Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

196 Legal History in the Making
an order-in-council, under the Immigration Act of 1906, 59 giving them the
power to exclude at discretion those prospective immigrants not coming into
Canada by a 'continuous voyage' from their country of origin or birth. 60 This
order was directed at both Japanese coming from ports other than those
in Japan (for example from Hawaii) and the East Indians (there was no
direct steamship line between India and Canada at that juncture). After a
successful court challenge to the continuous voyage order by the Canadian
Pacific Railway on behalf of 183 Indians in 1908 in the case of Re Bahari Lai, 61
another order was temporarily substituted and then incorporated into the Act
itself. 62 For good measure in the matter of 'Hindoo immigration' a further
order-in-council was passed requiring that all Asian immigrants not covered
by diplomatic arrangements (Japanese hailing from Japan) or special statutes
(Chinese) have $200.00 and a ticket to their destination in their possession. 63
When the Immigration Act was recast in 1910 the substance of both orders
was included in the statute, 64 together with a provision giving power to the
dominion government to make regulations prohibiting for 'a stated period,
or permanently, the landing in Canada of immigrants belonging to any race
deemed unsuited to the climate or requirements of Canada, or of immigrants
of any specified class, occupation or character'. 65
The Immigration Act of 1910 represented the culmination of Canada's
somewhat tortuous attempt to fashion an immigration policy which took
account of the sensitivities of Japan, preserved the formal rhetoric of
membership in a multi-racial empire and the persistent demands of the white
population of British Columbia for the exclusion of Asians. The result was a
complicated system which Mackenzie King, one of its architects and himself
later Prime Minister, described unctuously as a 'harmony of policies'. 66 What
it was in fact was an elaborate exercise in dissimulation which represented an
effective capitulation by Canada to racist sentiment in British Columbia.
This study demonstrates that in legislating discrimination on racial grounds
there was borrowing among the white dominions of the British Empire. This
was natural enough as there were no British precedents or models with which
to work. Britain itself had no race problem in the minds of its governors,
and thus no tried legal solutions which could be emulated. Moreover, official
imperial policy, although at times it seems to have amounted to little more
than rhetoric, entertained doubts about the use of the law to create inequality
59
Act Respecting Immigration and Immigrants, S.C. 1906, c. 19, s. 30.
60
Canada, Order-in-Council, no. 27, 1908, Jan. 8.
61
(1908) 8 W.L.R. 129 (B.C.S.C.).
62
Act to Amend the Immigration Act, S.C. 1908, c. 33.
63
Canada, Order-in-Council, no. 932, 1908, June 3.
64
Act Respecting Immigration, S.C. 1910, c. 27, ss. 37, 79.
« Ibid., s. 38.
66
W. MacKenzie King, Report on Mission to England to Confer with the British Authorities on the
Subject of Immigration from the Orient and Immigration from India in Particular (Ottawa, 1908), 10.