This is a collection of fifteen essays that addresses different aspects of the Chinese head tax case. Edited by two law professors and written mostly by lawyers and law professors, the collection has a strong legal flavour. The book begins with the legal case of Mack vs. Attorney General of Canada. However, the book does not provide a succinct summary of the case. In brief, the case involves three Chinese Canadians, Shack Jang Mack, Quen Ying Lee and Yew Lee, filing a statement of claim through their attorney in December, 2000, in a class action on behalf of head tax payers in the Ontario Superior Court. In all, the case went through three courts, and the original ruling dismissing the claim of head tax payers was upheld by the Court of Appeal and the Supreme Court.
The papers in the book use arguments from legal, social, historical and moral perspectives to criticize the decisions of the court and to appeal to the legal system to examine broader issues of injustice beyond legal technicalities. The fifteen papers are grouped under four sections. The introductory section, called Context and History, has five papers. Avvy Go, one of the two co-counsels in the head tax redress case, has written a short but informative piece on Chinese Head Tax redress campaign. The paper by Constance Backhouse is a narrative based on the life experience of Lem Wong, juxtaposed on a historical narrative of racial discrimination against the Chinese. Both pieces are informative and easy to read. In contrast, the following two papers, by Audrey Macklin and John Mclaren, are more technical and often dwell on arguments about the rule of law and liberalism, although Macklin's paper also gives a historical background of Chinese migration, Japanese migration, and South Asian migration to show a deep-seated history of racism in Canada.
Section two of the book, called Limits of Institutional Capacity to Address Injustices, includes four papers. The first paper, by Mary Eberts, the other co-counsel of the head tax redress case, explains how the case was intended “to bring the moral standards of ethical-rights society to bear on a grave historical wrong,” and rejects the court's reliance on what she calls “market-based democracy.” The next three papers, by Catherine Lu, Jeremy Webber and Lorne Sossin, use concepts such as “moral regeneration,” “moral norms” and “equitable approach” to resolve what the courts cannot do about past injustices.
As the title of the third section suggests, the two papers included deal with “Legal Theory and Gross Statutory Injustice.” Both contributors, Julian Rivers and David Dyzenhaus, point out the limits of the rule of law and adjudication, and the inherent tensions moving from legal theory to the practice of the court.
The last section, titled “Private Right and Public Wrong,” has four papers. The first two papers, by Lionel Smith and Dennis Klimchuk respectively, deal with legal arguments and opinions regarding “unjust enrichment” and “timing of injustice.” In essence, lawyers of the head tax redress case argue that the head tax constitutes unjust enrichment for non-Chinese, and the historical injustice transcends time to continuously victimize people of Chinese origin. Both authors are sympathetic to the arguments advanced by head tax campaigners. The next paper, by Anthony Sebok, provides a brief summary of mass restitution legation in the US. The final paper, by Moran Mayo, one of the editors of the volume, is a strong indictment of the moral inconsistency of the court in refusing to recognize the universality and timelessness of principles of equality and justice.
This is a book with a strong view about the law, historical injustices and present obligations of the court and other institutions of a democratic society. All the papers support redressing the head tax and develop moral, social and legal arguments to refute what the courts did in rejecting the basis of claims by head tax payers. The book is complex and often legalistic, intended for those who are well informed about the Chinese head tax case and the legal arguments of redressing historical injustices.
The book represents a very useful reference book for readers interested in reparations of historical injustices generally and in the head tax redress case specifically. The recent political settlement of the head tax redress in the form of an apology with compensation from the government of Canada does not invalidate or outdate the book. Rather, it speaks even more strongly of the need for a democratic society to recognize the limits of the court in being able to adjudicate historical injustices.
