Her research challenge was complicated because "Canadian law does not admit to race as a category." Thus, Backhouse and her team of research aides had to pore through five decades' worth of statutes and case reports leaf by leaf, looking for key words. The process took seven or eight years.
The six cases she chose to write about are, she concedes, the tip of a vast iceberg of lawfully-entrenched racism. "But these ones are momentously important."
Race may have been a legally fictitious category but, as Colour Coded convincingly demonstrates, that did not stop the courts from using it to discriminate against blacks, Asians and the country's indigenous peoples. For example, at the 1903 trial of the Dakota elder Wanduta, charged with violating the federal Indian Act by performing the ancient ritual of grass dancing, "the official who convicted him had no legal jurisdiction, no evidence was called, there was no translation offered, and Wanduta may not have understood the nature of the charge."
At least one case delivered a blow to Backhouse's feminist spirit. This involved a Chinese restaurateur in Regina who, in 1924, sought exemption from a civic ordinance prohibiting the hiring of white women by Asians.
"A series of women's organizations, the cream of the feminist crop, hired their own lawyer and argued it would be a mistake to grant the exemption. This is very sad for me as a feminist, but it's a tale that needs to be told in the feminist movement."
A graduate of both Osgoode Hall Law School and Harvard University, and the mother of two teenage children, Backhouse says her goal in writing the book was to make legal history more available to the average reader. Rather than synopsize the hundreds of possible cases, "I decided to write in a narrative format to make it accessible. I'm really pleased with the book's reception. I had hoped it would get a much wider audience."
Her next book will involve an examination of old rape trials, seeking to determine why women complainants have been so rarely deemed credible witnesses. "I'm up to my neck in rape transcripts," she says, "and they're heartbreaking to read."
-Michael Posner, “Focus On: Author Constance Backhouse” The Globe and Mail (12 February 2000) D8.
