, 63-4, 80-9. See also Cunningham v. Tomey Homma, [1903] A.C. 151 (PC.) (upholding the right to restrict the vote on a racial basis). 54 Du Plessis v. De Klerk, supra note 20 at para. 20.

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Appendix I Appellants' Factum

COURT OF APPEAL FOR ONTARIO BETWEEN: SHACK JANG MACK, QUEN YING LEE And YEW LEE Appellants / Plaintiffs

-andATTORNEY GENERAL OF CANADA Respondent / Defendant Proceeding under the Class Proceedings Act, 1992 FACTUF THE APPELLANTS PART I - IDENTITY OF APPELLANT, PRIOR COURT & RESULT 1. The appellant Shack Jang Mack paid the Head Tax imposed under the Chinese Immigration Act, S.C. 1885, c.71 (as amended from time to time). The appellants Quen Ying Lee and Yew Lee are, respectively, the spouse and child of Guang Foo Lee, who paid the Head Tax. As representative plaintiffs on behalf of Head Tax payers, their spouses or widows, and descendants, they bring this action claiming the return of

414

Appendix I

amounts paid in Head Tax, pursuant to principles of unjust enrichment. They allege violations of section 15 of the Charter and of international human rights law principles and seek damages for harm cause by the separation of family members and other privations c sed by the Chinese Immigration Act. 2. The respondent, the Attorney General of Canada, brought a motion under rule 21.01(l)(b) to strike the appellants' statement of claim as disclosing no reasonable cause of action. On July 9, 2001, Gumming, J. granted the motion, striking the statement of claim in its entirety. During the argument on this motion, Cumming, J. deferred for later consideration, if necessary, the respondent's rule 25.11 motion alleging that the pleading, or part of it, was scandalous, vexatious or an abuse of process. PART II - OVERVIEW - NATURE OF CASE AND ISSUES 3. Pursuant to the Chinese Immigration Act, S.C. 1885, c.71 ('Act'), immigrants to Canada between 1885 and 1923 who were of Chinese origin were required to pay a Head Tax set at $50 in 1885 and raised in 1903 to $500, equivalent to approximately two years' wages for a Chinese Canadian worker at the time. The Government of Canada collected approximately $23 million (Cdn.) pursuant to the Head Tax. The Head Tax did not apply to immigrants from any other country. 4. In 1923, the Head Tax was repealed, by the Chinese Immigration Act, S.C. 1923, c.38 (referred to as the Chinese Exclusion Act), which excluded all people of Chinese origin from immigrating to Canada, subject to certain narrow exceptions. The Act, proclaimed in force on Dominion Day 1923, was repealed in 1947. In 1988, the Government of Canada granted redress to the Japanese Canadian community for their internment during the Second World War. The Government of Canada has refused to extend redress to the Chinese Canadian community and to individuals who have suffered profound and enduring discrimination as a result of the Head Tax and the Chinese Exclusion Act. House of Commons Debates, 1st sess., 35th Parl., at 9065-9066 [Hon. Sheila Finestone - Liberal - Majority Government, 1994], The History of the Chinese Immigration Act 5. From its first enactment in 1885, the Chinese Immigration Act had as its sole purpose the exclusion from Canada of Chinese immigrants based on racial stereotypes of the most reprehensible nature. It seems,

Appellants' Factum 415 from the 1885 Commons Debate, that British Columbia had requested the legislation for the purpose of preventing immigration of Chinese to the province. I simply rise to express my pleasure at the prospects the people of British Columbia have of relieved of the scourge they have been suffering under... it is well known to every man who knows anything at all of the Chinese character, that they are not to be relied upon in scarcely any particular... House of Commons Debates, 3rd sess., 5th Parl., at p. 3011 [Noah Shakespeare - Liberal-Conservative - Opp tion, 1885]. 6. At first, the Head Tax was used in aid f th exclusionary purpose. It was increased from $50 to $100 and ultimately $500 as each successive amount proved inadequate to prevent Chinese immigration. In the 1900 Commons Debate, Prime Minister Laurier commented that British Columbia was lobbying for an increase of the $50 tax to $500 because the $50 amount was 'inadequate' to 'meet the objective for which it was imposed.' House of Commons Debates, 5th sess., 8th Parl., at p. 7411 [Sir Wilfrid Laurier - Liberal - Majority Government, 1900]. In my opinion there is not much room for the Chinaman in Canada. He displaces a good Canadian, or, a good British subject. Increase of the tax from $50 to $100 will be totally inadequate ... Not only are they monopolizing the laundry business and the growing of vegetables in British Columbia, but they are driving skilled miners out of employment in the coal mines. House of Commons Debates, 5th sess., 8th Parl., at pp. 7413-7414 [Nathaniel Clarke Wallace - Liberal-Conservative - Opposition, 1900]. Experience has shown that it is not a sufficient restriction to impose today, that it does not keep out the Chinese, but they are coming over in larger numbers than ever. House of Commons Debates, 5th sess., 8th Parl., at p. 7415 [Nathaniel Clarke Wallace - Liberal-Conservative - Opposition, 1900]. 7. A government commissio appointed to investigate the Head Tax issue, reported in 1903 that n increase$500 should be used as an interim measure to stop the 'flood' of i igration by 'orientals' that was occurring under the $50 tax. House of Commons Debates, 3rd sess., 9th Parl., at pp. 597-598 [Prime Minister Rt. Hon Sir Wilfrid Laurier - Liberal - Majority Government, 1903].

416 Appendix I

8. The Chinese Exclusion Act of 1923 substituted full prohibition of immigration for the Head Tax which, even at $5 , had failed to deter Chinese Immigration. From the economic point of view, the position we have taken is that the Head Tax is ineffective as a method of restriction, and that some more effective method must be employed. House of Commons Debates, 2nd sess., 14th Parl., at p. 2312 [Hon. Alexander P. MacKenzi King - Liberal - non-Majority Government, 1923] All past efforts in the way of restrictive measures have proved almost futile, that the wily oriental has found some means or subterfuge to circumvent any regulations that may have been imposed upon him... I am thoroughly of the opinion that it is far better to strain the Act to the utmost in the way of restrictions than to leave any loophole. House of Commons Debates, 2nd sess., 14th Parl., at p. 2322 [John Armstrong MacKelvie - Conservative - Opposition, 1923] I think this government could well afford to give back to every Chinamen here what we got from him - the $500 he paid to enter the Dominion - on a condition he would leave, and thus rid the country of the whole lot of Chinamen and do ourselves a good turn. House of Commons Debates, 2nd sess., 14th Parl., at p. 2327 [Thomas George MacBride - Progressive - Opposition, 1923] Gumming, J.'s Disposition of the Appellants' Arguments (a) International Law 9. The appellants argued before Gumming, J. Immigration Act is contrary to both international conventional law and customary international law, and that internatio l human rights norms advocating reparations should be used by t court as an interpretive tool in making its decisions with respect to their unjust enrichment and Charter claims. 10. With respect to the treaty law argument, Cumming, J. holds that the treaties referred to by the appellants did not come into existence until after the repeal of the Chinese Immigration Act and could not be applied retroactively. In any event, he holds, the treaties do not apply as law in domestic courts because they have not been incorporated b domestic statute, [para. 34]

Appellants' Factum 417 11. With respect to the international norms argument, Gumming, }. recognizes an emerging norm requiring reparations. However, he holds that such norms do not apply with the force of law in Canadian courts unless implemented by domestic statute. He also holds that international norms prohibiting racial discrimination did not exist while the Act was in operation, based on the absence of conventions or other instruments dealing with racial discrimination, [para. 39-40] 12. The appellants' customary international law argument is never explicitly addressed by Gumming, J. It is unclear whether the issue was overlooked, or whether Gumming, J.'s use of the term 'international norms' was meant to encompass both non-binding norms and customary international law. (b) Unjust Enrichment 13. The appellants argued that as a result of th Chinese Immigration Act, the respondent has been enriched and Head Tax Payers correspondingly deprived, and that no juristic reason supports this enrichment and deprivation. The appellants further argued that the discriminatory nature of the statute renders it incapable of providing a juristic reason. 14. Gumming, J. acknowledges that there was an enrichment and corresponding deprivation. He is extremely critical of the Chinese Immigration Act going so far as to call it 'patently discriminatory against persons of Chinese origin' and 'repugnant' and 'reprehensible' and to suggest that: It may very well be that Parliament should c sider providing redress for Chinese Canadians who paid the Head Tax orre adversely affected by the various Chinese Immigration Acts. [para. 54] 15. Notwithstanding these sentiments, Cumming, J. holds that the Act provides a juristic reason for the enrichment. He states that a statute is necessarily a juristic reason unless it falls into one of three categories: (1) it is unconstitutional at the time of its operation; (2) it is ultra vires; or (3) it is contrary to international law. [para. 51] 16. The Chinese Immigration Act was intra vires during its operation, and the doctrine of Parliamentary sovereignty precluded any dir t substantive challenge of its constitutionality on non-jurisdictio l grounds eing of the view that the Act was not contrary to international l during its period of operation, Cumming, J. finds that it provides a juristic reason for the respondent's enrichment.

418 Appendix I

(c) TheChart 17. The appellants argued that the refusal of the respondent to disgorge the funds secured by Head Tax payments or to provide redress for the other forms of damage suffered by the class is a continuing violation of their rights under s.15 of the Charter. They argued that although the statute had been repealed, the government's refusal to disgorge the funds or provide redress prevents thei chievement of substantive equality in conte orary Canadian society, includinguality before and unde the law. 18. Gumming, J. fi ds that the appellants' Charter claim is founded on discrete acts (either the levying of the tax or the outright exclusion) which took place long before the Charter came into effect. He characterizes what the appellants complain of as the 'effects' of pre-Charter acts, which cannot be the basis of a Charter claim because the Charter does not operate retrospectively, [para. 17] 19. The appellants further argued that once the Canadian government provided redress to the Japanese Canadian community by way of the Japanese Canadian Redress Order, it was obligated to provide this benefit in a fair manner. Given that the discriminatory treatment of people of Chinese and Japanese origin has been historically linked, the appellants submitted that refusal to provide them with relief similar to that afforded to the Japanese Canadian community offends the provisions of s.15. 20. Cumming, J. states that the appellants had failed to plead supporting facts for a discrimination claim in the post-Charter period. He finds that granting redress to Japanese Canadians for past discrimination can t give rise to a Charter claim for an 'unrelated group in respecta separate claim of discrimination' and that pridredress for Japanese Canadians did not 'demean the claimants' human dignity.' [paras. 22 and 23] 21. The appellants further submitt d that s.15 can provide an independent right to reparations. In support of this argument, the appellants relied on the increasing international acknowledgement that there is an obligation on states to provide reparations for past discrimination. 22. Cumming J. finds that while there may be an emerging norm in favour of reparations in international law, it is not binding on Canada as domestic law. While acknowledging that international norms may be used as interpretive tools by Canadian courts, Cumming, J. does not in fact address their impact, if any, on the appellants' s.15 argument, [para. 34-35]

Appellants' Factum 419 PART III - THE FACTS 23. The facts are as set out in the statement of claim of the appellants. PART IV - STATEMENT OF ISSUES, LAW & AUTHORITIES 24. The appellants submit that Gumming, J. erred in law by: (a) failing to address the appellants' customary international law argument; (b) finding that the various forms of the Chinese Immigration Act constituted a juristic reason for the enrichment of the Government of Canada at the expense of Head Tax payers, even though the Chinese Immigration Act was 'patently discriminatory' against persons of Chinese origin, and repugnant and reprehensible by contemporary Canadian morals and values; (c) holding that to find that a statute does not constitute a juristic reason it would be necessary to demonstrate that the legislation is unconstitutional or ultra vires in light of the constitutional principles applicable at the time the legislation was enacted and enforced; (d) failing to apply the holding in Mabo v. Queensland (No. 2), 175 C.L.R. 1 (High Court of Australia) to the test for unjust enrichment, and in particular, in failing to hold that a contemporary court bound by the principles of the Canadian Charter of Rights and Freedoms, in particular section 15, cannot hold that a statute constitutes a juristic reason for enrichment if that statute is racist and repugnant to contemporary morals and values; (e) holding that the statement of claim involves a retrospective application of section 15 of the Canadian Charter of Rights and Freedoms; (f) finding that the failure of the Government of Canada to accord to the Chinese Canadian community compensation that was provided under the Japanese Canadian Redress order did not constitute discrimination under s.15 of the Canadian Charter of Rights and Freedoms. (g) failing to find that s.15 of the Canadian Charter of Rights and Freedoms, as informed by international law norms and principles, supports redress for state discrimination that denies present equality before and under the law and the equal protection and benefit of the law.

420 Appendix I

STANDARD TO BE MET ON A MOTION TO STRIKE A CLAIM UNDER RULE 21.01(b) 25. The test for striking out a pleading for failure to disclose a reasonable cause of action was set out in Hunt v. Carey Canada Inc.: (a) Assuming the facts as stated in the statement of claim can be proved, is it 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action? (b) If there is a chance that the plaintiff might succeed then the plaintiff should not be driven from the judgment seat. (c) Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at p. 980 (per Wilson, J.). 26. In Nash v.. Ontario, the Ontario Court of Appeal applied Hunt v. Carey and established three further guidelines as follows: (a) The court must accept the facts as alleged in the statement of claim as proven, unless they are patently ridiculous or incapable of proof; (b) The court must read the statement of claim generously with allowance for inadequacies due to drafting deficiencies; and (c) The court should not, at this stage of the proceeding dispose of matters of law that are not fully settled in the jurisprudence. Nash v. Ontario, [1995] O.J. No. 4043 (C.A.) at p. 5 (per the Court). Standard of Review on Appeal of Question of Law 27. With respect to questions of law, the standard of review on appeal is correctness. It is respectfully submitted that, as all of the questions on appeal relate to the legal question of whether the appellants' claim discloses a reasonable cause of action, all of the appealed findings are questions of law. Ferma Import and Export, A Division of Unibel Co. v. Prudential Assurance Co. of England Property and Casualty (Canada), [2000] O.J. No. 1141 at para. 13 (Div. Ct.) (per Crane, J.). McEvenue v. Robin Hood Multifoods(1997), 33 O.R. (3d) 315 at p. 318 (Gen. Div.) (per Wilkins, J.).

Appellants' Factum 421 INTERNATIONAL LAW ARGUMENTS (a) Can International Law Apply to Constrain Canadian Government Action in the Absence of a Domestic Statute? 28. The appellants base their claim on three sources of international obligation. It is submitted that Gumming, J.'s concerns about retroactive application and absence of domestic incorporating statute, while applicable to conventional law and international norms, do not apply to claims based on customary international law. 29. An international norm, as the term is used by Gumming, J., is a principle of international law that has not achieved a status sufficient to directly bind states. While not all international norms will eventually develop into customary international law, generally, customary international law begins as an international norm. Essentially, customary international law is a norm that through the practice of states has developed to a point where states are directly bound by it as a principle of international law. 30. While treaty law and international norms must be implemented by domestic statute, customary international law is directly applicable as domestic law. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at p. 861 (per L'Heureux-Dube, J.). R v. Gordon, [1980] B.C.J. No. 381 at p.2 (BCSC) (per Meredith, J.). Ian Brownlie, Principles of Public International Law (5th ed.) (Oxford: Clarendon Press, 1998) at p. 42 ('Brownlie'). (b) Is it Plain and Obvious that Customary International Law Did not Condemn Racial Discrimination During the Period that the Chinese Immigration Act Was in Force? 31. Gumming, J. holds that the international law at the relevant time did not prohibit racial discrimination because 'the fundamental documents and conventions did not come into existence until after 1947.' [para. 39] 32. While looking to documentary sources is sufficient to determine conventional international law obligations, it is not sufficient to determine what customary international law principles existed at the time. Customary international law does not require a documentary foundation. The mere fact that something is not the subject of a treaty or other specific international document does not mean that it is not customary international law. Customary international law is based on the practice of states and evidence of this practice can come from numerous sources. Brownlie, supra at p. 5.

422 Appendix I

33. The fact that many of the international conventions and documents attesting to the international law prohibition on discrimination came into existence after the repeal of the Chinese Immigration Ad does not mean that those principles were not customary international law prior to the creation of those documents. The doctrine of codification recognizes that something may be customary international law and later in time become the subject of an international document. This doctrine is based on the idea that, in some cases, an international document or convention is merely the codification of a principle of previously existing customary international law. 'The material sources of custom are numerous.' Brownlie, supra at p. 30. 34. Before Gumming, J., the appellants explicitly pleaded that the relevant international documents such as the International Covenant on Civil and Political Rights are the codification of previously existing customary international law. Oscar Schachter, 'The UN Legal Order: An Overview/ in United Nations Legal Order, Vol.1, O. Schachter and C. Joyner, eds., (Cambridge: Cambridge University Press, 1995), 1 at p. 3. Francesco Capatorti, 'Human Rights, the Hard Road Toward Universality/ in "The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory, R. St. J. MacDonald & Douglas M. Johnston, eds., (The Hague: Martinus Nijhoff Publishers, 1983) 977 at p. 983. 35. It is respectfully submitted that because Gumming, J. focuses his analysis solely on what international documents existed during the relevant times, the appellants' codification argument was not addressed. Racial Discrimination was Contrary to CI Law While the Chinese Immigration Act was in Force. 36. There are substantial indicia that racial discrimination was prohibited by customary international law during the period that the Chinese Immigration Act was in force. Later documents such as the Bill of Rights and the Charter specifically recognize pre-existing rights and numerous international human rights treaties are merely the codification of these previously existing rights. 37. The Bill of Rights, for example, explicitly recognizes that the equality rights set out in the document existed prior to its enactment in 1960: It is hereby recognized and declared that in Canada there have existed

Appellants' Factum 423

and continue to exist without discrimination by reason of race, national origin, colour, religion, or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and protection of the law; (c) freedom of religion; (d) freedom of speech; (e) freedom of assembly and association; and (f) freedom of the press, [emphasis added]. Canadian Bill of Rights, S.C., 1960 c.44, article 1 38. Section 26 of the Charter provides: The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.ll, s.26. 39. In the Quebec Secession Reference, the Supreme Court addresses four fundamental and organizing principles of the Constitution: (1) federalism; (2) democracy; (3) constitutionalism and the rule of law; and (4) respect for minorities. Reference re: Secession of Quebec, [1998] 2 S.C.R. 217 at para. 32 ('Secession Reference') (per the Court). 40. At paragraph 81, the Court states: It should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even in the time of confederation. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution. Secession Reference, supra at para. 81.

424 Appendix I

41. These organizing principles were explicitly recognized by British Columbia courts in the latter part of the 19th century. In several cases, anti-Chinese legislation was held to be void for contravening one or more of these principles. Victoria does not possess a monopoly of race jealousy. In the French colony of Cayenne, the Town Council recently handicapped the superior capacities of the Chinaman by imposing on merchants of that empire an extra tax of $300 per annum, deeming it also expedient to handicap English and German traders by a surtax of $200 on them. But on appeal at the courts at Paris, all these impositions were declared null on the very same principles as those on which the courts here insisted when they decided the cases above referred to, viz., as being infringements at once of personal liberty, and of the equality of all men before the law, and also negation of international rights. Regina v. Corporaration of Victoria (1888) 1 B.C.R. Ft. II331 at p. 333 (S.C.) (per Begbie, C.J.). If the object of the Provincial Statute be as alleged, viz., to subject Chinamen to exceptional disadvantages it is clearly unconstitutional. Regina v. Mee Wah (1886) 3 B.C.R. 403 at p. 410 (Cty. Ct.) (per Begbie, C.J.M'Mee Wah'). ... a State, or Provincial law imposing special disabilities or unequal burdens on Chinamen is unconstitutional and void. In British Columbia such a law if it imposes a tax labours under the additional infirmity that a licence tax for any other purpose with any other object, than merely raising a revenue, is beyond the power of the Provincial Legislature to impose. Mee Wah, supra at p. 410-411. Any clause in a Provincial Statute or Municipal By-Law, which, though general in its terms, operates, or is intended to operate only upon one sect, race or class, is liable to be declared unconstitutional and void. Mee Wah, supra at. p. 414. ... the Chinese might be taxed as other residents, but could not be set apart as special objects of taxation ... Tai Sing v. Maguire (1978) 1 B.C.R. Part I 101 at p. 106 (S.C.) (per Gray, J.) - citing Lin Sing v. Washburn, 20, California Reports, 534. A tax was imposed falling unequally upon particular individuals in a class, and Chinese miners could not be singled out from a class of miners generally and be subjected to burden over and above those borne by others of the same class, such imposition being a lawless extraction not within the province of free governments.

Appellants' Factum 425

R v. Gold Commissioner of Victoria District (1886), 1 B.C.R. Ft II260 at p. 262 (Div. Ct.) (per McCreight.) ('Gold Commissioner'). ... even if the tax only applied to Chinese mining on their own account, it or some other similar tax might likewise be applied differentially to all other employments in which they happen to be engaged; and it will scarcely be contended that such discriminating taxes would be constitutional. Gold Commissioner, supra at p. 263. 42. In addition to judicial recognition that discriminatory statutes could not stand, some members of Parliament recognized that the Act's racist nature was contrary to human rights of a universal nature and principles of freedom and liberty. I offer my sincere apologies for this kind of legislation ... because I consider it abhorrent to the principles of free trade and to the commonest rights of all men who occupy this earth, [emphasis added] House of Commons Debates, 5th sess., 8th Parl., at p. 8167 [William Cameron Edwards - Liberal - Majority Government, 1900]. I must say that I have no sympathy with any legislation which discriminates unjustly against any creed, race, or nationality ... I hold that this measure is not in accord with our free, liberal institutions in Canada. House of Commons Debates, 5th sess., 8th Parl., at pp. 8189-8190 [Thomas Christie - Liberal - Majority Government, 1900]. 43. Further, Canada was a signatory to the Treaty of Versailles, concluded on June 28,1919, and was an original member of the League of Nations. The Covenant of the League of Nations articulates the goals and obligations of League members in the construction of a formal international system: The High Contracting Parties, in order to promote international cooperation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another, agree to this Covenant of the League of Nations. Covenant of the League of Nations, Treaty of Versailles, Part I, 28 June 1919, preamble.

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44. Principles of fair treatment guide the obligations outlined in the Covenant of the League of Nations: Members of the League ... will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations ... Covenant of the League of Nations, Article 23 (a). 45. Under the League of Nations, a guarantee system was created for the protection of minorities. This system was implemented in the terms of many of the peace treaties concluded after the First World War in which states agreed to provide equality of treatment to their inhabitants. Such agreements were subject to the supervision of the League of Nations Council and the Permanent Court of International Justice. Patrick Thornberry, 'Is There a Phoenix in the Ashes? - International Law and Minority Rights' (1980) 15 Texas International L.J. 421 at p. 433. 46. The Permanent Court of International Justice characterizes the purpose of the guarantee system and the requirement for protecting minorities as follows: The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs. In order to attain this object, two things were regarded as particularly necessary ... The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. Minority Schools in Albania, [1935] P.C.I.J. ser. A/B, No. 64 at p. 17 47. Although the guarantee system was intended for the protection of nationals with minority status, other aspects of the League system dealt specifically with the protection of non-nationals. 48. The International Labour Organisation ('ILO') emerged from the Treaty of Versailles after the First World War. However, the ideological movement for international action to protect workers had gained

Appellants' Factum 427

prominence in the late 19th century. An International Congress on International Labour Legislation was held in Brussels in 1897 and the International Association for Labour Legislation was set up in Basle in 1901. Robert Ago and Nicolas Valticos, eds., The International Labour Organisation, (Dordrecht: Martinus Nijhoff Publishers, 1995) at p. 4 ('Ago and Valticos'). 49. After the First World War, the ILO became one of the most active international organizations, achieving broad support. Many states joined the ILO before joining the League of Nations, while others remained members after withdrawing from the League of Nations, and the United States of America became a member of the ILO without ever joining the League of Nations. Ago and Valticos, supra, at p. 11. 50. The Constitution of the ILO contains principles for the fair and humane treatment of all peoples: Whereas the League of Nations has for its object the establishment of universal peace, and such a peace can be established only if it is based upon social justice; and whereas conditions of labour exist involving such injustice, hardship, and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required: as, for example, by ... protection of interests of workers when employed in countries other than their own ... Treaty of Versailles, Part XIII, Section I. 51. At a conference of the ILO in 1944, the 'Declaration of Philadelphia' was developed. The principles in the Declaration, set out below, later formed the basis for an expansion of the objects and purposes of the ILO in its new constitution: Believing that experience has fully demonstrated the truth of the statement in the Constitution of the International Labour Organization that lasting peace can be established only if it is based on social justice, the Conference affirms that: (a) all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity of economic security and equal opportunity; (b) the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy...

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Declaration Concerning the Aims and Purposes of the International Labour Organization, Part II, contained in Annex 5 to the Report of the Canadian Government Delegates to the Twenty-Sixth Session of the International Labour Conference (Ottawa: Edmond Cloutier, 1944) 52. Another movement advocating the universal nature of the right of all human beings to fair treatment and dignity was the anti-slavery movement. Between 1814 and 1947, Canada became a party to a number of treaties regarding the abolition of slavery, and the prohibition against slavery was generally considered to form part of customary international law. See appendix 1. 53. That treatment of Chinese Canadians under the Chinese Immigration Act was akin to slavery was explicitly recognized by legislators during the Debates concerning the Act. For example, during the 1900 Debate, Maxwell stated: [W]e object to encouraging a class of men who are making money out of the ...blood...of these poor Chinamen. We want that traffic in slavery abolished. We do not want the door of our province to be opened to herds of these poor dumb-driven cattle to be rushed in as it may please these men, who want to get rich out of the fruits of Chinese labour in British Columbia. House of Commons Debates, 5th sess., 8th Parl., at p. 8181 [George Ritchie Maxwell - Liberal - Majority Government, 1900]. 54. In the 1900 Commons Debate, John Charlton stated: These people [Chinese Immigrants] come in, they are virtually slaves. House of Commons Debates, 5th sess., 8th Parl., at p. 8198 [John Charlton - Liberal - Majority Government, 1900]. 55. During the 1923 Debate on the Chinese Exclusion Act, The Honourable Charles A. Stewart stated: The head tax has been abused and been made the means of a sort of slavery among the Chinese who are in Canada, and the same applies here. It is being repeatedly abused. House of Commons Debates, 2nd sess. 14th Parl. at p. 2337 [Hon. Charles A. Stewart - Liberal - Majority, 1900]. 56. It is therefore submitted that the general principles set out in the anti-slavery treaties and the customary international law prohibition of slavery have application in determining whether the actions taken under the Chinese Immigration Act were consistent with customary international law as it existed at the time.

Appellants' Factum 429

57. In addition to what was occurring in Canada, there are numerous further examples of international and domestic tribunals interpreting international law during this period in a manner consistent with the argument that racial discrimination was contrary to customary international law. 58. The following cases hold that aliens are to be given the same fundamental rights as those that are conferred upon the nationals of a country. 59. In Spanish Zones, British subjects living in the Spanish zone of Morocco, who had suffered injuries and were denied treatment, brought an action. The court held that inequality between foreigners and nationals with respect to treatment violated international law. Spanish Zone of Morocco Claims (Great Britain v. Spain), Annual Digest of Public International Law Cases (1923-1924), case No. 85 (Arbitration - Huber( Rapporteur)). 60. In Ex Parts Jackson, the court held that fundamental rights are not limited by race and belong to all people. Ex Parte Jackson (1920), 263 Fed. Ill (U.S. Dist. Ct - Montana). 61. In Cantero Herrera, an alien sued because he was not entitled to distribution from an estate solely based on the fact of his alien status. The court held that aliens had the same civil rights as citizens and that he was entitled to the distribution from the estate. Cantero Herrera v. Canevaro & Company, Annual Digest of Public International Law Cases (1927-1928), case No. 149 (Supreme Court of Peru). 62. In Ex Parte Lanea, the government sought attachment to property solely on the basis that the owner was an alien. The court found that such an action was impermissible because it could not be done with respect to citizens. As such, the differential treatment offended the principle of equality. Ex Parte Larrea Y Fernandez, Annual Digest of Public International Law Cases (1931-1932), case No. 145 (Cuba Supreme Court). 63. In several other cases, it was held that international law extended the principle of equality and, in some cases, afforded special protection to aliens or minorities within a country. 64. For example, in German Settlers, several aliens fought the Polish government's attempt to deport them. The court held that treaty law providing for the equal treatment of nationals and minorities precluded the eviction. Re German Settlers in Poland, Annual Digest of Public International Law Cases (1923-1924), case No. 123 (PCIJ).

430 Appendix I

65. In the Czechoslovak Language case, a German national argued that he should be able to engage the court in his own language. The Court held that aliens and minorities are entitled to equal treatment and that the plaintiff was entitled to the relief sought. Czechoslovak Language of Aliens Case, Annual Digest of Public International Law Cases (1925-1926), case No. 215 (Supreme Administrative Court of Czechoslovakia) 66. Other cases allowed claims based on discrimination to be brought in domestic courts based on breaches of international law as found in international documents of the time. 67. In Egyptian Government, a foreigner required to pay higher taxes than citizens challenged this unequal treatment. The court held that this treatment gave rise to a claim in court because it was contrary to the Turkish Law of 1867 which gave foreign subjects the same rights to hold property on the same terms as native subjects. Egyptian Government v. Nicolas Zintzos, Annual Digest of Public International Law Cases (1927-1928), case No. 227 (Egyptian Mixed Court of Appeal). 68. Moreover, in the 1930 edition of his leading text, The Law of Nations, J.L Brierly argues that international law at the time did require a standard of decent treatment towards 'aliens' that were admitted to a foreign country. At p. 137, he states No state is legally bound to admit aliens into its territory, but if it does so it must observe a certain standard of decent treatment towards them. J.L. Brierly, The Law of Nations (London: Oxford University Press, 1930) at p. 137. 69. Brierly goes on to state that institutions which are in place to deal with aliens must conform to the standards of fundamental justice and ensure the lawful treatment of aliens as outlined in international law. A violation of these standards by any country will result in them being held responsible under international law. Brierly, supra at pp. 139-140. 70. For the purposes of this appeal, it is sufficient for the appellants to demonstrate that it is not plain and obvious that customary international law failed to prohibit racial discrimination while the Chinese Immigration Act was in force. It is respectfully submitted that the above mentioned indicia that racial discrimination was contrary to customary international law are sufficient to satisfy this onus.

Appellants' Factum 431

(2) UNJUST ENRICHMENT 71. To establish unjust enrichment one must show, an enrichment, a corresponding deprivation and a lack of juristic reason for the deprivation. Rathwell v. Rathwell, [1978] 2 S.C.R. 436 at p. 455 (per Dickson, J.). Petkus v. Becker, [1980] 2 S.C.R. 834 at p. 848 (per Dickson, J.). (a) Error in Application of the Unjust Enrichment Test 72. It is respectfully submitted that to the extent the Chinese Immigration Act is contrary to customary international law, it cannot provide a juristic reason for the enrichment of the defendant at the expense of the plaintiff. 73. If the appellants meet the 'plain and obvious' test with respect to the customary international prohibition on racial discrimination, it is respectfully submitted that they clearly meet the 'plain and obvious' test in regard to the Act failing to provide a juristic reason for the enrichment of the Canadian government at the expense of the Head Tax payers. (b) Error in the Construction of the Unjust Enrichment Test 74. It is further submitted that a construction of the unjust enrichment test that views a statute as a juristic reason unless it falls into a specific set of exceptions is inconsistent with both the equitable basis of the juristic reason branch of the test and the basic principles underlying equitable remedies. It further violates the obligation placed on courts to develop the law with respect to equitable causes of action in a manner consistent with Charter and international law values. Failure to Construe Unjust Enrichment Test In Manner Consistent with Charter Values 75. It is generally accepted that while the Charter does not directly apply to the common law, the courts should interpret and develop the common law in a manner consistent with Charter values. 76. In Hill, Cory, J. states: Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 97 (per Cory,J.). 77. In Salituro, lacobucci J. states: Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize

432 Appendix I

the rule closely. If it is possible to change the common law so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed. R v. Salituro, [1991] 3 S.C.R. 654 at para. 49 (per lacobucci, J.). 78. The principle that the law ought to develop in accordance with the Charter is applicable to both equity and the common law. Accordingly, wherever possible, the doctrine of unjust enrichment should be construed to maximize consistency with Charter values. 79. A law's purpose is especially significant under s.l of the Charter. A statute that has a discriminatory purpose is held to be invalid. There is no requirement to address its effects. In R. v. Big M. Drug Mart, Dickson, C.J. states: I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review had passed, or at least had purportedly passed the purpose test. If the legislation fails the purpose test, there is no reason to consider further its effects, since it has already demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights and freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose, [emphasis added] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para. 88. 80. It is respectfully submitted that if one interprets and applies the law of equity in a manner consistent with the Charter, the purpose test will apply to the question of whether a statute provides a juristic reason for an enrichment. Legislative history confirms that the sole purpose of the Chinese Immigration Act was discriminatory. To allow a statute with a discriminatory and racist purpose to justify the harm that resulted from its operation would be to construe the unjust enrichment test in a manner that is antithetical to Charter values. 81. This submission does not involve a retrospective application of the Charter, but merely requires that when a court (which is itself a key part of the constitutional regime dedicated to furthering Charter values) interprets and develops equitable doctrine in the present day, it must act in a way that is consistent with Charter values.

Appellants' Factum 433

Failure to Apply Mabo v. Queensland 82. The principle of non-discrimination has been found fundamental not only to international human rights law, but also to the common law itself. In the landmark decision of Mabo, the High Court of Australia declared that the State of Queensland was not entitled to extinguish the title of the Meriam people to three islands which had been occupied by the Aborigines before the first European contact with the islands. The Court's reasoning is based on its interpretation of international and common law principles. In particular, the Court states: The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights ... brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with the international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. Mabo v. Queensland (No. 2), (1992) 175 CLR1 at p. 35 (High Court of Australia) (Per Mason, C.J. at McHugh, J.). 83. In other words, just as the common law must be developed in a manner consistent with the Charter, it must also be developed in a manner consistent with international law principles. While Mabo was based on conventional' law, it is respectfully submitted that the Mabo principle is equally applicable to customary international law. 84. The appellants submit that the unjust enrichment test should be applied in a manner consistent with customary international law standards and with the principle of anti-discrimination which is also fundamental to the common law itself. The finding that a patently discriminatory, reprehensible and repugnant law constitutes a juristic reason does not fulfill this obligation. 85. Gumming, J.'s finding that Mabo was inapplicable to the case at bar was based on the fact that he addressed its application under the part of his analysis dealing with Charter and international law. As such,

434 Appendix I

he stated that Mabo was inapplicable to this case because 'the situation does not involve the common law, but rather federal statutes/ [para. 36] 86. The appellants do not rely on Mabo with respect to their international law or Charter arguments, but to show how a contemporary court is obligated to address a claim for unjust enrichment, an equitable cause of action. In this case, while the enrichment arose pursuant to a statute, it is the cause of action itself which must be assessed in accordance with international law principles pursuant to Mabo. It is important to note, however, that these principles of non-discrimination do not spring exclusively from international sources but are also found, as the Court in Mabo noted, among the fundamental values of the common law itself, as well as the Charter. Interpreting the unjust enrichment cause of action in a manner consistent with these customary international law principles would make it clear that a racist and discriminatory statute cannot constitute a juristic reason. Failure to Consider Juristic Reason in Manner Consistent With General Principles of Equity 87. The test of consistency with 'good conscience' has long been recognized as fundamental to the cause of action of unjust enrichment, and in particular to the 'unjust' element of the inquiry: ... any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against good conscience that he should keep. Such remedies in English law are generically different from remedies in contract or tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution, [emphasis added] Fibrosa Spolka Akcyjna v. Fairbaim Laivson Combe Barbour Ltd., [1943] A.C. 32 at p. 61 (Hof L) (per Lord Wright). Deglman v. Guaranty Trust Co. and Constanteau, [1954] 3 D.L.R. 785. at p. 794 (S.C.C.) (per Cartwright, J). 88. The centrality of the 'good conscience' test is such that courts have repeatedly insisted that '... the well recognized categories of unjust enrichment must be regarded as clear examples of a more general principle that transcends them.' The general principle was described by Dickson, J. (as he then was) in his landmark decision in Pettkus v. Becker in the following terms:

Appellants' Factum 435 As a matter of principle the court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. White v. Central Trust Co. (1984), 7 D.L.R. (4th) 236 at p. 246 (N.B.C.A.) (per La Forest, J.A.). Pettkus v. Becker, supra at p. 844 (per Dickson, C.J.). Peter v. Beblow [1993] 1 S.C.R. 980, at paras. 6-9 (per McLachlin, J.). 89. Courts have repeatedly affirmed that because of the underlying principle and the flexibility of equity, a mechanistic analysis is inappropriate to unjust enrichment. Thus, as Laskin, J.A. points out in Central Guarantee Trust, 'the mere fact that a case does not fall within an established head of restitutionary recovery should not preclude relief.' Central Guaranty Trust v. Dixdale(1994), 121 D.L.R. (4th) 53 at p. 58 (Ont. C.A.) (per Laskin, J.A.) ('Central Guarantee Trust'). See also: Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762 at paras. 40-43 (per McLachlin, J.). 90. This dimension of the unjust enrichment test has particular salience for the inquiry into what is 'unjust' - the very heart of the 'good conscience' analysis. Thus, while pre-existing categories of 'unjust' factors are useful, they cannot take precedence over the underlying principle. As stated by Morden, J., as he then was: ... where a Court, on proper grounds, holds that the doctrine of restitution is applicable, it is not necessary to fit the case into some extract category, apparently established by a previous decision, giving effect to the doctrine. Just as the categories of negligence are never closed, neither are those of restitution. The principles take precedence over the illustrations or examples of their application. James More & Sons Ltd. City of Ottawa, (1975) 49 D.L.R. (3d) 666 at p. 676 (Ont. H.C.) (per Morden, J.). 91. The historical record, as discussed above, makes it clear that the Chinese Immigration Act was conceived, adopted and implemented solely for racist reasons. The appellants submit that it is not possible to invoke a patently discriminatory and repugnant law in satisfaction of the requirement that a transfer of property be 'just/ To hold otherwise, it is respectfully submitted, would deprive the action for unjust enrichment of its very core - good conscience. Ability to Look Behind Statute in Canadian Law 92. It is respectfully submitted that it is not correct to state that any statute not falling within one of the three exception categories always

436 Appendix I

provides a juristic reason. In Central Guaranty Trust v. Dixdale, Laskin, J.A., speaking for the Ontario Court of Appeal, stated: In an appropriate case, a court may give effect to the principle of unjust enrichment despite the terms of a statute. Central Guarantee Trust, supra at p. 61. 93. In Safeway Shouldering Ltd. v. Nackawic, Robertson, J.A., speaking for the New Brunswick Court of Appeal, stated: The Supreme Court has not foreclosed the possibility that legislative purpose may be relevant when determining whether there is an absence of juristic reason for the enrichment. The Court has held that matters to be considered in determining whether there is an absence of juristic reason are not fixed, but rather vary with the situation before the Court. Safeway Shouldering Ltd. v. Nackawic (2001), 196 D.L.R. (4th) 659 at p. 666 (N.B.C.A.) ('Safeway Shouldering') (per Robertson, J.A.). See also: Ontario New Home Warranty Plan v. Grant, [2001] O.J. No. 2972 at para. 103 (Ont. Sup. Ct.) (per Dunnet, J.). 94. The rationale for this statement is the fact that each equitable claim must be assessed individually based on its own facts. The factors to be considered vary with each situation. Moreover, Robertson, J.A. commented that this is still a novel area of the law. Safeway Shouldering, supraat pp. 666-667. 95. These cases clearly demonstrate a court can look behind a statute to determine whether it provides a juristic reason. While these cases address the ability to look behind a statute to determine whether the enrichment in question was the intent of the statute, there is no settled jurisprudence about what other circumstances will allow a court to look behind the mere fact of a statute under the juristic reason branch of the test. International Case Law 96. Canadian courts are not the first to have considered how a court ought to approach the problem of an 'evil law.' European courts have had to consider what weight should be given to legislation that was properly enacted positive law, that was not unconstitutional at the time of its enactment, but that was nonetheless profoundly at odds with the core values of the law itself. 97. German courts have most frequently addressed this problem. They have had to confront the import of National Socialist laws that were validly enacted positive law and which contravened no positive consti-

Appellants' Factum 437

tutional or international law during their period of operation. In such cases, courts have repeatedly refused to defer absolutely to the existence of positive law. Much of this case law concerns the impact of Nazi Decree 11 which stripped German Jewish emigres of their citizenship and hence their proprietary rights, including the right to inherit. In assessing whether the effects of that decree could continue to exert force on the right to inherit property, the Federal Constitutional Court noted that law and justice are not entirely at the discretion of the legislator. In order to avoid reinvigorating Nazi law, it was necessary to: ... affirm the possibility of denying national socialist 'legal' rules their validity as law because they contradict fundamental principles of justice in such an evident manner that the judge applying or acknowledging their legal consequences would administer injustice instead of law. Order of Second Senate, Feb. 14,1968, citing BVerfGE 3, 58 [119]; 6, 132 [198]. 98. Similarly, the German Federal Court of Justice found invalid the German Government's expropriation of property of a Jewish woman who had lost her German citizenship under the Reich's citizenship law, on the ground that the citizenship law was void from the outset 'because of its iniquitous content which contradicts the foundational requirements of every order based on the rule of law.' BGHZ 16,350 (354), cited in Robert Alexy, 'A Defence of Radbruch's Formula,' in Recrafting the Rule of Law: The Limits of Legal Order, David Dyzenhaus ed. (Oxford: Hart Publishing, 1999) at p. 19. 99. Nor is this approach confined to German courts. In fact, the House of Lords took a similar position in a case involving the validity of the German citizenship law. The law revoked the citizenship of Jews and its operation would have resulted in an unjust enrichment based on double taxation of the plaintiff. In finding that the enrichment was invalid notwithstanding the fact that the law which gave rise to it was constitutional, Lord Cross of Chelsea states: To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognize it as a law at all. Oppenheimer v. Cattermole, [1976] A.C. 249 at p. 278 (H of L) (per Lord Cross of Chelsea). 100. This reasoning has also been applied more recently by the Berlin State Court in assessing the culpability of East German border guards for shootings on the former Berlin Wall and the effect in those circum-

438 Appendix I

stances of the Border Law of the German Democratic Republic. In the leading case, the Court notes that even duly enacted positive law must give way where it violates the legal convictions of all nations in regard to people's worth and dignity. The Court affirmed, as had other German courts before it, that the freedom of a state to legislate is limited and cannot interfere with the core area of law - the principles of fundamental justice. The reasoning is set out as follows: It was especially the time of the National Socialist regime in Germany that taught us that the legislator can also legislate injustice. In other words, if practical legal usage is not to stand defenseless against such historically thinkable examples, it must be possible, in extreme cases, to evaluate certain basic principles of material justice more highly than the principle of legal certainty, such as it is expressed in the applicability of positive law for routine cases. Trial of Border Guards, Berlin State Court, Docket No. (523) 2Js 48/90 (9/91) translation in Transitional Justice Volume III: Laws, Rulings, and Reports (Neil J. Kritz, ed.) (United States Institute of Peace Press: Washington D.C., 1995) 576 at p. 579 quoting BVerfG 3, 232 (1953 Federal Constitutional Court). 101. In determining whether particular laws amounted to such extreme injustice, the Court drew on the International Covenant on Civil and Political Rights as a source of 'guiding principles.' Rudolf Geiger, one of the leading commentators on the border guard cases, notes how the courts relied on international human rights principles, not as directly applicable per se, but rather as indications of the fundamental principles of the law: The Court emphasized for the first time that the core of international human rights gives substance and meaning to these basic principles because human rights expressed the shared opinions of all nations on important elements of justice and human dignity. R. Geiger, 'The German Border Guard Cases and International Human Rights' European Journal of International Law Vol. 9 (1998) No. 3 at p. 540. 102. This reasoning is equally applicable to customary international law. Customary international law has the same position as conventional law. A court can equally rely on customary international law as a source of guiding principle in assessing whether a law in question amounts to an extreme injustice. 103. It is therefore respectfully submitted that in determining whether contemporary Canadian courts ought to give continuing legal effect to

Appellants' Factum 439

a discriminatory law, guidance ought to be drawn from the experience of German and British courts. The values of certainty and democracy that ordinarily require that courts simply defer to the existence of legislation must at a certain point give way, in the very name of law itself, to the most basic of legal values which courts are dedicated to upholding. Otherwise, contemporary Canadian courts will perpetuate injustice instead of law and that law itself will stand defenseless against the most iniquitous uses of its form. 104. The principle that when positive law enshrines extreme injustice courts acting in furtherance of their judicial duties must refuse to give legal effect to that injustice has been recognized by this Honourable Court. 105. In Canada Trust Co. v. Ontario Human Rights Commission, the Ontario Court of Appeal had to consider the contemporary validity of a racist trust established in 1923. The trust itself met all the ordinary conditions of legal validity imposed on charitable trusts, and had been in operation for many years. It was challenged as against public policy under the 1981 Ontario Human Rights Code. Although in ordinary conditions a court has no power to override the settlor's intent in a validly executed trust, in this case the Ontario Court of Appeal found that notwithstanding its positive validity the trust was invalid as contrary to public policy: To perpetuate a trust that imposes restrictive criteria on the basis of discriminatory notions espoused in these recitals according to the terms specified by the settlor would not, in my opinion, be conducive to the public interest. The settlor's freedom to dispose of his property through the creation of a charitable trust fashioned along these lines must give way to current principles of public policy under which all races and religions are to be treated on equal footing of equality and accorded equal regard and equal respect. Canada Trust Co. v. Ontario Human Rights Commission (1990), 74 O.K. (2d) 481 at p. 496 (C.A.) (per Robins, J.A.) 106. It is respectfully submitted that this reasoning is equally applicable to the case at bar. Retention of the funds paid pursuant to the Act is only possible if courts rely on a juristic reason profoundly at odds with the basic principles of the legal order. Holding that the Chinese Immigration Act constitutes a juristic reason for the continued enrichment of the defendant would not only amount to a contemporary validation of this racist legislation but would implicate the court - the ultimate custodian of rights - in its perpetuation. A judge determining

440 Appendix I

whether the enrichment in this case is unjust is acting today, and must act in accord with the principles of the legal order as we understand them now. Therefore, it is submitted, a contemporary court must apply principles of racial equality in order to prevent validation and perpetuation of the racism embodied in the Chinese Immigration Act. Law Created By Unrepresentative Legislature Should not Give Rise to a Juristic Reason 107. It is respectfully submitted that in making a determination whether a discriminatory law provides a juristic reason, it is appropriate to consider how representative the legislature was at the time the law was passed. Since respect for democracy underlies deference to legislative choices, courts ought to be wary about categorically granting such deference to legislatures that are profoundly undemocratic, particularly when the legislative choices place burdens on the very groups excluded from the democratic process. 108. The Parliament that passed the various versions of the Chinese Immigration Act was extremely unrepresentative. The Dominion Elections Act of 1920 excluded from the federal franchise those individuals disenfranchised by a province for reasons of race. British Columbia excluded persons of Chinese and Japanese origin, as well as 'Hindus.' Saskatchewan also disenfranchised people of Chinese origin. It was not until 1948 that the Dominion Elections Act repealed the provisions which made race a ground for exclusion from the federal Franchise. The federal legislature was also undemocratic in other important ways. Aboriginal people were not granted an unconditional right to vote in federal elections until 1960. Similarly no women were granted the right to vote in federal elections until 1918. Even then, the right to vote was only extended to women who were not excluded on racial or religious grounds. History of the Vote in Canada (Ottawa: Minister of Public Works and Government Services, Canada, 1997) at pp. 47, 63-64,80-89. 109. The right to restrict the vote on a racial basis was upheld by the Privy Council. It held that the Court had no power to consider whether a law was good or not, but was confined to determining whether it was ultra vires. Since this legislation was intra vires the province of British Columbia, it was valid. Cunningham v. Tomey Homma, [1903] A.C.151 (Privy Council). 110. This is a classic case of a discrete and insular minority being legislated against by a legislature that is structured specifically to ex-

Appellants' Factum 441

elude them. The impact on the judicial role of such exclusion from the democratic process was first discussed by the United States Supreme Court in Carolene Products. In that case, the court discusses how such unrepresentativeness undermines the ordinary justifications for deference to the legislature and accordingly demands special vigilance on the part of courts: [pjrejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of the political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. United States v. Carolene Products Co., 304 U.S. 144 at para. 35 (USSC). 111. This concept is discussed by Wilson, J. in Andrews. With respect to the way in which the denial of the right to vote defines discrete and insular minorities and thus poses special problems for judicial deference, Wilson, J. states: Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among 'those groups in society to whose needs and wishes elected officials have no apparent interest in attending.' Non-citizens, to take only the most obvious example, do not have the right to vote. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at para. 5(per Wilson, J.), citing: Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980). 112. It is therefore respectfully submitted that it would be an abdication of the judicial role to invoke, as a justification for enrichment, a law which imposes special burdens on the very citizens whom that legislature also deprived of the right to vote. Such deference is supported neither by democratic theory nor by jurisprudence. 113. Legislators have the right to expect that judges will treat their enactments as authoritative only on the condition that the enactments meet the ideals to which fundamental common law standards can be said to aspire. These ideals, or common law restraints, include reasonableness, fairness, equality, and justice. A common law judge interpreting or applying a statute is thus doing so in a context in which standards of critical morality are imbedded. David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy(Oxford: Clarendon Press, 1991) at pp. 83, 255, 262.

442 Appendix I (C) THE CHARTER Discriminatory Status 114. Section 15 guarantees the appellants the right to be equal before and under the law, and to the equal protection and benefit of the law. The appellants' s. 15 claim is based on the fact that in contemporary Canadian society, the appellants cannot regard themselves as fully equal before and under the law, and equally entitled to its protection and benefit, as long as the history of official racism against them by the Canadian government is unredressed, and as long as the Government of Canada can still be seen as the beneficiary of monetary extractions made pursuant to that discrimination. 115. Because the appellants' s. 15 argument is based on the current discrimination involved in Canada's continuing retention of the extractions of its official racism, the claim does not involve a retrospective application of the Charter. 116. The issue of Charter retrospectivity was addressed by the Supreme Court in both the Gamble and Benner decisions. The Supreme Court differentiated between attacking a discrete act which occurred prior to the time when the Charter came into effect, and attacking an ongoing status or disability. While the former type of attack is impermissibly retrospective, ongoing discriminatory status imposed by a pie-Charter action does attract Charter scrutiny. 117. In Gamble, Wilson, J. states: Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even though such application will of necessity take cognizance of the pie-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition or state of affairs. R v. Gamble, [1988] 1 S.C.R. 1153 at p. 628 (per Wilson, J.). 118. In Benner, lacobucci, J. states: Where the effect of the law is simply to impose an on-going discriminatory status or disability on an individual, however, then it will not be insulated fromCharterreview simply because it happened to be passed before April 17,1985. Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at para. 44 (per lacobucci, J.). 119. In Murray v. Canada (Minister of Health and Welfare), Rothstein, J.

Appellants' Factum 443

(as he then was) discusses the fact that the distinction between a discrete event and an ongoing status is not always clear cut. Where an ongoing status arises as the result of a discrete event, the court must determine whether the ongoing status is significant enough as compared to the discrete event to bring the claim into the present day. Murray v. Canada (Minister of Health and Welfare), [1993] EC.J. No. 1176 (FCTD) (per Rothstein, ].). - affirmed [1998] EC.J. No. 612 (FCA). 120. It is respectfully submitted that the appellants' Charter claim is predominantly status-based. As discussed above, the Chinese Immigration Act was never about the payment of money. It was about the desire to prevent the immigration of Chinese people to Canada because they were deemed to be of lesser worth than other people. From the appellants' perspective, the most significant aspect of both the Head Tax and exclusion provisions was the imposition of this discriminatory status. The relationship between these measures and the breach of the appellants' Charter rights is a causative one. These measures are the cause of the status, but it is the status itself which is the circumstance for which Charter relief is sought. 121. As such, the mere repeal of the Act did nothing to address this ongoing discriminatory status. In the absence of some positive step being taken to alter this status, it has continued unabated to the present day. As long as Canada retains the Head Tax funds and refuses to provide redress for the harm suffered as a result of the exclusionary law, this status will continue. 122. Gumming, J. acknowledges that repealing a discriminatory statute without repairing its discriminatory effects may not necessarily effectuate substantive equality for the disadvantaged group nor redress the negative effects of the discriminatory treatment, [para. 54] 123. However, by treating the discrimination as being the event of the taxation or exclusion itself, Gumming, J. focuses on that specific point in time while discounting the significance of the status that arose as a result of these events. It is respectfully submitted that the appellants' Charter claim, when viewed in its proper context, demonstrates that the predominate focus of the claim is the status imposed as a result of the Act. For this reason, it is not retrospective. Japanese Canadian Redress Order 124. In any event, the appellants submit that by granting redress to Japanese Canadians for past discrimination, while refusing to provide

444 Appendix I

redress for the appellants, Canada infringed their s.15 Charter rights. It is respectfully submitted that the failure to extend redress to the appellants is discriminatory. 125. In Eldridge v. British Columbia, the Supreme Court states: This court has repeatedly held that once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner. In many circumstances, this will require governments to take positive action, for example by extending the scope of a benefit to a previously excluded class of persons. Moreover, it has been suggested that, in taking this sort of positive action, the government should not be the source of further inequality. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 73 (per the Court). 126. In Haig v. Canada, L'Heureux-Dube, J. states: Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion and particularly not on a ground prohibited under s.15 of the Charter. Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995 at para. 84. 127. Key to the determination whether differential conferral of a benefit engages s.15 is the degree of connection between one disadvantaged group and another which will be sufficient to put the differential treatment under Charter scrutiny. It is submitted that this area of s.15 jurisprudence remains unsettled. In a recent article by The Honourable Chief Justice Beverly McLachlin, she acknowledges that 'what serves as a sufficient or substantial distinction between one disadvantaged group and another' has not been settled in the case law. Beverly McLachlin, 'Equality: The Most Difficult Right' (2001), 14 S.C.L.R. (2d) 1 at p. 24 ('McLachlin'). 128. In Lovelace, the Supreme Court finds that the differential treatment of Aboriginal groups with respect to the distribution of casino revenue does not infringe s.15. This finding was based on several key distinctions between the two groups. lacobucci, J. addresses the fact that the two groups chose different paths towards achieving their equality goals and that the casino revenue accruing to one group is the direct result of this its path. The group receiving the benefit is receiving it in large part because the casino project is a partnered initiative between that group and the government. The revenue that accrues to the benefit of that group arises directly as a result of this partnered initiative and does not come from the general pool of government revenue. In addi-

Appellants' Factum 445

tion, the casino project requires reserve lands which the appellant bands do not possess. The denial of casino revenues to the appellant bands did not preclude them from other ameliorative programs which were in place for their benefit and in which they participated. Lovelace v. Ontario, [2000] 1 S.C.R. 950 at paras. 18,74 (per lacobucci, J-). 129. In this case, the distinctions discussed in Lovelace are not present. Chinese and Japanese redress seekers chose identical paths by launching redress campaigns and lobbying the Canadian government. Unlike the appellant bands in Lovelace, the appellant Head Tax payers have had their request for ameliorative action by the Canadian government refused outright while the Japanese Canadian request was answered. Further, redress payments come out of the general government pool of revenue. For these reasons, it is respectfully submitted that the finding in Lovelace is not applicable to the differential treatment in the case at bar. 130. To find that the discrimination suffered by Chinese and Japanese Canadians is separate and unrelated is to deny the history of racial discrimination against these two groups. Throughout the period of discrimination by the Canadian government which gave rise to the Japanese Redress Order and to the claim of the appellants, the Canadian government treated these two specific groups as linked. Discrimination in Canada against immigrants of Asian origin encompassed both Chinese and Japanese people and the legislative history of the Chinese Immigration Act is replete with derogatory references to people of Japanese origin. See appendix 2. 131. Whether the historical treatment of the two groups is sufficient to engage s.15 is something that can only be properly determined at trial with a full evidentiary record. It is submitted that the appellants should have the opportunity to develop this argument at trial with an evidentiary base. The need to resolve Charter issues on a complete factual record has been acknowledged as crucial to the proper development of Charter jurisprudence by the Supreme Court. 132. In Mackay v. Manitoba, the Court states: Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by

446 Appendix I

simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. Mackay v. Manitoba, [1989] 2 S.C.R. 357 at pp. 361-362; (1989), 61 D.L.R. (4th) 385 at 388 and 391-392 (S.C.C.) (per Cory, J.). JR. v. Mills, [1999] 3 S.C.R. 668 at p. 703 (Restatement of the above principle) (per McLachlin, J.). 133. It is respectfully submitted that the desirability of establishing a complete evidentiary record, coupled with the unsettled nature of the law as regards discrimination between disadvantaged groups, renders inappropriate the decision to strike the appellants' claim on a summary basis for disclosing no reasonable cause of action. 134. It is further submitted that the finding that the appellants' human dignity was not demeaned as a result of their differential treatment is premature. If, as the appellants submit, people of Chinese and Japanese origin have been discriminated against by the Canadian government in a way that reflects the linkage and similarity between them, the obvious implication of the choice to grant redress to one and not the other is that the discrimination suffered by Chinese Canadians is somehow of less significance than that suffered by Japanese Canadians. Such a choice necessarily demeans the dignity of the Chinese Canadian community and belittles its claim to full equality. Determination of this issue, too, requires a complete evidentiary record. 135. With respect to the finding that the appellants failed to plead sufficient facts to support this cause of action, it is submitted that the appropriate step for the court to take is to allow the appellants to amend their statement of claim so as to plead the necessary factual basis. The claim should not have been struck, on this ground, for disclosing no reasonable cause of action. Ontario Rules of Civil Procedure, subrule 26,02(c). Right to Redress Under s. 15 136. Further, and in any event, the appellants argue that s.15 gives rise to an independent right of redress. Such a right is consistent with the purpose of s.15, and with the international law norms which can be used as interpretive tools in determining the breadth of the s.15 equality guarantee. The purpose of s.15 was recently discussed by McLachlin, CJ. as follows: The first and arguably primary goal of modern equality law is to

Appellants' Factum 447

improve the situation of people belonging to groups that have traditionally suffered discrimination. McLachlin, supra at p. 24. 137. With respect to recent thinking about the equality guarantee under s.15, McLachlin, C.J. states: The ethos of ameliorative equality dominates recent thinking. Supreme Court of Canada decisions repeatedly assert that reversing the harmful effects of stereotypical discrimination is the central purpose of section 15. The same holds elsewhere. McLachlin, supra at p. 25. 138. Noting that South African jurisprudence has been at the forefront of the development of international equality case law, McLachlin, C.J. refers to the following quote of Ackermann, J. in The National Coalition for Gay and Lesbian Equality and Others v. Minister of Justice. The State is obliged to promote the achievement of such equality by legislative and other measures to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination which envisages remedial equality. McLachlin, supra at p. 25 - citing 1998 (6) BCLR 726 (W). 139. This approach is consistent with the reasoning in Andrews, the first Supreme Court of Canada decision to interpret s.15. In that case, Mclntyre J. states: The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration. It has a large remedial component. Andrews, supra at para. 34. 140. Reparations as a means of achieving remedial equality have gained an increasing acceptance in international law. For example, various international documents provide for an enforceable right of compensation. Other documents, while not directly advocating redress, stress the need for an effective remedy for victims who have had their rights violated. See Appendix 3. 141. The principle that a state which causes harm in contravention of international law is obligated to provide reparations traces its roots to a 1928 decision of the Permanent Court of International Justice: A state is not only responsible under international law for the injury caused by its wrongful act, but is also responsible for the reparation and indemnification of such wrongful injury. Chorzow factory Case (Germany v. Poland), 1928 PCIJ (Ser. A) No. 117.

448 Appendix I

142. In Velasquez-Rodriguez v. Honduras, the Inter-American Court of Human Rights addresses the issue of redress for next of kin of 'disappeared persons.' With respect to the general obligation to provide reparations, the court states: Reparation of harm brought about by the violation of an international obligation consists in full restitution (restitutio in integrum), which includes the restoration of the prior situation, the reparation of the consequences of violence, and indemnification for patrimonial and non-patrimonial damages, including emotional harm. Velasquez-Rodriguez v. Honduras, Int-Am. Ct. H.R. (Ser. C) No. 4 at para 26. 143. In Hermanns v. South Africa (Department of Land Affairs), Gildenhuys, A.J. discusses why redress for past discriminatory actions is necessary: There are two crucial reasons for confronting the past. Firstly, as a civilized society, we must recognize the worth and dignity of those victimized by abuses of the past. If we fail to confront what happened to them, in a sense we argue that those people do not matter, that only the future is of importance. We also perpetuate, even confound, their victimization. Hermanus v. South Africa (Department of Land Affairs), [2000] S.A.J. No. 40 at para. 25, note 53 (South Africa Land Claims Court) quoting Aryeh Neier, 'Why deal with the Past' in Dealing with the Past: Truth and Reconciliation in South Africa, Alex Boraine et al eds. (Institute for Democracy in South Africa, 1994, p.3. 144. The attitude towards redress that Gildenhuys, J. condemns is exactly the position taken by the Canadian government in response to requests for redress by Chinese Canadians. This position was expressed by the Honourable Sheila Finestone, Secretary of State, Multiculturalism, and the Status of Women, (as she then was) on December 14,1994. House of Commons Debates, 1st sess., 35th Parl., at 9065-9066 [Hon. Sheila Finestone - Liberal - Majority Government, 1994]. See: Appendix 4. 145. This need to address past wrongs has been recognized by the Canadian government in enacting the Crimes Against Humanity Act ('CAHA'). This act allows the government to prosecute people for such crimes as slavery which took place prior to its enactment. Further, the CAHA explicitly acknowledges that both conventional and customary international law may be used as the basis to determine whether a crime against humanity has taken place. This Act is explicit recognition by the Canadian government that human rights principles demand that past wrongs be addressed. Crimes Against Humanity Act, S.C. 2000, C. 24.

Appellants' Factum 449

146. While Gumming, J. acknowledges a developing international norm of redress, his consideration of its application to the case at bar was restricted to whether the norm could impose a direct legal obligation on Canada. The appellants submit that this norm can, and should, be used as a tool in interpreting whether a right to redress can be advanced pursuant to s.15. The s.15 guarantee of substantive equality will never be achieved while state sponsored inequalities are left unaddressed. It is impossible to build a just and equal society on racist roots. 147. Moreover, refusal to provide redress is a violation of the section 15 guarantee because it denies the appellants and other class members the 'protection and benefit' of the Constitution of Canada, our supreme law, which is founded on the Rule of Law and on the principle of protection of minorities. Quebec Secession Reference, supra at para. 81. Reference re Language Rights under s.23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, [1985] 1 S.C.R. 721 at paras. 63-64 (per the Court). 148. It is respectfully submitted that the use of s.15 to found a cause of action in reparations is novel. While there is clearly precedent for the provision of reparations in the international equality jurisprudence and academic literature, this issue has never been put squarely before the Supreme Court of Canada. On a motion to strike a claim for disclosing no reasonable cause of action, it is inappropriate to strike a claim merely because it is novel or where the basis of the claim is not settled in the jurisprudence. For these reasons, the appellants submit that their claim for reparations as a right pursuant to s.15 should not have been struck. PART V- ORDER SOUGHT 149. For these reasons, the appellants ask that this appeal be granted and that the costs of this appeal and the motion before Justice Cumming be paid to them forthwith on a solicitor and client basis. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 30th day of November, 2001.

Appendix II Mack v. Attorney General of Canada: Judgment of the Ontario Court ofAppeal

MOLD AVER and MacPHERSON JJ.A.: 1 In the Quebec Secession Reference,1the Supreme Court of Canada observed that although the protection of minority rights has played an essential part in the design of Canada's constitutional structure, our record for upholding such rights has by no means been spotless. In this regard, Canada's treatment of people of Chinese origin who sought to immigrate to this country between 1885 and 1947 represents one of the more notable stains on our minority rights tapestry. For the first 38 of those years, until 1923, Parliament passed a series of laws that required persons of Chinese origin to pay a duty or 'head tax' upon entering Canada.2 The tax, which grew progressively from $50 in 1885 to $500 in 1903, was meant to be prohibitive and it placed Canada beyond the reach of many. But not enough, apparently, for the government of the day, which explains why the tax was abolished in 1923 and replaced by legislation that for the next 24 years, until its repeal in 1947, effectively barred all but a select few Chinese people from immigrating to Canada.3 2 The appellants represent a class of people who seek redress from the Government of Canada for the harm occasioned by the impugned legislation - legislation which they quite properly characterize as racist and discriminatory. The class includes some individuals who actually paid the head tax, but in the main it consists of their spouses and descendants. 3 Among other forms of relief, the appellants seek the return, with compound interest, of monies paid as head tax and damages for pain and suffering, injury to dignity and loss of opportunity stemming from the impugned legislation. For present purposes, it is agreed that the

Judgment of the Ontario Court of Appeal 451 appellants base their claim on the following three causes of action: (1) The impugned legislation is the source of two distinct violations of the appellants' equality rights under s.15 of the Charter. (2) The impugned legislation was at all times invalid and of no force or effect because it contravened a customary international law, by which Canada was legally bound, prohibiting racial discrimination. (3) The equitable principle of unjust enrichment applies and it requires the government to disgorge the revenues raised under the head tax legislation. 4 After being served with the statement of claim (the 'claim'), the Attorney General of Canada moved under rule 21.01(l)(b) of the Rules of Civil Procedure, R.R.0.1990, Reg. 194, to have the claim struck out on the ground that it disclosed no reasonable cause of action. The motion was argued before Cumming J. of the Superior Court of Justice for two full days on April 24 and 25,2001. On July 9,2001, Cumming J. released comprehensive written reasons in which he allowed the motion and struck the claim. 5 The appellants appeal from that order and seek to have the claim reinstated. For reasons that follow, we are satisfied that Cumming J. came to the correct conclusion. Accordingly, we would dismiss the appeal. Background 6 Cumming J.'s comprehensive reasons for allowing the motion to strike out the appellants' claim include a thorough review of the background facts and the test to be applied on a rule 21.01(l)(b) motion. Accordingly, we propose to move directly to the issues, commencing with the alleged infractions of the appellants' equality rights under s.15 of the Charter. Alleged Section 15 Charter Breaches 7 The appellants allege that the impugned legislation is the source of two separate and distinct violations of their equality rights under s.15 of the Charter. 8 First, they submit that the legislation stigmatized people of Chinese origin because it deemed them to be less worthy than other people. That stigma, they contend, continues unabated to this day because

452 Appendix II

of the government's unwillingness to refund the head tax and provide redress for the harm and suffering occasioned by 62 years of government-sponsored anti-Chinese legislation. 9 Second, the appellants point to the 1988 post-Charter agreement between the Government of Canada and Japanese Canadians in which the government provided redress for violating the human rights of Japanese Canadians during the Second World War. In the face of that agreement they submit that the government's failure to provide the Chinese Canadian community with similar redress is discriminatory because it promotes and perpetuates the idea that Chinese Canadians are less worthy of recognition and less valuable to society than Japanese Canadians. 10 Gumming J. dealt with both issues in his reasons. With respect to the first, he referred to Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, for the proposition that 'the Charter cannot apply retroactively or retrospectively.' He then quoted the relevant passages from Benner in which lacobucci J. identified the test to be applied in determining whether a proposed application of the Charter is or is not retrospective. The passages quoted are found at pp. 383-84 of Benner and bear repetition: Section 15 cannot be used to attack a discrete act which took place before the Charter came into effect. It cannot, for example, be invoked to challenge a pre-Charter conviction: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Gamble, supra. Where the effect of a law is simply to impose an on-going discriminatory status or disability on an individual, however, then it will not be insulated from Charter review simply because it happened to be passed before April 17,1985. It if continues to impose its effects on new applicants today, then it is susceptible to Charter scrutiny today: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect? ... Successfully determining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involve determining whether, in all the circumstances, the

Judgment of the Ontario Court of Appeal 453

most significant or relevant feature of the case is the past event or the current condition resulting from it. This is, as I already stated, a question of characterization, and will vary with the circumstances. Making this determination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply. 11 Gumming J. then continued as follows: The plaintiffs argue that they are not asking the court to apply the Charter either retroactively or retrospectively. Rather, they contend that their present Charter rights are infringed as a result of the government's refusal to provide redress relating to the Head tax. They argue that repealing the Chinese Immigration Act without remedying any of its resulting discriminatory effects violates the Charter section 15 right to equality. Applying the test articulated in Eenner, this court must ask how the plaintiffs' claim can best be characterized. Here, the claim is founded on a discrete act, that is, the levying of a fee on Chinese immigrants or the outright exclusion of Chinese immigrants under the Chinese Immigration Act in its various forms. It is this discrete act that predominates over any of the Head Tax's continuing effects. It is impossible to say that the plaintiffs' claim is grounded in the 'contemporary application' of a historical statute, repealed long before 1985, when s.15 of the Charter came into force. The offending law was repealed in 1947. There can be no contemporary application of a repealed law. Rather, this claim seeks redress for events that took place over fifty years ago. Accepting all the facts as pleaded by the plaintiffs, the proposed application of the Charter is retrospective. Therefore, it cannot succeed. It is not sufficient for the plaintiffs to plead that they continue to suffer from discriminatory legislation that existed, but was repealed, prior to the enactment of the Charter. As the court in Eenner, supra, recognized at 388, quoting Letourneau J.A. in the Federal Court of Appeal below: Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15, provided the victims still suffer from that past discrimination.

454 Appendix II

The plaintiffs must find a foundation for their claim in the laws applicable to the time of the impugned actions of government. The direct and indirect consequences of acts of discrimination may well last a lifetime and extend beyond to subsequent generations. But the predominating act of discrimination itself ended with the repeal of the Chinese Immigration Act in 1947. 12 We agree with Gumming J/s analysis and would only note that, unlike the present situation, Benner is a clear case where because of his status at birth (born abroad before February 15, 1977 to a Canadian mother and a non-Canadian father) Benner was prevented in 1988 (3 years after s.15 of the Charter had come into effect) from being accorded the automatic right to citizenship granted to children of Canadian fathers. In other words, in 1988, Benner's status at birth was held against him and disentitled him to a benefit accorded to others because of certain provisions of the Citizenship Act that the court found to be discriminatory. With respect, the appellants have not shown any such comparable disadvantage. 13 Gumming J. then turned to the Japanese Canadian Redress Agreement ('Redress Agreement') and the alleged breach of the appellants' s.15 Charter rights stemming from the government's failure to extend similar redress to the Chinese Canadian community.4 Gumming J. refused to allow the claim to proceed on this ground because, in his view, the pleadings were deficient in two respects. 14 First, the pleadings failed to include 'facts as to a discrimination claim framed in the post-Charier period.' Rather, as pleaded, the alleged discrimination flowed solely 'from the impugned historical legislation, not from the Japanese Canadian Redress Agreement.' The pleading in question reads as follows: The plaintiffs state that the Government of Canada has provided redress for its violation of the human rights of Japanese Canadians during the Second World War, by means of Order-in-Council P.C. 1988-89/2552 ('the Redress Order'). This Order, and other acts of redress by Canadian national and provincial governments, shows acceptance in this country of the right of redress for human rights violations based on international instruments as outlined above and on Canadian domestic human rights law. Failure to extend redress to the Chinese Canadian community, and to persons in the position of the plaintiffs herein is, moreover, a violation of section 15 of theCharter of Rights.

Judgment of the Ontario Court of Appeal 455

15 Second, the pleadings failed to allege facts capable of showing discrimination in accordance with the principles enunciated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 529, namely, facts capable of showing that the Redress Agreement functioned by device of stereotype or that the exclusion of the appellants from it had the effect of demeaning their worth and dignity. Gumming J.'s reasons in this regard are reproduced below: Moreover, the fact that the government gives redress to one group of Canadians in respect of their claim of discrimination through a voluntary agreement does not in itself provide a legal basis for another, unrelated group in respect of their separate claim of discrimination. The government had a purpose through the Japanese Canadian Redress Agreement that was consistent with s.15 of the Charter, and the exclusion of non-Japanese Canadians from the agreement did not undermine this purpose or demean the claimants' human dignity. The Government had a targeted ameliorative program for a specific group, that being Japanese Canadians. The plaintiffs in the case at hand allege that the Japanese Canadian Redress Agreement failed to deal with the disadvantages that Chinese Canadians have experienced, even though those disadvantages are unrelated to the discrimination addressed through the government's agreement with Japanese Canadians. However, exclusion from a specifically targeted group 'is less likely to be associated with stereotyping or stigmatization or conveying the message that the excluded group is less worthy of recognition and participation in the larger society.' See Lovelace v. Ontario, [2000] 1 S.C.R. 950 at 1000. The simple fact is that an 'ex gratia payment to compensate certain members of the Japanese Canadian population is not discrimination pursuant to s.15 of the Charter' in respect of other Canadians: 1?. v. Mayrhofer, [1993] 2 F.C. 157 (T.D.) at 175. 16 We agree with Gumming J.'s analysis. In particular, we note that in their pleadings, the appellants do not suggest that the alleged differential treatment of Japanese Canadians under the Redress Agreement reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that they are less capable, or less worthy of recognition or value as human beings or members of Canadian society (see Law, supra at p. 529).

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17 Even if the pleadings, read generously, can be said to incorporate such an allegation, we agree with the Attorney General of Canada that for the purpose of resolving this appeal, it is irrelevant that discrimination in Canada against immigrants of Asian origin generally encompassed both Chinese and Japanese people. At issue here are the specific acts of alleged discrimination pleaded in the statement of claim, and because those acts are so completely different from the acts of discrimination giving rise to the Redress Agreement, it is plain and obvious that the appellants cannot use that agreement as a springboard from which to launch their s.15 Charter claim. See Lovelace v. Ontario, [2000] 1 S.C.R. 950 at 994-98. Cause of Action Based on Customary International Law 18 The appellants submit that their claim supports a cause of action based on customary international law. In particular, they argue that it is not plain and obvious that customary international law did not condemn racial discrimination during the period of the impugned legislation and, to the extent that it did, Canada was legally bound to abide by it and can be held accountable for failing to do so. 19 Cumming J. devoted a considerable amount of time in his reasons to the international law component of the pleadings. In the end, he concluded that the appellants could not ground their claim in conventional international law because the instruments upon which they were relying did not exist at the time of the impugned legislation and to the extent Canada has since incorporated them into its domestic law, they have not been given retroactive effect. With respect to any international norms against racial discrimination that may have existed during the relevant time frame, Cumming J. found, in accordance with general principles of international law, that absent adoption, such norms were not binding upon Canada. 20 The appellants do not disagree with Cumming J.'s analysis so far as it goes. They maintain, however, that he failed to consider their customary international law argument and its impact on the viability of their claim. 21 To the extent that Cumming J. may have neglected the appellants' customary international law argument, his oversight is understandable as the term 'customary international law' is not mentioned in the claim and it is questionable whether the pleadings even raise it as supporting a cause of action. That said, the Attorney General of Canada is not pressing the matter and invites us to address the issue on its merits.

Judgment of the Ontario Court of Appeal 457

22 The Attorney General of Canada submits, correctly in our view, that there are two required elements of customary international law., A proponent must establish: (1) a practice among States of sufficient duration, uniformity and generality; and (2) that States consider themselves legally bound by the practice. (I. Brownlie, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998) at 4-7). 23 In the same text, at p. 5, Professor Brownlie explains that the evidence needed to establish custom can come from various sources and includes the following: ... diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international, organs, and resolutions relating to legal questions in the United Nations General Assembly. Obviously the value of these sources varies and much depends on the circumstances. 24 The appellants rely on a number of sources to establish the pre1947 existence of a customary international law prohibiting racial discrimination. These include: national and international judicial decisions; individual opinions expressed by some members of Parliament; Canada's membership in the League of Nations and its participation as a signatory to the Treaty of Versailles; Canada's participation as a signatory to various treaties regarding the abolition of slavery; the constitution of the International Labour Organization and various declarations emanating from it; and, writings of various international law scholars.

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In addition, the appellants point to the Canadian Bill of Rights and the Charter, characterizing each as a codification of pre-existing rights, including the right to be free from racial discrimination. 25 The Attorney General of Canada submits that the source materials referred to by the appellants fall short of establishing a pre-1947 international custom prohibiting racial discrimination. According to the Attorney General, these materials, properly construed, represent pockets of enlightenment in an era when the protection of human rights did not figure prominently on the international scene. Support for this conclusion is found in the writings of leading international law scholars, such as Professor Francesco Capatorti. In his essay entitled 'Human Rights, the Hard Road Toward Universality/5 Professor Capatorti observes that although the 'birth of an international system of regulation of human rights has constituted a form of evolution ... and not one of revolution/ the year in which the United Nations was created, 1945, is recognized as: ... the starting point of world-wide international activity for the protection of human rights. Indeed, before that date no system of international rules intended to oblige the states to respect a full catalogue of human rights had ever been introduced, (at p. 979) 26 By way of elaboration, Professor Capatorti references certain 'phenomena' in the late nineteenth century and first half of the twentieth century that, in his view, represented the 'more significant antecedents of the protection of the human person.' (at p. 979) At p. 980 however, he points out that these pockets of enlightenment should not be confused with a world-wide perspective on the protection of human rights: However, the fragmentary character of the clauses mentioned and their evident connection with situations peculiar to a restricted geographical area show that a world-wide perspective on protection of human rights was still totally absent. The same consideration applies to the minorities regime created on the basis of the Peace Treaties of 1919-1920; yet some considerable progress reached by such a regime cannot be denied. 27 As indicated, Professor Capatorti maintains that the breakthrough in the field of individual human rights from a fragmentary perspective

Judgment of the Ontario Court of Appeal 459

to a global aim occurred in 1945, with the birth of the United Nations. At pp. 981-82 he notes: The birth of the United Nations introduced three great novelties into this evolution. In the first place, the shift from a fragmentary perspective to a global aim: no longer the mere defence of religious freedom, the protection of minorities or a more humane treatment of the workers, each of them considered in a different context, but 'the respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion' (article 1, paragraph 2 of the Charter). Second, the adoption of this global aim among those of a universal organization, and therefore the ambition of establishing a level of protection common to all states (as the organization gradually achieves a real universality). Third, the creation of an organ intended for that purpose and called upon to work exclusively for it namely the Commission for Human Rights - as well as the conferring of precise competences in the same field both on the Assembly and on the Economic and Social Council. 28 Other international law scholars, such as Professor John Humphrey, describe the adoption of the U.N. Charter in 1945 as a 'revolutionary' foundation for the development of international human rights. In his article entitled The Implementation of International Human Rights Law,' (1978) 24 New York Law School Review 31 at 32-33, Professor Humphrey writes: Customary law has the great advantage over treaty law in that it is binding on all states. Thus the law governing the international responsibility of states for the treatment of aliens is binding on all states by virtue of their membership in the international community. This law, as already indicated, has recently undergone significant changes. For the traditional minimum objective international standard (which was sometimes higher than national standards) has been replaced by a new standard under which foreigners and nationals are entitled to the same treatment. This new standard is set forth in the Universal Declaration of Human Rights which, whatever its drafters may have intended in 1948, is now part of the customary law of nations - not because it was adopted as a resolution of the General Assembly but because of juridical consensus resulting from its invocation as law on countless occasions since 1948 both within and outside the United

460 Appendix II

Nations. The Universal Declaration of Human Rights has now become the authentic interpretation of the human rights provisions of the Charter which neither catalogues nor defines the human rights to which it refers. This human rights law, whether based on treaty or on custom, is not only new, it is revolutionary in the sense that it is radically different from traditional international law which was only concerned with relations between states. 29 To the extent that national judicial decisions from the pre-1947 era are relevant, the cases relied upon by the appellants, such as Regina v. Corporation of Victoria (1888), 1 B.C.R. Pt. II331 (S.C.); Regina v. Mee Wah (1886) 3 B.C.R. 403 (Cty. Ct.); Tai Sing v. Macguire (1878) 1 B.C.R. Pt. 1101 (S.C.) and R. v. Gold Commissioner of Victoria District (1886), 1 B.C.R. Pt. II 260 (Div. Ct.), are of limited assistance since they do not address the issue at hand but relate instead to the separation of powers under ss. 91 and 92 of the Constitution Act, 1867. In any event, they must be read in light of Cunningham v. Tomey Homma, [1903] A.C. 151 (P.C.), a more recent decision and one of higher authority in which the Privy Council held that a statute which restricted entitlement to vote on the basis of race was both intra vires and a valid exercise of provincial power. Notably, speaking for the court, the Lord Chancellor observed at pp. 155-56 that 'the policy or impolicy of such an enactment as that which excludes a particular race from the franchise is not a topic which their Lordships are entitled to consider.' As the Attorney General of Canada points out, Cunningham, a decision of the final appellate court of the day, stands in stark contradiction to the appellants' assertion that a customary international law prohibiting racial discrimination existed in that era. 30 As for the foreign decisions cited by the appellants in support of their customary international law argument, we view them as examples of foreign domestic law, not customary international law and thus not binding on Canada. In any event, the appellants do not suggest that Canada adopted those decisions or the principles enunciated in them during the relevant time frame. 31 In sum, based on the evidence presented, it is plain and obvious that the appellants cannot succeed in establishing the existence of a pre1947 customary international law prohibiting racial discrimination that would render the impugned legislation invalid. For that reason alone, the customary international law pleading must fail.

Judgment of the Ontario Court of Appeal 461

32 Even if we had decided that the evidence presented by the appellants was capable of passing the threshold test, we would nonetheless have halted the action because of the well-established principle that customary international law may be ousted for domestic purposes by contrary domestic legislation.6 Professor Brownlie states the principle succinctly in his article entitled Principles of Public International Law, supra, at p. 42: The dominant principle, normally characterized as the doctrine of incorporation, is that customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of parliament or prior judicial decisions of final authority [citations omitted]. See also Suresh v. Canada (Minister of Citizenship and Immigration) (2000), 183 D.L.R. (4th) 629 (F.C.A.) at 659, reversed for other reasons at 2002 SCC 1; R. v. Gordon, [1980] B.CJ. No. 381 (S.C.) at para. 7; and Chung Chi Cheung v. The King, [1939] A.C. 160 at 167-68. 33 Applying that principle to this case, to the extent any customary international law prohibiting racial discrimination may have existed during the relevant time frame, it was clearly ousted by the impugned legislation. Accordingly, for that reason as well, the customary interna tional law aspect of the claim must fail. Unjust Enrichment 34 The appellants contend that the equitable principle of unjust enrichment applies in the circumstances of this case and that it requires the Government of Canada to disgorge the revenues raised under the head tax laws. The recipients would be the surviving payers of the tax (a very small number) or their surviving spouses (also a small number) and direct descendants. 35 The three elements of the principle of unjust enrichment are settled. A claim for unjust enrichment requires the claimant to establish 'an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment': see Pettkus v. Becker, [1980] 2 S.C.R. 834 at 848 per Dickson J.; see also Rathwell v. Rathwell, [1978] 2 S.C.R. 436 ('Rathwell'); Peel (Regional Municipality) v. Canada; Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762 ('Peel'); and Peter v. Beblow, [1993] 1 S.C.R. 980. 36 In the present case, Cumming J. held, and the Attorney General of Canada concedes, that the appellants have established the first two

462 Appendix II

branches of the test - the head tax enriched the Government of Canada and constituted a corresponding deprivation to the immigrants who paid it. For purposes of this appeal, we accept Gumming J.'s decision and the respondent's concession on these matters. We also note that it is not disputed that the principle of unjust enrichment 'can operate against a government to ground restitutionary recovery': see Air Canada v. British Columbia, [1989] 1 S.C.R. 1161 at 1203 per La Forest J. 37 The resolution of the unjust enrichment issue in this appeal turns on the third branch of the test - the absence of a juristic reason for permitting the government of Canada to retain the revenues raised during the 38 year history of the head tax laws. 38 The Attorney General of Canada contends that there is an obvious and conclusive juristic reason supporting retention in this case - the head tax laws themselves. 39 There is considerable force in this submission. In one of the leading cases, indeed the case in which the three branch test for unjust enrichment was initially set out, namely Rathwell, supra, Dickson J. gave as examples of juristic reasons 'a contract or disposition of law' (at p. 455). It would seem obvious that a statute falls within the category of a disposition of law. In a second leading case, Peter v. Beblow, supra, Cory J. expressly stated that a statute can provide a juristic reason for retention of a benefit (at p. 1018). See also Attorney General of Canada v. Confederation Life Insurance Company (1995), 24 O.K. (3d) 717 at 780 (Gen. Div.), aff'd (1997), 32 O.K. (3d) 102 (C.A.). 40 In the leading Canadian text, The Law of Restitution (Aurora: Canada Law Book Inc., 1990), the learned authors, Professor John McCamus and Peter Maddaugh, devote a section to the topic Unjust Retention: No Juristic Reason for Enrichment. In their discussion of the phrase 'disposition of law' from Rathwell, they state, at p. 46: Although the principal example of another 'disposition of law' is no doubt the making of a gift, it is perhaps self-evident that an unjust enrichment will not be established in any case where enrichment of the defendant at the plaintiff's expense is required by law. The payment of validly imposed taxes may be considered unjust by some, but their payment gives rise to no restitutionary right of recovery. 41 The appellants attempt to overcome these authorities with the submission that not every statute can constitute a juristic reason for retaining a payment. The head tax laws, the appellants contend, should be regarded as an exception to the general rule.

Judgment of the Ontario Court of Appeal 463

,42 It is true that there are exceptions to the general rule that a statute can provide a juristic reason for retention of a benefit. For example, in Central Guaranty Trust v. Dixdale (1994), 24 O.K. (3d) 506, this court held that a first mortgagee who had mistakenly discharged a mortgage was entitled to priority over a second mortgagee despite the provisions of the Registry Act which appeared to require a contrary result. Laskin J.A. said, at pp. 515-16: But, in my opinion, the statute alone is not dispositive of this appeal. In an appropriate case a court may give effect to the principle of unjust enrichment despite the terms of a statute. See also Deglman v. Brunei Estate, [1954] S.C.R. 725, where the court allowed the plaintiff to recover in quantum meruit even though the Statute of Frauds rendered unenforceable the oral agreement on which he had sued. 43 Central Guaranty Trust and Deglman are private law cases. However, the possibility of some exceptions to the general rule that a statute provides a juristic reason for retention of a benefit has also been raised in public law cases, including cases involving the retention by governments of revenues obtained pursuant to taxation statutes. For example, in Reference re Goods and Services Tax (GST) (Can.), [1992] 2 S.C.R. 445, a minor issue was whether suppliers had a right to be reimbursed by the federal government for the expenses they incurred in collecting the GST. One of the arguments made on their behalf was unjust enrichment. The court rejected this argument. Lamer C.J.C. stated the general proposition linking a statute and juristic reason in strong language; however, he did so without excluding the possibility of exceptions and, indeed, suggested one possible exception. He said, at p. 477: Under the GST Act the expenses involved in collecting and remitting the GST are borne by registered suppliers. This certainly constitutes a burden to these suppliers and a benefit to the federal government. However, this is precisely the burden contemplated by the statute. Hence, a juridical reason for the retention of the benefit by the federal government exists unless the statute itself is ultra vires. 44 Against the backdrop of these authorities, we do not conclude that it is plain and obvious that the appellants' argument on the third branch of the test of unjust enrichment - namely, that in some cases a statute

464 Appendix II

will not provide a juristic reason for retention by a government of revenues received under a tax - cannot succeed. Accordingly, we proceed to a consideration of the substance of the appellants' argument on this issue. 45 At the start of her oral argument, counsel for the appellants submitted that a 'moral balancing' is permitted in the analysis of juristic reason and that both the principles of international law and the provisions of the Charter would assist in this exercise. The appellants made the same link between juristic reason and international law and the Charter in their factum: 72. It is respectfully submitted that to the extent the Chinese Immigration Act is contrary to customary international law, it cannot provide a juristic reason for the enrichment of the defendant at the expense of the plaintiff. 73. If the appellants meet the 'plain and obvious' test with respect to the customary international prohibition on racial discrimination, it is respectfully submitted that they clearly meet the 'plain and obvious' test in regard to the Act failing to provide a juristic reason for the enrichment of the Canadian government at the expense of the Head Tax payers. 78. The principle that the law ought to develop in accordance with the Charter is applicable to both equity and the common law. Accordingly, wherever possible, the doctrine of unjust enrichment should be construed to maximize consistency with Charter values. 46 The problem with these submissions is that they are not independent of the appellants' submissions relating to their customary international law and Charter claims. Indeed, as the above paragraphs make clear, the appellants' juristic reason argument is explicitly and inextricably linked to these two arguments. 47 A similar situation arose in Reference re Goods and Services Tax, supra. The Canadian Federation of Independent Business ('CFIB'), an intervener, argued that suppliers had a right to be reimbursed by the federal government for the expenses they incurred in collecting the GST. As noted above, the Supreme Court of Canada rejected the CFIB's unjust enrichment argument in support of this position. In doing so,

Judgment of the Ontario Court of Appeal 465

Lamer C.J.C. succinctly identified, at p. 477, the duplicative quality, and the concomitant irrelevance, of the CFIB's argument: The CFIB's argument thus involves it in the following dilemma: If the GST Act is ultra vires, then registered suppliers cannot be compelled to collect the tax, and it is not necessary to consider the extent of any restitutionary claim this group might have against the federal government. If, on the other hand, the GST Act is intra vires, then the statute itself constitutes a valid juristic reason for the retention of the benefit the federal government receives by being able to rely upon registered suppliers to collect the tax at their own expense. In neither case is the outcome urged upon us by the CFIB supportable. 48 In the present case, Gumming J. identified a similar dilemma in the appellants' submissions relating to juristic reason: The problem with the plaintiffs' submissions in this regard is much the same as their difficulties with respect to their Charter and international law arguments. To find that a statute does not constitute a juristic reason, it would be necessary to demonstrate that the legislation is unconstitutional or ultra vires. He then continued by summarizing, and applying, his reasoning on the Charter and international law arguments. The Charter cannot be used to attack the head tax laws because it cannot be applied retroactively or retrospectively. Customary international law principles relating to nondiscrimination, even if they existed during the life of the head tax laws, are superseded by domestic legislation, which includes the head tax laws. 49 Gumming J. then reached his conclusion on the unjust enrichment issue: Since the impugned legislation cannot be challenged on either constitutional or international law grounds, I therefore find that it constitutes a juristic reason for any enrichment and corresponding deprivation. As a result, it is plain and obvious that the plaintiffs' claim with respect to unjust enrichment cannot succeed. 50 We agree with this conclusion. In short, the appellants' submissions relating to juristic reason cover precisely the same ground as their

466 Appendix II

submissions on the Charter and customary international law issues. Rejection of the latter necessarily entails rejection of the former. 51 We make one final observation on the unjust enrichment issue in this appeal. Throughout their argument, the appellants make reference to concepts, notions and values, including 'moral balancing/ 'good conscience' and 'injustice.' We agree with the proposition that these factors are part of the foundation of the equitable doctrine of unjust enrichment. However, it is important to recognize that there are limits to the doctrine. In Peel, supra, McLachlin J. articulated, at pp. 802-803, a caution which we think bears repeating in this appeal: The Argument on Injustice The municipality is reduced in the final analysis to the contention that it should recover the payments which it made from the federal and provincial governments because this is what the dictates of justice and fairness require; stated otherwise, it would be unjust for the federal and provincial governments to escape these payments. This argument raises two questions. First, where the legal tests for recovery are clearly not met, can recovery be awarded on the basis of justice or fairness alone? Second, if courts can grant judgment on the basis on justice alone, does justice so require in this case? On my review of the authorities, the first question must be answered in the negative. The courts' concern to strike an appropriate balance between predictability in the law and justice in the individual case has led them in this area, as in others, to choose a middle course between the extremes of inflexible rules and case by case "palm tree" justice. The middle course consists in adhering to legal principles, but recognizing that those principles must be sufficiently flexible to permit recovery where justice so requires having regard to the reasonable expectations of the parties in all the circumstances of the case as well as to public policy. Such flexibility is found in the three-part test for recovery enunciated by this Court in cases such as Pettkus v. Becker, supra. Thus recovery cannot be predicated on the bare assertion that fairness so requires. A general congruence with accepted principle must be demonstrated as well. This is not to say that the concepts of justice and equity play no role in

Judgment of the Ontario Court of Appeal 467

determining whether recovery lies. It is rather to say that the law defines what is so unjust as to require disgorgement in terms of benefit, corresponding detriment and absence of juristic reason for retention. Such definition is required to preserve a measure of certainty in the law, as well as to ensure due consideration of factors such as the legitimate expectation of the parties, the right of parties to order their affairs by contract, and the right of legislators in a federal system to act in accordance with their best judgment without fear of unforeseen future liabilities. 52 In the first paragraph of these reasons, we said: 'Canada's treatment of people of Chinese origin who sought to immigrate to this country between 1885 and 1947 represents one of the more notable stains on our minority rights tapestry.' We say that again. However, the head tax laws ceased to operate 79 years ago, in 1923. During their life, they were constitutional in domestic law terms and they did not violate any principles of customary international law. 53 The doctrine of unjust enrichment is an equitable doctrine. However, even the broad purview of equity does not provide courts with the jurisdiction to use current Canadian constitutional law and international law to reach back almost a century and remedy the consequences of laws enacted by a democratic government that were valid at the time.7 1. Disposition 54 We would dismiss the appeal. Like Gumming }., we do not regard this as a case in which costs should be awarded. Signed: 'M.J. Moldaver J.A. 'J.CMacPhersonJ.A/ 'I agree Austin J.A/ RELEASED: SEPTEMBER 13, 2002 'A. Mack A' NOTES 1 Reference u Secession of Quebec, [1998] 2 S.C.R. 217 at p. 262

468 Appendix II 2 The Chinese Immigration Act 1885, S.C. 1885, c.71 as amended. 3 The Chinese Immigration Act 1923, S.C. 1923, c.38, repealed by The Immigration Act, S.C. 1947, c.19. 4 The Japanese Canadian Redress Agreement, P.C. 1988-9/2552, dated October 31,1998, stemmed from a policy decision on the part of the government of the day, under the leadership of the Rt. Hon. Brian Mulroney, to provide redress for government actions, including internment or relocation within Canada, expulsion or deportation from Canada and deprivation of property, taken against certain Japanese Canadians during the Second World War under the War Measures Act, the National Emergency Transitional Powers Act 1945 and other transitional legislation. 5 F. Capatorti 'Human Rights, the Hard Road Towards Universality/ in R. St. J. MacDonald and Douglas M. Johnston, eds., The Structure and Process of International Law Essays in Legal Philosophy, Doctrine and Theory (The Hague: Martinus Nijhoff Publishers, 1983) 977 at 978-79). 6 The appellants suggested in oral argument that the prohibition against racial discrimination during the relevant time frame was so well recognized that it qualified as 'an established pre-emptory norm of customary international law, or jus cogens.' The evidence relied upon by the appellants does not meet the jus cogens test. 7 We are not here concerned with facially valid laws enacted by a totalitarian or other despotic regime.

Index

Air Canada v. British Columbia 289, 332 Alexy, Robert 238-40,265,270-1, 276-80 Anderson, Benedict 148 Andrews v. Law Society of British Columbia 119-23,130 Authorson v. Canada 197-8,201-19 Baker v. Canada (Minister of Citizenship and Immigration) 78-9, 267-8 Baker v. Courage & Co. 311-12 Begbie, Chief Justice Matthew Baillie 96-102, 268-72 Benner v. Canada (Secretary of State) 138,314-16 Bhaduria v. Seneca College 106 Bill of Rights 205, 209-11,215 Birks, Peter 325-6, 329-30 Blencoe v. British Columbia (HRC) 125 Blueberry River Indian Band v. Canada 206 Bonaparte v. Canada 218 British North America Act 96, 268-71

Canada Trust Co. v. Ontario Human Rights Commission 136,391-6 Canadian Judicial Council 116,137 Canadian Pacific Railway 62-4, 74-5 Canadian Race Relations Foundation 181 Castano v. American Tobacco 352 Cato v. US 346-7 Central Guaranty Trust v. Dixdale Mortgage Investment Corp. 292 Canadian Charter of Rights and Freedoms (general) 4,17-19, 92,11541,179,296,314-18,329,383, 385-97,399; retroacrivity of 8,179, 181,185-6,203,397,399,404-5; s.15 5,119-22,133,138,156,264, 295,297, 328 Chinese Canadian National Council 8,20-1,116,155 Chinese Exclusion Act 7,140 Chinese Immigration Act 6-7, 29, 65, 101,115,135-7,154,202,248-50, 256,272-4,287,295-8,307-8, 310-11,314-19 Christie v. York Corporation 104 Cipollone v. Liggitt Group 351

470 Index citizenship 7,64, 70, 79-80,81,84-5, 154-8,173-4 continuous journey provision 68-72 Cooper v. Hobart 198-9 Corbiere v. Canada 124 Crease, Justice Henry P.P. 96-102 Cunningham v. Tomey Homma 74-5, 92,102

Harris v. Canada 199-200 Hart,H.L.A. 238,270 Hislop v. Canada 218-19 Hodgkinson v. Simms 208 Holocaust (general) 5-6,14,117; Holocaust litigation 355-69 human dignity 117-41,173 influential authority 268,386-96

Dauvergne, Catherine 84-5 Deglman v. Guaranty Trust 292-3,314 Dicey, Alfred Venn 93,99,105,213, 233 Drummond Wren (Re) 395 dualism 261, 267 DM Plessis v. De Klerk 404-5 Dworkin, Ronald 84,234,238-9,272 Dyzenhaus, David 214,240,245, 248-9 Edward v. Law Society of Upper Canada 198 estoppel 199,329,389,395-6,398, 401 fiduciary duty 197, 200-1,205-7, 214-17 Finn, Paul 212 formalism: see positivism Fuller, Lon L. 16,258,280 Go, Awy 149,152 Goff, Lord 324-6 Gosselin v. Quebec 127 Gray, Justice John Hamilton 96-7, 101 GST Reference 208 Guerin v. The Queen 206-7,214-15 Hampton, Jean 151

Japanese Canadians 4-5, 21,66-9, 133,156,158-9,180-1 justice, corrective 169-72; democratic 153-60; distributive 155-9, 170; prospective 169-72,174, 176-87; reparative/retributive 149-53,159; retrospective 169-72, 176-87; transitional 168,177 Kuwait Airways Corpn v. Iraqi Airways Co. 401 LAC Minerals Ltd v. International Corona Resources 216-17 Laurier, Sir Wilfrid 7,65 Law v. Canada (Minister of Employment and Immigration) 124-31 legality: see positivism limitation periods 174-5, 250-1, 299 Loucks v. New York 401 Lovelace v, Ontario 124 M.v.H. 128 Mabo v. Queensland 135,138 Mackenzie King, William Lyon 65-6,68-70,80 Mitchell & The, Queen (Re) 317 moral regeneration 149-60 Moran, Mayo 268

Index 471 Mt. Sinai Hospital Centre v. Quebec 199 Muir v. Alberta 107 Munshi Singh (Re) 72-5 National Association of Japanese Canadians 180 Nazism 134,241-4,248-9, 259, 397-8 Ogletree, Charles 344-5 Oppenheimer v. Cattermole 398,401-2 Peel (Regional Municipality) v. Canada 139-40,203,205,384 Pettkus v. Becker 178,287-8,290, 309-10 positivism (also legality, formalism) 92,196-7,208-11,216-18,236-7, 244-6,258-70,272,274-6,279-80 public policy 119,136,196-200,21819,384-5,392-5 public trust 197,212-14,216-19 Quebec Secession Reference 264, 274 R. v. Corporation of Victoria 98 R. v. Lavallee 126-7 R. v. Mee Wah 97-8,268-71 R. v. Oakes 125 R. v. Quong Wing 102-4 R. v. Wing Chong 74,96-7 R.J. Reynolds Tobacco Co. v. Engle 352-3 Radbruch Formula 16,236-42,25960,265-6,270,279-81

Radbruch, Gustav 235-42,259,265 Rathwell v. Rathwell 309 Rawls,John 14,154-8 retroactivity 247,257-8,260,271-2, 280,294-5,314-15 Rogers v. Clarence Hotel Co. Ltd. 104-6 Roncarelli v. Duplessis 213-14 rule of law 12,16, 77, 92-108,134-5, 214,233-51,256-82 Sachs, Justice Albie 120 slavery reparations 14,343-9,381 Swainger, Jonathan 105 Tai Sing v. Maguire 96 Thompson, Janna 150-2 tobacco litigation 350-5,362,364-5 trusts 206-7 United Nations 117-21,131 Union Colliery v. Bryden 74-5,102 unjust enrichment 9-10,16-17,1339,152-3,167,172-3,178-9,203-11, 219,256,258,287-300,307-33, 379-89 Waldron, Jeremy 175,367 Walzer, Michael 85 Wells v. Newfoundland201,213 Whiten v. Pilot Insurance 107-8 Wong Hoy Woon v. Duncan 98-9,102 Wong Grant, Grerta 25,32,34,115 Wong, Lem 24-35,115 Woolwich Equitable v. Inland Revenue Commissioners 289,324-30