Yaremko Forum in Multiculturalism and Human Rights:
Achieving Human Rights in a Multicultural Society
Conference Schedule
All Panels took place in Flavelle House, classroom A.
Saturday
9.00 Breakfast
Panel I: History and Context: The Problem of Legalized Discrimination
9.30 - 10.40 Presentations
10.40 - 12.00 Discussion
Chair: Avvy Go, Clinic Director of the Metro Toronto Chinese & Southeast Asian Legal Clinic
1. Constance Backhouse, Ottawa
"Legal Discrimination Against the Chinese in Canada: The Historical Framework"
The head tax and the discriminatory immigration laws that accompanied the tax were part of a wider framework of racist legislation enacted by the federal, provincial and municipal governments in Canada during the nineteenth and twentieth centuries. This paper will provide an overview of the discriminatory enactments in force historically. It will examine the many areas in which such laws impacted upon Chinese-Canadians: immigration, suffrage, employment, entrepreneurship, criminal justice, education, and recreation. It will attempt to make the case that the historical foundation of legal inequality resulted in political, economic and social ramifications that prevented the Chinese-Canadian community from achieving full equality in the past. It will argue that this foundation has ramifications that continue to the present.
2. Audrey Macklin, Toronto
My presentation will begin by situating the Head Tax in its historical context,
as against other policy instruments used to deter/exclude/penalize Asian
migrants. I will compare the Head Tax to the Lemieux Agreement (quota on
Japanese) and the continuous journey provision (restricting South Asians).
I will use this historical introduction, and the contingency of these
strategies, to raise questions about the extent to which the recognition of a
legal claim depends on the [arbitrary] fact of admission, rather than on the
magnitude of the harm.
3. John McLaren, Victoria
"The Chinese Head Tax case raises intriguing issues about the status of
unjust laws in Canada. Despite assertions that both Canadian constitutional
theory and legislative sovereignty have left little or no room for using
notions of substantive justice and equality to judge legislated
discrimination in the past, this paper argues that there is a slender strand
of judicial decision making that suggests otherwise. Several decisions of
the British Columbia Supreme Court in the late 1870s and mid-1880s point in
this direction, containing language that embodies rule of law discourse
which is used to support notions of equality under the law for all those
living under the British flag. These decisions do not stand alone. In what
is admittedly a very limited set of cases a small minority of judges have
from time to time argued for the undesirability of upholding discriminatory
law because it offends the rule of law. In this paper I consider several of
these decisions, along with the B.C. decisions mentioned, with a view to
determining how far they go in challenging conventional wisdom and the
extent to which they might be used to support arguments favouring the
characterization of the head tax law as unjust and therefore remediable."
4. Mary Eberts, Counsel to the Plaintiffs in the Head Tax Case
"The Limits of Constitutionalism: Requiring Moral Behaviour from Government"
In the political process of refining the guarantees of the Canadian Charter of Rights and Freedoms, "Charter Canadians" (as Alan Cairns has called us) strove to embed in the constitution basic principles of moral conduct for governments. Some of these, like the legal and civil rights provisions, had been for centuries works in progress in the so-called unwritten constitution. The equality guarantees were of comparatively more recent origin: the post World War II human rights movement internationally and in Canada had shaped the content of these guarantees, and given weight to the idea that it is legitimate to expect governments to respect human rights. The Head Tax case, arising only twenty years after the entrenchment in the constitution of the Charter of Rights, shows very clearly the limits of this kind of constitutionalism as a way of requiring moral behaviour from governments. Technical arguments arising from the nature of the constitutional instruments themselves limit their effectiveness. Yet has the acceptance of constitutional guarantees of equality and human rights created a legal or moral climate in which we should expect that, one way or another, governments can be called to account through the legal system for egregious acts of immorality? The alternative to accountability or redress through the legal system is to strive for such redress politically: how does that alternative measure up if the acts complained of have robbed the community in question of the opportunity to become politically effective?
12.00 - 2.00 Lunch
Panel II: Redressing Historic Injustice: The Promise and Limits of Law
2.00 - 3.20 Presentations
3.20 - 4.30 Discussion
1. Catherine Lu, McGill
"From injustice to tragedy: historical wrongs and moral regeneration"
After acknowledged wrongdoing, desires for justice and reconciliation abound.
Four components comprise the project of moral regeneration: establishing and
publicizing a truthful historical record; vindicating the victims' worth
through retributive or rehabilitative mechanisms; restoration of victims'
damaged senses of agency and dignity through reparations, memorials and so on;
and transformation of legal, political, social and economic structures and
ideologies that made the moral violations possible and permissible . In the
case of the Chinese Canadian Head Tax, the contemporary courts have
acknowledged that the legislation was unjust and discriminatory, and
contemporary laws no longer condone such injustices. In this sense,
transformation has occurred at least at the legal and political levels, and
the vindication of victims' worth is also effected through such
transformation. Reparations belong to the third task of moral regeneration
that seeks to repair victims' damaged senses of agency and dignity, although I
will argue that reparations must be understood at a symbolic rather than
material level, and I will question whether reparations are necessary or
sufficient for completing the project of moral regeneration. As more and more
components of moral regeneration are realized, the language of injustice
(between the state and the victims of discrimination) and legal redress for
historical wrongs becomes less and less appropriate. Instead, a narrative of
shared tragedy that binds the contemporary state and citizens with the victims
of historical injustice might be more fitting.
2. Darlene Johnston, Toronto
Mack suggests that liability for past injustice has something to do with whether the actions were considered wrong at the time. Regrettably, the Court assesses this issue by exclusive reference to the standards of the Wrongdoers, ignoring the perspective of the Wronged. If the Wrongdoers were capable of comprehending the protests of the Wronged (as well as dissenters within their own group), then it is not a question of imposing modern standards back in time, but of demanding attentiveness to the moral choices that were available to the actors at the time.
To suggest that 19th-century actors were incapable of recognizing the injustice of their actions, which injustice is patent today, involves an implicit appeal to human progress, that now we know better. As a descendent of Aboriginal people, I do not believe that my ancestors were any less humane or less capable of dialogue and empathy than I am. Nor do I subscribe to theories of human social evolution, or a scale of humanity upon which cultures can be ranked in order of development from the primitive to the civilized. The ability to communicate should import a responsibility to listen. If Canadians believe that their forebears were just as human as they are, then they should recognize that their forbears had a responsibility to listen and respond to Aboriginal demands for respect and tolerance. Failing to respond to what they heard from those whom they were oppressing, willful deafness, should give rise to some obligation. I will explore this dialogic responsibility to listen to the Wronged as well as to contemporaries who saw the Wrong. I will use an example from my community's history to demonstrate the importance of contemporaries having named the Wrong, even if the Wrongdoers refused to listen.
3. John Torpey, UBC
Reparations Politics: Between Past and Future
This paper explores the worldwide spread of reparations politics in recent years, and examines the Chinese Head Tax case against this background. I consider the centrality of the Holocaust as a template for reparations politics; the changing "market" for tales of past injustice -- on both the "supply" and the "demand" sides; the role of "entrepreneurs of memory" in promoting attention to historical injustices; and the prospects of the Chinese Head Tax case against the background of other cases.
4. Jeremy Webber, Victoria
Rights and Wrongs, Institutions and Time: Species of Historic Injustice and their Modes of Redress
Many of the issues in the head tax case - the appropriateness of restitutionary relief; the ability to judge past actions by the standards of today; the emphasis on the pastness of the injustice versus the claim that the injustice continues into the present; the appropriateness of a remedy that does not compensate those denied admission to Canada - all raise questions about the underlying objective in addressing instances of profound discrimination in the past. They raise questions, in other words, about the precise form of "justice" implicated in situations like these. How one characterises the species of justice involved will determine whether judicial redress, through the framework of an action in unjust enrichment, is appropriate - whether, in other words, that type of proceeding in that type of forum is apt to provide anything like a measure of redress appropriate to the nature of the wrong.
This paper reflects upon the forms of justice and injustice in play in the head tax case, and upon the appropriateness of those forms of injustice for judicial determination. It does so, in part, by juxtaposing, comparing, and contrasting the issues raised by the head tax to those posed by another form of historic injustice that has received recognition and a measure of redress before the Canadian and Australian courts, namely the claims of indigenous peoples. It discusses the institutional capacity and constitutional appropriateness of courts to address the problems of injustice so defined. It explores how questions of intertemporal judgement and the prescription of historic claims are bound up with the nature of injustice at issue.
4.30 Reception
Sunday
9.00 Breakfast
Panel III: Private Law/Public Wrongs: Unjust Enrichment in the Reparations Age
9.30 - 11.00 Presentations
11.00 - 11.20 Coffee break
11.20 - 1.00 Discussion
The scheduled chair, Hanoch Dagan (Michigan), was unable to attend.
1. Dennis Klimchuk, Western
It is settled law that the cause of action in unjust enrichment is complete at the moment of defendant¹s receipt of the disputed enrichment. It would seem, then, that the only way the claim in Mack could succeed is if it were shown that the relevant statutes were invalid at the time of their enforcement. I want to suggest, however, that this inference may be hasty. The rule above is narrower than it might at first seem. It is meant only to oppose the view that the plaintiff¹s claim for restitution is grounded on the defendant¹s unconscientious retention of the disputed enrichment (rather than, more simply, in her being in receipt of it). This leaves open the possibility that the defendant¹s being in receipt of the enrichmentas an enduring state of affairsmight become an injustice for which remedy can be secured under the law of unjust enrichment. In other words, this leaves open the possibility that, in the language of Canadian law, a juristic reason might expire. We ought to distinguish between two versions that the argument that the juristic reason for the enrichment in a case such as Mack has expired can take. The first impugns the legal validity of the defendant¹s being in receipt of the disputed enrichment. The second questions the standing of a present day court to vindicate the status quo. The first raises difficult questions about the structure of the action in unjust enrichment, the second about the autonomy of private law.
2. Lionel Smith, McGill
"Claims arising out of historical injustices face a number of difficulties. One of them is the argument that whatever may be the contemporary view, the defendant was not doing anything wrong at the time. The law of unjust enrichment provides one solution to this, because a claim that a defendant was unjustly enriched never depends on characterizing the defendant's conduct as legally wrongful. On the other hand, it does require that the transfer of wealth which is now impugned was normatively flawed at the time it occurred. There are many different types of flaw which will activate the principle against unjust enrichment. Where, however, an enrichment and the corresponding deprivation are mandated by a statute, it seems impossible to characterize the enrichment as unjust without impugning the validity or applicability of the statute."
3. Lorne Sossin, Toronto
"Redress for Unjust State Action: Reimagining the Public/Private Distinction", will consider the circumstances under which public policies can and should give rise to a basis for private recovery. I will compare the Ontario Court of Appeal's treatment of this issue in Mack v. Canada and Authorson v. Canada, both decided in 2002 (Authorson has now been granted leave to appeal by the SCC). This comparison will be undertaken against the backdrop of a series of Supreme Court of Canada decisions which have considered how private law doctrines should be adapted to public law settings; for example, in Cooper v. Hobart and Edwards v. Law Society of Upper Canada (2001), the Court highlighted the "public policy" dimension of the test for regulatory negligence; while in Mt. Sinai Hospital v. Quebec (Ministry of Health) (2001), some members of the Court recognized a "public interest" dimension of promissory estoppel. In these and other cases, the Court emphasized that the Crown will rarely owe a private duty to a discrete group of adversely affected individuals, since this may conflict with its broader and higher duty to promote the public interest. However, in Authorson, the Court appeared implicitly to view this exemption from private liability as contingent on the legitimacy of the public policy that is pursued. Where, as in that case, the policy could be characterized as "pernicious" and conceived for ulterior purposes, barriers to private liability - even duly enacted statutes and lawfully exercised ministerial discretion - may be swept aside by the Court. How can the approach in Authorson be reconciled with the Court's approach to its role with respect to evaluating the head tax at issue in Mack? When the Court asserts that it must take the public interest mandate of the Crown into account when applying private law doctrines to state action, does this amount to administrative law by other means, or is this a new and largely uncharted realm of accountability for discriminatory and unjustified state action?
4. Mayo Moran, Toronto
The Influential Authority of the Charter and the Meaning of 'Unjust' in Mack v. AG Canada
I will explore the decisions to date in Mack against the framework of an understanding of the significance of the influential authority of the Charter and its necessary impact on the meaning of core private law doctrines such as the 'unjust' factor in unjust enrichment. In particular, I will argue that the decisions in Mack are explained in part by a failure to fully grasp the influence of constitutional norms across the contemporary legal regime and the effect of that influence on what a court acting now can count as a legal or juristic reason. Interestingly, in cases like Canada Trust contemporary Canadian courts have recognized the mandatory influence of equality norms even where the relevant legal acts were long past and private--in that sense, doubly outside of the field of the Charter's direct force. Yet in Mack the anxiety to preserve the non-retroactivity of the Charter seems to have led the courts to hold that, since the Charter could exert no direct force on the legislation in question, it could equally have no influence on the articulation of contemporary private law rights.
However, the argument of this paper is that this approach incorrectly circumscribes the influence of the Charter to cases involving non-state actors. The troubling result is that while courts, as in Canada Trust, will refuse to lend their contemporary imprimatur to past private discrimination, by contrast they take themselves to be bound to treat past discriminatory acts on the part of the state as 'juristic reasons'. But given that constitutionalized human rights norms are typically taken to be directed in the first instance to the state, this result seems puzzling on constitutional theory grounds. It would be odd if the past acts of the state were, as they seem to be on the Mack account, shielded from any influence of Charter norms in a way that the past acts of private actors are not. A more nuanced understanding of the difference between the force of constitutional norms and their influence may, however, provide a better response to problems like those posed in Mack. But this may mean that a contemporary court bound to construe private common law in accordance with its institutional commitment to the fundamental nature of Charter values may well have to refuse to count overtly racist and discriminatory legislation as a contemporary juristic reason, even if that legislation suffered from no positive defect during the time of its tenure.
5. Tony Sebok (Brooklyn)
"A Short History of Mass Restitution Law in the United States"
In this presentation I will trace the evolution in the United States of private law litigation which has recently been used to address large-scale historical unjust practices. Over the past two years, prominent attorneys have formed a coalition called the Reparations Coordinating Committee ("RCC") to strategize and pursue lawsuits to redress the wrongs arising American slavery. One issue the RCC is debating is whether or not to support class action lawsuits based in theories of unjust enrichment. One such suit was filed in federal court in Brooklyn against major American corporations this year on behalf of all descendents of African enslaved in the United States with ambiguous support by the RCC.
I will examine the RCC's strategic choices in light of the recent history of "mass historical litigation" in the United States. I will examine first the origins and success of the claims for reimbursement brought by 41 states against the tobacco industry which led to the $240 billion Master Settlement Agreement. I will detail the novel legal and political assumptions behind the settlement. Then I will examine the substantive legal claims motivating the class actions brought against corporations who used, or benefited from the use, of slave labor during the Second World War. Here too I will detail the novel legal and political assumptions behind the settlements of these suits.
I will conclude by reflecting on whether we are witnessing a historical turning point in the conceptualization of American private law with regard to mass restitution, and what lessons these changes hold for the RCC. To do this I will have to review the current state of the law concerning the legal redress for African slavery, as well as the social and philosophical issues which may constrain the current and future litigation.
1.00 - 2.15 Lunch
Panel IV: Responding to Past Wrongs: The Role of the Rule of Law
2.15 - 3.15 Presentations
3.15 - 4.15 Discussion
1. David Dyzenhaus, Toronto
My paper will focus on the different models of the rule of law I take to be presupposed by the judgment of the Ontario Court of Appeal in Mack and by the appellants' factum. I argue that the Court's dismissal of the argument on the basis that it disclosed no reasonable cause of action is premised on a positivist model of law which is out of step with the model that animates much Canadian jurisprudence, which I call - following Lon L. Fuller - an internal morality of law model. To some extent, the appellants provided a basis for the Court's judgment, as at times they relied on elements of a positivist model.
2. Vivian Grosswald Curran, Pittsburgh
Achieving Human Rights in a Multicultural Society: Institutional competence and the law conference
The topic of multiculturalism and human rights has at least two dimensions in today's world: (1) the deep and increasing heterogeneity of populations in all modern western constitutional democracies, with the consequent challenges to law and justice of conflicting and mutually irreconcilable values within nations, including the hotly debated issue of whether the universality assumed in the very concept of human rights is valid, or if it is a residue of western imperialist arrogance and aggression; and (2) the paradox of increasing rhetorical deference to multiculturalism in a context of ever-increasing convergences, and erosions to pluralism.
Within the realm of law, and with reference to the issues the Chinese head tax case spawns, it seems vital to know whether the concept of procedural or administrative principles as fundamental to, and capable of, maintaining justice (Habermas; Hampshire; Dyzenhaus ) can be extricated from the substance of law so as to enable discreet minorities with substantively conflicting values and aspirations to have a forum in law that does not condemn some groups to loser status, while granting others winner status.
The Chinese head tax case also raises issues of the concept of law and of the judicial task in terms of positivism versus natural law. History suggests that the terrain of the debate may be misplaced by this discussion. Reformed judicial methodology and philosophical training for judges are unlikely to provide much assurance of substantive justice. (Cassirer; Curran). A resolution of the positivism debate runs serious risks of failing to address one proven constant and irremediable challenge to the rule of law: namely, law's vulnerability to politicization and ideology. The most promising weapon against this vulnerability lies in pluralism, in maintaining a multiplicity of contexts, values, traditions and resources. (Berlin; Popper).
One implementation of a pluralistic perspective would be to consider, as Professor Dyzenhaus has discussed in the context of South Africa, a non-judicial option for cases like the Chinese head tax one. The explosion of litigation and the increasing role of the judiciary have exposed the shortcomings of legal proceedings. The Nazi and Nazi collaborator trials for crimes against humanity suggest that non-judicial institutions may be more amenable to accomplishing goals of education, memorializiation and national value statements that the institution of the trial often seems to thwart in spite of itself, that nations nevertheless relentlessly insist upon, and that trials, by virtue of constitutive structures, are helpless to realize. (Cassin; Dyzenhaus; Curran).
3. Julian Rivers, Bristol
"Gesetzliches Unrecht" and the Canadian Head Tax Case
"This paper considers the contribution of German legal philosophy and practice to our understanding of statutory injustice. It focuses in particular on the thought of Gustav Radbruch and Robert Alexy, and discusses the attitude of post-reunification German courts to East German law. It argues that even in modern liberal democracies cases may arise in which the judicial duty to do justice according to law requires the judiciary to deny legal effect to the highest norms of positive law."
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