Quong-Wing v. R.
(Supreme Court of Canada)
[1913-14] 49 S.C.R. 44
Sir Charles Fitzpatrick, C.J.:
The appellant, a Chinaman and a naturalized Canadian citizen, was convicted
of employing white female servants contrary to the provisions of ch. 17
of the statutes of Saskatchewan, 1912, and, for his defence, he contends
that the act in question is ultra vires of the provincial legislature.
It is urged that the aim of the act is to deprive the defendant and the
Chinese generally, whether naturalized or not, of the rights ordinarily
enjoyed by the other inhabitants of the Province of Saskatchewan and that
the subject-matter of the Act is within the exclusive legislative authority
of the Parliament of Canada.
The act in question reads as follows:
- No person shall employ in any capacity any white woman or girl, or
permit any white woman or girl to reside or lodge in or to work in or,
save as a bona fide customer in a public apartment thereof only, to
frequent any restaurant, laundry or other place of business or amusement
owned, kept or managed by any Chinaman.
- Any employer guilty of any contravention or violation of this Act
shall, upon summary conviction, be liable to a penalty not exceeding
$100 and, in default of payment, to imprisonment for a term not exceeding
In terms the section purports merely to regulate places of business and
resorts owned and managed by Chinese, independent of nationality, in the
interest of the morals of women and girls in Saskatchewan. There are many
factory acts passed by provincial legislatures to fix the age of employment
and to provide for proper accommodation for workmen and the convenience
of the sexes which are intended not only to safeguard the bodily health,
but also the morals of Canadian workers, and I fail to understand the
difference in principle between that legislation and this.
It is also undoubted that the legislatures authorize the making by municipalities
of disciplinary and police regulations to prevent disorders on Sundays
and at night, and in that connection to compel tavern and saloon keepers
to close their drinking places at certain hours. Why should the legislature
not have power to enact that women and girls should not be employed in
certain industries or in certain places or by a certain class of people?
This legislation may affect the civil rights of Chinamen, but it is primarily
directed to the protection of children and girls.
The Chinaman is not deprived of the right to employ others, but the classes
from which he may select his employees are limited. In certain factories
women or children under a certain age are not permitted to work at all,
and, in others, they may not be employed except subject to certain restrictions
in the interest of the employee's bodily and moral welfare. The difference
between the restrictions imposed on all Canadians by such legislation
and those resulting from the act in question is one of degree, not of
I would dismiss the appeal with costs.
The question on this appeal is not one as to the policy or justice of
the Act in question, but solely as to the power of the provincial legislature
to pass it. There is no doubt that, as enacted, it seriously affects the
civil rights of the Chinamen in Saskatchewan, whether they are aliens
or naturalized British subjects. If the language of Lord Watson, in delivering
the judgment of the Judicial Committee of the Privy Council in Union
Colliery Company of B. C. v. Bryden,  A.C. 580, 68 L.J.P.C.
118, is to be accepted as the correct interpretation of the law defining
the powers of the Dominion Parliament to legislate on the subject-matter
of "Naturalization and Aliens" assigned to it by item 25 of
s. 91, of The British North America Act, 1867, I would feel some
difficulty in upholding the legislation now under review. Lord Watson
there said, at p. 586: -- But s. 91, s-s. 25 might, possibly, be construed
as conferring that power in case of naturalized aliens after naturalization.
The subject of 'Naturalization' seems, prima facie, to include the power
of enacting what shall be the consequences of naturalization, or, in other
words, what shall be the rights and privileges pertaining to residents
of Canada after they have been naturalized. It does not appear to their
Lordships to be necessary, in the present case, to consider the precise
meaning which the term 'Naturalization' was intended to bear, as it occurs
in s. 91, s-s. 25. But it seems clear that the expression 'aliens', occurring
in that clause, refers to and, at least, includes all aliens who have
not yet been naturalized; and the words 'no Chinaman', as they are used
in s. 4 of The Provincial Act, were, probably, meant to denote, and they
certainly include every adult Chinaman who has not been naturalized.
And at p. 587: -- But the leading feature of the enactments consists
in this -- that they have, and can have, no application except to Chinamen
who are aliens or naturalized subjects, and that they establish no rule
or regulation except that these aliens or naturalized subjects shall not
work, or be allowed to work, in underground coal mines within the Province
of British Columbia.
Their Lordships see no reason to doubt that, by virtue of s. 91, s-s.
25, the Legislature of the Dominion is invested with exclusive authority
in all matters which directly concern the rights, privileges or disabilities
of the class of Chinamen who are resident in the provinces of Canada.
They are also of opinion that the whole pith and substance of the enactments
of s. 4 of The Coal Mines Regulation Act, in so far as objected to by
the appellant company, consists in establishing a statutory prohibition
which affects aliens or naturalized subjects, and, therefore, trench upon
the exclusive authority of the Parliament of Canada.
If the exclusive authority of all matters which directly concern the
rights, privileges and disabilities of the class of Chinamen who are resident
in the provinces of Canada is vested in the Dominion Parliament by s-s.
25 of s. 91 of The British North America Act, 1867, it would,
to my mind, afford a strong argument that the legislation now in question
should be held ultra vires.
But in the later case of Cunningham v. Tomey Homma,  A.C.
151, 72 L.J.P.C. 23, the Judicial Committee modified the views of the
construction of s-s. 25 of s. 91 stated in the Union Colliery
decision, supra. Their Lordships say, at pp. 156-157: -- Could
it be suggested that the Province of British Columbia could not exclude
an alien from the franchise in that province? Yet, if the mere mention
of alienage in the enactment could make the law intra vires, such a construction
of s. 91, s-s. 25, would involve that absurdity. The truth is that the
language of that section does not purport to deal with the consequences
of either alienage or naturalization. It, undoubtedly, reserves these
subjects for the exclusive jurisdiction of the Dominion -- that is to
say, it is for the Dominion to determine what shall constitute either
the one or the other, but the question as to what consequences shall follow
from either is not touched. The right of protection and the obligations
of alliegance are necessarily involved in the nationality conferred by
naturalization; but the privileges attached to it, where these depend
upon residence, are quite independent of nationality.
Reading the Union Colliery case, therefore, as explained in
this later case, and accepting their Lordships' interpretation of s-s.
25 of s. 91, that its language does not purport to deal with the consequences
of either alienage or naturalization,
and that, while it exclusively reserves these subjects to the jurisdiction
of the Dominion in so far as to determine what shall constitute either
alienage or naturalization, it does not touch the question of what consequences
shall follow from either, I am relieved from the difficulty I would otherwise
The legislation under review does not, in this view, trespass upon the
exclusive power of the Dominion Legislature. It does deal with the subject-matter
of "property and civil rights" within the province, exclusively
assigned to the provincial legislatures, and so dealing cannot be held
ultra vires, however harshly it may bear upon Chinamen, naturalized
or not, residing in the province. There is no inherent right in any class
of the community to employ women and children which the legislature may
not modify or take away altogether. There is nothing in The British
North America Act which says that such legislation may not be class
legislation. Once it is decided that the subject-matter of the employment
of white women is within the exclusive powers of the provincial legislature
and does not infringe upon the enumerated subject-matters assigned to
the Dominion, then such provincial powers are plenary. What objects or
motives may have controlled or induced the passage of the legislation
in question I do not know. Once I find the subject-matter is not within
the power of the Dominion Parliament and is within that of the provincial
legislature, I cannot inquire into its policy or justice or into the motives
which prompted its passage.
But in the present case, I have no reason to conclude that the legislation
is not such as may be defended upon the highest grounds.
The regulations impeached in the Union Colliery case were, as
stated by the Judicial Committee, in the later case of Tomey Homma,
supra, not really aimed at the regulation of coal mines at all, but
were, in truth, devised to deprive the Chinese, naturalized or not, of
the ordinary rights of the inhabitants of British Columbia, and in effect
to prohibit their continued residence in that province, since it prohibited
their earning their living in that province.
I think the pith and substance in the legislation now before us is entirely
different. Its object and purpose is the protection of white women and
girls -- and the prohibition of their employment or residence, or lodging,
or working, etc., in any place of business or amusement owned, kept or
managed by any Chinaman is for the purpose of ensuring that protection.
Such legislation does not, in my judgment, come within the class of legislation
or regulation which the Judicial Committee held ultra vires of
the provincial legislatures in the case of The Union Collieries v.
The right to employ white women in any capacity or in any class of business
is a civil right, and legislation upon that subject is clearly within
the powers of the provincial legislatures. The right to guarantee and
ensure their protection from a moral standpoint is, in my opinion, within
such provincial powers and, if the legislation is bona fide for
that purpose, it will be upheld even though it may operate prejudicially
to one class or race of people.
There is no doubt in my mind that the prohibition is a racial one and
that it does not cease to operate because a Chinaman becomes naturalized.
It extends and was intended to extend to all Chinamen as such, naturalized
or aliens. Questions which might arise in cases of mixed blood do not
The Chinaman prosecuted in this case was found to have been born in China
and of Chinese parents and, although at the date of the offence charged,
he had become a naturalized British subject, and had changed his political
allegiance, he had not ceased to be a "Chinaman" within the
meaning of that word as used in the statute. This would accord with the
interpretation of the word "Chinaman" accepted by the Judicial
Committee in the case of The Union Colliery Company v. Bryden.
The prohibition against the employment of white women was not aimed at
alien Chinamen simply or at Chinamen having any political affiliations.
It was against "any Chinaman" whether owing allegiance to the
rulers of the Chinese Empire, or the United States Republic, or the British
Crown. In other words, it was not aimed at any class of Chinamen, as men
of a particular race or blood, and whether aliens or naturalized.
For these reasons I would dismiss the appeal with costs.
Idington, J. (dissenting).:
The Legislature of Saskatchewan, by ch. 17 of the statutes of 1912, intituled
"An Act to prevent the Employment of Female Labour in certain capacities"
enacted as follows: -- 1. No person shall employ in any capacity any white
woman or girl or permit any white woman or girl to reside or lodge in
or to work in, or, save as a bona fide customer in a public apartment
thereof only, to frequent any restaurant, laundry or other place of business
or amusement owned, kept or managed by any Japanese, Chinaman or other
which is followed by a penal clause under which appellant has been convicted.
That conviction has been maintained by the Supreme Court of Saskatchewan
in a judgment from which the learned Chief Justice of that court dissented
(4 W.W.R. 1135).
The first question raised is whether or not the appellant, who is admitted
to have been born in China, of Chinese parents, but was at the time of
the alleged offence a naturalized British subject falls within the Act.
It is quite clear that the term "any Chinaman" may, in the plain,
ordinary sense of the words, be so construed as to include naturalized
British subjects. It is, to my mind, equally clear that, having regard
to many considerations, to some of which I am about to advert, a proper
and effective meaning may be given to this term without extending it to
cover the naturalized British subject.
The Act, by its title, refers to female labor and then proceeds to deal
with only the case of white women.
In truth, its evident purpose is to curtail or restrict the rights of
In view of the provisions of The Naturalization Act, under and
pursuant to which the appellant, presumably, has become a naturalized
British subject, one must have the gravest doubt if it ever was intended
to apply such legislation to one so naturalized.
The Naturalization Act, in force long before and at the time
of the creation of the Province of Saskatchewan, and ever since, provided
by s. 4 for aliens acquiring and holding real and personal property, and
by s. 24, as follows: -- 24. An alien to whom a certificate of naturalization
is granted shall, within Canada, be entitled to all political and other
rights, powers and privileges, and be subject to all obligations to which
a natural-born British subject is entitled or subject within Canada, with
this qualification, that he shall not, when within the limits of the foreign
state of which he was a subject previously to obtaining his certificate
of naturalization, be deemed to be a British subject unless he has ceased
to be a subject of that state in pursuance of the laws thereof, or in
pursuance of a treaty or convention to that effect.
These enactments rest upon the class No. 25 of the classification of
subjects assigned, by s. 91 of The British North America Act,
1867, to the exclusive jurisdiction of the Dominion Parliament, and which
reads as follows: -- "Naturalization and Aliens". The political
rights given any one, whether naturalized or natural-born British subjects,
may in many respects be limited and varied by the legislation of a province,
even if discriminating in favor of one section or class as against another.
Some political rights or limitations thereof may be obviously beyond the
power of such legislature. But the "other rights, powers and privileges"
(if meaning anything) of natural-born British subjects to be shared by
naturalized British subjects, do not so clearly fall within the powers
of the legislatures to discriminate with regard to as between classes
or sections of the community.
It may well be argued that the highly prized gifts of equal freedom and
equal opportunity before the law, are so characteristic of the tendency
of all British mode of thinking and acting in relation thereto, that they
are not to be impaired by the whims of a legislature; and that equality
is not to be taken away unless and until forfeited for causes which civilized
men recognize as valid.
For example, is it competent for a legislature to create a system of
slavery and, above all, such a system as applied to naturalized British
subjects? This legislation is but a piece of the product of the mode of
thought that begot and maintained slavery; not so long ago fiercely claimed
to be a laudable system of governing those incapable of governing themselves.
Again, it may also be well argued that, within the exclusive powers given
to the Dominion Parliament over the subject of naturalization and aliens,
there is implied the power to guarantee to all naturalized subjects that
equality of freedom and opportunity to which I have adverted. And I ask,
has it not done so by the foregoing provision of The Naturalization
It is quite clear that, if the Dominion Government so desire, it can,
by the use of the veto power given it over all local provincial legislation
insist upon the preservation of this equality of freedom and opportunity.
It is equally clear that a casual consideration of this Sashatchewan
Act might not arrest the attention of those whose duty it is to consider
and determine whether or not any provincial act should be vetoed. It might
well be that, in regard to such an act respecting aliens, those discharging
the duty relative to the veto power might let it go for what it might
be worth, knowing that, as to them, Parliament could later intervene;
whereas other considerations might arise as to naturalized subjects and
the duty to protect those naturalized be overlooked by reason of the general
It may be that the guarantee which I incline to think is implied in The
Naturalization Act, covers the ground. If so, there is then in this
act that which, as applied to the appellant (a naturalized subject), is
ultra vires the legislature.
If so, this conviction falls to the ground. Much stress is laid, on the
one hand, upon the expression of opinion in the judgment of the Judicial
Committee of the Privy Council in the case of The Union Colliery Co.
v. Bryden,  A.C. 580, 68 L.J.P.C. 118, and, on the other hand,
in that in the judgment of the same court in the case of Cunningham
v. Tomey Homma,  A.C. 151, 72 L.J.P.C. 23.
I may observe that a decision is only binding for that which is necessary
to the decision of the case and that, perhaps, neither expression of opinion
now relied upon by the respective parties hereto was actually necessary
for the determination of the case. Perhaps neither decision, in itself,
can be said to be conclusive by way of governing the questions to be resolved
herein. But of the two the former, certainly, so far as one can gather
from the report, touches more nearly or directly the point involved in
the present inquiry.
Of course, such opinions, even if obiter dicta, are entitled
to that weight to be given such eminent authority. What was clearly decided
in the first case was that such comprehensive language as used in the
regulation in question and, I rather think, aimed chiefly at alien Chinamen,
was ultra vires, and, in the other, that the political right
to vote was something within the express power of the legislature to give
or withhold or restrict as it should see fit. This latter point in no
way touches what is raised herein.
With the very greatest respect, I submit that the obiter dictum,
relative to the limitations of the power existent in the Dominion Parliament
by virtue of the assignment to it of paramount legislative authority over
the subject of "naturalization and aliens" never was intended
to be treated or taken in the sense now sought to be attributed to it,
and, if bearing such implication, that it is not maintainable.
Canada, for example, is deeply interested as a whole and always has been
in the colonization of its waste lands by aliens expecting to become British
subjects, and surely the power over naturalization must involve in its
exercise many considerations relative to the future status of such people
as invited to go there and accept the guarantees and inducements offered
them. To define and forever determine beyond the power of any legislature
to alter the status of such people and measure out their rights by that
enjoyed by the native-born seems to me a power implied in the power over
"naturalization and aliens". Many incidental powers have, as
something implied in other powers, contained in the same category, been
held as attached thereto or to be used as part thereof with less excuse
for the implication of incidental power there in question than would be
involved in going a good deal further than I suggest in the execution
of this power over "naturalization and aliens" the Dominion
Parliament may go.
Some of these guarantees might depend on conventions with other powers,
and I should hesitate to hamper the exercise of the power by any such
limitations thereon as a provincial legislature might think fit to impose.
The power must be treated as the other powers categorically assigned
to Parliament by s. 91 of The British North America Act, 1867
in a wide and statesmanlike fashion.
All these considerations have, in a measure, been observed in the provisions
of The Naturalization Act, and in framing the provision I have
quoted and other like provisions.
No one can, as of right, become naturalized. He must reside for three
years in this country and thus become known to those who have to aid in
his qualifying himself by showing that he is of good character. Unless
and until he fulfil these conditions he cannot come within the class to
which appellant belongs.
The appellant having, under The Naturalization Act (as I think
fair to infer), become a British subject, he has presumably been certified
to as a man of good character and enjoying the assurance, conveyed in
the section thereof I have quoted, of equal treatment with other British
subjects, I shall not willingly impute an intention to the legislature
to violate that assurance by this legislation specially aimed at his fellow-countrymen
in origin. Indeed, in a piece of legislation alleged to have been promoted
in the interests of morality, it would seem a strange thing to find it
founded upon a breach of good faith which lies at the root of nearly all
morality worth bothering one's head about.
Having regard to all the foregoing considerations and the further consideration
that this is a penal statute and, therefore, to be read and construed
according to the principle applicable to such like statues, I think this
is one of the relatively few instances in which we can depart from the
cardinal rule of interpreting all documents, including statutes, according
to the plain ordinary reading of the language used, and with Bowen, L.J.,
in Wandsworth v. United Telephone Co., 13 Q.B.D. 904, 53 L.J.Q.B.
457, ask ourselves if these words so read are capable of two constructions
and, if so, say: -- it is wise to adopt such a construction as is based
upon the assumption that Parliament merely intended to give so much power
as was necessary for carrying out the objects of the Act, and not to give
any unnecessary powers.
Or say, with Keating, J., in Boon v. Howard (1874) L.R. 9 C.P.
277, at p. 308, 43 L.J.C.P. 115: -- if the words are susceptible of a
reasonable and also of an unreasonable construction, the former construction
Other like cases are collected in Hardcastel (3rd ed.), at pp.
174 et seq.
Looked at from this point of view I am constrained to think that this
act must be construed as applicable only to those Chinamen who have not
become naturalized British subjects, and is not applicable to the appellant,
who has become such.
Whether it is ultra vires or intra vires the alien
Chinamen is a question with which, in this view, I have nothing to do.
Yet, in deference to the argument put forward in way of so interpreting
The British North America Act, that the reservation to Parliament
at the end of s. 91 of the powers enumerated in said s. 91 must apply
only in its limitation to item number 16 of s. 92, instead of as usually
construed, so far as necessary to each and all of the enumerated powers
given by that section, I may be permitted to say that I wholly dissent
from the view put forward. I look upon the powers given Parliament in
the twenty-nine enumerated classes set forth in s. 91, so far as necessary
to give effect thereto, as paramount to anything contained elsewhere;
as in s. 92.
Subject thereto, and some other special powers given Parliament, the
powers given the legislatures are exclusive and cannot be infringed upon
or restricted save by the veto power. There is, however, the possibility
of legislation by a legislature being held good until Parliament asserts
its powers in conflict therewith.
Until this relation of the powers respectively given Parliament and the
legislatures and their order of priority and superiority is thoroughly
comprehended and acted upon, there is sure to be confusion in working
the system and that confusion invites and induces still greater confusion
when the place of the residual power has to be fixed and the relation
thereof to these considered.
The maintenance of warehouse receipts given banks by virtue of The
Bank Act, as against local legislation resting upon authority over
property and civil rights, as held in Tennant v. The Union Bank of
Canada,  A.C. 31, 63 L.J.P.C. 25, illustrates how unfounded
is the argument put forward. And the case of The Grand Trunk Railway
Company v. The Attorney-General for Canada,  A.C. 65, 76 L.J.P.C.
23, relative to the power of a railway company to contract itself out
of the provision of The Railway Act prohibiting such a contract
with its employees, is another illustration of how the law of a province,
quite good till Parliament asserted its power, by virtue of s. 91, s-s.
29, must bend before such assumption of superior power.
In fact, that Parliament has, in regard to naturalization, intervened,
has much weight with me in reaching the conclusion I have as a reason
why the legislature must not be presumed to have decided to ignore what
is enacted by Parliament.
I am by no means to be held as deciding the effect of that legislation
by Parliament. All I say, in way of deciding herein, is that until, in
such case, the legislature makes it clear that it intended to question
the effect of that legislation, I need go no further than say it has not
clearly expressed its intention to assert and exercise such a doubtful
It is an attempt to cover and classify by an ambiguous term the case
of a man who is in truth and fact what the term used clearly implies,
and may return home any day, with that of a man who may have bid goodbye
forever to his native land, induced to do so by the assurances offered
him. I may add that we are not instructed as to the exact relation between
China and Great Britain in regard to the position of the appellant, and,
for the present purpose, that is immaterial, but I can conceive of further
considerations of this sort of legislation rendering more full information
necessary than this case does.
And, if the like term "Chinaman", as used here and in The
Union Colliery Co. v. Bryden, supra, is to be read as extending to
such, when naturalized British subjects, then the decision therein must
bind us herein.
I think. therefore, that this appeal should be allowed with costs.
The statute came into force on May 1, 1912, and is in the following words:
- No person shall employ in any capacity any white woman or girl or
permit any white woman or girl to reside or lodge in or to work in,
or, save as a bona fide customer in a public apartment thereof only,
to frequent any restaurant, laundry or other place of business or amusement
owned, kept or managed by any Japanese, Chinaman or other oriental person.
- Any employer guilty of any contravention or violation of this Act
shall, upon summary conviction, be liable to a penalty not exceeding
$100 and, in default of payment, to imprisonment for a term not exceeding
- This Act shall come into force on the first of May, 1912.
On May 27, 1912, the appellant, who was a restaurant keeper, was convicted
by the police magistrate of Moose Jaw of the offence of employing white
female servants in contravention of the provisions of this Act. On January
11, 1913, the Act was amended by striking out the words "Japanese"
and "or other oriental person", at the end of (1), its application
being thereby limited to "Chinamen".
The appellant, at the time of the alleged offence, had been naturalized
under the naturalization laws of Canada.
The first question for consideration, which is the substantial question
on the appeal, is whether, assuming that this statute is not in conflict
with any act passed by the Parliament of Canada, it is within the scope
of the legislative powers of the Province of Saskatchewan.
It might plausibly be contended that it is legislation in relation to
any one of these classes of subjects: "local undertakings",
s. 92 (B. N. A. Act), item 10, or "property and civil rights"
within Saskatchewan, s. 92 (13), or "matters merely local or private"
in Saskatchewan, s. 92 (16). For the purposes of this judgment it may
be assumed that the words "any restaurant, laundry or other place
of business or amusement" are not in this enactment descriptive of
"local works or undertakings" within the meaning of s. 92 (10);
and I shall assume further that (although the legislation does unquestionably
deal with civil rights) that the real purpose of it is to abate or prevent
a "local evil" and that considerations similar to those which
influenced the minds of the Judicial Committee in The Attorney-General
of Manitoba v. The Manitoba Licence-Holders Association,  A.C.
73, 71 L.J.P.C. 28, lead to the conclusion that the act ought to be regarded
as enacted under s. 92 (16), "matters merely local or private within
the province", rather than s. 92 (13), "property and civil rights
within the province". There can be no doubt that, prima facie,
legislation prohibiting the employment of specified classes of persons
in particular employments on grounds which touch the public health, the
public morality or the public order from the local and provincial point
of view may fall within the domain of the authority conferred upon the
provinces by s. 92 (16). Such legislation stands upon precisely the same
footing in its relation to the respective powers of the provinces and
of the Dominion as the legislation providing for the local prohibition
of the sale of liquor, the validity of which legislation has been sustained
by several well-known decisions of the Judicial Committee, including that
already referred to.
The enactment is not necessarily brought within the category of "criminal
law", as that phrase is used in s. 91 of The British North America
Act, 1867, by the fact merely that it consists simply of a prohibition
and clauses prescribing penalties for the non-obstrvance of the substantive
provisions. The decisions in Hodge v. The Queen, 9 App. Cas.
117, 67 L.J.P.C. 17, and in The Attorney-General for the Dominion
v. The Attorney-General for Ontario (1898) A.C. 247, 67 L.J.P.C.
17, as well as in the Attorney-General of Manitoba v. The Manitoba
Licence-Holders Association, already mentioned, established that
the provinces may, under s. 92 (16) of The British North America Act,
1867, suppress a provincial evil by prohibiting simpliciter the doing
of the acts which constitute the evil or the maintaining of conditions
offering a favorable milieu for it; and under the sanction of
penalties authorized by s. 92 (15).
The authority of the Legislature of Saskatchewan to enact this statute
now before us is disputed upon the ground that the act is really and truly
legislation in relation to a matter which falls within the subjects assigned
exclusively to the Dominion by s. 91 (25), "aliens and naturalization",
and to which, therefore, the jurisdiction of the province does not extend.
This is said to be shown by the decision of the Privy Council in The
Union Colliery Co. v. Bryden,  A.C. 580, 68 L.J.P.C. 118.
I think that, on the proper construction of this Act (and this appears
to me to be the decisive point), it applies to persons of the races mentioned
without regard to nationality. According to the common understanding of
the words "Japanese, Chinaman or other Oriental person", they
would embrace persons otherwise answering the description who, as being
born in British territory (Singapore, Hong Kong, Victoria or Vancouver,
for instance), are natural born subjects of His Majesty equally with persons
of other nationalities. The terms Chinaman and Chinese, as generally used
in Canadian legislation, point to a classification based upon origin,
upon racial or personal characteristics and habits, rather than upon nationality
or allegiance. The Chinese Immigration Act, for example, R.S.C.
1906, ch. 95, s. 2 (d) and s. 7, particularly illustrates this, and the
judgment of Mr. Justice Martin, in Re The Coal Mines Regulation Act
(10 B.C.R. 408), at pp. 421 and 428, gives other illustrations. Indeed,
the presence of the phrase "other Oriental persons" seems to
make it clear, even if there could otherwise have been any doubt upon
the point, that the legislature is not dealing with these classes of persons
according to nationality but with persons of a certain origin or persons
having certain common characteristics sufficiently well indicated by the
language used. Prima facie, therefore, the Act is not an act
dealing with aliens or with naturalized subjects as such. It seems impossible
also to say that the Act is, in its practical operation, limited to aliens
and naturalized subjects. From the figures given by the census of 1911
it appears that, while the total Chinese population of the three western
provinces was about 22,000, there were about 1,700 persons born in Canada
classed as Chinese, nearly all of whom would be found in those provinces;
and these, of course, are natural born subjects of His Majesty. There
are at this moment in Western Canada, moreover, considerable numbers of
people unquestionably embraced within the description "Oriental persons"
who have come to this country from other parts of His Majesty's territorial
domains, as regards nationality and stand in the same category. The Act
would (giving its words their usual meaning) apply to all these; and there
can be no sound reason for suggesting that they can, consistently with
the objects of the enactment, be excluded from the field of its operation.
The appellant's attack is really based upon a certain interpretation
of the decision of their Lordships of the Judicial Committee in The
Union Colliery Co. v. Bryden,  A.C. 580. Lord Watson, in delivering
their Lordships' judgment, at p. 587, said: -- But the leading feature
of the enactments consists in this -- that they have, and can have, no
application except to Chinamen who are aliens or naturalized subjects,
and that they establish no rule or regulation except that these aliens
or naturalized subjects shall not work, or be allowed to work, in underground
coal mines, within the Province of British Columbia.
They are also of the opinion that the whole pith and substance of the
enactments of section 4 of the Coal Mines Regulation Act, in so far as
objected to by the appellant company, consists in establishing a statutory
prohibition which affects aliens or naturalized subjects, and, therefore,
trench upon the exclusive authority of the Parliament of Canada.
Of the legislation before us it would be impossible to say that "it
has been and can have no application except to Orientals who are aliens
or naturalized subjects", as I have already pointed out. It seems
equally impossible to affirm that it establishes any rule or regulation
at all comparable to regulations of the character described by His Lordship,
viz: -- that these aliens or naturalized subjects shall not work
or be allowed to work in certain industries,
and, lastly, it would be going quite beyond what is warranted by anything
like a fair reading of the statute before us to say of it that it establishes
no rule or regulation except a rule or regulation laying a prohibition
upon aliens or naturalized subjects.
Orientals are not prohibited in terms from carrying on any establishment
of the kind mentioned. Nor is there any ground for supposing that the
effect of the prohibition found in the statute will be to prevent such
persons carrying on any such business. It would require some evidence
of it to convince me that the right and opportunity to employ white women
is, in any business sense, a necessary condition for the effective carrying
on by Orientals or restaurants and laundries and like establishments in
the western provinces of Canada. Neither is there any ground for supposing
that this legislation is designed to deprive Orientals of the opportunity
of gaining a livelihood.
There is nothing in the Act itself to indicate that the legislature is
doing anything more than attempting to deal according to its lights (as
it is its duty to do) with a strictly local situation. In the sparsely
inhabited western provinces of this country the presence of Orientals
in comparatively considerable numbers not infrequently raises questions
for public discussion and treatment, and sometimes in an acute degree,
which in more thickly populated countries would excite little or no general
interest. One can without difficulty, figure to one's self the considerations
which may have influenced the Saskatchewan Legislature in dealing with
the practice of white girls taking employment in such circumstances as
are within the contemplation of this Act; considerations for example,
touching the interests of immigrant European women, and considerations
touching the effect of such a practice upon the local relations between
Europeans and Orientals; to say nothing of considerations affecting the
administration of the law. And, in view of all this, I think, with great
respect, it is quite impossible to apply with justice to this enactment
the observation of Lord Watson, in the Bryden case, supra, that
"the whole pith and substance of it is that it establishes a prohibition
affecting" Orientals. For these reasons, I think, apart altogether
from the decision in Cunningham v. Tomey Homma, to which I am
about to refer, that the question of the legality of this statute is not
ruled by the decision in Bryden's case.
I think, however, that in applying Bryden's case we are not entitled
to pass over the authoritative interpretation of that decision which was
pronounced some years later by the Judicial Committee itself in Cunningham
v. Tomey Homma. The legislation their Lordships had to examine in
the last mentioned case, it is true, related to a different subject-matter.
Their Lordships, however, put their decision upon grounds that appear
to be strictly appropriate to the question raised on this appeal. Starting
from the point that the enactment there in controversy was prima facie
within the scope of the powers conferred by s. 92 (2), they proceeded
to examine the question whether, according to the true construction of
s. 91 (25), the subject-matter of it really fell within the subject of
"aliens and naturalization"; and, in order to pass upon that
point, their Lordships considered and expounded the meaning of that article.
At pp. 156 and 157, Lord Halsbury, delivering their Lordships' judgment,
says: -- If the mere mention of alienage in the enactment could make the
law ultra vires, such a construction of s. 91, s-s. 25 would involve that
absurdity. The truth is that the language of that section does not purport
to deal with the consequences of either alienage or naturalization. It
undoubtedly reserves these subjects for the exclusive jurisdiction of
the Dominion -- that is to say, it is for the Dominion to determine what
shall constitute either the one or the other, but the question as to what
consequences shall follow from either is not touched. The right of protection
and the obligations of allegiance are necessarily involved in the nationality
conferred by naturalization; but the privileges attached to it, where
these depend upon residence, are quite independent of nationality.
It was hardly disputed that if this passage stood alone the argument
of the appellant must fail. But it is said that this passage is obiter
and is inconsistent with and, indeed, contradictory of certain passages
in Lord Watson's judgment in Bryden's case, which passages, it
is contended, give the true ground of the decision in that case and, consequently,
are binding upon us. I have already said what I have to say as to the
effect of Lord Watson's judgment; but I think this last mentioned argument
is completely answered by reference to a subsequent passage of Lord Halsbury's
judgment in Cunningham's case, at p. 157. It is as follows: --
That case depended upon totally different grounds. This Board, dealing
with the particular facts of the case, came to the conclusion that the
regulations there impeached were not really aimed at the regulation of
coal mines at all, but were in truth devised to deprive the Chinese, naturalized
or not, of the ordinary rights of the inhabitants of British Columbia
and, in effect, to prohibit their continued residence in the province,
since it prohibited their earning their living in that province.
That is an interpretation of Bryden's case which it is our duty
It should not be forgotten that the very eminent judges, (Lord Halsbury,
Lord Macnaghten, Lord Davey, Lord Robertson and Lord Lindley), constituting
the board which heard the appeal in Cunningham's case, had that
case before them for something like six months after it had been very
fully argued by Mr. Blake against the provinicial view; and, in delivering
the considered judgment of the board, Lord Halsbury, as we have seen,
examines and sums up the effect of the decision in Bryden's case
which the courts in British Columbia had believed themselves to be following
in passing upon Cunningham's case. In these circumstances, even
assuming the appellant's construction of their Lordships' judgment in
the Bryden case to be the right construction, we should not be
entitled to adopt a view as to the construction of item 25 of s. 91 (B.N.A.
Act) which was distinctly and categorically rejected in the later
There is one more point to be noted. S. 24 of The Naturalization
Act, ch. 77, of the Revised Statutes of Canada, 1906, provides
as follows: -- 24. An alien to whom a certificate of naturalization is
granted shall, within Canada, be entitled to all political and other rights,
powers and privileges, and be subject to all obligations, to which a natural-born
British subject is entitled or subject within Canada, with this qualification
that he shall not when within the limits of the foreign state of which
he was a subject previously to obtaining his certificate of naturalization,
be deemed to be a British subject, unless he has ceased to be a subject
of that state in pursuance of the laws thereof, or in pursuance of a treaty
or convention to that effect.
It is not necessary to consider whether or not this section goes beyond
the powers of the Dominion in respect of the subject of naturalization,
or whether the "rights, powers and privileges" referred to in
that section ought to be construed as meaning those only which are implied
by the "protection" that is referred to as the co-relative of
allegiance in the passage above quoted from the judgment of the Judicial
Committee in Cunningham's case. This much seems clear: The section
cannot fairly be construed as conferring upon persons naturalized under
the provisions of The Naturalization Act, a status in which they
are exempt from the operation of laws passed by a provincial legislature
in relation to the subjects of s. 92 of The British North America
Act, 1867, and applying to native-born subjects of His Majesty in
like manner as to aliens, naturalized subjects and native-born British
subjects. If the enactment in question had been confined to Orientals
who are native-born British subjects it would have been impossible to
argue that there was any sort of invasion of the Dominion jurisdiction
under s. 91 (25); and it seems equally impossible to say that this legislation
deprives an Oriental who is a naturalized subject of any of "the
rights, powers and privileges" which an Oriental who is a native-born
British subject is allowed to exercise or retain.
Appeal dismissed with costs.