Column

The Washington January 6, 2021 Insurrection, and Racism in Canada

[The Full-text of the following summary can be downloaded from the SSRN (Feb. 1, 2021).]

The riotous insurrection at the Washington Capitol building on January 6th is a good example of this truth: “The strength of a nation’s rights, freedoms and rule of law lies not in its Constitution but in its politics.” On January 27, 2021, the U.S. Department of Homeland Security issued a “National Terrorism Advisory System (NTAS) Bulletin,” warning of, “a heightened threat environment across the United States,” and, “violent riots have continued in recent days,” and, “ideologically-motivated actors” could incite further violence. But President Biden is under great pressure to heal the “tribal division” in U.S. politics even at risk of leaving the potentially lethal terrorist infection within the body politic waiting to burst open the wound and later the scar. But whom, if any of the perpetrators and their supporters, should be given “a pass,” or nothing more than lenient treatment? Obviously, most eager to do so are those Republicans who are trying to protect former President Donald Trump from the consequences of his second impeachment, this time for having promoted the insurrection as would a sponsor.

Compare this insurrection: Canada’s 1970 FLQ October Crises and the lenient treatment given some of its Quebec-nationalist terrorist members. They were popular domestic terrorists even though responsible for, more than 200 bombings and dozens of robberies between 1963 and 1970 that left six people dead, and the kidnapping of the British trade commissioner, and the kidnapping and murder of a Quebec government cabinet minister. Populist politics produced multiple deaths in both countries: in Canada, the Quebec domestic terrorist separatist movement to “liberate Québec from Canada”; in the U.S., the January 6, 2021 insurrection that attempted to nullify Donald Trump’s losing the presidency in the November 3, 2020, federal election. In Canada, one of the terrorist leaders, Jacques Rose, was given a standing ovation at the Parti Québécois[1] convention in Montreal on December 6, 1981. Others, appear to have been given very early parole. In October 2020, Bloc Québécois[2] leader Yves-François Blanchet asked Prime Minister Justice Trudeau to apologize for the federal Government’s having invoked the War Measures Act 50 years ago (thereby suspending civil liberties and personal freedoms).[3]

Adding to terrorist-support was France’s President and World War Two (WWII) hero, Charles de Gaulle’s July 24, 1967, very undiplomatic rallying cry for the Québec separatist movement from a balcony above a large crowd at Montreal’s City Hall, “Vive le Québec, libre!” (emphasizing libre). That was a phrase used by those who supported Quebec sovereignty. Was the government of France wanting to help bring about the break-up of Canada?[4] Reprimanded by Canada’s then Prime Minister Lester B. Pearson, stating that, “Canadians do not need to be liberated,” de Gaulle abruptly cut short his visit and left for France.

That rallying of the forces of Québec separatism was not quite as proximate to the many bombings and killings of the Québec terrorists as was Donald Trump’s very blatant rallying of the attack upon the Washington Capitol building.

U.S. Vice President Kamala Harris lived in Montreal for her high school years of 1976 to 1981, when Quebec separatism and language and ethnic rights were still of a very highly energized, national political priority—and they remain much the same. What of it did she experience?

Conversely to politics reducing the punishments imposed upon populist-inspired terrorists for attacking properly elected government, what of the ability of politics to reduce the strength of constitutional rights, freedoms, and the rule of law, when governments abusively detain, intern, deport, and dispossess families of their property, i.e., a form of government-inspired terrorism inflicted upon its own resident population? A racist government is a reflection of the success of racist groups—they are parts of the same political force, in spite of whatever declared protections there are in the Constitution upon which that government stands.

For example, if the Canadian Charter of Rights and Freedoms (“the Charter”) had existed during World War Two (WWII), its political support might not have been strong enough to save Canada’s Pacific coast Japanese population from the very cruel and racist internment, deporting to Japan, and dispossession and sale of their real and personal property imposed by a Canadian government.[5] Here is a summary:[6]

In 1942, the Canadian government uprooted and interned all people of Japanese descent living in costal British Columbia. [More than 21,000 Japanese Canadians were told to bring only one suitcase each.] The following year, it authorized the sale of everything that they had been forced to leave behind. As a result, when Canada’s internment era finally ended in 1949, Japanese Canadians had nothing to return to. Their homes, farms, businesses, fishing vessels, cars, family pets, personal belongings – in short, everything that they had been unable to take with them – were gone. Because of the forced sale of real estate, no historic Japanese Canadian neighbourhoods remain. The loss of their personal belongings obliterated the sense of home that Japanese Canadians had built over generations. The uprooting and dispossession transformed the geography of British Columbia: hundreds of localities where Japanese Canadians had made their lives would, without the dispossession, have been very differently comprised, understood, and remembered.

Such “stripping” of property had a purpose that would now be considered tragic and unconscionable:[7]

… stripping property was a way of stripping dignity and converting citizens into surplus people whose welfare and even existence could be a matter of passive indifference for the population at large. [footnotes omitted]

The American internment of its Pacific coast Japanese population ended as soon as WWII ended in 1945, and those interned were able to return to their homes and businesses, which had been protected.

But full freedom of movement for Japanese Canadians was not restored until 1949, and the Vancouver office of the “Custodian of Enemy Property” continued into the early 1950s.[8] At first, the homes and other properties of the internees were held but vandalized and severely damaged because they were not properly protected. And then, succumbing to public and political pressure, they were sold off far below market value, and some were given to returning soldiers. Political pressure was such that, instead of allowing all Japanese to return to the Pacific coast, thousands were deported to Japan, including citizens, and others sent to various communities across Canada, in the hope that a much-reduced coastal population would reduce racial friction.

Such racism was expressed quite blatantly in provincial legislation:[9]

… In 1871, the British Columbia legislature disqualified ‘Chinese and Indians’ from voting in provincial elections, a list expanded to include Japanese Canadians in 1895. B.C. legislation preventing Japanese from voting in provincial elections: ‘British Columbia enacted more than one hundred pieces of legislation in the ensuing decades imposing racist restrictions on mobility, additional taxes, and work prohibitions on Indigenous peoples, Chinese Canadians, Japanese Canadians, and an undefined larger category of Asians alongside them. The federal government disallowed a number of these laws as unconstitutionally invading the federal government’s exclusive jurisdiction over “Naturalization and Aliens,” and courts struck down several others as either contrary to the division of powers or in conflict with existing federal law. Judicial interpretation,’ Bruce Ryder points out, [(1991), 29 Osgoode Hall Law Journal. 619] ‘prevent[ed] the provinces from enacting legislation that interfered with the rights of Asians to reside in the province and work as wage labourers, but otherwise, with minor exceptions, left discriminatory legislation intact.’ For its part, the federal government prohibited Asians from voting in federal elections in 1885, the same year in which it enacted a head tax on Chinese migrants, legislation that would persist for nearly four decades before giving way to an outright ban on immigration from China in 1923. In combination, the array of racial restrictions imposed by law[,] crafted hierarchies of belonging, marked non-whites as unworthy of full citizenship, and created a form of ‘alien citizens’ defined by invented mythologies of racial difference propagated and imposed by whites.” [footnotes omitted]

Thus, the racism openly expressed by British Columbia’s provincial and federal politicians against Japanese and Chinese residents up to and after WWII was intense; safely politically used because it had the support of a large part of the population,[10] as was the “Japs Must Go” speech delivered in the House of Commons in Ottawa by Mr. A. W. Neill, member for Comox-Alberni, on May 5, 1944.[11] Such racist behavior was frequently used long before WWII:[12]

Public displays of racism towards Japanese Canadians were common occurrences in the first half of the twentieth century. Whether in the declarations of politicians, labour leaders, or newspaper editorials, codified in legislation or orders in council, or practiced at the level of harassment, intimidation, and violence on the street, Canadian law enabled, enacted, and tolerated discrimination against Japanese Canadians and Asian Canadians more broadly. Although distinct in various ways, Canada’s repressive treatment of Japanese Canadians was part of a larger transnational trade in white supremacist ideas, policies, laws, and practices circulating across the British Commonwealth and United States. The racist strands in Canada’s immigration and citizenship law, in common with others across white settler societies, were premised on a fallacy central to the ideology of settler colonialism: that the land and its governance were exclusively for whites. [footnotes omitted]

As to using the courts, civil rights (such as, “Property and Civil Rights in the Province,” which is s. 92(13), of The Constitution Act, 1867), meant relations between individuals and not the relations of the individual to the state, as is made constitutional doctrine by the Charter. Therefore, the few successes in the courts that challenges to such internment and deportations produced, were due to findings of provincial legislation “trenching” upon federal legislative jurisdiction such as, s. 91(25) of The Constitution Act, 1867, “Naturalization and Aliens,” or a fault in the wording of an immigration order, e.g., Samejima v. R. 1932 CanLII 31, 1932 SCR 640 (SCC). The courts saw their jurisdiction as being very limited because, for example, provincial racist legislation was a matter of government policy, (not, as now, actionable infringements upon civil rights), to the extent that the courts’ ability to interfere with the exercise of an immigration officer’s discretion as to deportation was doubted.[13] As a result, the number of deportations escalated sharply, reaching more than 7,000 in 1933. “Canada’s deportation practices were among the most arbitrary in the Commonwealth,” . . . as, “bureaucrats carried out a clandestine and illegal immigrant selection process, and deported immigrants according to their own informal and extralegal system of justice.” Targeting supposedly fraudulent Japanese Canadian immigrants for deportation, fit within a long history of viewing Japanese migrants as unworthy, untrustworthy, and unwanted, but it also aligned with the government’s new focus upon sending “undesirable” people out, in addition to stopping people from getting in.[14]

Therefore, up to, and even after WWII, the Canadian population and its politics were far too racist to support constitutionally-entrenched truly liberal rights, freedoms, and the rule of law.

On September 22, 1988, Prime Minister Brian Mulroney delivered for Parliament a formal apology to Japanese Canadians for, “past injustices against them, against their families, and against their heritage.”[15] But not provided by such apologies is public accountability for the wrongs done. Thousands of people could not remain indefinitely in sites of internment, but they had no homes to return to. But key federal politicians remained steadfastly opposed to the return of Japanese Canadians to the coast. Their 2-part solution was to exile as many as possible to Japan, a country that many internees had never visited, and disperse most of the rest to points east, leaving only a minority to reintegrate into British Columbian society. The apology’s false statements as to celebrating “our cultural diversity,” as being a part of “the Canada of our ancestors,” obscured the context of pre-existing state-supported racism that made the categorical race-based internment of Japanese Canadians thinkable and feasible.[16]

As to Canada’s legal profession, for a time, the Law Society of British Columbia barred Asian Canadians from the legal profession.[17] And, the Law Society of Ontario and Toronto law firms engaged in anti-Semitic practices even as late as 1972.[18] “White supremacy” had a tenacious hold on the historical roots of the Canadian legal system.[19]

The prevalence of such overt racist practices may explain why a constitutionally-entrenched text as is the Canadian Charter of Rights and Freedoms, was so late in its creation, as might be compared to the dates of adoption of the 27 Amendments to the U.S. Constitution with their rights, freedoms, etc. But then again, recent events would argue that an assessment of a country’s politics, past and present, can provide a more accurate picture of the strength of its rights, freedoms and rule of law at any particular time, than would its written constitution and constitutional practices and conventions. Also relevant are its remedies for violations, and its powers of deterrence.

And much earlier there was slavery in Canada, notwithstanding the very commendable “Underground Railroad” that provided a refuge in Canada for U.S. escaping slaves.[20] The colony of New France, founded in the early 1600s, was the first major settlement in what is now Canada. Slavery was a common practice in the territory. Part of Article 32 of the 2nd edition of the Code Noir provides this advertisement:[21]

The runaway slave, who shall continue to be so for one month from the day of his being denounced to the officers of justice, shall have his ears cut off, and shall be branded with the flower de luce on the shoulder…. On the third offence, he shall suffer death.

When New France was conquered by the British, records revealed that approximately 3,600 enslaved people had lived in the settlement since its beginning:[22]

Slavery continued after the British conquest of New France in 1763. The territory was eventually renamed British North America, and Black enslaved people came to replace Indigenous enslaved people. Compared to the United States, enslaved people made up a much smaller proportion of the population in British North America. This means that some of the worst traits of slavery in America, such as the employment of overseers and the horrible practice of forcing enslaved people to reproduce, did not happen in what is now Canada. It would be wrong, however, to suggest that enslaved people in British North America were well‐treated. The very nature of slavery meant that its victims were stripped of their basic human rights and exploited. Most wills from the time[,] treated enslaved people as nothing more than property, passing on ownership of human beings the same as they would furniture, cattle or land. Defiant or troublesome enslaved people were often severely punished. Physical and sexual abuse was always a very real threat. [footnotes omitted]

The Slavery Abolition Act, 1833, came into effect on August 1, 1834, abolishing slavery throughout the British Empire, including British North America. The Act made enslavement officially illegal in every colony [which became provinces of Canada on July 1, 1867, “Canada Day”], and freed the last remaining enslaved people in Canada.

And, another such period of “crimes of against humanity,” was the institutional physical and sexual abuse of thousands of children who had been taken from their homes as is revealed in the Final Report of the Truth and Reconciliation Commission of Canada, Volume One: Summary (James Lorimer & Company Ltd., 2015). The first paragraph of the Preface states (p. v):

Canada’s residential school system for Aboriginal children was an education system in name only for much of its existence. These residential schools were created for the purpose of separating Aboriginal children from their families, in order to minimize and weaken family ties and cultural linkages, and to indoctrinate children into a new culture—the culture of the legally dominant Euro-Christian Canadian society, led by Canada’s first prime minister, Sir John A. Macdonald. [Prime Minister during the years, 1867-1873, and 1878-1891.] The schools were in existence for well over 100 years, and many successive generations of children from the same communities and families endured the experience of them. That experience was hidden for most of Canada’s history, until Survivors of the system were finally able to find the strength, courage, and support to bring their experiences to light in several thousand court cases that ultimately led to the largest class-action lawsuit in Canada’s history.

The first paragraph of the Introduction states (p. 1):

For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.”

Another example of civil rights abuses by forcibly removing children from their parents was the 1950s Doukhobor crises in British Columbia. The Doukhobors are described as a “sect of Russian dissenters from the Orthodox Church, that arose as a peasant group in southern Russia.”

As to the integration of minority communities, what of the frictions between Canada’s “multicultural model” and Quebec’s “intercultural model”? Alain-G. Gagnon and Raffaele Iacovino explain interculturalism in Quebec as, “a model of cultural pluralism that also pays homage to the particular needs of the majority culture, while bearing in mind the potential capacity of majorities to oppress minorities.”[23] Multiculturism was, “a hallmark of Pierre Elliott Trudeau’s tenure [as Prime Minister, 1968-79, and, 1980-84], and continues to shape our interpretations of, and commitments to, and reflections on, multiculturism.”[24]

Equally relevant is the most commendable and important part that Montreal played in the racial integration of major league baseball in 1947—see: Jackie Robinson and the Montreal Royals, in preparation for his playing for the Brooklyn Dodgers (now since 1957, the Los Angeles Dodgers). He received affectionate treatment in Montreal for which his wife expressed, “a deep sense of gratitude and appreciation.”

Is there a mechanism that constitutions can provide to lessen the damage done by racist and ethnic terrorism and by the over-reactions of governments? Professor Mark Tushnet of the Harvard Law School concludes that there are no constitutional institutions such as constitutional courts and administrative bureaucracies that can adequately protect liberal constitutional democracy from corruption. I would apply his conclusion to the destructive and excessive periods in a nation’s political life described above. Under the heading, “Conclusion: the limited role of constitutional design,” he states:[25]

The relevant scholarship converges on an alternative explanation – institutional design does not determine whether anti-corruption efforts will succeed; rather, political leadership does so. For other institutions, a widespread commitment to adhering to the rule of law, rather than to institutional design, might be the key. … [and], if design does not matter much, perhaps we should cede the domain of concern over preserving democracy to political scientists and sociologists. [footnote omitted]

Politics determines the strength of constitutionally-guaranteed rights, freedoms, and rule of law. But now, Charter s. 24 can be used to provide remedies after the fact of violations of them,[26] and some deterrence before the fact.

______________________

[1] “The Parti Québécois (pronounced [paʁti kebekwa]; French for ‘Quebec Party’; the PQ), is a sovereignist and social democratic provincial political party in Quebec, Canada. The PQ advocates national sovereignty for Quebec involving independence of the province of Quebec from Canada and establishing a sovereign state.” [footnotes omitted]

[2] The Bloc Québécois “is a federal political party in Canada devoted to Quebec nationalism and the promotion of Quebec sovereignty (separation from Canada).

[3] Global News, October 28, 2020, “Bloc Québécois leader demands apology from Trudeau for War Measures Act, passed 50 years ago.” Justin Trudeau’s father, Pierre Trudeau, was then the Prime Minister of Canada.

[4] “Even before he became Prime Minister, Pierre Trudeau, worked, “… to stiffen Ottawa’s resistance to French support for a, distinct Quebec international presence and to Quebec’s assault on the federal monopoly over external relations”: John English, Just Watch Me, the Life of Pierre Elliott Trudeau 1968-2000, (Vintage Canada Edition, 2010), p. 73. Pierre Trudeau, (1919-2000), was the father of Canada’s current prime minister, Justin Trudeau.

[5] That internment and dispossession is the subject of a new and excellent collection of authoritative papers edited by Jordan Stanger-Ross, Landscapes of Injustice—A New Perspective on the Internment and Dispossession of Japanese Canadians (McGill-Queen’s University Press, 2020). The editor is an associate professor of history and the project director of, Landscapes of Injustice, at the University of Victoria in British Columbia, Canada. “His research and teaching focus on immigration, race, and inequality in twentieth-century North America.” (p. 492)

[6] Ibid., from the Introduction, p. 3.

[7] Ibid., p. 18.

[8] Ibid., p. 34.

[9] Ibid., p. 70.

[10] Ibid. Examples of racist speech and conduct are provided throughout the book, as are examples of extremely incompetent government performance during the whole of the internment period.

[11] Ibid, pp. 425-428, which include the front page of the House of Commons Debates’ Official Report, with a photo of Neill displayed.

[12] Ibid., p. 67.

[13] Ibid., p. 82.

[14] Ibid., p. 77.

[15] Canada, House of Commons, Debates, 33rd Parl, 2d sess., vol. 15, 1988, 19499.

[16] Supra note 5, see pages 467, 469, 470 and 473, as to extricating “Canada from the consequences of its own racist policies.”

[17] Ibid., p. 81, citing as authority, Joan Brockman, “Exclusionary Tactics: The History of Women and Visible Minorities in the Legal Profession in British Columbia,” in, Essays in the History of Canadian Law: British Columbia and the Yukon, Hamar Foster and John McLaren eds. (Toronto, University of Toronto Press, 1995).

[18] Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, (University of Toronto Press, 1997), at pp. 180, 183, 205, 267, 268, and, 286.

[19] Constance Backhouse’s, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Osgoode Society for Canadian Legal History, 1999).

[20] See: The Story of slavery in Canadian history in the Canadian Museum for Human Rights [CMHR].

[21] Ibid.

[22] Ibid.

[23] Alain-G Gagnon & Raffaele Iacovino, “Interculturism and Multiculturism: Similarities and Differences,” in Nasar Meer, Tariq Modood & Ricard Zapata-Barrero, eds., Multiculturism and Interculturism: Debating the Dividing Lines (Edinburgh: Edinburgh University Press, 2016) 104, at 113.

[24] Dia Dabby, “Mapping Multiculturism by/before the Courts,” in, Noura Karazivan and Jean Leclair, eds., The Political and Constitutional Legacy of Pierre Elliott Trudeau, (LexisNexis, 2020) at 308-9.

[25] Volume LXX, Number 2, Spring 2020, University of Toronto Law Journal 95, at 105. And see the other references in the full-text (SSRN, Feb. 1, 2021).

[26] As to such remedies, see this collection of papers: Examining Remedies for Violations of Human Rights, vol. LXIX, Supp. 1, 2019, University of Toronto Law Journal, (170 pages).

Comments

  1. Note:
    (1) the Full-text article of the above summary can be downloaded from the SSRN (Feb. 1, 2021), at:
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3777108

    (2) listed at the end of the Full-text are several other relevant sources.

  2. Can the doctrine of the Constitution as a “living tree” contribute to “[p]olitics determin[ing] the strength of constitutionally-guaranteed rights, freedoms, and rule of law”? Not of course suggesting that it does, only wondering if it could.

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