Apparently, Quebec’s justice minister has defended that province’s “unveiling” law by “arguing that it isn’t about religion, or Muslims, since it applies equally to all face coverings.”
This was the sort of argument used by B.C.’s government and the City of Victoria’s council in the 1880s. The judges did not buy it.
For example, in a case in 1886, Chief Justice Matthew Begbie set aside the conviction of a Chinese man for operating a laundry without a licence. The government argued that the law, which imposed extremely high licence fees, did not discriminate against Chinese people on its face. Of course, everyone knew that laundries were overwhelmingly run by Chinese people.
In setting aside the conviction, Begbie quoted from a judgment of U.S. federal circuit court Justice Stephen Field: “When we take our seats on the bench, we are not struck into blindness and forbidden to know as judges what we see as men; and when an ordinance, though general in its terms, only operates against a special race, sect or class, it being universally understood that it is to be enforced only against that race, sect or class, we may justly consider that it was the intention of the body adopting it that it should only have such operation, and treat it accordingly.”
In another case two years later, Begbie issued a writ of mandamus compelling the City of Victoria to renew pawnbroking licences to Chinese people, drawing again on a decision from another jurisdiction.
“Victoria does not possess a monopoly of race jealousy,” he wrote, citing a French decision overturning a discriminatory tax on Chinese in the colony of Cayenne. Such laws were null and void, he said, because they were “infringements at once of personal liberty and the equality of all men before the law, and also a negation of international rights.”
All this a century before the enactment of the Charter of Rights and Freedoms, with its constitutionally entrenched guarantees of freedom of religion and expression, and of equality before the law.
At the time, Begbie was strongly criticized in the press for these views.
Begbie’s statue was removed from the foyer of the B.C. Law Society’s building this year. One of the reasons cited is that he was “influenced by racist ideologies of his era.” We do not doubt that he was. Such prejudices were rampant in the 19th century and well into the 20th. They are with us still.
But on this issue, Begbie was way ahead of most of the legislators, politicians and newspapers of his day. And we expect the judges of today, when Quebec’s law comes before them, as it surely will, to reach much the same conclusion on the law as he did — without being able to invoke the Charter — in the 1880s.
Hamar Foster, QC, and John McLaren, PhD, are professors emeritus of law at the University of Victoria.
