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. 

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 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.