¹ Province of British Columbia, 1^st Session, 35 Parliament. Official Report of the Legislative Assembly (Hansard), 3:12 (22 May 1992) Victoria, 1740. See also “Protest Over Rally Draws about 200 Chinese-Canadians” Vancouver Sun (26 April 1993) B2.

² See Mack v. Canada (Attorney General) (2001), 55 O.R. (3d) 113 [herein after Mack case]; Mack et al v. Attorney General of Canada, Court of Appeal for Ontario 2002–09–13, Docket C36799 [Mack appeal].

³ There are many national mythologies circulating in Canada. One of the most salient is that Canada is a country that has been settled and not colonized, a nation that is much more tolerant, just, and equal than the United States. The assumption here is that colonialism, slavery, and racism are not endemic in this country's past and present, as they are south of the border. See for example, Razack, Sherene H., “Introduction: When Place Becomes Race” in Razack, Sherene H., ed., Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) 1–14.Google Scholar See also Shields, Rob, Places on the Margin: Alternative Geographies of Modernity (New York and London: Routledge, 1991).Google Scholar

⁴ This is not to suggest that this issue has not received scholarly attention; it has. On April 12–13, 2003, the Faculty of Law at the University of Toronto held a conference entitled, “Achieving Human Rights in a Multicultural Society: Reparations, Human Rights, and the Limits of Law,” which focused primarily on the issue of head tax redress. However, to date, few have written and published on this important topic. For notable exceptions see Baines, Beverly, “When is Past Discrimination Un/Constitutional? The Chinese Canadian Redress Case” (2002) 65 Saskatchewan Law Review 573Google Scholar; Cho, Lily, “Rereading Chinese Head Tax Racism: Redress, Stereotype, and Antiracist Critical Practice” (Winter 2002) 75 Essays on Canadian Writing 62.Google Scholar

⁵ Baines, ibid.

⁶ Several Canadian scholars have argued that multiculturalism as a nationalist project creates serious obstacles for anti-racist discourse and practice. Eva Mackey explains that, “power and dominance” in Canada “function through more liberal, inclusionary, pluralistic, multiple, and fragmented formulations and practices concerning culture and difference” – Mackey, Eva, The House of Difference: Cultural Politics and National Identity in Canada (New York and London: Routledge, 1999) at 5.Google Scholar Thus, national discourses of multiculturalism erase the socio-historical and political consequences of racism, making it difficult for various groups to articulate their past and present experiences of racism and exclusion. I am suggesting throughout this paper that the head tax redress case is read against this backdrop of Canadian multiculturalism, a discourse of diversity and tolerance that creates serious obstacles for head tax redress. See also Bannerji, Himani, The Dark Side of the Nation: Essays on Multiculturalism, Nationalism, and Gender (Toronto: Canadian Scholars Press, 2000).Google Scholar

⁷ This immigrant myth is also articulated through the “white settler” construct. See for example Stasiulis, Daiva and Jhappan, Radha, “The Fractious Politics of a Settler Society: Canada” in Stasiulis, Daiva and Yuval-Davis, Nira, eds., Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity, and Class, (London: Sage, 1995) 95CrossRefGoogle Scholar; Razack, Sherene H., “Making Canada White: Law and the Policing of Bodies of Color in the 1990s”(1999) 14:1C.J.L.S. 159.CrossRefGoogle Scholar

⁸ Of this literature, I am particularly influenced by the work of Bonnie Honig and Sherene Razack. See Razack, ibid. In the American context see Honig, Bonnie, “Immigrant America? How Foreignness “Solves” Democracy's Problems,” (1998) 16:3Social Text 1–27.CrossRefGoogle Scholar Honig's argument is more fully developed in Honig, Bonnie, Democracy and the Foreigner (Princeton: Princeton University Press, 2001).CrossRefGoogle Scholar

⁹ Ibid.

¹⁰ Sassen, Saskia, Globalization and its Discontents (New York: New York University Press, 1998) at 13.Google Scholar See also Razack, supra note 7 at 174–75.

¹¹ See Anderson, Kay J., Vancouver's Chinatown: Racial Discourse in Canada, 1875–1980 (Montreal & Kingston: McGill-Queen's University Press, 1991)Google Scholar; Cho, supra note 4.

¹² On the ambivalence of the model minority construct see Honig, “Immigrant America,” supra note 8 at 3. On Asians and the model minority myth see Kim, Claire Jean, “The Racial Triangulation of Asian Americans” (1999) 27:1Politics and Society 105CrossRefGoogle Scholar; Chang, Robert, Disoriented: Asian Americans, Law, and the Nation State (New York: New York University Press, 1999).Google Scholar

¹³ Foucault, Michel, ‘Society Must be Defended’: Lectures at the College de France 1975–1976 Bertoni, Mauro and Fontana, Alessandro, eds., trans, by Davidson, Arnold I. (New York: Picador, 2003) at 70.Google Scholar

¹⁴ Ibid.

¹⁵ Razack supra note 3 at 3.

¹⁶ See for example, Lawrence, Bonita, “Rewriting Histories of the Land: Colonization and Indigenous Resistance in Eastern Canada” in Razack, S.H., ed., Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) 21Google Scholar; Tennant, Paul, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849–1989 (Vancouver: University of British Columbia Press, 1990).Google Scholar

¹⁷ Anderson, supra note 11; Backhouse, Constance, Color Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: University of Toronto Press, 1999)Google Scholar; Li, Peter, The Chinese in Canada (Toronto: Oxford University Press, 1998)Google Scholar; Walker, James St. G., “Race,” Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Osgoode Society for Legal History: Sir Wilfred Laurier Press, 1997)Google Scholar; Ward, Peter W., White Canada Forever: Popular Attitudes and Public Policy Toward Orientals in British Columbia (Montreal & Kingston: McGill-Queen's University Press, 1990).Google Scholar

¹⁸ Chinese Immigration Act 1885, SC. 1885, c. 71 [head tax].

¹⁹ Chinese Immigration Act 1923, SC. 1923, c. 38 [Chinese Exclusion Act]. The exclusion act was not aimed at outright exclusion, as it stitl permitted Chinese merchants and students to enter the country. See Cho, supra note 4, especially footnote 6.

²⁰ See Charmichael, Amy, “Chinese Canadians Appeal for Compensation for Century-old Head Tax,” Canadian Press Newswire (11 June 2002).Google Scholar “Unjust enrichment” has formed one basis for redress – that the Canadian government financially benefited from a racist and illegal tax. Importantly, unjust enrichment was one of the legal arguments made by the plaintiffs. Mack case, supra note 2.

²¹ Several counter-movements have emerged to show their lack of support for various aspects of the redress campaign most notably individual compensation. See “Rally Draws 500 Compensation Supporters,” Vancouver Sun (6 July 1992) B12.

²² Charmichael, supra note 20.

²³ Although Canada was home to other racialized immigrant populations including Japanese and South Asians, these groups were not required to pay a head tax. While South Asians were considered to be British subjects, the Japanese government had signed treaties with the Canadian government.

²⁴ Eberts, Symes, Street, and Corbet and the Metro Toronto Chinese and Southeast Asian Legal Clinic, Memorandum of Arguments of the Applicant for Leave to Appeal in the Supreme Court of Canada (2002) [Leave to Appeal] 2.Google Scholar

²⁵ See supra note 17.

²⁶ For a discussion of labor conditions see Ward, supra note 17.

²⁷ Lisa Lowe makes this argument for the American context, however, it is also applicable to Canada. Lowe, Lisa, Immigrant Acts: On Asian American Cultural Politics (Durham: Duke University Press, 1996) 11.Google Scholar

²⁸ Baines, supra note 4 at 574.

²⁹ Leave to Appeal, supra note 24 at 2.

³⁰ Leave to Appeal, ibid. at 4. The factum is citing an affidavit from Peter Li, para. 30–33, 40.

³¹ Anderson, supra note 11 at 47.

³² Court of Appeal For Ontario Shack Jang Mack, Quen Ying Lee and Yew Lee and Attorney General of Canada. Factum of the Appellants [Factum], 19. See www.law.utorontoca/documents/conferences/reparations-mack-appellants-factum.pdf

³³ Leave to Appeal, supra note 24 at 3. The factum is citing an affidavit from Peter Li, para. 24.

³⁴ Several rallies were held in Montreal, Toronto, and Vancouver and in other cities to generate support for the head tax redress campaign. See “600 rally in Metro to press demand for redress over Chinese ‘head tax’” The Toronto Star (31 October 1988) A1–2; “Marchers want apology for Chinese ‘head tax’: Legislated racism has damaged our community: Council leader” The [Montreal] Gazette (19 May 1992) A7; “Rally draws 500 compensation supporters: speakers call for immediate redress action (Chinese head tax)” Vancouver Sun (6 July 1992) B12; “Protest over head tax draws about 200 Chinese-Canadians” Vancouver Sun (26 April 1993) B2.

³⁵ “Grievances from the grave: The groups seeking compensation for historic wrongs have risen to six, with more looming” (1993) 8:34 Western Report 15; “Ottawa's Offer of Redress for Head Tax Rejected” Vancouver Sun (27 May 1993) B5.

³⁶ Lisa Taylor, “The Chinese Head Tax – One Family's Story” CBC News World, The Docket, http://www.cbc.ca/thedocket/show_04.html (accessed 31 January 2003).

³⁷ Cho, supra note 4 at 64.

³⁸ All of this information including samples of the postcards are available on the Chinese Canadian National Council's website. See http://www.ccnc.ca/ (Accessed 10 April 2003).

³⁹ It is interesting to note that the head tax redress movement has received unanimous support from the British Columbia Legislature and from Vancouver City Council. See for example “Head Tax issue needs push from Victoria, MLA says” Vancouver Sun (6 April 1992) B5.

⁴⁰ The litigation efforts are being partially funded by Ottawa's Court Challenges Program. See O'Neil, Terry, “A Lawsuit Against History: Chinese Canadian head-tax payers press ahead with a massive claim for compensation” Report: Canada's Independent News Magazine (19 March 2001) 16–17.Google Scholar

⁴¹ See “One time Immigrants want redress over head tax claim that would total $1-billion” Globe and Mail (19 December 2000) 1.

⁴² Mack case, supra note 2 at 118.

⁴³ Ibid.

⁴⁴ Rules of Civil Procedure, R.R.O. 1990, Reg.194, 21.01(l)(b).

⁴⁵ Mack case, supra note 2 at 116.

⁴⁶ Ibid. at 128.

⁴⁷ Leave to Appeal, supra note 24 at 2.

⁴⁸ On Canadian nation formation see for example, Valverde, Mariana, The Age of Soap, Light, and Water: Moral Reform in English Canada (Toronto: McLelland and Stewart, 1991).Google Scholar

⁴⁹ Leave to Appeal, supra note 24 at 2. For laws restricting the Chinese see Anderson, supra note 11. See also Walker, supra note 17.

⁵⁰ Critical legal scholars and critical race theorists have long cautioned us about the law's claims to universality. The law's authority comes partly from its own abstraction from a temporal order as well as its capacity to abstraction – its reluctance to engage with colonial racial histories. See for example Fitzpatrick, Peter, The Mythology of Modern Law (London & New York: Routledge, 1991)Google Scholar; Razack, Sherene H., “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George” in Race, Space, and the Law: Unmapping a White Settler Society, Razack, Sherene H., ed., (Toronto: Between the Lines, 2002) 126.Google Scholar

⁵¹ Mack case, supra note 2 at 128.

⁵² See for example, supra note 27 at 12.

⁵³ Ward, supra note 17 at 36.

⁵⁴ Walker, supra note 17 at 57.

⁵⁵ Menzies, Robert, “Race, Reason, and Regulation: British Columbia's Mass Exile of Chinese ‘Lunatics’ Aboard the Empress of Russia 9 February 1935” in McLaren, John, Menzies, Robert, and Chunn, Dorothy E., eds., Regulating Lives: Historical Essays on the State, Society, the Individual, and the Law (Vancouver: The University of British Columbia Press, 2002) 197.Google Scholar

⁵⁶ Goldberg, David, The Racial State (Oxford: Blackwell Publishers, 2002) at 225.Google Scholar

⁵⁷ Mack appeal, supra note 2 at 1 [my emphasis].

⁵⁸ Honig, “Immigrant America,” supra note 8 at 2.

⁵⁹ Razack, supra note 7 at 174.

⁶⁰ Saskia Sassen has long argued that immigration is “at least partly an outcome of the actions of the governments and major private economic actors in receiving countries.” See supra note 10 at 8.

⁶¹ Honig makes this point about the American context. See Democracy and the Foreigner, supra note 8 at 75.

⁶² Mack case, supra note 2 at 114.

⁶³ I am drawing from Honig's argument about choice and consent in the US context. She argues that “the immigrant's dream to come here is seen as living proof of the supposed universality of America's liberal democratic principles.” Honig, “Immigrant America,” supra note 8 at 2. In Canada, the idea of multiculturalism is sustained by the idea of choice. Revising Honig's arguments, I would suggest that this choice-worthiness both reinforces the multicultural project and Canadian mythologies of generosity and tolerance.

⁶⁴ Mack case, supra note 2 at 114, 128.

⁶⁵ Ibid. at 121.

⁶⁶ Ibid. at 128.

⁶⁷ Povinelli, Elizabeth, Cunning of Recognition: Indigenous Alterities and Australian Multiculturalism (Durham: Duke University Press, 2002) 18.CrossRefGoogle Scholar

⁶⁸ Mack case, supra note 2 at 118.

⁶⁹ This is precisely one of the problems with multiculturalism; it suggests we now live in a post-racial or “raceless” moment, which makes racism difficult to articulate. David Goldberg explains that, racelessness is the “neoliberal attempt to go beyond – without (fully) coming to terms with – racial histories and their accompanying racist inequities and iniquities.” See supra note 56 at 221. For a discussion of “racelessness” in Canada see Backhouse, Constance, “Bias in Canadian Law: A Lopsided Perspective” (1998) 10 C.J.W.L. 170.Google Scholar

⁷⁰ Mack case, supra note 2 at 128.

⁷¹ Ibid. at 121.

⁷² Leave to Appeal, supra note 24 at 6.

⁷³ Factum, supra note 32 at 21.

⁷⁴ Ibid. at 4

⁷⁵ Mack case, supra note 2 at 121.

⁷⁶ Mack appeal, supra note 2 at 6 [my emphasis].

⁷⁷ See Barkan, Elazar, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: Norton, 2000) at 30.Google Scholar

⁷⁸ For a discussion of the Japanese Interment in Canada see Adachi, Ken, The Enemy that Never Was: A History of the Japanese Canadians (Toronto: McClelland and Stewart, 1991)Google Scholar; Miki, Roy and Kobayashi, Cassandra, Justice in Our Time: The Japanese Canadian Redress Settlement (Vancouver: Talon Books, 1991)Google Scholar; Oikawa, Mona, “Cartographies of Violence” in Razack, Sherene H., ed., Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) 71.Google Scholar

⁷⁹ See for example, Roy, Patricia, A White Man's Province: British Columbia Politicians and Chinese and Japanese immigrants, 1858–1914 (Vancouver: University of British Columbia Press, 1989)Google Scholar; Roy, Patricia, Oriental Question: Consolidating a White Man's Province, 1914–1941 (Vancouver: University of British Columbia Press, 2003).Google Scholar

⁸⁰ “Editorials” Vancouver Province (4 January 2001) [my emphasis]. See www.rafeonline.com (accessed 31 January 2003). Redress seekers have drawn important parallels between the Chinese head tax and Canada's current “head tax,” arguing that Canada's current immigration regime is racially discriminatory against immigrants from poorer countries. See Roman, Karina, “Correct this Black Mark on our History” Ottawa Citizen (19 March 2001) D1.Google Scholar

⁸¹ Eva Mackey refers to “ordinary” Canadians as those of European background who often see themselves as victims of multiculturalism. Mackey, supra note 6 at 20.

⁸² Klammer, R., “No Redress for Head Tax” The Coquitlam Now (11 December 2002) 2Google Scholar [my emphasis].

⁸³ Sassen, Saskia, Guests and Aliens (New York: The New York Press, 1999) at 1.Google Scholar

⁸⁴ Supra note 10 at 40.

⁸⁵ Con, Harry and Wickberg, Edgar, From China to Canada: A History of the Chinese Communities in Canada (Toronto: McLelland and Stewart, 1982).Google Scholar

⁸⁶ See Cho, supra note 4 at 76.

⁸⁷ Ibid.

⁸⁸ Razack, supra note 7 at 174.

⁸⁹ Ibid. at 175.

⁹⁰ Supra note 27 at 6.

⁹¹ Honig, “Immigrant America” supra note 8 at 3.

⁹² “Head Tax Ruling Clouded by Allegations” Globe and Mail (14 September 2002) 1.

⁹³ “Head Tax Judge no Stranger to Controversy: Verbal Jousting in Appellate Cases a Normal Feature, some Observers Say” Globe and Mail (19 September 2002) 1.

⁹⁴ Canadian research on ethnicity, education and income suggests that Chinese Canadians do not fare as well in terms of income and earnings as the model minority myth suggests. See for example Lian, Jason Z. and Matthews, David Ralph, “Does the Vertical Mosaic Still Exist? Ethnicity and Income in Canada, 1991” (1998) 35:4Canadian Review of Sociology and Anthropology 461.CrossRefGoogle Scholar

⁹⁵ On this point see Kim, supra note 12 at 118.

⁹⁶ Chang, supra note 12 at 53–55.

⁹⁷ Honig, Democracy and the Foreigner, supra note 8 at 81.

⁹⁸ Anderson, supra note 11 at 242.

⁹⁹ See Li, Peter S., “Unneighborly Houses or Unwelcome Chinese: The Social Construction of Race in the Battle over ‘Monster Homes’ in Vancouver, Canada” (1994) 1 International Journal of Comparative Race and Ethnic Studies 14Google Scholar; Ley, David, “Between Europe and Asia: The Case of the Missing Sequoias” (1995) 2 Ecumene 185.CrossRefGoogle Scholar

¹⁰⁰ On this point see Shields, supra note 3 at 160–62.

¹⁰¹ On Asians as greedy capitalists see Chang, supra note 12 at 52.

¹⁰² Writing about the “cosmopolitan citizen,” Razack argues that she “does not recognize specific harms such as racism, forced assimilation and labor exploitation.” See Razack, supra note 7 at 180.

¹⁰³ Ibid. at 176. Honig, “Immigrant America” supra note 8 at 15.

¹⁰⁴ In 1999, Canada also sponsored the arrival of refugees from Kosovo. Not only were they considered to be “legitimate” and thus deserving of Canadian hospitality, but also, these migrants were welcome in ways that did not extend to the Chinese. Typical headlines included: “Refugees: Donations Pour in” Times Colonist (11 April 1999) A4; “Refugees find Comfort and Warmth in Canada” Times Colonist (6 May 1999) A4. Even the conservative North Shore News, a North Vancouver community paper reported similar stories: “Refugees Welcome: Lynn Valley Family Signs up to Support Kosovars” North Shore News (24 May 24 1999) 1.

¹⁰⁵ Morrison, Toni, Playing in the Dark: Whiteness and the Literary Imagination (New York: Vintage Books, 1993) 63.Google Scholar

¹⁰⁶ These views were particularly explicit in media reporting around the migrants' arrival. On 19 August 1999, for example, some headlines in the “Letters” section of the Toronto Star included: “Canada is the Great White Cow,” “Send Illegal Migrants Home with a Stern Message,” “Illegal Entry Should Mean Deportation,” and “What does Canada Need – Cheaters or People who get in Legally?”

¹⁰⁷ Hier and Greenberg point out that the arrival of the migrants was met with a media frenzy. The Chinese who arrived in British Columbia during the summer of 1999 were constituted as dangerous threats to the nation. See Hier, Sean P. and Greenberg, Joshua L., “Constructing a Discursive Crisis: Risk, Problematization and Illegal Chinese in Canada” (2002) 25:3Ethnic and Racial Studies 490.CrossRefGoogle Scholar

¹⁰⁸ On discursive representations, of Chinese during the late nineteenth and early twentieth centuries see Anderson, supra note 11, especially chapters two and three. On the links between leprosy and Chinese immigration see Mawani, Renisa, “‘Island of the Unclean’: Race, Colonialism and ‘Chinese Leprosy’ in “British Columbia, 1891–1924” (2003) Journal of Law, Social Justice, and Global Development 1. See also http://elj.warwick.ac.uk/global/03-1/mawani.htmlGoogle Scholar

¹⁰⁹ Sassen argues, for example, that immigration is still regarded as a threat. See supra note 83 at xvii.

¹¹⁰ Roy Miki has made a similar argument with respect to Japanese redress that is nicely summarized by Cho. See Cho, supra note 4 at 79. See also Miki, Roy, Broken Entries: Race, Subjectivity, Writing (Toronto: Mercury, 1998).Google Scholar

¹¹¹ Stoler, Ann Laura, “Racist Visions for the Twenty-First Century: On the Cultural Politics of the French Radical Right” in Goldberg, David T. and Quayson, Ato, eds., Relocating Postcolonialism (Oxford: Blackwell Publishing, 2002) 106.Google Scholar

¹¹² Lee, Jayne Chong-Soon, “Navigating the Topology of Race,” in Crenshaw, Kimberle, Gotanda, Neil, Peller, Gary, and Thomas, Kendall, eds., Critical Race Theory: The Key Writings that Formed the Movement (New York: New Press, 1995) 446.Google Scholar

¹¹³ This argument is put forth by Gooder, Haydie and Jacobs, Jane M., “‘On the Border of the Unsayable’: The Apology in Postcolonizing Australia” (2000) 2:2Interventions 229.CrossRefGoogle Scholar See also Miki, supra note 110.

¹¹⁴ On choice worthiness see Honig, “Immigrant America” supra note 8 at 7.

¹¹⁵ Hansard, supra note 1 at 1743.