Cunningham v. Tomey Homma

In 1900-03, prominent Japanese Canadian Tomekichi “Tomey” Homma fought a landmark legal battle against a provision of the British Columbia Provincial Elections Act, which barred Asian Canadians and First Nations from voting. The 1903 decision of the highest court of appeal for Canada affirmed the power of the provinces to restrict voting eligibility on the basis of race. The injustice of this legal precedent provided Canada’s early human rights activists with a compelling illustration of the need for measures to protect the rights of individual Canadians. As a result, this important court case is considered a milestone in the development of human rights in Canada, and Homma has become a symbol of the movement.

In 1900, Homma, a Japanese immigrant and Canadian citizen (called naturalized British subjects before the 1947 Citizenship Act), applied to have his name entered on the voters’ list for the Vancouver electoral district. He was denied, an outcome that was anticipated because of an 1895 amendment to the Provincial Election Act that disqualified Japanese Canadians from the vote, along with First Nations, and Chinese Canadians (women were also excluded from the vote). Homma sued the registrar, Thomas Cunningham. At that time, no piece of legislation provided a safeguard against discrimination, therefore an individual’s only recourse was the courts where judges determined the validity of laws by interpreting the British North America (BNA) Act of 1867. Both the county court and the Supreme Court of British Columbia ruled in Homma’s favour; however, his victory was short-lived. In 1903, the highest court of appeal for Canada, the Judicial Committee of the Privy Council (JCPC) in London, England, ruled in favour of the province. The JCPC upheld the Provincial Elections Act, and declared that the BNA Act granted the provinces exclusive jurisdiction over civil rights, including the right to vote.

The JCPC’s decision had a lasting impact on Canadian federalism because it legally defined the vote as a privilege that a province could grant or withhold on the basis of race, from immigrant citizens or Canadian-born alike. It also validated in law a long tradition of racial, ethnic, class, and gender exclusions in Canada’s voting history. Moreover, it served as precedent in future legal challenges against anti-Asian legislation.

Tomekichi Homma’s legal battle is known as one of the most significant acts of resistance to repression in the history of human rights in Canada. Homma’s demand for equitable treatment influenced others to fight for equal rights, and, in retrospect, the court case has become crucial to our understanding of the context and events that led to the enactment of the Canadian Bill of Rights in 1960 and the entrenchment of the Canadian Charter of Rights and Freedoms into the Constitution Act of 1982. Equal voting rights for all Canadians was achieved only in 1960. While Tomekichi Homma did not live to see the enfranchisement of Japanese Canadians, his case marked the beginning of this protracted struggle for political and equal rights.