Disenfranchised: Having, losing, and regaining the vote, a quick look at the laws 1872-1948

Disenfranchised. Sounds like a word for what happens when you own a Tim Horton’s and can’t make the lease payments. In actuality it’s much more insidious – the main reason why the Chinese learned to take it on the chin, again and again – because they had no political power. In this post, I’ll take you through the long and winding road of voting rights for the Chinese in Canada by looking at the laws as they were written. We’ll start in 1872, when BC first stripped voting rights away, then we will follow the laws through the years until 1948 when they were restored. Along the way, we’ll see disenfranchisement for many people, among them Indigenous, South Asian, and Japanese, but for clarity I’ll be focusing on the Chinese.

Laws are hard to read. They are confusing and a blur of cross-references. If you are new to reading laws, you can be forgiven for wanting to tear your hair out. When I was drafting this blog, I wanted to go directly from when the vote was removed to when it was reinstated but instead was led on an increasingly twisty path, from one year to the next, until I finally traced a path through SIX pieces of legislation.

Like this.

To make matters even more confusing, I’m going to be talking about two levels of government, the federal and the provincial: Canada (federal) and British Columbia (provincial), which we all shorten to “BC”. By using BC, I do not mean to lessen the importance of any other province or territory, nor do I suggest they were any better or worse.

Finally, if you are not sure who goes where, I will let you know that you vote for a Member of Parliament (MP) in the federal elections to fill the House of Commons in Ottawa, Ontario, and you vote for a Member of the Legislative Assembly (MLA) in each of the provincial and territorial capitals.

1872-1948: a quick tour through the legislation

1872 – British Columbia gets the ball rolling by disenfranchising the Chinese and the Indigenous

We start this story in British Columbia, where most Chinese first settled. First, here is who could vote:

10. “Every male of the full age of Twenty-one Years, not being disqualified by this Act or by any other Law in force in this province, being entitled within this Province to the privileges of a natural-born British subject, having resided in this Province for six months… shall be entitled to vote at the Election of a Member or Members of the Legislative Assembly…

Act to amend the Qualification and Registration of Voters Act, 1871, 35 Vict. No. 39 (10). Reserved 11 Apr 1872.

And here is who could not:

(Act not applicable to Chinese or Indians)

13. Nothing in this Act shall be construed to extend to or include or apply to Chinese or Indians.

Act to amend the Qualification and Registration of Voters Act, 1871, 35 Vict. No. 39 (13). Reserved 11 Apr 1872.

Well before the Canadian Pacific Railway brought thousands of needed workers from China to finish the railway or die trying, British Columbia was putting into law who the land was for: British subjects only.

1885 – The feds make it national

Sir J. A. MacDonald took the ball from BC and ran to the goal.

If you’re not familiar with how legal documents are written, the beginning section often includes definitions. In this case, the stinger is hidden in the definition of who qualifies as a “Person” able to vote.

From the Electoral Franchise Act, 1885, s.1 (2), a Person able to vote is defined as:

“Person” (c) means a male person, (d) including an Indian, (e) and excluding a person of Mongolian or Chinese race…” [emphasis added]

Hodgins, T (1886). The Canadian Franchise Act, pages 40-43. Toronto: Rowsell & Hutchison, Law Publishers. The Electoral Franchise Act, 1885, s. 1 (2). Assented 20 Jul 1885.

So, legally, a Person was not an Indian, Mongolian, or Chinese.

Why Mongolian? In the 1883 House of Commons Debates, MacDonald was musing on the origins and health of the Indigenous of BC, wondering

…whether it is because they are a different race altogether, or whether, from their being supposed to be mingled with Mongol blood, coming across Behring’s Straits, I do not know. But they are strong and hale men; they work like white men, and some are rich and own farms.

1883 Commons Debates (Apr-May). pg. 1101.

If anyone has any insights into why a Canadian Prime Minister was worried about Mongol hordes in 1885, please enlighten us.

1938 – The feds stick with the status quo

In 1938, the federal Dominion Elections Act was redrafted. Truthfully, I’d like to skip over it and head directly to when the Chinese regained the vote, but I can’t because if I did, the words wouldn’t make any sense. Stick with me and you’ll see what I mean. This is from the Dominion Elections Act, 1938, Chap. 46, 14 (1). (Please note everything in square brackets like this “[]”has been added by me, and everything ending in an ellipsis like this “…” has been trimmed by me.)

Qualifications and Disqualifications of Electors.

14. (1) Save as hereinafter provided every person, man, or woman, shall be qualified to vote and be entitled to be registered as an elector on the list of electors for the polling division in which he or she ordinarily resides at the time of the preparation and revision of the list of electors therefor if he or she

(a) is of the full age of twenty-one years…

(b) is a British subject by birth or naturalization; and

(c) has been ordinarily resident in Canada for the twelve months immediately preceding polling day at the pending election…

(2) The following persons are disqualified from voting at an election and incapable of being registered as electors and shall not vote nor be so registered, that is to say…

(e) every Esquimau person…

(f) every Indian person ordinarily resident on an Indian reservation who did not serve in the military, naval, or air forces of Canada in the war of 1914-1918; (For the purpose of this provision “Indian” means and includes any person of whole or part Indian blood who is entitled to receive any annuity or other benefit under any treaty with the Crown.)

(g) and (h) [inmates and the insane]

(i) every person who is disqualified by reason of race from voting at an election of a member of the Legislative Assembly of the province in which he or she resides and who did not serve in the military, naval, or air forces of Canada in the war of 1914-1918 [emphasis added]

Dominion Elections Act, 1938. Acts of the Parliament of Canada (18th Parliament, 3rd Session, chapter 1-54). PDF pages 191-192. Assented 7 Apr 1938.

Persons unable to vote: the Inuit (“Esquimau”), Indigenous, and all those “disqualified by reason of race from voting at an election of a member of the Legislative Assembly of the province in which he or she resides.” In other words, if the province excludes Chinese, the country does as well. Let’s go see what British Columbia had to say about who is an eligible Person.

1939 – BC further defines a “Person” under the Act

Above we saw how important definitions are in legislation. In 1885, an excluded Person was Indian, Chinese, or Mongolian. Half a century later, the feds could get away with oblique language like “by reasons of race,” because the provinces were specific. Here are BC’s definitions of who is or isn’t a Person.

Interpretation

“Chinese” means any native of the Chinese Republic or its dependencies not born of British parents, and shall include any persons of the Chinese race, naturalized or not…

“Hindu” means any native of India not born of Anglo-Saxon parents, and shall include any such person whether a British subject or not:

“Indian” means any person of pure North American Indian blood, and any person of North American Indian extraction having his home upon or within the confines of an Indian reserve:

“Japanese” means any native of the Japanese Empire or its dependencies not born of British parents, and shall include any person wholly or partly of the Japanese race, even if British by birth or naturalization

…

“Person” includes females as well as males:

…

Registration of Voters

5. The following persons shall be disqualified from voting at any election, and shall not make application to have their names inserted in any list of voters: –

(a) Every Chinese, Japanese, Hindu, or Indian…

An Act respecting Elections of Members of the Legislative Assembly, assented 30 Nov 1939, Chapter 16, pages 41-44.

Let me help you unpack this. It is masterful how the definitions twist this way and that. When we say “Chinese,” we mean any Chinese, naturalized or not, born in Canada or not. When we say “Hindu” we also mean to exclude British subjects who are Hindu. When we say “Indian” we base it on residence as well as blood. And when we say “Japanese,” we mean any part Japanese even if born in England and a British subject.

1947 – BC returns the vote to Chinese and South Asians only

There’s confusion about exactly when the Chinese regained the vote, which by now you can see is completely understandable. I’ll say it again: voting rights were interdependent: if you couldn’t vote provincially, you couldn’t vote federally. Thus, “voting rights” meant a two-stage fight. Here’s stage one: the province of BC.

On Thursday, April 3, 1947, BC assented to An Act to amend the “Provincial Elections Act.”

5. Section 2 is amended by striking out the definitions of “Chinese,” “Hindu,” …

…

14. Section 5 is amended by striking out clauses (a), (b), (c), (d), and (e)…

Provincial Elections Act Amendment Act, 1947, S.B.C. 1947 c.28 s.5

Hurrah!

Oh, sorry, did you miss it?

Remember what I said about laws being a confused nightmare of cross-referencing?

Here it is again in case you missed it. In 1947: 14. Section 5 is amended by striking out clauses (a)…

And here is Clause (a): “The following persons shall be disqualified from voting at any election, and shall not make application to have their names inserted in any list of voters…(a) Every Chinese, Japanese, Hindu, or Indian…“

This is good. This is progress. But the Chinese don’t have what I’d argue is “the vote” yet. Not until Ottawa changes its mind.

1948 – Chinese get the vote. Finally.

At long last, we come to Wednesday, June 30, 1948 and the final piece of the puzzle from the House of Commons. By now you know to check for definitions and there aren’t any to find in this Act. The language is simple. It says:

6. (1) Subsection one of section 14 of the said Act is repealed and the following substituted therefore: –

14.1 (1) Except as hereinafter provided, every person in Canada, man or woman, is entitled to have his or her name included in the list of electors…

…

14 (3) Paragraphs (i), (k) and (l) of subsection two of the said section fourteen are repealed.

Dominion Elections Act (1948). Acts of the Parliament of Canada (20th Parliament, 4th Session, Chapter 46, 14 (1) and (3). Assented 30 Jun 1948).

Double hurrah! Finally, at long last… What, sorry? You missed it again?

Here is the important part: “14 (3) Paragraphs (i)…”

I won’t make you scroll back up. Paragraph (i) said, “…every person who is disqualified by reason of race from voting at an election of a member of the Legislative Assembly of the province in which he or she resides and who did not serve in the military, naval, or air forces of Canada in the war of 1914-1918.” [emphasis added by me]

The fight to regain the vote for the Chinese, at least, was won. It had been 76 years, 2 months, 19 days.

The Indigenous would wait another 12 freaking years.

Voting in context

To learn family history, we need context: what happened, what was the exact language, and what did it mean? Here is a story.

Won Alexander Cumyow (1861-1955) is widely known for two facts: he is the first Chinese known to have been born in British Columbia, and he is the only Chinese who was on the voter lists before and after disenfranchisement. In 1902, he was a Christian, 41 years old, a respected Chinese interpreter for the courts, and fighting for the right to have his name added to the voter registration list. Trained as a lawyer, Cumyow sued the riding. He was denied on the basis of race.

This is more than a story about being unable to vote. BC laws stipulated that all lawyers had to be on the voter’s lists. By denying his right to vote, BC was also denying Cumyow the right to work in the profession in which he was trained, affecting his livelihood, his income, his social standing, and his pride. I wonder how Cumyow felt, completing his legal education just in time to have the franchise – and his imagined future – taken from him? When he died in 1955, he was lauded for his sophistication, respect, and leadership, which I see as testament to his strength of character in the face of stunning adversity. And finally, by denying Cumyow or any Chinese the right to practice law, BC also deprived the community of informed legal defence.

Voting isn’t one thing. It’s everything.

Brief Glossary

Term	Definition
amend, amended, amendments	Changes drafted by the legislation section of the Department of Justice
assented	Official approval or agreement
Coming into force	Became law
disenfranchisement	Being deprived of a right such as the right to vote
franchise	the right to vote
incapacity	not having the mental capacity to grasp public affairs or voting
repeal	Revoke or annul, especially with regards a law

Thank yous

To Doug, for sharing his family and connecting the dots with the Yips and the Cumyows. To Cecily, for talking to me. To Catherine Clement, for sharing her vast knowledge. To my friends at Osler LLP and FMD LLP, for patiently teaching me about laws and regulations. Any mistakes I make in interpreting laws are mine. And to Lana, for listening as I developed this story.

The laws in order

1872 – (An) Act to amend “The qualifications and registration of Voters Act, 1871.” S.B.C. 1872 c.39 s.13. Accessed 12 Nov 2020. PDF download.

1885 – Hodgins, T. (1886). The Canadian Franchise Act, with notes on the Imperial Acts relating to registration, and on the provincial franchise and election acts, with an appendix containing the provincial franchises of Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, and Prince Edward Island. Toronto: Rowsell & Hutchison, Law Publishers. Accessed 4 Nov 2020 on Canadiana.ca. It was surprisingly hard to find a copy of the 1885 Act online. This book is not the Act itself but rather a text for lawyers, and it attempts to analyze all the legal cases involving voting at the time. As a result, it’s 1 part law and 9 parts analysis, with tons of contextual footnotes. If this is something that interests you, I suggest you download a copy for yourself. There are lots of goodies in this text, which J.A. MacDonald (yes, that one) called, “…the greatest triumph of my life,” and yes, he was referring to his vision of the future of Canada as an “Aryan race.” (In this Act, MacDonald also commented on women, saying we have “…legal incapacity…” and comparing us to infants, idiots, and lunatics.)

1938 – Dominion Elections Act (1938). Acts of the Parliament of Canada (18th Parliament, 3rd Session, Chapter 1-54), 1938. PDF pages 181-344. Accessed 4 Nov 2020 on the Internet Archive.

1939 – An Act respecting Elections of Members of the Legislative Assembly, assented 30 Nov 1939, Chapter 16, pages 41-42. Elections, Provincial, British Columbia. Accessed 11 Nov 2020 at BCLaws.ca.

1947 – An Act to amend the “Provincial Elections Act.” Elections, Provincial (Amendment). Assented 3 Apr 1947, Chapter 28. Pages 122-123. Accessed 11 Nov 2020 at BCLaws.ca. Historical Statutes by Chapter – go to Chapter 28.

1948 – Dominion Elections Act (1948). Acts of the Parliament of Canada (20th Parliament, 4th Session, Chapter 1-78), 1948. PDF pages 343-439. Accessed 5 Nov 2020 on the Internet Archive.

Sources

This is my 8th post on voting and civil rights. If you’d like to read them in order, make a pot of coffee and see An uncertain homecoming, Fight the government at home, Equal rights for all, 97 years of history in 6 minutes, Putting the “British” in British Columbia, The right to be a Canadian, and What would it be like not to have the right to vote?

Acts of the Parliament of the Dominion of Canada. Internet Archive. Accessed 5 Nov 2020. Could be described as a century of legislation – fully digitized Acts of Parliament. Choose your year. When I looked, there was 1901-2000.

Canada Elections Act: legislative history, Federal electoral legislation (1873-2020). Elections Canada. Accessed 5 Nov 2020. This is a summary page of the federal acts and amendments regarding elections in Canada from 1873-2018. Use this as a quick-reference to pinpoint when an act came into force and when it was subsequently amended, revised, replaced, or repealed. In other words, understanding an act requires tracing it from its original drafting through to all of its changes.

The Canada Gazette. A nation’s chronicle. Library and Archives Canada. Accessed 5 Nov 2020. Archived on the web but still useful. Read the “How to search for historic laws” above if you’re not sure how to use this link and then the intro here.

Chinaman wants to register. (4 Oct 1902) The Inland Sentinel. Kamloops, BC. Thomson News Hound, Thompson-Nicola Regional District Library System, Thompson Rivers University, City of Kamloops, University of British Columbia, Nicola Valley Museum and Archives. Accessed 7 Nov 2020. Like most article headlines of the day, Cumyow is referred to by his race.

Con, H; Con, RJ; Johnson, G, Wickberg, E, Willmott, WE. (1988) From China to Canada: a history of the Chinese communities in Canada. Toronto: McCelland and Stewart. Pages 300-301, Geographical distribution of Chinese population by province, 1901-1941.

Guide to making Federal Acts and Regulations. Government of Canada. Accessed 5 Nov 2020.

History of the vote in Canada: Chapter 3; Modernization 1920-1981. Elections Canada. Accessed 12 Nov 2020. See the section on Racial exclusions.

House of Commons Debates (1938), 18th Parliament, 3rd Session : Vol. 3, Immigration Act, images 1055-1060. AW Neill (Comox-Alberni), Ian Mackenzie (Min. of Defense and rep for Vancouver), JS Woodworth (Winnipeg North Centre), and JS Taylor (Nanaimo), have a 40 minute discussion about BC and “orientals.” It makes fascinating reading if you want a sense of the thinking of the day, and it openly acknowledges how the law are written. Neill said, “And yet our statute books are full of evasive legislation whereby we do something indirectly which we cannot do directly,” and proceeds to go into detail. Also fascinating are the occasional mentions of ethnology (study of human culture) which was in 1938, a reason for white folk to prove evolutionary superiority.

Finding historical federal legislation. Simon Fraser University Library. Accessed 5 Nov 2020. From the library of Simon Fraser University, Burnaby, BC, comes this excellent breakdown on finding historic laws in Canada.

Lee, Victor, The Laws of Gold Mountain: A Sampling of Early Canadian Laws and Cases that Affected People of Chinese Ancestry, 1992 21-2 Manitoba Law Journal 301, 1992 CanLIIDocs 141, <http://www.canlii.org/t/sgfn&gt;, retrieved on 2020-11-11.

Marshall, T., and Cruickshank. D.A. Persons case. 7 Feb 2006, updated 6 Nov 2020. The Canadian Encyclopedia. Accessed 10 Nov 2020. I have such mixed feelings for Emily Murphy. On the one hand, I applaud her courage as a member of the Famous 5 for gaining the vote for women. “Does the word ‘Person’ in section 24 of the British North America Act, 1867, include female persons?”” she asked. Does the term “female person” include all female persons, is a question I’d like to ask her.

Official reports of the debates of the House of Commons of the Dominion of Canada. First session – 5th Parliament. 46 Vitoriae, 1883. Vol XIV (14). Comprising the period from the 20th day of April to the 25th of May, 1883. Edited and Indexed by J. Charles Boyce. Ottawa: Maclean, Roger & Co. Accessed 5 Nov 2020. Google Books.

Older Canadian legislation. Bora Laskin Law Library, University of Toronto, 78 Queen’s Park, Toronto, ON, M5S 2C5. Accessed 5 Nov 2020. Provides links and resources, some of which are available to the public.

Stanley, TJ (10 Oct 2019). WA Cumyow and the fight for democratic rights. Accessed 12 Nov 2020 on ActiveHistory.ca.

Table of statutes and cases 2011. Road to Justice. Compilation of discriminatory laws regarding Chinese in Canada. Accessed 11 Nov 2020.

Chinatown through a wide lens (2019). Yucho Chow.ca. Accessed 13 Nov 2020. A project by Catherine Clement, shining a light on the photographer Yucho Chow who left behind a legacy of documenting communities from his studio in Chinatown.