Voting Rights and Conflicting Jurisdictions:
citizen Homma is denied the vote
October 19, 1900
Tomey Homma applied to have his name placed on the voters' list.
Nothing unusual in that. Any male British subject over the age of 21
who isn't disqualified can vote in Canada.
But, the collector of voters applies the Elections Act and rejects
You see, Tomey may be a British subject but he was born in Japan, and
not of British parents. Section 8 of the B.C. Provincial Elections Act
says that no "Chinaman, Japanese, or Indian" may vote in the
province of British-Columbia.
So Tomey goes to court. All the way, in fact, to the British Privy Council.
And he'll be joined there by the Attorney General for Canada.
House of Lords
December 17, 1902
Now, you would think that this case will be about the right of every
citizen to vote regardless of race, colour or creed. But this is 1902,
when one may discriminate against others on these grounds.
The Lord Chancellor makes a point of saying that the question of whether
this is a good law or not isn't even something the Court can consider.
No, the whole issue revolves around whether the law is beyond the power
of ("ultra vires") the provincial legislature. The British North
America Act gives the federal government power over aliens, immigration,
and naturalization (citizenship). The federal government argues that because
the law deals with the rights of citizenship, it's under federal authority.
The Privy Council doesn't agree. The B.C. law, it says, doesn't say who
can or can't be a citizen or alien. That is the federal government's role.
The law only deals with the consequences for people whom the federal government
naturalizes. Making electoral laws is within the power of the provinces.
The law is deemed valid and Tomey is excluded from his own country's
democratic process. "In the history of this country, the right to
the franchise has been granted and withheld on a great number of grounds,
conspicuously upon grounds of religious faith, yet no one has ever suggested
that a person excluded from the franchise was not under allegiance to
The Lord Chancellor Privy Council
When discrimination can't be challenged directly, the division of powers
can help. In 1899, the Privy Council struck down a B.C. law that prohibited
Chinese from working in mines in the province.
Did you know?
In 1900, the highest Court in the land wasn't the Supreme Court of Canada.
It was the Judicial Committee of the British Privy Council. (This Court
is also known as the Law Lords, because its made up of judges who also
sit in the British House of Lords.) In fact, the Supreme Court of Canada
won't become Canada's Top Court until 1949.
Want To Know More?
Cunningham v. Tomey Homma
s. 7 of the B.C. Provincial Elections Act