(revised Feb 13, 11:30pm)
The Vancouver Sun, today on Monday February 12th, published an alarmist story Polygamy warning issued on head tax: Federal government told redress program might raise 'huge' legal issues about a non-issue regarding the possibility of multiple claimants as surviving spouses of head tax payers. It was a front page headline on page A1.
This is a 'huge' non-story because 99.95% of the 81,000 head tax payers from 1885 to 1923 are already dead. Only 44 head tax survivors applied for the $20,000 ex-gratia payment. Only 337 widowed spouses have applied for the ex-gratia payment. The government is still REFUSING to recognize any head tax certificates where both payer and spouses are predeceased, even if there are surviving sons or daughters. Less than 1% of the 81,000 head tax payments are being recognized - only half a percent - 0.5%!
Who really cares if one dead head tax payer had 2 or 3 wives? The chances of more than one being still alive is less than any of the original head tax certificates being honoured. We should be thankful that anybody is still alive at this late point. And the government will still only honour one payment per certificate, so what's the point of the article - other than being alarmist?
Blame the head tax for imposing the high costs that kept families apart, or for making it a financial hardship to bring a wife to Canada. Blame the Chinese Exclusion Act from 1923 to 1947 for driving married men to start up a new family in Canada, or remain a bachelor for the rest of their life because of the scarcity of Chinese women.
Who really cares if Chinese men had 2 or 3 wives, the Canadian government at the time believed that Chinese would not make good citizens, would not contribute to the development of Canadian society, would not stay to live in Canada... and consequently the Canadian government would not grant naturalization or full citizenship rights nor even voting privileges to Canadians born in Canada of Chinese ancestry.
I personally know of stories where families became separated because of the head tax and Exclusion Act, then believed each other dead or missing because of loss of communication because of both civil war in China, and WW2. The husbands re-married in Canada, resulting in a second wife. This is NOT polygamy.
When families were later rediscovered and/or reunited after the war - the existence of another family caused great anguish to the wives and families. It even drove some wives to suicide - both in China and Canada.
The real story is that:
1) The government has trouble reconciling justice without admitting it was previously wrong, and continuing to deny true justice for Chinese head tax payers, spouses and descendants - short of giving a refund for a wrongful and a racially discriminating tax.
2) The government didn't know how to recognize a "full apology," give symbolic compensation to surviving head tax payers and spouses, without being seen as unfair to descendants whose head tax paying parents and grandparents are pre-deceased.
3) The government continues NOT to consult and negotiate with actual head tax descendants such as they did with actual Japanese-Canadian internment survivors for the historic 1988 Japanese Canadian redress
4) The government monitors the Chinese language media in an effort to appeal to the Chinese language immigrant vote, to be seen as "multicultural." They see the immigrant Chinese language voting group as more important than English speaking, born in Canada, head tax descendants.
Activist groups such as the Chinese Canadian National Council and the BC Coalition of Head Tax Payers and Familes, said "One payment for each certificate." Event though 99.95% of the original head tax payers are already dead, both the present and past governments do not want to to incur a potentially expensive redress to descendants.
But head tax activists are only asking for symbolic but fair redress. How can you give a payment to some people but say no to others by saying "Sorry, your parents and grandparents are already dead. Too bad they couldn't survive long enough after unfair and racist laws made extreme hardships for them."
My paternal grandfather had a total of 6 wives, of whom my paternal grandmother is wife #5. He came to Canada at age 16, around 1882. He would have married his wives during his visits back in China, or in absentia. In those days, if you were wealthy you could afford multiple wives or concubines - especially if wives #1, #2, #3, and #4 didn't give you any children. Because my grandfather was living in Canada, and his wives were in China, he wouldn't have been properly able to look after them, while he tried to raise money to pay the head tax to bring them to Canada. We don't know what happened to wives #1, #2, #3 or #4. But grandfather did bring wives #5 and #6 to Canada. And he would have had to pay the head tax for each of his wives, and the money would have gone into the Canadian governmnent's bank account because there was no income tax in those days.
I was told that my grandmother, wife #5, was the only one to have her marriage recognized in Canada. She was the one that lived with grandfather through his last years in their tiny appartment in Strathcona, on the edge of Chinatown. He died in 1964, and she died in 1968.
If grandfather had survived to see head tax redress in 2006, he would have been 140 years old. Grandma died when she was 73, if she was still alive in 2006 she would have been 111. My point is that head tax redress came too late for the head tax payers and their spouses. Every certificate should be honoured. If the original payer or spouse is predeceased, the symbolic ex-gratia payment should be given to their descendants.
The Chinese protested when the first head tax of $50 was levied in 1895, and they protested when it was raised to $500, and again they protested when the "Chinese Exclusion Act" was created in 1923. After WW2, returning Chinese Canadians who fought for Canada, were able to gain the voting franchise for Canadians born of Chinese ancestry in 1947. As well, the "Chinese Immigration Act" known as the "Chinese Exclusion Act" was repealed.
In 1984, the first head tax redress campaign was launched when an elderly man went to his MP, Margaret Mitchell, to ask for help in reclaiming the head tax money. In 1988, the Mulroney Conservative government apologized and gave redress for the internment of Japanese-Canadians and the confiscation of their property. However, despite discussions about Chinese head tax redress, subsequent Canadian governments refused to bring a closure to 62 years of legislated racism.
Finally on June 22, 2006, Conservative Prime Minister Harper offered an apology for Chinese Head Tax, and expressed his "deepest sorrow" (but no apology) for the Chinese Exclusion Act, while promising to give symbolic individual payments of $20,000 to living Chinese Head Tax payers and living spouses of deceased payers.
Meanwhile, a possible 381 head tax certificates are recognized while an estimated 80,600 are ignored? This is not fair recognition!
And now... a non-story about possible multiple surviving wives making the same claims on a possible head tax certificate gets a front page story in the Vancouver Sun?
Contrast this non-news item with the very real news of Head Tax Payer Charlie Quan receiving the first head tax - The Vancouver Sun buried the picture and story on page B8, and ran a self-congratulatory front page on their list of 100 Influential Chinese Canadians in BC which was criticized by prominent community leaders for whom the list left out, while including people of Chinese ancestry who most likely weren't Canadian citizens if they've only been in Canada for 1 year. Isn't the definition of a Chinese-Canadian somebody who is actually born in Canada? or a Canadian citizen of Chinese ancestry?
Anyways... this latest non-story.
Government warned of legal problems from head tax
http://www.canada.com/topics/news/national/story.html?id=a59347f2-
acbc-4365-8ef4-e65119945e11&k=34946
Polygamy warning issued on head tax: Federal government told redress program might raise 'huge' legal issues
The Vancouver Sun, 12 Feb 2007
Dateline: OTTAWA
Byline: Peter O'Neil
OTTAWA -- The Conservative government, which last year announced a Chinese head tax redress program, had earlier received internal warnings that the initiative might raise "huge" legal problems and possibly risk offending community members over the issue of polygamy, The Vancouver Sun has learned.
"On the issue of Chinese spouses, we risk offending the community by 'exposing' the whole polygamy question," stated an unsigned Canadian Heritage briefing note prepared in early 2006. It was obtained through the Access to Information Act by researcher Ken Rubin.
"In fact, this will be a failure in the eyes of the community and will be seen as a perpetuation of a 'wrong today' unless we can develop an approach which treats all forms of spouses in a dignified and gracious manner and which recognizes their experience without unduly exposing the whole issue of polygamous unions or 'non-legal' marriages."
The briefing note added: "Of course, this does not address the bigger question of Charter 'retroactivity' which, as you know, we believe is a 'HUGE' issue."
The warning referred to concerns that the government could expose taxpayers to enormous costs if it provides retroactive compensation for rights violations before the Charter of Rights' equality provision came into force in 1985.
Another internal document, stamped "secret" and obtained by The Sun Friday, also warned the former Liberal cabinet on June 21, 2005, that redress for Chinese-Canadians would "increase substantially" the Canadian government's exposure to legal action from numerous ethnic minority groups seeking compensation for racial injustices.
Prime Minister Stephen Harper apologized last June to Chinese-Canadians and promised $20,000 payments to surviving head tax payers or the spouses of deceased head tax payers to recognize an historical injustice.
Canada, after welcoming some 15,000 Chinese labourers to help build the Canadian Pacific Railway, imposed a $50 tax on Chinese immigrants starting in 1885. The tax gradually rose to $500 before legislation in 1923 banned Chinese until that law was repealed in 1947.
Canadian Heritage spokesman Len Westerberg said Friday that the legal issue was addressed by making clear the $20,000 payments to head tax payers and widows announced last June were "ex gratia" and voluntary.
That was the same terminology used by the federal government in 1988 when it provided a $422-million redress program for Japanese-Canadians and their immediate descendants interned during the Second World War.
Westerberg, asked about the polygamy issue raised in the documents, noted that the payments to spouses could only go to women in "exclusive conjugal" relationships.
The newly released documents state that many marriages performed in China until the 1940s "were either potentially or actually polygamous." Most head tax payers in Canada would have married in China, either before leaving for Canada or during a trip to their home country, it said.
Neither Victor Wong, executive-director of the Chinese Canadian National Council, nor former Liberal multiculturalism minister Raymond Chan said they were aware of serious government concerns over the possibility that more than one spouse might claim to be the widow of the same head tax payer.
Multiculturalism Minister Jason Kenney denounced the former government on May 5, 2006, for relying on legal concerns as an "excuse" for not apologizing and providing redress.
Kenney, who was then Harper's parliamentary secretary, relied on an Aug. 5, 2004 briefing note to Chan.
That note concluded that Chinese-Canadians and other aggrieved groups would have difficulty making a successful Charter of Rights challenge for the same treatment that Japanese-Canadians got in 1988. The government has always maintained that the Japanese-Canadian experience was unique.
But the 2005 cabinet document obtained by The Sun indicates a redress package for Chinese-Canadians would "increase substantially ... the risk of litigation by a broader field of communities seeking similar treatment."
One internal document said Canadians of Ukrainian, Italian, Jewish, Indo-Canadian, German, Polish, Czech, Slovak, Croatian, Bulgarian, Austrian, Turkish and Romanian descent could make claims with respect to alleged mistreatment during the First and Second World Wars. So could members of the Mennonite, Hutterite and Doukhobor religions.
"If the government were to accept any or all of the new redress proposals [from Chinese-Canadians and other groups], its ability to defend the Japanese redress payments as unique and unparalleled, and hence not subject to section 15 of the Charter, would be undermined," states the 2005 cabinet briefing note.
Another internal document cited a current case before the Supreme Court of Canada, in which five gay plaintiffs are asking for survivor pension benefits dating back to when the Charter of Rights' equality provision took effect in 1985.
Canadian recognition of historical injustices pre-dating the Charter of Rights risks "adversely influencing" the Supreme Court decision in the gay pension case, the Canadian Heritage documents on the head tax issue warned.
It added that a head tax redress package dating back to matters decades before the Charter took effect "creates a further risk that a court may treat this as a legal precedent and require the government to do so in all federal laws that extend benefits."
The document also warns about possible court challenges that the government's redress package is unfair.
"If the payments are made to all spouses, then other family members may challenge these payments on the basis that they discriminate on the ground of family status under the Charter," it warns.
"For example, the head tax payer may have had children who were alive during that era and so were more directly affected by the hardships associated with the tax than a more recent spouse who may have no direct connection to the harm suffered."
Kenney said Sunday the government stands by its decision.
"The bottom line is that lawyers can make an argument for or against any course of action. It's up to political leaders to apply common sense, and make principled decisions," Kenney said in an e-mail to The Sun.
"That's what Stephen Harper did in making the apology for the Chinese head tax."
Westerberg said 44 applications from head tax payers have been filed, and in 37 of those cases $20,000 cheques have already been mailed out.
Another 337 applicants from widowed spouses have been filed, he said, but those claims still haven't been processed.
The CCNC's Wong said his group agrees with the warnings in briefing notes that the government is being unfair to some head tax victims.
He said his group wants the government to expand the program, at a cost of at least $60 million, by giving $20,000 cheques to each of the 3,000 families of descendants of head tax payers.
Wong, who said Harper has done more to advance the issue than any of his last six predecessors, said his group has no plans to spoil current goodwill by heading to the courts.
"There probably will not be any legal action. We'll just keep pressing the issue," Wong said.
Patrick Monahan, dean of the Osgoode Hall Law School at York University in Toronto, said it's not clear if other groups will be able to use the Chinese head tax package in court.
"I'm inclined to think that ex-gratia payments do not give rise to a legal obligation in other cases," he said.
"But the more such payments are made, I think the more difficult it is to resist claims of equal treatment. So I think there is some risk associated with that."
poneil1@hotmail.com
- - -
COUNTING THE COST
Ottawa used "actuarial estimates and assumptions" to calculate the number of living head-tax payers and their descendants existing in 2006. The multiple wives question was included, as shown below.
110 head-tax payers
229 Spouses of the era (1 wife)
458 Spouses of era (2 wives)
293 Spouses of era and present (1 wife)
586 Spouses of era and present (2 wives)
2,045 Descendants (if 1 wife/1 child)
6,135 Descendants of era
12,270 Descendants (assuming 2 wives/3 children each)
Ran with fact box "Counting the cost", which has been appended to the end of the story.
Colour Photo: Certificate
The Vancouver Sun, 12 Feb 2007
Dateline: OTTAWA
Byline: Peter O'Neil
OTTAWA -- The Conservative government, which last year announced a Chinese head tax redress program, had earlier received internal warnings that the initiative might raise "huge" legal problems and possibly risk offending community members over the issue of polygamy, The Vancouver Sun has learned.
"On the issue of Chinese spouses, we risk offending the community by 'exposing' the whole polygamy question," stated an unsigned Canadian Heritage briefing note prepared in early 2006. It was obtained through the Access to Information Act by researcher Ken Rubin.
"In fact, this will be a failure in the eyes of the community and will be seen as a perpetuation of a 'wrong today' unless we can develop an approach which treats all forms of spouses in a dignified and gracious manner and which recognizes their experience without unduly exposing the whole issue of polygamous unions or 'non-legal' marriages."
The briefing note added: "Of course, this does not address the bigger question of Charter 'retroactivity' which, as you know, we believe is a 'HUGE' issue."
The warning referred to concerns that the government could expose taxpayers to enormous costs if it provides retroactive compensation for rights violations before the Charter of Rights' equality provision came into force in 1985.
Another internal document, stamped "secret" and obtained by The Sun Friday, also warned the former Liberal cabinet on June 21, 2005, that redress for Chinese-Canadians would "increase substantially" the Canadian government's exposure to legal action from numerous ethnic minority groups seeking compensation for racial injustices.
Prime Minister Stephen Harper apologized last June to Chinese-Canadians and promised $20,000 payments to surviving head tax payers or the spouses of deceased head tax payers to recognize an historical injustice.
Canada, after welcoming some 15,000 Chinese labourers to help build the Canadian Pacific Railway, imposed a $50 tax on Chinese immigrants starting in 1885. The tax gradually rose to $500 before legislation in 1923 banned Chinese until that law was repealed in 1947.
Canadian Heritage spokesman Len Westerberg said Friday that the legal issue was addressed by making clear the $20,000 payments to head tax payers and widows announced last June were "ex gratia" and voluntary.
That was the same terminology used by the federal government in 1988 when it provided a $422-million redress program for Japanese-Canadians and their immediate descendants interned during the Second World War.
Westerberg, asked about the polygamy issue raised in the documents, noted that the payments to spouses could only go to women in "exclusive conjugal" relationships.
The newly released documents state that many marriages performed in China until the 1940s "were either potentially or actually polygamous." Most head tax payers in Canada would have married in China, either before leaving for Canada or during a trip to their home country, it said.
Neither Victor Wong, executive-director of the Chinese Canadian National Council, nor former Liberal multiculturalism minister Raymond Chan said they were aware of serious government concerns over the possibility that more than one spouse might claim to be the widow of the same head tax payer.
Multiculturalism Minister Jason Kenney denounced the former government on May 5, 2006, for relying on legal concerns as an "excuse" for not apologizing and providing redress.
Kenney, who was then Harper's parliamentary secretary, relied on an Aug. 5, 2004 briefing note to Chan.
That note concluded that Chinese-Canadians and other aggrieved groups would have difficulty making a successful Charter of Rights challenge for the same treatment that Japanese-Canadians got in 1988. The government has always maintained that the Japanese-Canadian experience was unique.
But the 2005 cabinet document obtained by The Sun indicates a redress package for Chinese-Canadians would "increase substantially ... the risk of litigation by a broader field of communities seeking similar treatment."
One internal document said Canadians of Ukrainian, Italian, Jewish, Indo-Canadian, German, Polish, Czech, Slovak, Croatian, Bulgarian, Austrian, Turkish and Romanian descent could make claims with respect to alleged mistreatment during the First and Second World Wars. So could members of the Mennonite, Hutterite and Doukhobor religions.
"If the government were to accept any or all of the new redress proposals [from Chinese-Canadians and other groups], its ability to defend the Japanese redress payments as unique and unparalleled, and hence not subject to section 15 of the Charter, would be undermined," states the 2005 cabinet briefing note.
Another internal document cited a current case before the Supreme Court of Canada, in which five gay plaintiffs are asking for survivor pension benefits dating back to when the Charter of Rights' equality provision took effect in 1985.
Canadian recognition of historical injustices pre-dating the Charter of Rights risks "adversely influencing" the Supreme Court decision in the gay pension case, the Canadian Heritage documents on the head tax issue warned.
It added that a head tax redress package dating back to matters decades before the Charter took effect "creates a further risk that a court may treat this as a legal precedent and require the government to do so in all federal laws that extend benefits."
The document also warns about possible court challenges that the government's redress package is unfair.
"If the payments are made to all spouses, then other family members may challenge these payments on the basis that they discriminate on the ground of family status under the Charter," it warns.
"For example, the head tax payer may have had children who were alive during that era and so were more directly affected by the hardships associated with the tax than a more recent spouse who may have no direct connection to the harm suffered."
Kenney said Sunday the government stands by its decision.
"The bottom line is that lawyers can make an argument for or against any course of action. It's up to political leaders to apply common sense, and make principled decisions," Kenney said in an e-mail to The Sun.
"That's what Stephen Harper did in making the apology for the Chinese head tax."
Westerberg said 44 applications from head tax payers have been filed, and in 37 of those cases $20,000 cheques have already been mailed out.
Another 337 applicants from widowed spouses have been filed, he said, but those claims still haven't been processed.
The CCNC's Wong said his group agrees with the warnings in briefing notes that the government is being unfair to some head tax victims.
He said his group wants the government to expand the program, at a cost of at least $60 million, by giving $20,000 cheques to each of the 3,000 families of descendants of head tax payers.
Wong, who said Harper has done more to advance the issue than any of his last six predecessors, said his group has no plans to spoil current goodwill by heading to the courts.
"There probably will not be any legal action. We'll just keep pressing the issue," Wong said.
Patrick Monahan, dean of the Osgoode Hall Law School at York University in Toronto, said it's not clear if other groups will be able to use the Chinese head tax package in court.
"I'm inclined to think that ex-gratia payments do not give rise to a legal obligation in other cases," he said.
"But the more such payments are made, I think the more difficult it is to resist claims of equal treatment. So I think there is some risk associated with that."
poneil1@hotmail.com
- - -
COUNTING THE COST
Ottawa used "actuarial estimates and assumptions" to calculate the number of living head-tax payers and their descendants existing in 2006. The multiple wives question was included, as shown below.
110 head-tax payers
229 Spouses of the era (1 wife)
458 Spouses of era (2 wives)
293 Spouses of era and present (1 wife)
586 Spouses of era and present (2 wives)
2,045 Descendants (if 1 wife/1 child)
6,135 Descendants of era
12,270 Descendants (assuming 2 wives/3 children each)
Ran with fact box "Counting the cost", which has been appended to the end of the story.
Colour Photo: Certificate
