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A Suitable Population: British Columbia’s Japanese Treaty Act Litigation, 1920-1923

Gib van Ert

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Abstract

In the early 1920s, the courts of British Columbia, the Supreme Court of Canada and the Judicial Committee of the Privy Council considered a series of constitutional challenges to a British Columbia law requiring the provincial government to discriminate against Japanese and Chinese persons in the making of government contracts. The attack on this racially-motivated law was founded on the 1911 Treaty of Commerce and Navigation between the United Kingdom and Japan, under which Canada was bound to respect the right of the Japanese Empire’s subjects “equally with native [British] subjects, to carry on their commerce and manufacture, and to trade in all kinds of merchandise of lawful commerce”. Some of British Columbia and Canada’s best-known advocates argued these cases. The decisions they produced addressed important and still relevant questions about the relationship between international and domestic law, the Crown’s treaty power and Canadian federalism. These cases are remarkable early instances of Canada’s international obligations being invoked by litigants to challenge domestic law.