Vol. 10 No. 3 (March 2000) pp. 208-211.
COLOUR CODED: A LEGAL HISTORY OF RACISM IN CANADA, 1900-1950 by Constance Backhouse. Toronto: University of Toronto Press. 1999. 485 pp.
Reviewed by Clayton Mosher, Department of Sociology, Washington State University, Vancouver, Washington.
With the exception of a number of publications focusing on Native Indians or First Nations peoples, the issue of racism in the Canadian legal system has not received considerable attention in social science and legal scholarship. At least part of this neglect is related to the fact that Canadians have considered their society to be relatively free of racism, at least in the context of comparisons to their neighbor to the south. Constance Backhouse's COLOUR-CODED: A LEGAL HISTORY OF RACISM IN CANADA is a welcome addition to a growing body of Canadian publications that serve to explode the myth of Canadian egalitarianism with respect to racial issues -- the book provides an extensive analysis of the unique manifestations of racial discrimination in that country.
Backhouse exposes racism in the Canadian legal system through the effective strategy of introducing six significant court cases. She uses these cases as lenses to present a richly detailed historical account of the key individuals involved in the cases and to describe the larger social-historical context in which the cases were heard. Although some readers may view the selection of these particular cases as arbitrary, it is anything but -- the careful choice of cases allows for consideration of racial issues with respect to three racial or ethnic groups (Asians, Blacks, and First Nations).
It also provides insight across a diversity of Canadian legal forums. The first of these cases, presented in Chapter Two, examines the Canadian Supreme Court's RE ESKIMOS (1939) decision, in which the Court held that Eskimos (Aboriginals located in the northern portions of Canada) were in essence Indians within the constitutional framework of Canada. This case arose over a jurisdictional dispute between the federal and provincial governments regarding which government had fiscal responsibility for Inuit peoples in the province of Quebec. Despite the fact that the noted Canadian anthropologist Diamond Jenness asserted in testimony that Eskimos and Indians were racially distinct, the Court seemed more influenced by the arguments of provincial government lawyers. One such individual argued that both Indians and Eskimos exhibited "the same dependence on fish and game for subsistence, the same lack of organization for agricultural or industrial production, the same exchange of wealth by way of money, the same poverty, the same ignorance, the same unhygienic mode of existence" (p. 41). Emphasizing the enforced silence of those effected by such decisions, a pervasive theme throughout this book, Backhouse notes that in reference cases such as RE ESKIMOS the Supreme Court was specifically authorized to direct that "all interested parties" be heard. However, "in this pivotal proceeding, no one
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seems to have thought that representatives of the Inuit or First Nations communities constituted 'interested parties'" (p. 35). Chapter three examines the criminalization of Aboriginal dance, focusing on the WANDUTA case that was heard in the province of Manitoba in 1903. Backhouse notes that although Whites in Canada had long harbored a fascination with a number of First Nations traditions, the Canadian government began to pass criminal laws prohibiting the ceremonial dances of Aboriginals in 1884. Included among the justifications for such legislation were claims that Aboriginal dancing caused physical deterioration and mental instability among those who practiced it -- the law banning this activity was not overturned until 1951. Backhouse effectively uses this case to elaborate on the pervasive impact of Canada's Indian Act in controlling the country's First Nations' peoples.
The fourth chapter presents a case that has considerable relevance in the context of current disputes over Aboriginal fishing and land rights in Canada. In SERO v. GAULT (1921), a white fishery inspector in the province of Ontario entered an Indian reservation and confiscated a seine net being used by an Aboriginal fisher, claiming he had the legal authority of federal and provincial statutes to do so. Similar to the strategy employed in other chapters, Backhouse utilizes this case to examine the more general rights of First Nations' peoples in Canada and how these changed over the 50-year period she examines.
Chapter five moves to a consideration of the legal status of Asians in Canada, examining a 1921 case from Regina, Saskatchewan that addressed the right of an Asian male to employ white females in his restaurant. Backhouse documents the long-standing network of legislation at both the federal and provincial levels in Canada that discriminated against the Chinese with respect to immigration, taxation, suffrage, and employment. Also, despite the fact that in this particular case the judge pronounced the (Regina) city council's decision to refuse Yee Clun a restaurant license invalid and unlawful, Backhouse notes "the white women's labour law, promoted by a coalition of interests crossing class and gender boundaries, functioned as a critical tool enabling racially dominant groups to prohibit Chinese men from participating freely in the economic and social communities in which they lived" (p. 171). Fascinatingly, laws restricting the employment of white females by Asians remained in force for many years in a number of Canadian provinces. In Saskatchewan the law was not repealed until 1969. In the sixth chapter, Backhouse examines a case that may be of particular interest to American readers as it involved the activities of the Canadian Ku Klux Klan. In the town of Oakville Ontario in 1930, several Klansmen had discovered that Ira Johnson, a "negro" was living with a "white girl" named Isabel Jones. Claiming that they were acting at the behest of the white girl's mother, but consistent with the Klan's ideology of opposition to interracial unions, the Klan members kidnapped the girl from Johnson's home and later burned a cross outside Johnson's home. No charges were laid in the incident, and in their description of the event, the provincial newspapers "seem to have been mostly complacent, even smug, about the fiery episode" (p. 174). Backhouse uses this case as a springboard to document the perhaps surprising prominence of the Klan in Canada. She lists a number of criminal incidents associated with the Klan across the
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country, including the torching of Roman Catholic churches, but she notes that "throughout these activities, white police and fire marshals stood by, often present at the incendiary meetings and cross-burnings, content to reassure themselves there was 'no danger'" (p. 191). At least partially as the result of the concerns of prominent Black activists in the nearby city of Toronto, charges were eventually laid against four members of the Klan. Despite the fact that there appeared to be legal justification to lay charges of abduction, intimidation, and kidnapping against the Klan members, they were charged with "having (their) face(s) masked or blackened" under section 464(c) of the Canadian Criminal Code. Also, although one of the four were eventually found guilty, the Crown Attorney's submission on sentence was "remarkably conciliatory" (p. 208) - he advised the court that he would not be seeking any term of imprisonment. The offending Klansmen (Dr. Phillips, a chiropractor) was subsequently fined $50, a decision which was eventually appealed and substituted with a prison sentence of three months when heard in the Ontario Supreme Court. However, consistent with the other cases examined in this book, Backhouse notes that "in the time-honoured custom of Canadian jurisprudence, the decisioncontained no overt reference to race, and it ... erased Ira Johnson from the narrative entirely" (p. 222).
The final case examined by Backhouse is that of Viola Desmond, a Black woman who was denied access to seating in a particular section of a theater in Halifax, Nova Scotia in 1946. This rather complex case demonstrates how the law was often used in a subtle fashion to perpetuate racism -- Desmond was charged criminally under a rather obscure section of provincial legislation related to taxation and was eventually fined $20. Backhouse notes that this case potentially offered an ideal vehicle to test thecapacity of Canadian law to assert the importance of racial equality, but due to the choices made by Desmond's lawyer, this potential was not realized. Desmond's lawyer opted not to attack the obvious endorsement of racial segregation in her criminal conviction directly, but instead filed a civil suit. Further, instead of using the avenues of appeal that were at his disposal, Frederick William Bissett chose the more dubious option of a writ of certiorari. As a result of these choices, "(Desmond's) attempt to seek legal protection from racial discrimination was turned into a purely technical debate over the intricacies of criminal procedure. None of the judges even noted on the record that she was black" (p. 267).
In short, Backhouse has presented a very readable and accessible book that will be of relevance to scholars across a wide range of disciplines that have an interest in race relations. Although some readers may find that the over 140 pages of footnotes detract from the flow of the arguments she presents, I encourage readers to examine these for the historical detail and additional sources they provide. Also, although readers with more of a comparative orientation may find the lack of attention to a detailed theoretical analysis of Canadian racism to be disappointing, Backhouse has clearly demonstrated that racism in Canada, while perhaps more subtle than its United States counterpart, is by no means less insidious and enduring. As she concludes, "to advocate 'colour-blindness' as an ideal for the modern world is to adopt the false mythology of 'racelessness' that has plagued the Canadian legal system for so long. Under current circumstances, it will only serve to condone the continuation of white
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supremacy across Canadian society" (p. 274).
Copyright 2000 by the author, Clayton Mosher.