"Police Authority is Necessary": The Canadian Origins of the Legal Powers to Detain and Deport, 1893-1902.

• Author: Wallace, Simon

Introduction I. The "Considerable Timidity" of Exclusion Laws (1867-1900) II. Preventing a "Grievous and Irritating Detention and Disturbance": American Immigration Inspection in Canadian Ports III. The First Legal Immigration Detentions and Deportation IV. "Our Reason for Introducing the Legislation is Largely in Connection with the American Immigration." V. Conclusion Introduction

In February 1902, an American immigration commissioner in New Brunswick ordered the deportation of fifteen Jewish immigrants. But when the ship that was supposed to take them back to Europe arrived in St. John, the migrants refused to board and took refuge in a local synagogue. The local Canadian immigration official sent a telegram to Ottawa seeking advice. Describing the Jews as "diseased and destitute", he explained that "[i]f you want them deported I will have to get a policeman to handcuff them and cart them to [the] ship" but, he warned, "the Jews have retained counsel and will put up a big fight". The next day, a senior immigration official telegrammed back advising there is no legal "authority to arrest[,] but if possible you should persuade these people to return [to] ship". (1)

To the contemporary reader, this vignette is surprising. Why was an American ordering deportations from Canada? Did Canadian officials truly not have the authority to arrest, detain, and remove unauthorized immigrants? While today it is axiomatic that, in the words of the Supreme Court of Canada, "the Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so," (2) these sorts of legal powers are surprisingly new. For most of the nineteenth century, deportations and immigration detentions in Canada were rare and were almost never conceived of as such. While international legal scholars and jurists assumed that states could, at least in some circumstances, expel aliens, nineteenth century Canadian immigration officials did not believe that deporting migrants was part of their job description. It was not until the summer of 1900 that Canada activated, developed, and began to use police powers that look like those used by today's border and immigration officers.

This story is a local history of a global phenomenon. (3) While we often assume that border controls are a constitutive and necessary component of the modern state, they are actually "a fairly late development". (4) This paper examines how one immigration control power--the legal right to arrest and deport an unauthorized migrant--came to Canada. To help tell that story, this paper connects research on three overlapping periods and places. First, after the United States of America banned Chinese migration outright in 1882, the British Columbia Legislature attempted to follow suit. Worried that denying employers access to cheap labour would unduly harm Canadian development and industry, the federal Cabinet disallowed the laws. But Prime Minister MacDonald determined that something had to be done to mollify racist sentiment on the Pacific Coast. In 1885, Parliament passed The Chinese Immigration Act. (5) The main feature of this legislation required each Chinese immigrant to pay a fifty-dollar head tax before arriving in Canada. This law did not usher in a formal deportation power, but historians agree that the law's passage marked the beginning of a new exclusionary era of immigration policy in Canada. (6) In contrast to the laissez-faire approach of the previous decades, it was at this moment that "new controls started to emerge... to restrict the mobility of Asians to White settler nations". (7)

Second, scholars have extensively examined pre-First World War deportations and immigration detentions. If the 1880s brought explicit exclusionary impulses to Canadian migration law, those dynamics matured into robust and well-used powers in the early twentieth century. By 1905, Canada routinely detained and expelled paupers, (8) "diseased" migrants, (9) political and labour activists, (10) and--as best illustrated by the Komagata Maru incident--racialized migrants from Asia and British India. (11) How, this article asks, did these coercive immigration police legal powers develop between the passage of The Chinese Immigration Act and the pre-First World War moment?

At least part of the answer draws, third, on American literature about Atlantic Coast border controls in the 1890s and early 1900s. As the number of migrants from Europe swelled, the United States set up a network of inspection sites where each potential immigrant was screened. It was during this time that the immigrant experience "began to be increasingly mediated through the language and practice of public health" (12) and that American immigration officials became preoccupied with identifying and excluding problematic migrants out of the many who arrived each day. This wave of immigration was intrinsically tied to progressive-era scientific racism, social regulation, and saw an expansion of inspections, detentions, and deportations. (13)

This article shows that in the 1890s and early 1900s, the United States government waged an intense diplomatic effort to convince Canada to harmonize its immigration law with American priorities. This was because American officials believed that undesirable immigrants were evading rigorous American inspection by entering Canada and, from there, crossing into the United States along the unguarded and unmonitored border. Canadian officials and Canadian transportation companies initially resisted, ignored, or tried to mollify American interests, but eventually continued avoidance became untenable. At the same time, events intervened. Faced with a sudden movement of refugees in the summer of 1900, anti-Semitic elements in the Canadian government decided that the time had come to activate immigration police powers.

Referring to the West Coast Borderlands, Kornel Chang argues that "it was the struggle over Asian migration across the northern boundary that gave rise to the first sustained emphasis on border policing and surveillance in the Americas". (14) The story told here shows how a similar and roughly contemporaneous contest on the East Coast helped produce the legal infrastructure for border policing that would eventually feed back into Pacific bordering practices. We can observe a circular dynamic in the way these police powers spread. Once the American federal government assumed control over immigration policing, ideas developed on the West Coast moved east easily. As mass migration from Europe increased, American officials thought that the porous Canadian border undermined their efforts to deter unwanted immigrants. To make America more secure, officials pressured Canadians to embrace stringent immigration laws and expand immigrant inspections in Canadian ports. Once finally embraced by the Canadian federal government, migration police powers transited back west to supplement border-making practices.

This article comes in four parts. Part I sets the scene and orients the reader to the literature in the field by describing the state of Canadian immigrant exclusion law from Confederation to the beginning of the twentieth century. This section shows that during this period Canada did not have operationalized legal powers to remove unwanted immigrants or a section of government responsible for policing and deporting migrants. The next sections report on extensive original archival research. Part II explores a concerted late nineteenth century effort by the American state to conscript Canada into a continental immigration control regime and shows how this American strategy initially floundered. Part III identifies the first legal immigration detentions and the first legal deportation in Canadian history. After a volcanic eruption caused a crop failure in Roumania, thousands of Jews tried to flee to Canada to escape surging anti-Semitism. To stem this migration, the Canadian state enabled a long-dormant law that by implication let it detain and exclude "paupers". Canada developed new powers to police and exclude immigrants to ensure that the Americans did not close border points between Canada and the United States. Ultimately this led to the subject of Part IV, the passage of a 1902 law that finally gave the Canadian state explicit arrest, detention, and deportation powers.

1. The "Considerable Timidity" of Exclusion Laws (1867-1900)

   Between Confederation and the beginning of the twentieth century, there were no active legal powers that allowed Canadian officials to detain and deport unauthorized migrants because they were unauthorized migrants. This is not to say that Canadian governments, pre- or post-Confederation, did not expel people from Canadian territory. Rather, the argument is that the Canadian state had not yet developed specific deportation and detention powers that targeted people who breached immigration laws. Indeed, in 1899, Clifford Sifton, the Minister of the Interior in charge of immigration matters, rose to tell Parliament that "there is no Exclusion Act in the Dominion of Canada at the present time, and there never has been, so far as I am aware." (15) As this section will show, in a doctrinal sense Sifton may have been overstating the case, but at least from the perspective of Canadian state actors, a modern deportation power was not part of Canada's policing repertoire until the early twentieth century.

   To be sure, as histories of banishment, extraditions, transportation, and slavery show, empires and nations have involved themselves in and caused all manner of human migrations. (16) Often, the use of these tools turned on understandings of social membership. By the seventeenth century, "a relatively clear line in English law had emerged between insiders, or 'subjects,' and outsiders, or 'aliens.'" (17) Rights began to develop that protected some people from forced movement based on their statuses. For...