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Human Rights in Canada: An Historical Perspective

The Case of Quong Wing : Do Not Apply Within

Moose Jaw, Saskatchewan
May 20, 1912

Welcome to the C.E.R. restaurant run by Quong Wing. He's a decent, hard-working Canadian who puts in long hours just to keep his head above water. To this end, he hired Mabel Hopham and Nellie Lane - two caucasian women - to work as waitresses. In so doing, he broke the law.

Which law was broken? Chapter 17 of the Statutes of Saskatchewan, 1912.

The Act says no white woman can work in a restaurant, laundry or any other kind of business owned, kept or managed by any "Chinaman". (Quong Wing is a "Chinaman" because he was born in China to Chinese parents. The fact that he's now a Canadian citizen doesn't seem to be worth much.) The Act was designed to promote morality by "protecting" white women from the immoral advances of Chinese immigrants. (There are no laws protecting Chinese women but that shouldn't come as a surprise since Canada's immigration laws don't let Chinese women immigrate to Canada.)

Ever resilient, Quong Wing decided to appeal his conviction. He hired the law firm of MacCraken, Henderson, Greene & Herridge and took his case to court. He argued that:

  • the law shouldn't apply to a Canadian citizen like himself.
  • a province like Saskatchewan can't make laws that apply only to immigrants or that create crimes - that power belongs to the federal government.

It may seem strange that he doesn't argue that the law is just plain wrong, or a violation of human rights. But his lawyers know that argument doesn't have a prayer. In 1912, there isn't really such a thing as human rights, and most people don't think twice about a law like this.

Quong Wing loses his argument when he appears before the Supreme Court of Saskatchewan, but he doesn't give up. He takes his case all the way to the Supreme Court of Canada in Ottawa.

Can you guess what happened next?

Supreme Court of Canada Building
Ottawa, Canada
February 23, 1914

Supreme Court
Four out of the five Justices judge the law valid, and the conviction stands. It doesn't matter that Quong Wing is a Canadian because he is still from China, and the law is aimed at all people of Chinese origin. One judge said that it's not his job to worry about why the law was passed, only whether Saskatchewan had the power to pass it. Only the fifth judge - Justice Idington - will be troubled by what the law is actually doing. He commented:

"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."

Apparently, discrimination and justice are not opposites in 1914. " What objects or motives may have controlled or induced the passage of the legislation in question I do not know. Once I find its 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."

Justice Davies, Supreme Court of Canada

What To Know More?

Check out R. v. Quong Wing, the actual Supreme Court of Canada Decision