Praise for Colour-Coded ‘From academic to layperson, this book is a must read. This elaborate, well-mapped analysis of the history of Canadian Colour- discriminatory legal (mal)practices and miscarriages of justice Coded: during the first half of the twentieth century provides a clear and insightful understanding of the continued and inherent A Legal strands of racism in the legal structures of Canada today.’ History TERRY PROVOST, Native Studies Review of Racism ‘If we want to break through the Canadian mythology of race- in Canada lessness and come to grips with the whole of our past, both the splendid and the rotten, we could do no better than open 1900–1950 Backhouse’s book.’ COLOUR-CODED MICHELE LANDSBERG, Toronto Star A Legal History ‘A look at a period in our history we would rather ignore, Colour- BACKHOUSE Coded explores issues of racism, feminism, and native rights of Racism in Canada, 1900–1950 that are current today … This is a very interesting and worth- while book for all Canadians.’ FRANKI ELLIOTT, Canadian Law Libraries ‘This book … will help to move Canadian understanding towards an acceptance of the fact that the conventional wisdom about “race” requires urgent revision.’ JAMES W. ST.G. WALKER, University of Toronto Quarterly ‘A disturbing yet entirely absorbing study.’ The Beaver Cover Illustration: Judge Begbie Holding Court, by George Southwell. Courtesy of B.C. Archives, B-06668 ISBN 978-0-8020-8286-2 THE ISBN 0-8020-8286-6 OSGOODE UNIVERSITY OF TORONTO PRESS ,!7IA8A2-aicigc! SOCIETY www.utorontopress.com TORONTO CON STANCE B A CKHOUSE COLOUR-CODED A LEGAL HISTORY OF RACISM IN CANADA 1900–1950 Historically Canadians have considered themselves to be more or less free of racial prejudice. Although this perception has been challenged in recent years, it has not been completely dispelled. In Colour-Coded, Constance Backhouse illustrates the tenacious hold that white supremacy had on our legal system in the first half of this century, and underscores the damaging legacy of inequality that continues today. Backhouse presents detailed narratives of six court cases, each giving evidence of blatant racism created and enforced through law. The cases focus on Aboriginal, Inuit, Chinese-Canadian, and African-Canadian individuals, taking us from the criminal prosecution of traditional Abo- riginal dance to the trial of members of the ‘Ku Klux Klan of Kanada.’ From thousands of possibilities, Backhouse has selected studies that constitute central moments in the legal history of racism in Canada. Her selection also considers a wide range of legal forums, including adminis- trative rulings by municipal councils, criminal trials before police magis- trates, and criminal and civil cases heard by the highest courts in the provinces and by the Supreme Court of Canada. The extensive and detailed documentation presented here leaves no doubt that the Canadian legal system played a dominant role in creating and preserving racial discrimination. A central message of this book is that racism is deeply embedded in Canadian history despite Canada’s reputation as a raceless society. constance backhouse is Professor of Law at the University of Western Ontario and author of Petticoats and Prejudice: Women and Law in Nine- teenth-Century Canada. PATRONS OF THE SOCIETY Aird & Berlis Blake, Cassels & Graydon Davies, Ward & Beck Fasken Campbell Godfrey Fraser, Milner The Law Foundation of Ontario McCarthy Tétrault Osler, Hoskin & Harcourt Tory Tory DesLauriers & Binnington Weir & Foulds BENEFACTORS OF THE SOCIETY Bastedo Stewart Smith Kathleen, John, and Stephen Risk The Society also thanks The Law Society of Upper Canada for its continuing support. COLOUR-CODED A Legal History of Racism in Canada 1900–1950 CONSTANCE BACKHOUSE Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto Buffalo London © Osgoode Society for Canadian Legal History 1999 www.utorontopress.com www.osgoodesociety.ca Printed in the U.S.A. Reprinted 2001, 2007, 2010, 2017 isbn 0-8020-4712-2 (cloth) isbn 0-8020-8286-6 (paper) Printed on acid-free paper Canadian Cataloguing in Publication Data Backhouse, Constance, 1952– Colour-coded : a legal history of racism in Canada, 1900–1950 Includes bibliographical references and index. isbn 0-8020-4712-2 (bound) isbn 0-8020-8286-6 (pbk.) 1. Race discrimination – Law and legislation – Canada – Cases. 2. Race discrimination – Law and legislation – Canada – History – 20th century. I. Osgoode Society for Canadian Legal History. II. Title. ke4395.a7b32 1999 342.71’0873 c99-931104-2 kf4483.c58b32 1999 CC-BY-NC-ND This work is published subject to a Creative Commons Attribution Non-commercial No Derivative License. For permission to publish commercial versions please contact University of Toronto Press. University of Toronto Press acknowledges the financial support from the University of Toronto Libraries in making the open access version of this title available. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP). Contents foreword vii acknowledgments ix 1 Introduction 1 2 Race Definition Run Amuck: ‘Slaying the Dragon of Eskimo Status’ in Re Eskimos, 1939 18 3 ‘Bedecked in Gaudy Feathers’: The Legal Prohibition of Aboriginal Dance: Wanduta’s Trial, Manitoba, 1903 56 4 ‘They Are a People Unacquainted with Subordination’ – First Nations’ Sovereignty Claims: Sero v Gault, Ontario, 1921 103 5 ‘Mesalliances’ and the ‘Menace to White Women’s Virtue’: Yee Clun’s Opposition to the White Women’s Labour Law, Saskatchewan, 1924 132 6 ‘It Will Be Quite an Object Lesson’: R. v Phillips and the Ku Klux Klan in Oakville, Ontario, 1930 173 7 ‘Bitterly Disappointed’ at the Spread of ‘Colour-Bar Tactics’: Viola Desmond’s Challenge to Racial Segregation, Nova Scotia, 1946 226 8 Conclusion 272 vi Contents notes 283 bibliography 433 picture credits 475 index 477 Publications of the Osgoode Society 487 Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now Chief Justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society’s members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of significant trials, and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Jane Banfield, Tom Bastedo, Brian Bucknall, Archie Campbell, J. Douglas Ewart, Martin Friedland, Charles Harnick, John Honsberger, Kenneth Jarvis, Allen Linden, Virginia MacLean, Wendy Matheson, Colin McKinnon, Roy McMurtry, Brendan O’Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, Harvey Strosberg, and Richard Tinsley. The annual report and information about membership may be ob- tained by writing The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario. M5H 2N6. viii Foreword In 1990 The Osgoode Society was delighted to publish Constance Backhouse’s first book, Petticoats and Prejudice, an important and innova- tive study of women and law in nineteenth-century Canada. Using a case-study method and presenting her material in a lively style which attracted a wide range of readers, Professor Backhouse won great ac- claim for her path-breaking scholarship in a relatively new field of his- torical inquiry. In Colour-Coded: A Legal History of Racism in Canada, 1900–1950, she maintains the same high standards as she continues to break new historiographical ground. Shifting her interest from gender to race, and maintaining her case-study approach, her mission in Colour-Coded is to capture the role played by the law in shaping the definition of race and shoring up racial repression and stereotypes. Professor Backhouse weaves a spell-binding storyline in her depiction of a series of court cases that focus on Aboriginal, Inuit, Chinese-Canadian, and African-Canadian individuals. From the criminal prosecution of traditional Aboriginal dance, to the trial of members of the “Ku Klux Klan of Kanada,” Backhouse demonstrates the deep and abiding legacy of racism that suffused Cana- dian legal structures and society. R. Roy McMurtry President Peter N. Oliver Editor-in-Chief Acknowledgments Colour-Coded grew out of work that was intended to produce a sequel to my first book of legal history, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada, published in 1991.1 My initial plan was to examine the intersection of gender and law across the first half of the twentieth century. As I embarked upon Colour-Coded I was committed to improving upon the research methodology I had used for Petticoats. One of the shortcomings of that book is its failure to interrogate fully how gender relates to race in historical terms. In an effort to prevent this happening again, I commenced my research by attempting to compile and analyse all the racialized cases and statutes in Canada that arose between 1900 and 1950. Almost immediately, it became abundantly clear that ‘race’ is a com- plex and variable historical construct. For example, the situation of Abo- riginal peoples is not uniform across the diversity of nations. The situation of Asian Canadians differs from that of the First Nations.