Attorney General for British Columbia V. Tomey Homma and Attorney General for Canad

Mete Yorgan, January 22, 2008

Cunningham and Attorney General for British Columbia v. Tomey Homma and Attorney General for Canada (1902)

The case illustrates the impact of judicial decisions with respect to Provincial Jurisdictions vs. Federal Jurisdictions in Canada.

Case Summarized:
Tomey Homma was born in Japan. However, as a naturalized British Subject, he requested to be placed on the registry of voters in the Vancouver electoral district. The Provincial Elections Act of British Columbia disallowed Homma’s request for registration (sec 8):

“No Chinaman, Japanese, or Indian shall have his name placed on the register of voters for any electoral district, or be entitled to vote at any election.”

County Court and Supreme Court overturned the registry officer’s refusal to add Homma to the voters list. The British North America Act (BNA) (1867) specifies that in sec.91, naturalization is under Federal Jurisdiction and not the Provinces.

Cunningham and Supreme Court of British Columbia appeal decision with the British Privy Council (House of Lords). Is the Province acting out of its jurisdiction in determining who can vote?

Privy Council determined that naturalization is a Federal Jurisdiction matter; however, the “privileges” are “independent” of nationality. It was determined that the Province of British Columbia was not acting out of its jurisdiction. Sec. 92 of the BNA permits the province to refuse Homma’s request to be added to the voters list.

Significance
Provinces in Canada have “real” legislative power and can successfully appeal Federal Government decisions. Two separate sets of jurisdictions can co-exist with overlapping interests. The Privy Council favoured the Province and did not consider race as an issue.

Provincial legislation could act independently of Federal jurisdiction as per sec. 92 of the BNA, even if legislation is racially motivated. In this case, legislation was enacted to prevent naturalized British Subjects from voting; a two tier Canadian experience!

Questions
The Province of British Columbia sought to keep voting rights under their direct control. Should the (then) Federal government acted to introduce new legislation to reverse the Privy Council’s decision; (i.e. P.O.G.G.)?

Do the provinces have too much power? More specifically, should the Federal Government strive to remove overlap and possibly restructure powers (especially today)?