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Human Rights in Canada: An Historical Perspective

Voting Rights and Conflicting Jurisdictions:
citizen Homma is denied the vote

Vancouver, B.C.
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 Tomey's application.

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
London, England
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 Sovereign."

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?

See:
Cunningham v. Tomey Homma
s. 7 of the B.C. Provincial Elections Act