The Chinese-Canadian Head Tax Case

By David Dyzenhaus and Mayo Moran

Profs. Mayo Moran and David DyzenhausWhen the Chinese Canadian community asked the Canadian government to apologize for and to repay the racially discriminatory head tax imposed on Chinese immigrants nearly a hundred years before, Canadian courts had to consider questions about the very nature and limits of law. In Mack v. AG Canada, the trial judge recommended political redress but did not think he could order restitution or an apology. Similarly, while the Ontario Court of Appeal described the head tax as 'one of the more notable stains' on Canada's 'minority rights tapestry,' it concurred that the claim lacked a legal basis. The Supreme Court refused leave to appeal. Only the United Nations Human Rights Committee issued an opinion in favour of redress.

From the perspective of those who sought redress, the reaction of the Canadian courts is certainly unfortunate. But it is also unfortunate from the perspective of legal philosophy because Mack raised important questions about the nature and limits of law which the courts did not fully confront. The plaintiffs argued that the federal government had been unjustly enriched by the head tax. As both judgments rightly note, an enrichment required by a valid statute will not ordinarily be found unjust. But the head tax law was no ordinary law - the Mack courts themselves described it as racist and discriminatory. So the judges had to decide whether a contemporary Canadian court, constitutionally committed to non-discrimination, could hold that even a blatantly racist law would render the federal government's enrichment 'just.'

Legal theory and comparative law had contributions to make here. In the aftermath of World War II, courts inside and outside Germany had to deal with formally valid but radically unjust Nazi law. So, for instance, should a Jewish émigré who had been stripped of her citizenship and hence her property be denied restitution because the invidious acts were accomplished by a valid law? In response, courts held that although they were normally bound to recognize formally valid law, such recognition had inherent limits. They drew on the work of German legal philosopher Gustav Radbruch in insisting that regardless of formal validity, 'extreme injustice is no law.' Adopting this reasoning, courts in the aftermath of WWII and after the collapse of Communism refused to give legal effect to iniquitous laws. Further, as the plaintiffs pointed out in Mack, common law courts invoke a very similar idea when they hold that 'public policy' prevents them from enforcing racist contracts or trusts, or from recognizing radically unjust foreign law.

The underlying idea here is that certain values are necessarily brought to bear when a court considers a question. So in the 'invidious law' cases, the adjudicating courts examine the contemporary constitutional order, international law, and fundamental concepts of private and common law. The courts look to these sources because they embody legal values that have an effect far beyond the field of their direct application. An analogy is the way that Charter values demand respect even where Charter rights do not apply directly, such as in private common law. Ordinarily we see the 'influential' authority of such values at work in the interpretive process. But the Nazi law and public policy cases also reveal that respect for the fundamental values of the legal order may at times require a court to refuse to give legal effect to a law or a formally valid contract.

However, the Canadian courts in Mack chose not to adopt this approach. Instead, they suggested that they could only draw on law which would have applied during the time of the head tax. And so they did not consider how the influential authority of the Charter and international law might diminish the head tax statute's ability to function as a valid 'juristic reason.' The only hint of why they rejected the 'invidious law' approach is found in a final footnote, in which the Court of Appeal distinguished the head tax law by pointing out that the Canadian governments of the time were not totalitarian. If intended as a democratic justification for deferring to the head tax law however, it seems relevant that at this time Chinese citizens were denied the vote.

Because they struck out the claim before a full hearing, the courts avoided addressing these and other pressing questions about the 'wicked laws' of our own legal past. But such questions will again face our courts. We can only hope that, at some point, our courts will draw on the rich legal and moral resources that can be found in law's ongoing efforts to find the right relationship between certainty and justice.

This article was first published in the Spring 2005 issue of Nexus.