Calling Power to Account: Law, Reparations and the Chinese Head Tax Case (review)

Between 1885 and 1923, Canada required Chinese immigrants to pay a 'head tax.' Expressly racist in its rationale (specifically, discouraging Chinese immigration), its effect was to enrich the public purse such that federal-provincial transfers of head tax revenue came to represent British Columbia's third largest revenue source. Eventually, restriction gave way to exclusion. From 1923 to 1947, virtually no Chinese immigration was permitted. Then, in 1983, a head tax payer, Mr Mack, asked his mp how the newly entrenched Canadian Charter of Rights and Freedoms might help him obtain compensation.

The rest of the narrative – the campaign for redress, the unsuccessful Mack litigation, and the Harper government's reversal of long-standing federal policy by apologizing and offering compensation to surviving head tax payers or their spouses – is popularly known. For that reason, it should be stated at the outset that Calling Power to Account's importance transcends that single, largely resolved claim, anticipating issues likely to vex courts adjudicating what Catherine Lu describes as 'demands for a moral accounting of racism and its negative legacies.' Indeed, they canvass such a general array of implications of claims arising from historical injustice that, without strong editorial and authorial focus, the overall product could have been diffuse.

Instead, this collection from leading (mostly Canadian) jurists represents a multi-faceted but cohesive examination of law's complicity in past acts of dehumanization, made possible not least of all because its contributors avoid the trap conceptualized by Mayo Moran as viewing the past as 'another country.' That is, they refrain from the temptation to marginalize historical state-sponsored inhumanity as forsworn past practice, incompatible with the modern, benign Canadian state. Indeed, Audrey Macklin reveals such historicist smugness for what it is – the 'modernist conceit of progress inclin[ing] us towards the belief that we are endowed with a moral acuity superior to our ancestors.' Constance Backhouse further impugns that conceit as typical Canadian nationalist myth-making which lauds the grit of minorities while excoriating past majoritarian wrongs and ignoring present ones. John McLaren, moreover, in documenting how some 1880s judges expressly required legislative conformance to a notion of equality, suggests that by dismissing the past as irredeemably unjust, we miss the head tax's normative defect.

Mack entailed, in part, a private law claim which, for doctrinal reasons accessibly elucidated by Lionel Smith and Dennis Klimchuk, rested on whether Canada had been 'unjustly enriched' by the head tax. They join Mayo Moran in suggesting that this claim might have benefited from an evolving understanding of private law that is infused by the Charter value of equality. This is a sophisticated, controversial, and easily misunderstood argument, as evidenced by its treatment at the Ontario Court of Appeal. My only criticism of this collection is its lack of a dissenting voice on this point, which would not have been difficult to find.

In other respects, the collection reflects serious debate. Mary Eberts and Lorne Sossin each find jurisprudential bases to support the Mack claim. Jeremy Webber, conversely, views it as instantiating 'prospective justice,' unsuited to the restrospective legal inquiry into wrongs. Julian Rivers and David Dyzenhaus, while agreeing on law's innate relationship to morality, disagree on whether the leading 'formula' used by German courts confronted with post-Shoah reparation claims adequately accounts for that relationship.

The invocation of the Shoah bites, especially when considering an instance of dehumanization of uniquely Canadian origin, albeit of a lesser scale of monstrosity. As the paradigm of law's complicity in evil, it is rarely far from the surface in Calling Power to Account, and students of political theory might discern echoes of Franz Neumann's and Otto Kirchheimer's accounts of the disintegration of the rule of law in Nazi Germany. Similarly, we can see in the head tax the perils of shifting from the original legal presuppositions of the liberal state to bureaucratized stateism. This collection's ultimate importance...