The Limits of Righting Historic Wrongs
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Cynthia Koller
Counsel, Regulatory Section
Justice Canada

In April 2003, the Supreme Court of Canada denied plaintiffs leave to appeal in Shack Jang Mack Quen Ying Lee and Yew Lee v. Attorney General of Canada. In doing so, the Court shed some light on a sensitive but important issue: the limitations of the courts in providing redress for a past injustice which was itself the result of government policy.

The history of that policy is certainly deplorable in retrospect - something that all parties agree on, including the Crown and the courts. In 1885, Parliament passed legislation imposing a duty or "head tax" exclusively on Chinese people immigrating to Canada. The legislation reflected contemporary prejudices, such as those of one member of Parliament who declared that "there is not much room for the Chinaman in Canada. He displaces a good Canadian, or a good British subject" (Nathaniel Clarke Wallace, speaking in 1900). In 1923, that tax was replaced by legislative restrictions on Chinese immigration, amid claims that "the wily oriental has found some means or subterfuge to circumvent any regulations that may have been imposed upon him" (as MP John Armstrong MacKelvie told the House of Commons). The legislation was finally repealed altogether in 1947.

In December 2000, head-tax payers and their families launched a class action in Ontario, seeking recovery of monies paid to the federal government, as well as damages for pain and suffering, injury to dignity, and lost opportunity inflicted by the legislation. Plaintiffs' counsel estimated the claim to be worth more than $1 billion.

The Crown brought a preliminary motion to strike out the statement of claim on the basis that the legislation in question had been validly enacted more than 115 years ago and repealed more than 50 years ago. Mr. Justice Cumming of the Superior Court of Justice agreed, and struck out the claim in its entirety in July 2001.

The plaintiffs turned to the Ontario Court of Appeal, which, in unanimous reasons released September 13, 2002, dismissed the appeal. Finally, leave to appeal to the Supreme Court of Canada was denied on April 24, 2003.

The plaintiffs' argument had primarily two branches. First, they made a claim in international law, as received into Canada through human rights legislation, the Canadian Charter of Rights and Freedoms, and Canadian jurisprudence. Second, they argued that a discriminatory law, even when validly enacted, does not constitute a legal or sufficient reason for unjust enrichment.

The history of [the head tax] policy is certainly deplorable in retrospect - something that all parties agree on, including the Crown and the courts.

The Crown took the position that it was not enough for the plaintiffs to allege that they had been subject to discriminatory legislation in the past. Indeed, that fact was never at issue in the case. As Justice Cumming declared, "the legislation in its various forms was patently discriminatory against persons of Chinese origin. By contemporary Canadian morals and values, these pieces of legislation were both repugnant and reprehensible." The Court of Appeal added 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."

The Crown did not dispute these findings, arguing instead that Canada had made a clear policy decision not to provide redress for such historic wrongs. In 1994, the Honourable Sheila Finestone, then Secretary of State for Multiculturalism, announced that the Government of Canada would not compensate six groups seeking compensation over past discriminatory immigration practices or wartime measures. Ms. Finestone stated:

In the past Canada enforced some immigration practices that were at odds with our shared commitment to human justice. Canadians wish those episodes had never happened. We wish those practices had never occurred. We wish we could rewrite history. We wish we could relive the past. We cannot. ... The government understands the strong feelings underlying these requests. We share the desire to heal those wounds. The issue is whether the best way to do this is to attempt to address the past or to invest in the future. We believe our only choice lies in using limited government resources to create a more equitable society now and a better future for generations to come.

In ruling against the plaintiffs, Justice Cumming stated that "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."

The message was clear: historic wrongs are best viewed as mistakes not to be repeated rather than as lingering grievances to be resolved by the courts.

What is significant about this case is that it was decided so quickly. A statement of defence had not been served; limitations defences had not been raised; the matter had not reached even the certification stage, let alone trial. Yet the courts found it plain and obvious that the claim failed to disclose a reasonable cause of action. The message was clear: historic wrongs are best viewed as mistakes not to be repeated rather than as lingering grievances to be resolved by the courts. As the Court of Appeal pointed out, after reiterating their condemnation of the actual policies in question:

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. 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.