“Race,” Rights and the Law in the Supreme Court of Canada: Historical Case Studies

Chapter 1 Orientation

1 Orientation 1. ‘‘RACE’’ AND THE LAW Common Sense In 1900 a prominent English scholar and humanitarian, Gilbert Murray, expressed a sentiment that was then unchallengeable: There is in the world a hierarchy of races. . . . [Some] will direct and rule the others , and the lower work of the world will tend in the long run to be done by the lower breeds of men. This much we of the ruling colour will no doubt accept as obvious.1 It was indeed ‘‘obvious,’’ for wherever one looked in the world white people were ruling over others. Although themselves colonials, in a world divided by colour Canadians could identify with the ruling ‘‘race’’ and with the imperial mission. At a 24th of May speech in Toronto in 1914, R. B. Bennett explained to his fellow Canadians why ‘‘we’’ were ruling over places such as India and Egypt: We are there because under the Providence of God we are a Christian people that have given the subject races of the world the only kind of decent government they have ever known [applause] . . . and you and I must carry our portion of The notes to this chapter are on pages 347-59. that responsibility if we are to be the true Imperialists we should be. . . . An Imperialist, to me, means a man who accepts gladly and bears proudly the responsibilities of his race and breed [applause].2 Canadians did not invent ‘‘race’’: it was the product of a global paradigm emerging from European expansion and conquest. In the vast imperial structures that were created, the world itself became a system in which different peoples were assigned particular economic functions consequent upon their local resources, their power to resist, their geographical location, and ultimately their potential contribution to the enrichment of Europe. Human beings inherit various genetic characteristics from their parents which determine such phenotypes as skin colour, hair texture and facial structure. Only in certain historical circumstances are these visible features responsible for the assignment of people into groups for social or economic purposes. In ancient Europe, for example, physical differences were noticed and recorded, but they did not govern the roles people played in society.3 The expansion of Europe into regions with populations bearing dramatically different physical features led to a global stratification of conqueror and conquered, superior and subordinate , by which was created, through military and political means, an observable coincidence between phenotype and social position. The fact that phenotypes are indelible and heritable meant that any individual’s position was immediately recognizable and that it would be passed from one generation to the next. Physical features had been rendered significant ; persons who were grouped according to phenotype shared with members of the same group not only physical characteristics but functional characteristics as well, particularly social and economic, and a common relationship with members of other groups. Nineteenth-century Europe’s attempt to explain these readily observable structural distinctions produced the doctrine that inherited physical attributes were indicative of immutable behavioural traits which suited different people for different roles. Thus was ‘‘race’’ produced. By the late 19th century a racial typology existed across the world. Positions in the structure had been set and were being accepted as ‘‘natural ,’’ and elaborate scientific doctrines were being developed to explain a phenomenon which had evolved circumstantially. Canadians accepted the racial explanation, along with the functional aspects of European supremacy. It was ‘‘common sense.’’ It did not need to be examined or proved, for it was self-evident. Pierre Bourdieu has commented that ‘‘common sense speaks the clear and simple language of what is plain for Orientation 13 all to see.’’4 In an essay entitled ‘‘Common Sense as a Cultural System,’’ Clifford Geertz maintained that common sense is not ‘‘rational,’’ it is ‘‘not a fortunate faculty, like perfect pitch’’; rather, ‘‘it is a special frame of mind,’’ ‘‘a cultural system’’ which reveals ‘‘a loosely connected body of belief and judgment.’’5 The sense of ‘‘race’’ shared by Canadians in the decades surrounding the Quong Wing decision was such a system. It was assumed that ‘‘races’’ were evolutionary units, fixed in their physical and behavioural characteristics. These units were destined to compete at the group level, for their interests, dictated by biology, were inherently in conflict. Some ‘‘races,’’ it was thought, bore characteristics that were unsuitable as foundation stock for the fledgling Dominion of Canada. Physically, some ‘‘races’’ could...