Justice Delayed: Komagata Reflections

On May 23rd, 1914, the Komagata Maru, a Japanese ship, entered Burrard Inlet outside of Vancouver carrying 376 people looking for a better life in Canada. They were denied entry on a legal technicality. Canada had introduced a law that required immigrants to Canada to arrive by a single, direct journey from their country of origin. This means immigrants from European and other desirable destinations that direct passenger service could emigrate to Canada, and those from more distant and less desirable lands could not. It was part of a series of discriminatory immigration measures (many aimed against Chinese immigration such as the notorious “head tax”) that characterized Canada’s policy through the early part of the twentieth century. It is hard to imagine now the popularity of the song “White Canada forever” then.

Burrard Inlet became the site of a standoff that garnered international attention. The ship lacked sufficient food, water and medicine for the passengers. They were denied proper legal counsel. Eventually, they managed to challenge the denial of their landing and on July 23, 2014 – more or less exactly 100 years ago – the Komagata Maru passengers was compelled to leave Canada.

The Komagata Maru is a symbol not just of Canada’s racist past, but also of the arbitrariness of law. What can the rule of law mean when statutes can be enacted for no legitimate reason, and enforced so as to deny basic rights to the most vulnerable? What moral right did the descendants of immigrants, many of whom had come to Canada in search of a better life, have to deny that same opportunity to others? What is the purpose of Canada if not to serve as a haven for those fleeing harm or seeking help? These are the questions we considered as Osgoode Hall Law School at York University explored the centenary of the Komagata Maru in March of 2014.

Led by Osgoode’s South Asian Law Students’ Association (SALSA), a series of events were staged over a week (which also coincided with Osgoode’s “Diversity Week”), including an exhibit (the Komagata Maru Reflections Project), an award-winning documentary “A Continuous Journey,” followed by a Q+A session with Ali Kazimi, filmmaker and Associate Professor in York’s department of film and several lectures, including one by University of Toronto’s Professor Audrey Macklin, one by Pardeep Nagra, Executive Director of the Sikh Heritage Museum of Canada and a keynote speech from former B.C. Premier Ujjal Dosanjh on “Why Apologizing for Historical Wrongs is Wrong.” It was a remarkable week.  

I spent many moments then and since reflecting on the meaning of the Komagata Maru. For the Canadian Jewish community, it is impossible to listen to the story of the Komagata Maru without hearing echoes of the M.S. St. Louis, a ship carrying 907 German Jews seeking a place to escape persecution and the ravages of Nazi Germany, in 1939. The ship was shunned first by Cuba and then by America. Canada did not want the refugees traveling on the vessel either — “none is too many,” an immigration agent would say of Jews such as those aboard the ship in May, 1939 – a phrase Irving Abella memorialized in his 1982 book of the same name which chronicled the anti-Semitism of the Canadian government and its various efforts to prevent Jews trying to escape from Europe from settling in Canada. The St. Louis was within two days of Halifax Harbour when Ottawa, under pressure from high-ranking politicians within, refused to grant the Jewish families a home. Like the Komagata Maru, the St. Louis has been a stain on Canadian history ever since.

Much has changed since the Komagata Maru and St. Louis were shunned. The Canada in which the law students at Osgoode have grown up (and the one I hope they shape once they graduate) has an international reputation for tolerance, celebration of diversity and inclusion. Canada’s Constitution through the Charter of Rights now protects against the kind of discriminatory laws and policies that were used to prevent the landing of these ships. In 2011, the "Wheel of Conscience" was unveiled at Canada’s immigration museum, Pier 21 in Halifax. It is a monument designed by Daniel Libeskind (who was born to Holocaust survivors in Poland) to ensure the memory of the St. Louis lives on. In 2014, Osgoode students in the Anti-Discrimination Intensive will journey to Winnipeg for the opening of Canada’s Museum of Human Rights.

That said, I don’t believe the centenary of the Komagata Maru is a time to reflect on how far we’ve come. Rather, it is a time to remind ourselves how far we have to go. While immigrants and refugees (mostly) no longer arrive in large ships, people seeking a better life in Canada are routinely turned away. They fail to “score” enough “points” to gain entry under Canada’s Immigration Regulations, or their refugee applications are denied because they lack “credibility.” Those seeking entry continue to encounter arbitrariness, unfairness and discrimination. In a sense, it is precisely because Canada now has come to be defined by shared principles around fundamental rights and social justice that our immigration system merits closer scrutiny. The work started by those who fought to allow the Komagata Maru to land, and those who refused to let the memory of the Komagata Maru disappear remains a work in progress for all of us. Just as law provided the pretext for denying entry to the Komagata Maru, so law holds the potential for ensuring that the next ship to appear on the horizon is met with compassion, fairness and justice.

Lorne Sossin is a Professor and Dean of Osgoode Hall Law School, at York University. 

The Komagata Maru Remembered

When my great-grandfather left India in the 1880s, he was an industrious Gujarati Indian availing himself of mobility opportunities within the then-British Empire. He went to pursue a better life in the distant, thriving colony of South Africa. What he found there was a racialized legal order that turned non-Europeans into second-class British subjects.

Because South Africa was already a racially diverse society, with a sizable white population, the racism of colonialism — muted somehow in India — was everywhere in South Africa. It was formalized in law and administrative power. It operated both quietly to disenfranchise non-whites, and obnoxiously through segregation and inferior treatment.

It was this reality that sparked a political interest in a young Mohandas Gandhi, who arrived in South Africa in 1893, not long after my great-grandparents. Aged 24, recently called to the bar, idealistic and jobless, he accepted an offer with a firm of Indian lawyers, Dada Abdulla & Co, in the South African coastal city of Durban. Members of the Indian community were contending with rising tide of anti-Indian sentiment and political persecution. Gandhi took up the cause enthusiastically.

In 1896, after having travelled back to India to raise awareness about the plight of South Africa’s Indians, Gandhi and 800 fellow passengers found themselves stranded in Durban port for nearly a month, prevented from disembarking the ship due to white hostility and government discrimination. The growing Indian population in the colony was causing the white South African population to fret about changing demographics. 

This same anti-Indian xenophobia would wash up on Vancouver’s shores two decades later, giving rise to the infamous Komagata Maru incident.

In South Africa, Gandhi’s eyes were opened to the malice of British imperialism, with its roots in racial prejudice. South Africa under British rule, like Canada in the late 19th and early 20th Century, was in the process of building a white settler state on the ruins of indigenous society by curtailing immigration from Asia, while trying to populate the country with Europeans. 

It was during this time that Gandhi conceived of his revolutionary idea of satyagraha, translated as “adherence to the truth”, and practiced as non-violent resistance to injustice. It came to him during protests against discriminatory pass laws, which required Indians and Chinese to carry registration cards at all times.

Such measures were designed to restrict and control the Asian population in South Africa. Failure to produce a card on demand could lead to immediate deportation without a right of appeal. More than 2,000 South African Asians were jailed by the British during this time for openly defying the law. Many were beaten and some were killed.

Gandhi came to realize that the rule of law meant little if the law itself was unjust. Fidelity to law could only mean fidelity to power; when those in power were wicked, there could be no fidelity to law. 

He turned away from the legal profession and embraced the path of spirituality and social activism to fight injustice. He wrote about his experience resisting unjust laws in his book, Satyagraha in South Africa, which served as a blueprint for his later struggle to end British rule in India.

In his final years in South Africa, Gandhi continued to agitate and organize in defiance of discriminatory laws and restrictive immigration policies. His transition from barrister to social activist complete, he made his final return to India in 1914—the same year that the Komagata Maru made its ill-fated voyage to western Canada. 

In my family, Gandhi was remembered not as the liberator of India but rather as the dapper lawyer and fellow Gujurati, who gave Indians in South Africa a voice and affirmed their place in their adopted homeland.

The passengers aboard the Komagata Maru were, like my great-grandparents, seeking a fresh start in an adopted homeland. The Sikh, Muslim and Hindu Indian British subjects probably believed the hype: that Canada in the early 20th Century was an open, diverse and burgeoning nation. 

Indeed, in 1900, Canada had a population of around five million. From then until the outbreak of First World War, the country welcomed nearly three million newcomers, with immigration levels hitting a record peak in 1913. Yet, in fact, Canada remained—quite intentionally—overwhelmingly white. The country’s immigration law explicitly favoured Europeans and Americans, while it explicitly restricted non-white immigration.

At the same time, in South Africa, the legal infrastructure of Apartheid ensured that it too would grow and develop only for the benefit of whites. Many Indians joined the anti-Apartheid struggle for racial equality. Some determined they could not live under such conditions and decided to leave the country. As institutionalized racism in Canada slowly receded through the mid-1900s, in South Africa it worsened. By 1965, seeing many of his peers jailed or forced into hiding, my father made the choice to emigrate in search of a better life.

Canada had changed in the 50 years since the Komagata Maru incident. Parliament adopted the federal Canadian Bill of Rights and most provinces enacted human rights statutes ensuring non-discrimination. An avid political observer, my father admired Prime Minister Diefenbaker, who had been instrumental in booting South Africa out of the Commonwealth in 1961 by insisting that all members commit to the principle of racial equality.

Yet, domestically, the Prime Minister never acknowledged that the architects of Apartheid had studied Canada’s Indian Act for guidance on how to legalize and implement segregation. Canada’s racist legacy linked policies of Aboriginal disenfranchisement with white settlement. The Ministries of Immigration and Indian Affairs were even under a single ministerial portfolio from 1950 to 1965. Meanwhile, the immigration law on the books was still tethered to overtly racist policies not so different from those in place at the time of the Komagata Maru. 

In 1967, the Immigration Act was overhauled, removing discriminatory language and introducing the neutral points system that survives to this day.

That same year, my non-white, not-yet-citizen father began a 30-year career working for the federal department of Immigration. This was the golden age of Canadian immigration, when the country threw its doors open. From the 1970s onwards, Canadian immigration was markedly colourful. The country matured not only as a multicultural society, but as the thoroughly multiracial society that it is today.

After the events of September 11, 2001 and the introduction of new immigration and anti-terrorism laws, Canada’s open and liberal approach to immigration receded and the security state took hold. Fortunately, my father, who had always been a great believer in Canadian immigration policy, retired from service a few years before the downward spiral began. 

Canadian immigration policy today is racialized in new ways but with strangely familiar tones. On the one hand, there is no colour bar—each year, the countries of South Asia are the largest producers of Canada’s immigrant population. On the other hand, immigrant selection is increasingly narrow and security obsessed. The values of fairness and openness are disappearing with drastic changes in the law that make the country more difficult to enter, and less welcoming upon arrival.

In my time practising and teaching law, I’ve tried to hold firm to the belief that the law is capable of delivering justice, even if this capacity is not always realized or self-evident. The turn to security in immigration law and policy since 9/11 (what some now call “crimmigration”) has challenged the notion that Canada is an immigrant’s paradise and it certainly has been a reminder that we must be vigilant in holding government to account for ensuring fairness and justice to the most vulnerable. These are the lessons that I take from more than a century of my family’s history, from India to South Africa to Canada.  

As a Canadian lawyer of Indian heritage, I find myself part of a fast-growing community of people of colour within the profession who find themselves on the better side of privilege. What we do about it matters. I believe that privilege comes with responsibility: that is, to follow the lessons of our history of exclusion and ensure the law is always held up to the standard of justice, and to accept nothing less.  

Faisal Bhabha teaches at Osgoode Hall Law School, has researched and published in the areas of constitutional law, human rights, multiculturalism, national security and access to justice, and occasionally acts as pro bono counsel to public interest organizations in matters of constitutional law and human rights. Previously, he sat as Vice-chair of the Human Rights Tribunal of Ontario. He has also served as a member of the Equity Advisory Group of the Law Society of Upper Canada.

Quiet Resilience

In the equivalent of 20 years of formal education, including degrees in political science and law, I have never been taught a lesson regarding the incident of the Komagata Maru being turned away from Canada’s shores.

I am expecting this remote silence will continue in the formal education of my own children.

There are many lessons to be learned from what happened 100 years ago. The paramount lesson I want to instil to my son from the Incident is a simple: never underestimate the achievements that spring from resilience.

The message to Indians entering Canada 100 years ago was a thunderous “no, thank you.”

As days turned into weeks that rapidly became months, the migrants on the Komagata Maru dealt with their conditions in quiet resilience.

They did not riot. They did not disband. They did what we treasure in Canada’s just society: they sought the rule of law.

In the hundred years since the Incident, the strength of their resilience is reflected in the actions that have occurred in Indian pioneers since. The migrants may have ultimately “lost” and travelled back the Pacific, but their fight laid the foundation for the rise of future Indian pioneers that continue to erect pillars in Canada. From serving in military combat, leading in commerce, innovating in technology, and as reflected through this site – continuing the advocacy and development of the rule of law – the seeds laid in quiet resilience continue to blossom in often arduous conditions.

The Continuing Legacy of the Komagata Maru

A century ago on May 23rd in 1914, the Komagata Maru, a ship of migrants from India sailed into the western shores of what is now called British Columbia, Canada, in the traditional territories of the Coast Salish groups of First Nations Peoples.  Upon the Komagata Maru’s arrival to Canadian shores, immigration and security officials intercepted the vessel and the 375 passengers on board were prohibited from disembarking. For months the passengers remained detained on board the ship, with dwindling supplies, while Canadian immigration officials plotted means to remove them from Canada for violating the continuous journey provision of the Immigration Act.  The continuous journey provision, drafted with the specific intention to prevent “undesirable” migrants from India, required that all immigrants must come to Canada by a continuous journey from their country of birth or citizenship, an impossible feat from India.

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The passengers of the Komagata Maru, led by Gurdit Singh, launched a legal challenge to be allowed to remain in Canada arguing that the continuous journey provisions were discriminatory.  The case was heard by the British Colombia Court of Appeal, which ruled that the passengers aboard were inadmissible to Canada for violating the continuous journey regulation.  This was the first instance in Canadian history where a boat of migrants was explicitly rejected from Canada’s shores.   Decades later Canada would repeat this failure to uphold humanitarian ideals when it refused to allow the S.S. St. Louis, a ship of Jewish refugees fleeing Nazi persecution in Germany, to dock in Canadian shores.

The Komagata Maru is exemplary of Canada’s history of racism and exclusion in its social, political and legal institutions.  In his reasoning, Justice McPhillips one of the three judges to hear the case, stated that it is “[b]etter that peoples of non-assimilative – and by nature properly non-assimilative – race should not come to Canada, but rather, that they should remain residence in their country of origin and there do their share, as they have in the past, in the preservation and development of the Empire.”  Justice McPhillips attitude towards non-white migration was reflective of many white Canadians at the time, including both working class and organized labour movements as well as the capitalist classes. 

Weeks after the court’s decision, the Komagata Maru, and its defeated passengers, were escorted out of Canada by a military warship.  Two months later, when the Komagata Maru reached colonial British India, the ship was intercepted and police opened fire on the passengers as they disembarked in Budge Budge. Twenty-two people were massacred. The continuous journey provision remained a fixture in Canadian immigration law until1948 when it was removed by a government led by Prime Minister William Lyon Mackenzie King, who ironically drafted the regulations in the first instance.  

The Komagata Maru tragedy was not the first, nor was it the last, instance of exclusionary laws that targeted racialized migrants. The Chinese Head Tax and Exclusion laws, the internment of thousands of Japanese Canadians during World War II, and turning away the SS St. Louis, indicate that Canada has long and sordid history of racist migration laws designed to exclude and limit the arrival of migrants constructed to be undesirable. 

Moreover, Canada’s history of racial exclusion through policies, practices and laws that continue to subjugate the First Nations peoples in Canada, as well as racialized groups, should not be overlooked or forgotten because of its present day diversity. Canada’s ethnic, racial, cultural and religious diversity is a result of resistance by those groups to legally instituted practices of exclusion and racism. 

In fact, many of these exclusionary policies continue to persist in modern forms, such as the Temporary Foreign Workers Program, which creates a pool of low wage vulnerable workers who have limited avenues to achieve permanent residency or citizenship in Canada, while being separated from their families for years. The Temporary Foreign Workers Program largely exploits the labour of racialized workers by placing them in a perpetual state of temporariness, without adequate avenues for these workers to achieve permanent immigration status.

Canada has often straddled the spectrums between exclusion and inclusion in its migration policies largely shaped by economic and capital interests.  Over the course of the last century this has not changed much as exemplified by the current debates and discourses around the Temporary Foreign Workers Program.

Let us not only reflect upon and actively remember our past injustices and closely examine our current practices, but also strive to ensure that vulnerable and marginalized migrants are given fair opportunities to achieve full citizenship rights.

Harini Sivalingam is a lawyer, community activist and a PhD student in Socio-Legal Studies at York University.

Painting Komagata Maru

While studying photographs documenting the Komagata Maru incident, I noticed a remarkable spatial and emotional distance between the photographers and the subjects. The photographs represent those onboard the steamship as pieces of a major event rather than as human beings with personal experiences.

My collection of portraits is intended to honour the Komagata Maru incident from the perspective of the individuals arriving to Canada rather than from the perspective of those who rejected them.

I painted small portraits in hopes that viewers would feel encouraged to physically take a step closer to the subjects to see more detail, unlike the photographers who hesitated or chose not to approach them. By looking at the paintings closer, viewers can appreciate the men and women as individuals, interact with them on a personal level, and form an emotional connection to this important piece of Canadian history. 

Gloria Ho is a freelance illustrator based in Edmonton, Alberta. She graduated from Ryerson University with a Bachelor of Design. Check out her work at http://www.gloriaho.ca/

Remembering the Komagata Maru

They say, ‘history is written by those who won.’

But when a story like the Komagata Maru was told – it was not from the perspective of the 340 passengers on that ship – it was from the perspective of the Canadians’ who felt entitled to accept or reject those they deemed suitable and desirable to enter Canada.

To put the entire story into context, it’s important to remember that this incident took place in 1914, when Canada was not a country we would recognize today. Concepts of diversity and multiculturalism didn’t exist. What did exist were racist policies like the Chinese Head Tax and the Continuous Journey Regulation. Both were deliberate forms of preventing non-Whites from entering the country through unfair, financial duties or discriminating, restrictive policies.

It should be noted that both the Chinese Head Tax and Continuous Journey policy were introduced and implemented by federal Conservative governments under Sir John A. Macdonald and later Sir Robert Borden.

Now, 100 years ago, we can mark the historical significance of the Komagata Maru – not just the symbol of a ship, carrying British subjects from colonial India to Canada (both countries were considered British colonies!) – but the fact that even today’s Conservative Prime Minister pays lip service to the current irrationality of denying people the opportunity to make a better life in Canada, just as his ancestors had the opportunity to.

The reality is that Canada has matured. Today’s population and politicians have realized that racism is not acceptable and have made strides to raise awareness and ensure those mistakes are never made again.

That is why I am proud of my mentor and friend, Jack Layton. In 2006, the federal leader of the New Democratic Party of Canada personally took up this issue. He spoke to Canadians about how unfair the Continuous Journey law was and how important an apology was needed to not only acknowledge and recognize the wrong but to right the wrong. He reminded us that justice delayed is justice denied. So he joined Canadian-Sikhs, Hindus and Muslims of South Asian-descent, and demanded the federal government make a formal apology on the floor of the House of Commons.

Eventually, our Prime Minister did apologize.

In a park.

During an annual festival.

In Surrey, British Columbia.

In 2008.

Following Mr. Harper's speech, Sikh community leaders asked the 8,000+ people in attendance to indicate if they accepted the apology by a show of hands. Through a clear and overwhelming majority, the community refused to accept the apology in the park and demanded it to be repeated inside the House of Commons, on the floor of our parliament where the original laws preventing the passengers to disembark on Canadian soil were introduced and passed.

However, today we’re seeing Prime Minister Stephen Harper’s Conservatives continue to place barriers and obstacles in allowing people to immigrate to Canada, to sponsor a spouse, to reunite families or to ease visitation and travel restrictions. Some see it as another type of barrier, choosing who is acceptable to come into Canada, and illogically rejecting those who don’t fit their arbitrary criteria.

It’s important to continue fighting for fairness, justice and equality. When a wrong is committed against one person or one community, as Canadians, we have an obligation to stand up and speak out together. 

Rupinder Kaur is the former federal NDP press secretary and former Chief of Staff for Alberta’s NDP. 

The Komagatu Maru – A Personal Reflection

To me, the Komagata Maru, represents a poignant example of the intolerance that has existed and continues to exist in Canada.

Canada is a country founded on immigration.

I find it very ironic that a country founded on immigration, built by immigrants, would have so many examples of mistreatment of immigrants and unjust immigration policies.

Though the Komagata Maru is an example of historic prejudice, xenophobia and inhumane treatment of our fellow humans, similar acts continue to occur, not just in Canada but around the world.

We all know the famous line: if we do not learn from our past we are condemned to repeat it. That is why I am interested in the Komagata Maru story. It caused harm to members of the South Asian community represented on that ship – Hindus, Muslims and Sikhs.

By denying the passengers permission to walk on Canadian soil, it sent the message that the passengers were unwanted, undesirable and simply, less-than human.

I believe, that without rectifying these past actions, without a formal apology from the state recognizing the wrong committed, Canada is only continuing the injustice.

To heal from trauma one must first acknowledge that the trauma occurred in the first place; that there was negative harm and innocent people suffered. To do that, in this case, means that Canada must acknowledge that there was a historic mistreatment of the passengers on the Komagata Maru ship.

Without apologizing for the Komagata Maru, Canada sends a message to the world, that their actions were acceptable and right.

An apology, admitting wrong and sincerely regretting it happened, would also suggest that in recognizing the harm committed, Canada would pledge to not allowing the same type of practices and action to occur again.  An apology also acts as a commitment to never repeat that wrong again.

Looking at recent legislation by the federal government, we are seeing that it is harder and harder to for refugees to find sanctuary in Canada. Under the guise of budget cuts, essential services and programs to refugees and immigrants is further marginalizing the most vulnerable people in our society. For example, look at the current treatment of Eelam Tamils fleeing the persecution of the Sri Lankan government.

Not only must we commit to recognizing the harms done in the past and apologizing for them we must also commit to never letting them happen again. 

Jagmeet Singh is a Member of Provincial Parliament in Ontario, representing the riding of Bramalea-Gore-Malton. 

Welcome

A retired UBC language instructor, Sadhu Binning has published more than fifteens books of poetry, fiction, plays, translations and research. He has been actively promoting Punjabi language education in Canada for over four decades. Welcome is a poem written by Binning and published in his 1994 bilingual poetry collection No More Watno Dur. It was reproduced here with his permission. To contact Binning, please email him at sadhu.binning@gmail.com.  

Why should we let them in? Why should I care?

‘Why should we let them in?’ ‘Why should I care?’  I found myself asking these questions during my recent stay at home.  It was in response to my grandfather’s stark criticism of the recent furthering of restrictions on immigration to Canada. He is aware of the struggles of entering Canada, having experienced them first hand, and having helped others enter the country after him. 

The very fact I was asking myself these questions ashamed me.  I saw myself as an activist of sorts, a member of the educated youth helping those in need.  However, in asking these questions, I found that my answers drew from reasons very similar to my grandfather’s, and likely the reasons of thousands of Canadians before us.  I work to help others in need because I, and I believe many others too, have realized how empty a room can feel when we lock the doors behind us. 

When I see the photo of the Sikhs on the decks of the Komagata Maru, I think of the ones trying so desperately to pry that door open on land.  The ones who raised money that they did not have for legal fees, and who rowed out to feed the men aboard with food they scarcely earned. Their story, and reasons for helping those barred from entry is as old as our nation itself. 

Canada began as the entry of individuals from abroad into the homes of those already here, and continued as others followed, joining this new home they were creating.  Whether French, British, Scottish, Ukrainian, or Punjabi settlers, fundamental to their journey has been the bringing, and bettering of others, left behind.  A home can be shed, as these settlers did when they embarked for Canada. However, a family, friends, a language, and culture cannot.  These things left behind, especially others in similar situations, remained in the minds of these settlers until they could be re-united in Canada.

During the past half-century Canada has focused on exporting the life it enjoys at home.  Canadians were seen as ‘helper-fixers’ after the Suez Crisis, and are recognized as providers of aid whenever calamity strikes. When my family came to Canada in 1973, it was a far easier journey than the journey for those that came in 1914.  However, this is not to suggest that their journey was easy – it too was filled with burdens and barriers. That half-century may appear to some as hypocrisy, with Canada exporting a quality of life that Canadians themselves were restricting others from enjoying.  However, this would ignore the work of thousands of people, especially those within minority communities who work to bring immigrants into the home of Canada. 

The Canadian Sikhs in 1914, looking out at the Komagata Maru, knew the value and necessity of having others with whom to enjoy their lives.  Their languages would perish unless others came into their homes to speak them.  Their food would go unshared unless they had guests, and their lives would be unfulfilled unless they made due of their promises to those they left behind. They continued to embody the spirit of the first Canadian settlers who sought a better life not only for themselves, but also for those to come after them.  These settlers did not build great cities because they expected to live in them alone.

This returns me to the questions I asked myself during my visit home.  My reasons are not as much about language or a family left behind.  Instead, I value the diversity that makes my home beautiful, and I understand the threat to that beauty that a locked door can be.

Canada can only remain the home we know it to be if we continue to welcome others as those before us hoped to be welcomed.  While the barriers of racism and intolerance that kept the passengers of the Komagata Maru from British Columbia are no longer as prominent, barriers continue to exist.

Today, when we speak of restrictions and locks on our nations doors, we speak of job scarcity and health care costs.  However, our job is to overcome these barriers and remember just how lonely a room can get when we stop letting others in. 

Aarondeep Singh Bains is British Columbia native completing a JD at Queen’s University and an LLM at Jean Moulin III in Lyon. 

Getting to We: The Komagata Maru, The Unmaking of Empire and the Making of a Settler Society

Professor Audrey Macklin is a leading immigration and refugee legal scholar, who has written and commented extensively on the Komagata Maru Episode and its place in Canada's migration history. As part of Komagata Maru Week, Professor Macklin delivered a lecture entitled Getting to We: The Komagata Maru, The Unmaking of Empire and the Making of a Settler Society. An audio recording of the lecture is found below. 

Lecture Abstract

The 1914 Komagata Maru Incident was a transformative moment in the evolution of Canadian citizenship. Canadian citizenship did not formally emerge until 1947 -- the same year as India achieved independence. Until then, all inhabitants of the British Empire shared a common status, namely British subject. The British proclaimed that all British subjects were equal, and free mobility throughout the Empire was one manifestation of that equality. The vehemence with which Canadian officials sought to exclude the Indian passengers aboard the Komagata Maru belied the alleged equality of British Subjects, yet the means by which the exclusion was accomplished also demonstrated the need to conceal the government's motive behind an apparently neutral regulation. The first part of the lecture places the Komagata Maru in national and imperial context.

That the Canadian government formally apologized for the Komagata Maru incident suggests that the impact and meaning of the event is safely sequestered in the past. The second part of lecture identifies the traces of the Komagata Maru incident in present-day Canada. The moral panic surrounding the arrival of people on boats, the transnational security discourse, the racialization of Canadian citizenship, the reliance on low-visibility, highly discretionary tools, and easily manipulated tools for regulating migration, remain significant features of contemporary Canadian migration law, policy and discourse.

Waiting for Nothing

Waiting for Nothing (2014) by Jag Raina

22"x30" inches

charcoal/pencil on stonehedge paper

Waiting for Nothing will be on display during Komagata Maru Week.

Jag Raina is an emerging artist and writer from Guelph, Ontario. He recently obtained a Bachelor of Fine Arts degree with a major in English Literature from Western University in London, Ontario. During the summer of 2012, he also participated in an Advanced Painting Intensive program that took place in Paris, France through Columbia University. Raina is currently living in Guelph, Ontario and his future plans include completing an MFA as well as continuing to develop his painting practice.

For further inquiries, please contact Jag Raina by email or visit his website.

Reflecting on the 100th Anniversary of the Komagata Maru Episode

I never learned about the Komagata Maru in school. I was already a lawyer when I heard about it, and the incident ignited my imagination, as you will realize as you read on. Perhaps this is because I too came to Canada by ship. I arrived in April 1955 and not by continuous passage. We took one ship from Mumbai, then Bombay, to Southampton and another from there to Quebec City. At the time, Canada restricted immigration from India. It had a quota of 150 independent immigrants from India annually.

When I learned of the Komagata Maru, I dug out newspapers and old law reports from library archives. This was before legal research was computerized. It brought home for me Canada’s lengthy history of legislated discrimination and prejudices that prevailed for much of the twentieth century.

The migrants on board that ship launched a test case in the immigration review system. That test case concerned Munshi Singh (son of Wazair Singh), of Gulupore, Hoshiarpur District, Punjab. The Komagata Maru sat in Vancouver harbour while his case proceeded through an immigration board of inquiry, the British Columbia Supreme Court, and the British Colombia Court of Appeal. A five judge panel of the Court of Appeal unanimously dismissed Singh’s appeal on July 6, 1914.

The Japanese captain was ordered to sail, but the Indians took over the ship and refused to budge. On July 19, 1914, 125 Vancouver policemen, and 35 special immigration agents attempted to board the ship and were beaten off, some 30 of them sustaining injury. Finally on July 23, two months after its arrival, the Komagata Maru was escorted out to sea under the guns of the S.S. Rainbow, one of Canada’s first naval cruisers.

Below I quote several newspapers of the day. Readers may be jolted by the terms they use to describe minorities. The newspapers’ language can be taken to reveal common usage of the day. After the Komagata Maru was forced out to sea the Ottawa Citizen editorial said:

Sending a tug laden with police and armed gunmen to deal with the Hindus is surely the limit of comic opera government… It is hoped that … someone responsible for the government of Canada has taken action to stop buffoon campaigns against the Hindus… The shipload at Vancouver were not sent there to become targets for hilarious hose players.

To use the little British-Canadian cruiser against British Indian subjects would seem to be the height of inconsistent Imperialism. 

Three Regulations Not One

The Komagata Maru is generally associated with the continuous passage ordinance, which required immigrants to arrive in Canada a continuous journey. In fact, though, the would-be immigrants were excluded from Canada on the basis of three different regulations. The other two are interesting in their own right.

There was "P.C. 24”, enacted in 1908.  Made under the authority of section 37 of The Immigration Act, it provided that “no immigrant of any Asiatic race shall be permitted to land in Canada unless such immigrant possess in his own right money to the amount of at least two hundred dollars.”

The reason this regulation was passed is more than interesting. Beginning with the Chinese Exclusion Act of 1885, Canada had already imposed a head tax on Chinese immigrants. The Chinese head tax was first imposed in the amount of $50. The 1908 regulation not only increased the amount of the head tax but used the term “Asiatics” to ensure that it applied to Japanese as well. The 1908 regulation was prompted by the Vancouver race riot of September 7, 1907, which makes the recent Stanley Cup turmoil in Vancouver look like a mere skirmish. The race riot, and reaction to it, show the state of racial relations in Vancouver during this period.

The Race Riot of 1907

By 1907, there were sizeable Chinese and Japanese communities in Vancouver. On September 7, 1907 a mob, estimated at some 30,000 (by the Vancouver Daily Province) led by the Asiatic Exclusion League, attacked Chinatown beating its inhabitants and wrecking and plundering stores, with little or no resistance. The mob continued on to “Little Tokyo” but the Japanese defended themselves. The riot took place on a Saturday night. The Monday edition of the Vancouver Daily Province of September 9, 1907 reported:

By nine o’clock in the evening the thousands of people who could not gain admission to the City Hall where the big anti-Asiatic mass meeting was being held, began to search for diversion elsewhere, and it was this crowd, disappointed in not gaining entrance to the overflowing hall, which split into small sections, some of which eventually consolidated into the property smashing mob.

Thirty thousand people thronged the streets in the vicinity of the zone of disturbance, for there was an indefinable something in the air which carried a message of trouble impending.

When the mob entered Chinatown “[b]ricks and stones started to fly in every direction, and the noise of shattered glass falling into stores and to pavement answered the vollies [sic] of the mob. Chinese took to their heels, running into stores and barricading doors as rapidly as possible while the tumult lasted.”

Soon “the mob headed in the direction of Japtown. … [B]y ten o’clock in the evening practically every policeman on duty in Vancouver was in guard either in Chinatown or Japtown.”

The mob smashed windows and hurled stones and bricks into stores. The police could not stop the crowd. The report continued:

The crash of glass was continual. Window after window was shattered in other stores and boarding houses in the vicinity as the riotous gang pushed further into the thoroughfare lined with nests of Japanese.

Finally the Japanese fought back:

Armed with sticks, clubs, iron bars, revolvers, knives and broken glass, the enraged aliens poured forth into the streets. Hundreds of little brown men rushed the attacking force, their most effective weapons being the knives and bottles, the latter being broken off at the neck, which was held in the hands of the Jap fighter. The broken edges of glass clustering around the necks of the bottles made the weapon very formidable and many a white man was badly gashed about the arms, neck and face…

Armed only with stones, the mob could not stand before the onslaught of knives and broken bottles propelled by the Japanese while they made the air ring with ‘Banzais’. Many of the Japanese went to the ground as stones thumped against their heads, but the insensible ones were carried off by their friends, and the fight kept up till the mob wavered, broke and finally retreated.

The newspaper’s editorial provides insight of the attitude of the establishment. The editorial described the “mob of roughs” who “occupied the oriental quarters” and “terrorized the Chinese and the Japanese” as a “disorderly element”, which, “though as a rule quiescent, is ready to break out on occasion into lawless acts”. The editorial called on the police and mayor to demonstrate that “we are prepared to deal with this element; that we simply will not have lawlessness on any account whatever”.

However, the editorial continued:

With regard to the demonstration against Asiatic immigration that came to such unfortunate a finish, it may be said that it was conducted by an organization with the objects of which most British Columbians agree, and for the attainment of the aims of which the B.C. local government has again and again vigorously striven. We are all of the opinion that this province must be a white man’s country. We hold it in trust to preserve it for our race. We do not wish to look forward to a day when our descendants will be dominated by Japanese or Chinese or any colour but their own. We are, as has been well said, an outpost of the empire, and that outpost we have to hold against all comers.

Prime Minister Laurier sent the Deputy Labour Minister to Vancouver to investigate. On the basis of the Deputy Minister’s report, the Chinese and Japanese were awarded compensation. The same Deputy Minister travelled to Britain only a few months later to consult on the issue of “Immigration to Canada from the Orient and Immigration from India in Particular”. He stated in his May 1908 Report:

That Canada should desire to restrict immigration from the Orient is regarded as natural, that Canada should remain a white man’s country is believed to be not only desirable for economic and social reasons but highly necessary on political and national grounds.

It is interesting to compare the Deputy Minister’s comment to what Prime Minister Mackenzie King said in the House of Commons some forty years later on May 1, 1947:

There will, I am sure, be general agreement with the view that the people of Canada do not wish, as a result of mass immigration, to make a fundamental alteration in the character of our population. Large-scale immigration from the orient would change the fundamental composition of the Canadian population. Any considerable oriental immigration would, moreover, be certain to give rise to social and economic problems of a character that might lead to serious difficulties in the field of international relations. The government, therefore, has no thought of making change in immigration regulations which would have consequences of the kind.

The similarity in the two statements is easily explained. The Deputy Labour Minister who investigated and reported on the Vancouver race riot was the young Mackenzie King. His 1947 statement in the House of Commons reflected official Canadian immigration policy until 1962.

The Third Regulation

The other regulation that made the Komagata Maru’s passengers inadmissible is puzzling on a first reading because of its specificity and time-limited application. It prohibited the landing of any prospective immigrants, artisans, or skilled or unskilled labourers at specified ports in British Columbia between March 31 and September 30, 1914.

The answer to the puzzle is the British Empire. The British governed India and Hong Kong and still had a close paternal relationship with Canada. The Komagata Maru would have arrived in Vancouver in March, but Gurdit Singh Sandhu, who had chartered the ship, was detained by the governor in Hong Kong for some months. I have not been able to ascertain on what basis he was detained, but in any event, Canada knew the Komagata Maru was coming and enacted this regulation in anticipation of its arrival.

The Test Case Decision

It was in this atmosphere that the British Columbia Court of Appeal heard Munshi Singh’s case. The arguments advanced in the court and the court’s reasons for rejecting them are not easily reviewed in a short non-technical reflection like this. The task is not made easier because all five judges (Chief Justice Macdonald and Justices Irving, Martin, Galliher, and McPhillips) wrote separate reasons. I can only touch on some highlights, which show how: the Komagata Maru made a small contribution to Canada’s evolution to full independence and sovereignty; the Charter of Rights and Freedoms made a significant change in the relationship between legislatures and the courts; and Canada’s expressly discriminatory immigration policies prevailed through much of the twentieth century.

First, the proposition that the Komagata Maru made a small contribution to Canada’s evolution to full independence and sovereignty. It must be remembered that while Canadians mark their independence from the passage of the British North America Act in 1867, Canada was not fully sovereign until the Imperial Parliament passed the Statute of Westminster in 1931. Prior to that time, the Canadian parliaments (federal and provincial) could not pass laws inconsistent with Imperial legislation, nor repeal or amend Imperial law in force within their jurisdictions. Further, the Judicial Committee of the Privy Council remained the final court of appeal in Canada’s judicial system for civil matters until 1949 – criminal appeals to London ended shortly after the passage of the Statute.

The main argument of the people on the Komagata Maru was that they could not be deported because they were British subjects, and Parliament lacked the power to authorize the detention and deportation of a British subject. The court held that Canada did have such power. Justice Irving put it this way: “and it seems to me plain beyond question that Canada has a right also to make laws for the exclusion and expulsion from Canada of British subjects whether of Asiatic race or of European race, irrespective of whether they come from Calcutta or London”. Munshi Singh’s case established that the British North America Act vested in the Parliament of Canada complete sovereignty over immigration into Canada, including the “right to exclude British subjects, not even excepting those born in the United Kingdom”.

The court also rejected the argument that the regulation imposing a head tax on “Asiatics” did not apply to British subjects. Justice McPhillips said:

Therefore, it may well be said that when the words ‘Asiatic race’ are used in the order in council, P.C. 24, the words are, in their meaning, comprehensive and precise enough to cover the Hindu race, of which the appellant is one.

He was not content to leave it at that. He went on:

It is plain that upon study of the question, the Hindu race, as well as the Asiatic race in general, are, in their conception of life and ideas of society, fundamentally different to the Anglo-Saxon and Celtic races, and European races in general.

Making comments that went well beyond legal analysis he opined that “the better classes of the Asiatic races are not given to leave their own countries” because they are “greatly attached to their homes”. On the other hand:

…those who become immigrants are, without disparagement to them, undesirables in Canada, where a very different civilization exists. The laws of this country are unsuited to them, and their ways and ideas may well be a menace to the well-being of the Canadian people.

Not content to find Parliament had the power to enact the regulations, Justice McPhillips commented that Parliament:

…may be well said to be safeguarding the people of Canada from an influx which it is no chimera to conjure up might annihilate the nation and change its whole potential complexity, introduce Oriental ways as against European ways, eastern civilization for western civilization, and all the dire results that would naturally flow therefrom.

Other judges were more circumspect. They reasoned that they could not consider the policy behind the regulations. For example, Justice Martin quoted from an earlier decision of the Privy Council to the following effect:

A Court of law has nothing to do with a Canadian Act of Parliament, lawfully passed, except to give it effect according to its tenor. ... It cannot be too strongly put that with the wisdom or expediency or policy of an Act, lawfully passed, no Court has a word to say.

The regulations were well within the authority bestowed by the Immigration Act. The Act expressly allowed the making of regulations prohibiting “immigrants belonging to any race deemed unsuited to the climate or requirements of Canada”.

Justice Martin’s comments illustrate the second proposition; the Charter has changed the legal terrain. The Charter empowers and obligates courts to strike down discriminatory laws in a way that was impossible prior to its adoption.

Third, the Komagata Maru was emblematic of Canada’s restrictive immigration policy that endured into relatively modern times.

Discriminatory Immigration Policy in Modern Times

I mentioned at the outset that I immigrated to Canada when the quota system was in place for those coming from India. That system remained (with an increase from 150 to 300 in 1958) until 1962, when the government introduced a ‘points system’ for independent immigrants. The 1962 regulations continued to prefer family-sponsored immigrants from Europe and the Americas, and left significant administrative discretion in the determination of the suitability of independent immigrants. It was not until the 1976 Immigration Act came into force in 1978, that Canada for the first time formally adopted non-discrimination as a principle of its immigration policy. This seems to me to be quite recent. It is well after I graduated from Osgoode Hall Law School in 1972.

Immigration is not the only example in which express legislative discrimination endured into relatively modern times. In another notorious example, up to 1948, the federal government let provinces dictate the eligibility for their citizens to vote in both federal and provincial elections on racial grounds. The Dominion Elections Act permitted disenfranchisement for “reasons of race”. The government of British Columbia excluded most people of Asian origin until 1947, when it removed the restriction on “Hindus”and Chinese voting, and 1949 when the Japanese prohibition was removed. Again this does not seem to me to be ancient history. It is discomforting to think that during my lifetime Canadians of South Asian and other origins resident in British Columbia could not vote in either provincial or federal elections.

The change in immigration law led to an influx of immigrants from the Indian subcontinent in the mid-70s. There was resistance to the change in immigration patterns and the newcomers faced undisguised prejudice during a several-year period of transition. The Task Force on Human Relations reported to Toronto’s Metro Council in 1977 that South Asians in Toronto felt “unsafe, prone to attack at any time, in any location and not particularly protected by the laws of the state.” It continued: “The violence is not concentrated in a particular section of the community, and occurs in all levels within East Indian life.”

The Komagata Maru’s Conclusion

The Komagata Maru saga did not end with its forced exodus from Vancouver harbour. It was met by a British gunboat on its return to India as it approached Budge Budge, the port in Calcutta. The colonial government suspected that some people on the ship were Ghadarites, who sought to oust the British from India. The authorities tried to arrest them. In the ensuing melee, 19 of the passengers were killed.

While the treatment of the Komagata Maru did much to inflame anti-British sentiment in India, over one million Indians served for Britain in the First World War, including approximately 140,000 who fought on the Western Front. Undoubtedly, Indians expected to be rewarded with self-government after the war. After the war Britain’s refusal to take any concrete steps in that direction fueled the independence movement, which Gandhi again suspended during the Second World War. I was born in British India.

A point in time must surely come when a past injustice, while remaining colourful history, ceases to shed much meaningful light on the nature of the world we live in today. However, the Komagata Maru incident, on its hundredth anniversary, continues to be relevant for a number of reasons I have tried to explain. It is emblematic of Canada’s restrictive immigration policy that endured into relatively modern times. The restrictive immigration policy still explains the distribution of South Asians within Canadian society and their underrepresentation at senior levels of, for example, the legal profession and judiciary. The court decision upholding the deportation of the would-be immigrants on the Komagata illustrates important aspects of Canada’s development toward complete independence, the relationship between legislatures and courts, and the importance of the Charter.

The Komagata Maru is part of the rich and colourful history that minority communities contribute to Canada. SALSA is commended for creating this website to better acquaint Canadians with that history. 

The Honourable Russell G. Juriansz is a judge of the Ontario Court of Appeal.

Don't Forget About Us

don't forget about us by Jag Raina

22"x30" inches

charcoal/pencil on stonehedge paper

don't forget about us will be on display during Komagata Maru Week.

Jag Raina is an emerging artist and writer from Guelph, Ontario. He recently obtained a Bachelor of Fine Arts degree with a major in English Literature from Western University in London, Ontario. During the summer of 2012, he also participated in an Advanced Painting Intensive program that took place in Paris, France through Columbia University. Raina is currently living in Guelph, Ontario and his future plans include completing an MFA as well as continuing to develop his painting practice.

For further inquiries, please contact Jag Raina by email or visit his website.

Social Justice in Pre-War Canada: Edward Bird and the Komagatu Maru

In 1973, our father landed at Vancouver International Airport, 12,000 kilometers from home, a 25-year old Indian immigrant with few job skills and no Canadian experience. Four years later, our mother followed that same route, joining a man she had only met four times before (a courage that amazes us to this day).

In this land, they built their life: moving from small town to small town throughout British Columbia and Alberta, scratching out a living, before settling in Edmonton, where they raised us. Thirty years later, we made our own, albeit more modest, pilgrimage, traveling to Toronto to study, work and eventually raise families of our own. We are proud Canadians, and proud to be fathers of a new generation of the North.

As Canadian immigrants, our parents shared a desire common to many new Canadians: we should become professionals. It didn’t matter much whether we were doctors, accountants or engineers. But to us there was no choice: we would be advocates. As argumentative Indians raised on a steady diet of stories about Birbal the Wise, the Mahatma and Pundit Nehru, studying the law would be both a tool to achieve our parents’ ambitions and to connect with our history.

Growing up, we had heard the story of the Komagata Maru in bits and pieces, never really digesting its meaning or its impact. Today, having read and re-read the narrative, it is the role of Joseph Edward Bird that stays with us the most. Bird represented the passengers of the Komagatu Maru, including Munshi Singh in the Court of Appeal for British Columbia. Though we don’t know for sure, he was surly a proponent of the “cab-rank” rule. In pre-war Canada, it must have been rare for a gentrified city barrister to accept a retainer from “others”, least of all others trapped on a foreign ship off-shore. But Bird accepted that brief and his story is intertwined with that of the Komagatu Maru.

South Asian migrants in the early 1900s loading possessions onto horse drawn wagons at the Canadian Pacific Railway Pier in Vancouver. 

Though Bird was ultimately unsuccessful in the Court of Appeal, his advocacy would not have gone unnoticed in Vancouver and across British Columbia. Indeed, he is best known for the Komagata Maru case but it was an earlier victory that may have been more important — the striking down of the earliest iteration of the Continious Journey Regulation in the Panama Maru incident. In 1913, South Asian migrants on the Panama Maru arrived in Victoria but were prohibited from entering Canada. Bird successfully challenged the law, allowing the ship’s 39 passengers to land. We don’t believe it’s an understatement to trace his defence in these cases to the enfranchisement of Indo-Canadians in 1947 and, in a small way, the arrival of our parents, with open arms, in the same city that turned away the Komagatu passengers.

We are sure that justice today looks far different than it did from Bird’s office atop the Metropolitan Building in Vancouver. But the challenges faced by new Canadians are not that different. Despite our better history, there is a still an ongoing struggle in our country for equality, fairness and basic human dignity. We have been fortunate to have the trust of clients and our colleagues in advancing some of these same causes in pro bono litigation across Canada, though we will be the first to acknowledge that this struggle will continue.

We don’t pretend to be half the advocate that Bird was. But in our way, we hope that our time in this profession lets us walk a short way in his shoes to advance the cause of access to justice and the rule of law.

Ranjan Agarwal is a partner in the litigation department at Bennett Jones LLP. Rahool Agarwal is a litigator at Norton Rose Fulbright LLP. Ranjan and Rahool have acted as counsel in 10 constitutional appeals in the Supreme Court of Canada. Their mother is very proud of them.

100 Years Later, What has Changed?

In 1914, over 300 passengers from India onboard the Komagata Maru were refused landing in Canada. After a standoff, the ship returned to India, where many of the passengers were imprisoned — and some even killed — by British Raj forces. These forces viewed the passengers as dangerous political agitators seeking the independence of India from British rule.

Canadian immigration officials ostensibly turned away the passengers because the ship did not make a continuous journey directly from the country of citizenship of those on board, as required by Canadian immigration regulations. The actual reason, however, was racism. The continuous journey requirement was applied selectively, with the goal of restricting immigration from India. As Justice McPhillips put it in the BC Court of Appeal case involving the Komagata Maru: 

Our fellow British subjects of the Asiatic race are of different racial instincts to those of the European race - and consistent therewith, their family life, rules of society and laws are of a very different character - in their own interests, their proper place of residence is within the confines of their respective countries in the continent of Asia, not in Canada, where their customs are not in vogue and their adhesion to them here only give rise to disturbances destructive to the well-being of society and against the maintenance of peace, order and good government... Better that peoples of non-assimilative - and by nature properly non-assimilative - race should not come to Canada, but rather, that they should remain of residence in their country of origin and there do their share, as they have in the past, in the preservation and development of the Empire.

The 100th anniversary of the Komagata Maru incident offers an occasion to think about how things have changed. Refugee law is one framework for thinking through this question, especially because Canadian law did not include any provisions for the protection of refugees in 1914.

First, the good news.

In 1969, Canada signed on to the 1951 Convention relating to the Status of Refugees, which means that Canada agrees to refrain from returning refugees to countries where they face persecution on account of their race, religion, nationality, political opinion or membership in a particular group. A few years later, in 1976, Canada established a refugee determination system to implement the Refugee Convention. Then, in 1985, the Supreme Court of Canada held in Singh v. Minister of Employment and Immigration that refugee claimants physically present in the country are entitled to constitutional rights, including the right to access a refugee determination system that complies with the principles of fundamental justice. This holding led to a revised refugee determination system with enhanced procedural protections, including access to an oral hearing and the right to reasons for refusals of refugee protection so as to facilitate judicial oversight. By the 1990s, Canada's refugee determination system was widely regarded as among the more progressive systems in the world.

Now for the bad news.

Although refugee claimants who make it to Canada are entitled to many important rights, the government still does everything it can to prevent their arrival. The main tool used to this end is to impose visa requirements on nationals of countries that generate significant numbers of refugee claimants — and to refuse visas to those who are likely to make refugee claims. 

It would, however, violate the Refugee Convention if Canada imposed penalties on refugees who manage to get to the country without holding visas, so the government has turned to two other techniques to enforce visa requirements.

The first technique is to intercept asylum seekers at points of departure or points of transit. For example, Canada deploys Migration Integrity Officers to assist airline staff abroad in screening passenger travel documents prior to allowing passengers to board flights to Canada. Canadian officials also work with foreign enforcement agencies in transit countries to prevent the departure of unauthorized boats with asylum seekers destined for Canada.

The second technique is to impose penalties on those who provide asylum seekers with transportation. For example, transportation companies are fined $3,200 for each person they bring to the country without valid visas, even where the passengers transported obtain refugee protection. More seriously, if transportation companies or their staff know that their passengers do not have the requisite visas but they provide transportation anyway, they can be charged with human smuggling. In instances involving groups of 10 persons or more, these charges carry a maximum penalty of life in prison, and, once again, there is no exception if those transported obtain refugee protection.

And that’s not the end of the bad news.

Recent changes to Canadian immigration law go even further. Rather than just penalizing those who bring refugees to the country, the new provisions also penalize the refugees themselves, which, as already noted, violates the Refugee Convention. Under these changes, if a group arrives in Canada without valid visas, they can be designated as irregular arrivals. The consequences of designation include:

• mandatory detention with limited opportunities for review;
• no access to an administrative appeal at the Immigration and Refugee Board for negative refugee decisions;
• no right to an automatic stay on removal pending judicial review of negative refugee decisions, meaning that refugee claimants can be deported while the Federal Court is still considering the legality of a negative refugee decision;
• no access to permanent residence for a period of at least five years after refugee protection has been granted, during which time they cannot sponsor family members for immigration. 

So, how would things be different if the Komagata Maru were to show up on Canadian shores today? 

Well, the passengers could make refugee claims, and they’d have a fairly strong case that they meet the refugee definition because they faced persecution on account of political opinions imputed to them by the British Raj. Moreover, the passengers would be entitled to constitutional due process protections in the consideration of their refugee claims. That means, for example, that if an immigration official, a refugee adjudicator, or a judge were to display the kind of explicit racism shown by Justice McPhillips in the passage quoted above, courts would not hesitate to overturn their decisions.

But the Komagata Maru passengers would only be able to access these rights if they actually reached Canada. That would be unlikely because of all the barriers Canada places in their way. Moreover, if they did manage to get to Canada, they could be subject to penalties, such as mandatory detention and limits on access to permanent residence. Meanwhile, the owners and crew of the ship would likely face large fines and lengthy jail time. 

Taken together, 100 years after Canada turned away the Komagata Maru, many things have changed for the better — and these positive developments should be celebrated. However, at the end of the day, Canada still tries to deter the arrival of asylum seekers like those on board the Komagata Maru. That leads me to wonder, 100 years from now, what will people think about Canada’s current exclusionary policies towards refugees? 

Sean Rehaag is a professor at Osgoode Hall Law School, where he specializes in immigration and refugee law.

The Heart Breaking Incident/ਸੀਨਾ ਪਾਟਣ ਦੀ ਗੱਲ

Listen to Sadhu Binning: Heart Breaking Incident (English) by avinanda | Explore the largest community of artists, bands, podcasters and creators of music & audio.

Listen to Sadhu Binning: Heart Breaking Incident (Punjabi) by avinanda | Explore the largest community of artists, bands, podcasters and creators of music & audio.

A retired UBC language instructor, Sadhu Binning has published more than fifteens books of poetry, fiction, plays, translations and research. He has been actively promoting Punjabi language education in Canada for over four decades. The Heartbreaking Incident/ਸੀਨਾ ਪਾਟਣ ਦੀ ਗੱਲ is a poem written by Binning and published in his 1994 bilingual poetry collection No More Watno Dur. It was reproduced here with his permission. To contact Binning, please email him at sadhu.binning@gmail.com.  

The Fifty

The Canadian fifty dollar note is an ironic symbol for Sikh’s in Canada, at least it is for me. The fifty-dollar note has been my gift of choice at large Sikh weddings and at birthday celebrations as well. The distinctly red bill, with its soothing subtleties and prominent markings, is unmistakable. It embodies success, power, and pageantry to the Sikhs that gift it to each other on auspicious occasions. Yet as prominent as the markings and the red hue that gives the fifty-dollar note its distinction is the imprint of William Lyon Mackenzie King. The imprint is an ode to King, a testament to the enduring legacy of a great Canadian statesman. After all, it is only the great, the visionaries, and the virtuous, - that are enshrined on our currency as a constant reminder of their importance. However after learning of the Komagata Maru, the only thing I see when I look into the eyes of the imprint of Mackenzie King is the searing glare of a man who would have utter distain at the thought of me, a first-generation Canadian Sikh with “British East Indian” parents, holding a fifty-dollar note on Canadian soil.

In 1908, as Deputy Minister of Labour for the Canadian government, King authored a report that sought to tighten immigration policies for migrants from the Orient and India. Like many before him, and like many after him, he made a number of dubious assumptions about the Sikhs. King assumed that Sikhs were not able to adapt to the harsh Canadian climate, and that their presence would disrupt the economy and industry of Canada, particularly in British Columbia.

Sikh mill workers for the Pacific Lumber Company in Barnet, British Columbia during the early 1900s. 

However, these assumptions are better seen as thinly-cloaked excuses. For King, a ‘white’ Canada was a better Canada, where people of color and particular British East Indians, did not belong. Over time, the assumptions in King’s report became the assumptions of the broader Canadian public.

King was just one of many on a long list of leaders in history that have underestimated the resiliency of Sikhs. The Moghuls doubted the Sikhs, the British underestimated the Sikhs and Mackenzie King was wrong about the Sikhs. The Moghul’s and Brits were transparent with the positions they took regarding Sikhs. While they were entirely wrong, unlike Mackenzie King, they had the courage of their convictions to speak openly about their distain of Sikhs.

Upon migrating to Canada, Sikhs were told in no uncertain terms that we did not belong here, and that we would not thrive here, and in fact, that we were a burden to the economy and to the social fabric of Canada as a whole. But the Sikhs endured, and 100 years later, are intertwined in the social, economic and political fabric that makes up Canada.

Today, Sikhs in Canada feel an overarching sense of pride when a fellow Indo-Canadian has reached the pinnacle of his or her field. When I hear of a Canadian Sikh reaching public office or attaining entrepreneurial success, I swell with pride as if it were my own son or daughter. This enduring pride stems from a collective memory of exclusion and adversity overcome – a collective memory epitomized by the Episode of the Komagata Maru.

The story of the Komagata Maru is a story with many layers and two overarching narratives. The first narrative is encompasses the Canadian government’s racist, close-minded, and oppressive systemic attempt to thwart the advancement of Sikhs by quashing what should have been a legal migration in to British Columbia. However, a second and more poignant narrative is the history of Indo-Canadian Sikhs in the 100 years following the incident. Upon arriving to Canada, Sikhs have had two options: fight or flight. Given our history in India, it is no surprise that in the years following the Komagata Maru, Indo-Canadian Sikhs have dug in their heels and fought for a better life for their families. Like the underestimated athlete who was always told he could never make it, Sikh’s have adopted a ‘we will show you’ mentality.

As I hold that fifty-dollar note in my hand and stare back in the eyes of that searing glare, I can’t help but smirk and ask the image looking back at me: ‘Mr. King, how do you like us now?'

Andy Hayher is a lawyer in Calgary, Alberta who practices with the firm Vogel LLP in the area of Family Law.

Komagata Maru: Speaking Truth to Power

Having been born in Canada, with my parents arriving in the early 70's, I was (at times painfully) aware that I was a minority but didn't always see the relevance of events that occurred so many years prior to my birth. Aside from isolated incidents of ignorance growing up, I had no personal experience of systemic or institutional racism. What had transpired in 1914, when Canada denied entry to over 300 Sikhs, Muslims, and Hindus while welcoming over hundreds of thousands immigrants from Europe per year was consigned, as far as my teenage mind was concerned, to the past.

Now, as an immigration lawyer, entrusted with the aspirations of those that seek to enter and remain in this country, I have come to appreciate the full significance of the Komagata Maru incident. The treatment of those 376 unwanted Indians was no outlier; it was just another link in a chain of exclusion stretching back to the first arrival of the Europeans and the displacement of the First Nations. The Chinese Head Tax, discouraging Chinese labourers from settling here or bringing their wives and children here predated the Komagata Maru incident. Twenty eight years after the ship was escorted back to India, Jewish passengers on the MS St Louis fleeing racism and seeking a better life were also denied entry and returned to anti-Semitic Europe.

However, the Komagata Maru incident is more than an archetype or a recurring theme of xenophobia that began with the founding of this country. It is more than an incident of blatant discrimination against undesirable migrants, it was a public attempt by Gurdit Singh Sandhu and a colonized people to challenge exclusionary laws and policies and it is their failed effort that now informs the identity of Canadians irrespective of ethnic background. The passengers of the Komagata Maru and their supporters may have lost their legal battle a century ago, but have been vindicated by history.

Gurdit Singh Sandhu (man in the left foreground, wearing a white turban) and passengers on board the Komagata Maru. 

Wrecked in Japan in 1926, the Komagata Maru lives on in memory and immigration policy. The passengers on that aborted voyage were prevented from landing because of exclusionary laws that targeted their country of origin - an arbitrary, perverse and capricious distinction. But even in this century, government policy discriminates against migrants based on their country of origin. The recent changes to Canada's refugee laws means that some claimants are denied work permits, health care and other benefits prior to a determination on the merits of their refugee claim. These restrictions are based on the country of origin. That means a Roma family from Hungary is denied all of the above while a Roma family from Romania is not. But both could end up getting status in Canada.

The changes to law and policy also entail differential treatment of refugee claimants based on mode of arrival, another arbitrary distinction. The arrival of two migrant ships and over 500 Tamil asylum seekers off the coast of British Columbia three years ago allowed the then Ministers of Public Safety and Emergency Preparedness and Citizenship and Immigration both a photo opportunity and an opening to shift the direction of immigration policy to the right. "Irregular arrival" now allows the government to detain refugee claimants - even children - until their refugee claims are adjudicated. Should refugee claimants arrive individually or in groups via a commercial flight, detention and other punitive measures aren't in the cards. Because of the resistance and sacrifice of the Komagata Maru passengers and others since, Canada is a Rule of Law nation and thus, today, refugee claimants in this century affected by the mean spirited and short sighted actions of the executive can resist and have hope in setting aside the law through recourse to the highest court in the country.

We're all in this ship called Canada together. The treatment of the Komagata Maru migrants was justified in courts by referencing the (mis)treatment of First Nations in Canada. Author Ali Kazimi writes that "the colonization of Canada and the subjugation of its aboriginal inhabitants was presented as a legitimate precedent for denying South Asians their rights". There are only migrants and First Nations in this country; we have learn not just to live together but to listen to each other and ultimately understand that our fates are intertwined.  In 1908, the future Prime Minister of Canada, Mackenzie King wrote that "Canada must remain a white man's country...on moral and political grounds". King's sentiment is deposited in the ash heap of history and that is a lesson that politicians in this day and age that play to the gallery, stoking anti-immigrant and employ intransigence towards the grievances of the First Nations, should take to heart.  

It would be a disservice to characterize what happened in 1914 as merely an unfortunate incident of racism. A century ago, 376 indomitable souls and their supporters challenged arbitrary law. They raised funds, they hired legal counsel and addressed adverse public opinion. That spirit of speaking truth to power informs my identity today, not their shameful treatment by the public and early 20th century politicians pandering to the base nature of their constituents. Canadian values of fair dealing and generosity to migrants were given life by the struggles of those on the ill-fated Komagata Maru, their supporters and their ideological descendents. The lessons of the Komagata Maru incident are not just confined to the oppression of the hopes and aspirations of migrants and the specious use of the law. What I have taken to heart from 1914, and what forms part of my identity today as a Canadian, is that the passengers and their supporters undertook a public challenge to Canada's unfair and exclusionary policies targeting their country of origin. They threw down this challenge the day that Gurdit Singh chartered the Komagata Maru and continued their challenge in the courts of this country. Their efforts to resist those policies both in courts of law as well as the court of public opinion is true advocacy and inspiration to all those that seek limits on the unrestrained power of the executive.

Raj Sharma is the managing partner at Stewart Sharma Harsanyi, one of Canada's largest dedicated immigration law firms located in Calgary, Alberta. He graduated with his JD from the Faculty of Law, University of Alberta and received his LLM in Administrative Law from Osgoode Hall. 

100 Years Since the Komagata Maru: Why Does it Matter?

There is no founding story in Canada. There is no grand narrative that connects our past and present, definitively informing who we are as a people.

Instead, we have founding stories. Stories that capture our disparate identities and unique histories as Canadians. From the multitude of First Nations' creation stories to French colonization of the St. Lawrence and Maritimes to the British conquest on the Plains of Abraham. These stories are not limited to Canada's founding communities. They include the experiences of other Canadians: Irish migrants in Atlantic Canada and Quebec, Ukrainian settlers on the Prairies, Chinese miners and railway labourers in British Columbia, and many more. These stories only grow, as Canada continues to be a new beginning for people from around the world.

Growing up as South Asian Canadians, we felt as if our founding story was missing. We never learned about the South Asian experience in Canada while attending primary or secondary school. Our parents, both Indian immigrants from Punjab who arrived in Canada during the 1970s, were either indifferent or likely preoccupied with more important things than existential identity questions about what it means to be Canadian.

Frankly, having a founding story to help us understand our place in Canada didn’t really matter. We were more than willing to piece it together from other sources. In fact, we gravitated towards anything that could help provide insight into our lives as other Canadians. Whether that was through the experiences of Japanese Canadians interned during the Second World War or Mordecai Richler writing about the first generation Jewish Canadians living in Montreal.

Moreover, if they weren’t teaching us about the South Asian Canadian experience in school, we thought it was because it's still in its early stages. This made it our responsibility to create a legacy that could help future South Asian Canadians answer the questions that lingered in our minds.

Discovering the Komagata Maru Episode changed things. The episode is more than a story of a boat full of South Asian migrants attempting to defy Canada’s racist migratory policies. It portrays a less welcoming Canada, where Chinese, Japanese and South Asians in Canada were systematically deprived of their civil and political rights over the threat they posed to Canada’s racial purity. Rather than accept their fate, South Asians in Canada, which included a large number of revolutionaries and political agitators against British Colonial rule in India, openly resisted their subjugation. They fought back with the means they had available, often violently. They were determined to remain in Canada, and participate in economic, social and political life on an equal footing with white Canadians.

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Two Sikh men walk among crowds on Granville Street, Vancouver in 1907. 

The Komagata Maru Episode reveals that the South Asian experience in Canada originated out of isolation, exclusion and hostility. Yet despite the odds, the community grew and prospered, charting its own path in its refusal to be defined by others. Together with other cultural communities who also experienced discrimination and white Canadians who rejected the era’s prevailing racial prejudices, they created the Canada we live in today. A society that is tolerant and pluralistic, where everyone belongs, and no one group holds a monopoly over what it means to be Canadian.

The greatest thing about Canada is the absence of a grand narrative defining who we are as Canadians. With competing narratives, we find ourselves in a constant dialogue on what it means to be a Canadian. While themes can be identified across experiences, there is no definitive concept of Canadian identity. Unlike other places, Canadian identity is not formulated in exclusionary terms. We are all Canadians, and Canadians equally, regardless of our appearances, faiths (or lack thereof), languages and other identity markers.

To be Canadian is certainly more than one’s citizenship. However, at the same time, the absence of a rigid identity framework accommodates considerable diversity. As Canadians, we can draw from the various founding stories embedded in our identity to  help us inform where we come from, where we stand and where we are headed.

The Komagata Maru Episode represents the context in which we, as South Asian Canadians, have developed as a community. It embodies the determination of early South Asian migrants to Canada, whose sacrifice created the conditions for us to thrive. However, it is more than a South Asian Canadian story. It is a story that all Canadians, regardless of background, can use to inform their identity and understand who we are as a collective.

Avnish Nanda and Sheena Josan are third year law students at Osgoode Hall Law School and co-chairs of Komagata Maru Week.