Reference to the Validity of Orders in Council in relation to Persons of Japanese Race

Reference to the Validity of Orders in Council in relation to Persons of Japanese Race
Collection
Supreme Court Judgments
Date
1946-02-20
Report
[1946] SCR 248
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference to the Validity of Orders in Council in relation to Persons of Japanese Race, [1946] S.C.R. 248
Date: 1946-02-20
In the Matter of a Reference as to the Validity of Orders in Council of the 15th Day of December, 1945 (P.C. 7355, 7356 AND 7357), In Relation to Persons of the Japanese Race.
1946: January 24, 25 1946: February 20.
Present: Rinfret CJ. and Kerwin, Hudson, Taschereau, Rand, Kellock and Estey JJ.
Constitutional law—Deportation of persons of the Japanese race—Power of the Governor General in Council under the War Measures Act—Order in Council same as Act of Parliament—Governor General in Council sole judge of necessity or advisability of measures taken by Orders—Considerations, which led Governor General in Council to adopt Orders, not open to review by courts of law—Orders in Council dealing with deportation from Canada of Japanese nationals, naturalized British subjects of the Japanese race, natural born British subjects of the Japanese race and of wives and children under 16 of these persons—Request in repatriation—Order in Council enacting British subject by naturalization to cease to be either a British subject or a Canadian national—Order in Council appointing a commission to make inquiry concerning the activities and loyalty during the war of persons of the Japanese race—Whether Orders in Council ultra vires in whole or in part—Comments on meaning of the words "deportation", "exclusion", "exile", "repatriation"—Person detained pending deportation "deemed to be in legal custody"—Whether recourse to habeas corpus abolished by provision of Order in Council—War Measures Act, R.S.C., 1927, c. 206, s. 3—National Emergency Transitional Powers Act, 1945, 9-10 Geo. VI, c. 25—Naturalization Act, R.S.C. 1927, c. 138—British Nationality and Status of Aliens Act (Imp.) 4-5 Geo. V., c. 17.
On the 15th of December, 1945, three Orders, purported to be made pursuant to section 3 of the War Measures Act, were adopted by the Governor General in Council (nos. 7355, 7356 and 7357). The reasons for the adoption of Order 7355 are stated in the preamble: "Whereas during the course of the war with Japan certain Japanese nationals manifested their sympathy with or support of Japan by making requests for repatriation to Japan and otherwise; And whereas other persons of the Japanese race have requested or may request that they be sent to Japan; And whereas it is deemed desirable that provisions be made to deport the classes of persons referred to above; And whereas it is considered necessary by reason of the war, for the security, defence, peace, order and welfare of Canada, that provision be made accordingly". Section 2 then provides that "(1) Every person of sixteen years of age or over, other than a Canadian national, who is a national of Japan resident in Canada and who, (a) has, since the date of declaration of war by the Government of Canada against Japan, on December 8, 1941, made a request for repatriation; or (b) has been in detention at any place in virtue of an order made pursuant to the provisions of the Defence of Canada Regulations or of Order in Council P.C. 946, * * * 1943, as amended by P.C. 5637, * * * 1945, and was so detained as at midnight of September 1, 1945; may be deported to Japan. (2) Every naturalized British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan: Provided that such person has not revoked in writing such request prior to midnight the first day of September, 1945. (3) Every natural born British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan; Provided that such person has not revoked in writing such request prior to the making by the Minister of an order for deportation. (4) The wife and children under sixteen years of age of any person for whom the Minister makes an order for deportation to Japan may be included in such order and deported with such person." Section 3 provides that "Subject to the provisions of section 2 of this Order a request for repatriation shall be deemed final and irrevocable for the purpose of this Order or any action taken thereunder." Order 7356 refers to Order 7355 and further provides that "Any person who, being a British subject by naturalization * * * is deported from Canada under the provisions of Order * * * 7355 * * * shall, as and from the date upon which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national." By Order 7357 provision is made for the appointment of a Commission "to make inquiry concerning the activities, loyalty and the extent of cooperation with the Government of Canada during the war of Japanese nationals and naturalized persons of the Japanese race in Canada * * * with a view to recommending whether in the circumstances of any such case such person should be deported," and, also, to "inquire into the case of any naturalized British subject of the Japanese race who has made a request for repatriation and which request is final under the said Order in Council and may make such recommendations with respect to such case as it deems advisable." (1)
Held that the Orders in Council, apart from the question as to the validity of their provisions upon which opinions are hereinafter reported, contain legislation that could have been adopted by
(1) Full text of the three Orders in Council are hereinafter printed. Parliament itself; that under the War Measures Act the Governor General in Council was empowered to adopt any legislation which Parliament could have adopted; that such legislation was, expressly and impliedly, adopted because it was deemed necessary or advisable for the security, defence, peace, order and welfare of Canada by reason of the existence of war; that the Governor General in Council was the sole judge of the necessity or advisability of these measures and it is not competent to any court to canvass the considerations which may have led the Governor General in Council to deem such Orders necessary or advisable for the objectives set forth.—Re Gray (57 Can. S.C.R. 150); Fort Frances Pulp & Power Co. v. Manitoba Free Press ([1923] A.C. 695) and Reference re Chemicals ([1943] S.C.R. 1).
Per Rand, Kellock and Estey JJ:—Although the Orders in Council ceased to derive any force from the provisions of the War Measures Act from and after January 1, 1946, after that date, they derive their force from the National Emergency Transitional Powers Act, 1946 by reason of the existence of the emergency therein referred to.
Held that subsections (1) and (2) of section (2) of Order 7355 are intra vires of the Governor General in Council.
Per The Chief Justice and Kerwin, Hudson, Taschereau and Estey JJ.:—The provisions of the three Orders in Council are intra vires, Hudson and Estey JJ. excepting subsection (4) of section 2 of Order 7355.
Per Hudson, Rand, Kellock and Estey JJ:—Subsection (4) of section 2 of Order 7355 (deportation of wife and children under 16 of person ordered to be deported) is ultra vires.—Per Rand J.:—It is ultra vires in relation to wives and children under 16 who do not come within the first two classes ((1) and (2) of s. 2 of 7355).
Per Rand and Kellock JJ.:—Subsection (3) of section 2 of Order 7355 in relation to the compulsory deportation of natural born British subjects resident in Canada is ultra vires.
Per Kellock J.:—Section 3 of Order 7355 is ultra vires insofar as it prevents such persons from withdrawing consent at any time and in any manner.
Per Rand and Kellock JJ.:—Order 7356 is intra vires insofar as it takes away incidental rights and privileges of persons of the Japanese race as Canadian nationals; but it is ultra vires to the extent that it provides for loss of the status of a British subject by naturalization.
Per Rand J.:—Order 7357 is not ultra vires, subject to the observance of the requirements of the Naturalization Act as to grounds for the revocation of naturalization.
Per Kellock J.:—Order 7357 is intra vires save insofar as it may purport to authorize a departure from the provisions of the British Nationality and Status of Aliens Act, 1914.
Per The Chief Justice and Kerwin and Taschereau JJ.:—The powers of the Governor General in Council, under section 3 of the War Measures Act, are not strictly limited to such "deportation" as means "the forcible removal of aliens." Such word, in subsection (b), has not that exclusive meaning, and, according to quotations from reputed dictionaries, could well include the word "exile" which admittedly means the banishment of a national from his country. However, subsection (b) also contains the word "exclusion" which would be apt to cover the measures adopted through Order 7355. Moreover, assuming that these measures are not strictly and specifically contemplated by the use of these two words, they are undoubtedly covered by the general terms of the War Measures Act, the enumeration contained in the last part of section 3 being stated not to restrict the generality of the terms of the first part of that section.
Per Rand J.:—The words "deport" and "repatriation" are appropriate to the return to his native country of an alien. The power of Parliament to deal with aliens is unquestioned, and that field is under delegation to the Governor General in Council. The obligation of his own state to receive him must be deemed correlated with the power of the foreign state to expel him.
Per Kellock J.:—The consideration of the word "deportation" as the equivalent of "to remove into exile" or "to banish" involves the idea of penal consequences. Such a meaning is not apt in the case of citizens who have committed no offence nor, in modern times, in application to a national born citizen of a country on the assumption that some other country is under some obligation to receive him by reason of some previous connection of the citizen with that country. No country is under any obligation to receive the natural born citizen of another country and any attempt to force such a citizen upon another country would involve an infringement of sovereignty—The consent of Japan through General MacArthur is a consent to "repatriation," i.e. to restore a person to his own country and, thus, is no consent to the reception of natural born Canadians who have no country but Canada.
Per Estey J.:—The word "deportation" has been restricted to aliens in one case and applied to native-born in another. The standard dictionaries do not agree as to its exact meaning. Upon this reference, it is not necessary to precisely define the word. It is enough to emphasize that, as it is applied in law, it is a compulsory sending out of, or, as stated in the Oxford Dictionary, "a forcible removal," and that, while it need not be restricted to aliens, it does apply to them.
Per Estey J.:—The terms of subsection (3) of section 2 of 7355 cannot be regarded as enacting compulsory deportation. The persons therein mentioned having expressed a desire to be repatriated to Japan, the Governor General in Council decided to facilitate their going by perfecting the necessary arrangements. This matter is more one of policy for the Government than a question of jurisdiction.
Section 9 of Order 7355 provides that "any person * * * who is detained pending deportation * * * shall * * * be deemed to be in legal custody," and section 5 of the War Measures Act enacts that "no person who is held for deportation under this Act * * * shall be released upon bail or otherwise discharged or tried, without the consent of the Minister of Justice." Held that there is no conflict between these two sections. The words "be deemed to be in legal custody" in section 9 do not rule out any remedy provided for in section 5, and, more particularly, the wording of section 9 does not indicate any intention of the Order that the recourse to habeas corpus was thereby abolished.
Per Kellock and Estey JJ.:—The provisions of section 6 of Order 7355, relating to the sale of real and personal property of deportees by the Custodian of Enemy Property are not invalid as being repugnant to section 7 of the War Measures Act.
REFERENCE by His Excellency the Governor General in Council to the Supreme Court of Canada in the exercise of the powers conferred by section 55 of the Supreme Court Act (R.S.C. 1927, c. 35) of the following question: Are the Orders in Council dated the 15th day of December, 1945, being P.C. 7355, 7356 and 7357, ultra vires of the Governor in Council either in whole or in part and, if so, in what particular or particulars and to what extent?
The Order in Council referring this question to the Court is as follows:
"Whereas section 3 of the War Measures Act, chapter 206 of the Revised Statutes of Canada, 1927, provides as follows:—
3. The Governor in Council may do and authorize such acts and things, and make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say:—
(a) Censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication;
(b) Arrest, detention, exclusion and deportation;
(c) Control of the harbours, ports and territorial waters of Canada and the movement of vessels;
(d) Transportation by land, air, or water and the control of the transport of persons and things;
(e) Trading, exportation, importation, production, and manufacture;
(f) Appropriation, control, forfeiture and disposition of property and of the use thereof.
"2. All orders and regulations made under this section shall have the force of law, and shall be enforced in such manner and by such courts, officers and authorities as the Governor in Council may prescribe, and may be varied, extended or revoked by any subsequent order or regulation; but if any order or regulation is varied, extended or revoked, neither the previous operation thereof nor anything duly done thereunder, shall be affected thereby, nor shall any right, privilege, obligation or liability acquired, accrued, accruing or incurred thereunder be affected by such variation, extension or revocation.
"And whereas on the fifteenth of December, 1945, Orders were made by the Governor in Council under the authority of the War Measures Act (P.C. 7355, P.C. 7356 and P.C. 7357, certified copies annexed hereto) which Orders provided, amongst other things, for the removal pursuant to the authority thereof of nationals of Japan and other persons of the Japanese race;
"And whereas these Orders were made only after a suitable arrangement had been made with General MacArthur as set out in the dispatches of which copies are annexed hereto;
"And whereas the Acting Minister of Justice reports that representations have been made to him, by and on behalf of a number of Canadian organizations and societies expressing the opinion based on advice of legal counsel that the Orders in Council are ultra vires and requesting a reference to the Supreme Court of Canada to test the question;
"That an action has been commenced by Utaka Shimoyama and Yae Nasu against the Attorney General of Canada for a declaration that the Orders in Council are ultra vires, illegal and void;
"That an Order was made by the Governor in Council on the 28th of December, 1945, (P.C. 7414, certified copy annexed hereto), pursuant to Section 4 of The National Emergency Transitional Powers Act, 1945 ordering that all orders and regulations lawfully made under the War Measures Act in force immediately before the day The National Emergency Transitional Powers Act, 1945 came into force (January 1st, 1946), shall, while that Act is in force, continue in full force and effect; and
"That in these circumstances it is urgently required in the public interest that the opinion of the Supreme Court of Canada upon the question of the validity of the Orders in Council aforesaid be obtained with the least possible delay which question is, in the opinion of the Acting Minister of Justice, an important question of law touching the interpretation of Dominion legislation;
"Therefore His Excellency the Governor General in Council, on the recommendation of the Acting Minister of Justice and under and by virtue of the authority conferred by section 55 of the Supreme Court Act, is pleased to refer and doth hereby refer the following question to the Supreme Court of Canada for hearing and consideration, namely:—
Are the Orders in Council, dated the 15th day of December, 1945, being P.C. 7355, 7356 and 7357, ultra vires of the Governor in Council either in whole or in part and, if so, in what particular or particulars and to what extent?
(Sgd.) A. M. HILL,
Asst. Clerk of the Privy Council."
The text of Order in Council 7355 is as follows:
"Whereas during the course of the war with Japan certain Japanese nationals manifested their sympathy with or support of Japan by making requests for repatriation to Japan and otherwise;
"And whereas other persons of the Japanese race have requested or may request that they be sent to Japan;'
"And whereas it is deemed desirable that provisions be made to deport the classes of persons referred to above;
"And whereas it is considered necessary by reason of the war, for the security, defence, peace, order and welfare of Canada, that provision be made accordingly;
"Now, therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Labour, concurred in by the Secretary of State for External Affairs, and under the authority of the War Measures Act, chapter 206 of the Revised Statutes of Canada, 1927, is pleased to make and doth hereby make the following Order,—
Order
1. In this Order, unless the context otherwise requires:
(a) "deportation" means the removal pursuant to the authority of this Order of any person from any place in Canada to a place outside Canada:
(b) "deported" means removed or sent from Canada pursuant to the authority of this Order;
(c) "Minister" means the Minister of Labour;
(d) "request for repatriation" means a written request or statement of desire, to be repatriated or sent to Japan. 2. (1) Every person of sixteen years of age or over, other than a Canadian national, who is a national of Japan resident in Canada and who,
(a) has, since the date of declaration of war by the Government of Canada against Japan, on December 8, 1941, made a request for repatriation; or
(b) has been in detention at any place in virtue of an order made pursuant to the provisions of the Defence of Canada Regulations or of Order in Council P.C. 946, of the 5th day of February, 1943, as amended by P.C. 5637, of the 16th day of August, 1945, and was so detained as at midnight of September 1, 1945; may be deported to Japan.
(2) Every naturalized British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan: Provided that such person has not revoked in writing such request prior to midnight the first day of September, 1945.
(3) Every natural born British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan; Provided that such person has not revoked in writing such request prior to the making by the Minister of an order for deportation.
(4) The wife and children under sixteen years of age of any person for whom the Minister makes an order for deportation to Japan may be included in such order and deported with such person.
3. Subject to the provisions of section 2 of this Order a request for repatriation shall be deemed final and irrevocable for the purpose of this Order or any action taken thereunder.
4. The Minister may
(a) make orders for the deportation of any persons subject to deportation;
(b) take such measures as he deems advisable to provide or arrange for the deportation of such persons, and for their transportation, detention, discipline, feeding, shelter, health or welfare, pending their deportation;
(c) make such orders, rules or regulations as he deems necessary for the purpose of carrying out the provisions of this Order;
(d) subject to the approval of the Governor in Council, employ such officers and other employees as are necessary to assist him in carrying out this Order and fix their remuneration;
(e) authorize from time to time any person to exercise on his behalf any power vested in him under paragraph (b) of this section.
5 An order for deportation made by the Minister shall be in force and effect from the date of the order.
6. (1) Any person for whom an order for deportation is made or who, having made a request for repatriation, is proceeding to Japan without the issue of such an order, shall be entitled, in so far as circumstances at the time permit. (a) at or immediately prior to the time of his deportation from Canada, to purchase suitable foreign exchange to the extent of any money in his possession or standing to his credit in Canada or advanced to him by the Minister pursuant to section seven and to take such foreign exchange out of Canada with him;
(b) to deposit any money in his possession or standing to his credit in Canada with the Custodian of Enemy Property, who shall provide such person with a receipt therefor and purchase foreign exchange therewith, and transfer the same, less transfer charges, to such person whenever reasonably possible following upon his deportation;
(c) at the time of his deportation to take with him such other personal property belonging to him as may be authorized by the Minister;
and the foreign Exchange Control Board shall do such things and issue such permits as may be required to implement these provisions.
(2) Where real or personal property of a person who has been deported to Japan or who, having made a request for repatriation, has proceeded to Japan without the issue of an order for deportation, has not been sold or otherwise disposed of prior to departure such real and personal property shall, as of the date of deportation of such person, be vested in the Custodian of Enemy Property, who shall sell the same as soon as in his opinion it is reasonably practicable to do so, and in the meantime he may take such measures as he deems proper for the care, maintenance and safeguarding of such property, and the net proceeds realized from such sale, after the deduction of reasonable charges of handling shall be placed to the credit of such person and dealt with as provided in paragraph (b) of subsection (1) of this section.
7. (1) The Minister may at or immediately prior to the time of departure advance to or for a person who is being deported to Japan or who, having made a request for repatriation, is proceeding to Japan without the issue of an order for deportation, an amount in suitable foreign exchange equivalent to the following:
(a) Where such person is sixteen years of age or over and does not possess at least two hundred dollars, the difference between the amount he possesses and two hundred dollars which shall be paid to such person;
(b) Where such person has one or more dependents under sixteen years of age and does not possess at least two hundred dollars together with a further amount computed on the basis of fifty dollars for each such dependent, the difference between the amount he possesses and the total of two hundred dollars and the amount so computed, to be paid to such person.
(2) Any amount advanced as provided for in subsection (1) of this section shall be recoverable from the person to whom it is paid, from any money to the credit of such person with the Custodian of Enemy Property.
8. (1) The Minister may make arrangements with any department or agency of the Government of Canada to assist him in carrying out the provisions of this Order. (2) The Department of National Defence shall provide any military guard personnel which may be required in carrying out the provisions of this Order.
(3) The Commissioner of the Royal Canadian Mounted Police shall give all assistance which may be required of him by the Minister in the carrying out of the provisions of this Order.
9. Any person for whom an order for deportation is made and who is detained pending deportation or who is placed under restraint in the course of deportation by virtue of any order or measure made or taken under Section 4 of this Order shall, while so detained or restrained, be deemed to be in legal custody.
10. Any person who resists or obstructs or attempts to resist or obstruct any peace officer or other person from carrying out his duties with respect to any order made pursuant to the provisions of this Order shall be guilty of an offence against this Order.
11. Any person who contravenes or omits to comply with any of the provisions of this Order or any order made or given pursuant thereto is guilty of an offence and liable upon summary conviction to a fine not exceeding Five Hundred Dollars or to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment.
12. Every document purporting to be or to contain or to be a copy of an order, certificate or authority made or given by the Minister in pursuance of the provisions of this Order and purporting to be signed by the Minister shall be received as evidence of such order, certificate or authority without proof of the signature or of the official character of the person appearing to have signed the same and without further proof thereof.
General
13. The costs involved in the administration of this Order shall be paid from the amounts allotted from the war appropriation to the Department of Labour for Japanese administration.
(Sgd.) A. D. P. HEENEY,
Clerk of the Privy Council.
Order in Council 7356 is as follows:
"Whereas by Order in Council P.C. 7355 of the 15th December, 1945, provision is made for the deportation of persons who, during the course of the war, have requested to be removed or sent to an enemy country or otherwise manifested their sympathy with or support of the enemy powers and have by such actions shown themselves to be unfit for permanent residence in Canada;
"Therefore, His Excellency the Governor General in Council, on the recommendation of the Secretary of State (concurred in by the Secretary of State for External Affairs) and under the authority of the War Measures Act, Chapter 206 of the Revised Statutes of Canada, 1927, is pleased to order and doth hereby order as follows:
1. Any person who, being a British subject by naturalization under the Naturalization Act, Chapter 138, R.S.C. 1927, is deported from Canada under the provisions of Order in Council P.C. 7355 of 15th December, 1945, shall, as and from the date upon which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national.
2. The Secretary of State shall publish in the Canada Gazette the names of all persons who have ceased to be British subjects or Canadian nationals by virtue of this Order.
(Sgd.) A. D. P. HEENEY,
Clerk of the Privy Council."
Order in Council 7357 is as follows:
"Whereas during the war particular measures with regard to persons of the Japanese race in Canada were made necessary by reason of their concentration along the Pacific coast of Canada;
"And whereas experience during the war in the administration of Order in Council P.C. 946 of February 5, 1943, providing for the control of persons of the Japanese race has indicated the desirability of determining whether the conduct of such Japanese persons in time of war was such as to make the deportation of any of them desirable in the national interest;
"And whereas it is deemed advisable to make provision for the appointment of a Commission to institute the investigation referred to above;
"Therefore His Excellency the Governor General in Council, on the recommendation of the Prime Minister, and under the authority of the War Measures Act, Chapter 206 of the Revised Statutes of Canada, 1927, is pleased to order and doth hereby order as follows:
1. A Commission consisting of three persons shall be appointed to make inquiry concerning the activities, loyalty and the extent of co-operation with the Government of Canada during the war of Japanese nationals and naturalized persons of the Japanese race in Canada in cases where their names are referred to the Commission by the Minister of Labour for investigation with a view to recommending whether in the circumstances of any such case such person should be deported.
2. Notwithstanding anything contained in the provisions of Order in Council P.C. 7355 of the 15th day of December, 1945, the Commission may, at the request of the Minister of Labour, inquire into the case of any naturalized British subject of the Japanese race who has made a request for repatriation and which request is final under the said Order in Council and may make such recommendations with respect to such case as it deems advisable.
3. The Commission shall report to the Governor in Council.
4. Any person of the Japanese race who is recommended by the Commission for deportation shall be deemed to be a person subject to deportation under the provisions of Order in Council P.C. 7355 of the 15th day of December, 1945, and the provisions thereof shall apply, mutatis mutandis, to such person.
5. Where any person is recommended for deportation pursuant to this Order he shall, as and from the date on which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national. 6. The Commission shall, for the purpose of all inquiries and investigations made pursuant to this Order, have all the powers and authority of Commissioners appointed under Part One of the Inquiries Act.
7. The Commission is authorized to engage the services of such clerks, reporters, assistants and counsel as they deem advisable to aid and assist in the performance of their duties.
8. The Commissioners shall be paid such remuneration, allowances and expenses as the Governor in Council may fix.
9. All expenses incurred in connection with the inquiries and investigation of the Commission pursuant to this Order, including the remuneration, allowances and expenses of the commissioners, shall be paid from amounts allowed from the War Appropriation to the Department of Labour for such purpose.
(Sgd.) A. D. P. HEENEY,
Clerk of the Privy Council."
The respective Attorneys-General of the provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan were, pursuant to order of The Honourable The Chief Justice of Canada, notified of the hearing of the Reference.
Aimé Geoffrion K.C. and D. W. Mundell for the Attorney-General of Canada.
R. L. Maitland K.C. for the Attorney-General of British Columbia.
F. A. Brewin for the Attorney-General of Saskatchewan.
J. R. Cartwright K.C., F. A. Brewin and J. A. MacLennan for the Co-Operative Committee on Japanese Canadians.
The judgment of The Chief Justice and of Kerwin and Taschereau JJ. was delivered by:—
The Chief Justice: On the 15th day of December, 1945, His Excellency, the Governor General in Council, ordered as follows:—
2. (1) Every person of sixteen years of age or over, other than a Canadian national, who is a national of Japan resident in Canada and who,
(a) has, since the date of declaration of war by the Government of Canada against Japan, on December 8, 1941, made a request for repatriation; or (b) has been in detention at any place in virtue of an order made pursuant to the provisions of the Defence of Canada Regulations or of Order in Council P.C. 946, of the 5th day of February, 1943, as amended by P.C. 5637, of the 16th day of August, 1945, and was so detained as at midnight of September 1, 1945;
may be deported to Japan.
(2) Every naturalized British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan: Provided that such person has not revoked in writing such request prior to midnight the first day of September, 1945.
(3) Every natural born British subject of the Japanese race of sixteen years of age or over resident in Canada who has made a request for repatriation may be deported to Japan: Provided that such person has not revoked in writing such request prior to the making by the Minister of an order for deportation.
(4) The wife and children under sixteen years of age of any person for whom the Minister makes an order for deportation to Japan may be included in such order and deported with such person.
The Order further provided that a request for repatriation, made under the above provisions, would be deemed final and irrevocable for the purpose of the Order or any action taken thereunder after a fixed delay.
The Minister of Labour was thereby authorized to "make orders for the deportation of any persons subject to deportation"; to take such measures as he deemed advisable to arrange for the deportation and for the detention, transportation, etc., of the persons subject thereto, and generally to make such rules or regulations and employ such officers or adopt such measures as he would from time to time deem necessary for the purpose of carrying out the Order.
Certain ancillary provisions are added to the Order with regard to property and belongings of the person being deported, or subject to deportation, or for the purpose of enabling the Minister to carry out the provisions of the Order. Of these ancillary provisions, section (9) alone need be reproduced verbatim:—
(9) Any person for whom an order for deportation is made and who is detained pending deportation or who is placed under restraint in the course of deportation by virtue of any order or measure made or taken under section 4 of the Order shall, while so detained or restrained, be deemed to be in legal custody. This Order in Council was given No. P.C. 7355 and the reasons for its adoption are stated in the preamble as follows:—
Whereas during the course of the war with Japan certain Japanese nationals manifested their sympathy with or support of Japan by making requests for repatriation and otherwise;
And whereas other persons of the Japanese race have requested or may request that they be sent to Japan;
And whereas it is deemed desirable that provisions be made to deport the classes of persons referred to above;
And whereas it is considered necessary by reason of the war, for the security, defence, peace, order and welfare of Canada, that provision be made accordingly;
On the same day two other Orders in Council were adopted under numbers P.C. 7356 and P.C. 7357. The first of these (7356) refers to Order in Council 7355 whereby provision is made for the deportation of persons who, during the course of the war, have requested to be removed or sent to an enemy country
or otherwise manifested their sympathy with or support of the enemy powers and have by such actions shown themselves to be unfit for permanent residence in Canada.
It orders that any person who, being a British subject by naturalization under the Naturalization Act, chapter 138, R.S.C. 1927, is deported from Canada under the provisions of Order in Council P.C. 7355 of the 15th of December, 1945,
shall, as and from the date upon which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national.
Order in Council P.C. 7357 begins by stating that during the war particular measures with regard to persons of the Japanese race were made necessary by reason of their concentration along the Pacific Coast of Canada; that experience during the war in the Administration of Order in Council P.C. 946 of February 5th, 1943, providing for the control of persons of the Japanese race has indicated the desirability of determining whether the conduct of such Japanese persons in time of war was such as to make the deportation of any of them desirable in the national interest, and that it is deemed advisable to make provision for the appointment of a Commission to institute the investigation concerned. It is then ordered that a Commission consisting of three persons shall be appointed to make inquiry concerning the activities, loyalty and the extent of cooperation with the Government of Canada during the war of Japanese nationals and naturalized persons of the Japanese race in Canada in cases where their names are referred to the Commission by the Minister of Labour for investigation with a view to recommending whether in the circumstances of any such case such person should be deported. The Commission is given power, at the request of the Minister of Labour, to inquire into the case of any naturalized British subject of the Japanese race who has made a request for repatriation and which request is final, and to make such recommendations with respect to such case as it deems advisable. The Commission is to report to the Governor in Council. Any person of the Japanese race who is recommended by the Commission for deportation shall be deemed to be a person subject to deportation under the provisions of Order in Council P.C. 7355, which order shall then apply, mutatis mutandis, to such person. As a result of the deportation, the person in question shall cease to be either a British subject or a Canadian national. And, further, the Commission is given, for the purpose of all inquiries and investigations made pursuant to this Order, all the powers and authority of Commissioners appointed under part one of the Inquiries Act.
As will be seen, the latter two Orders in Council (7356-7357) have no operation except by reason of the first Order in Council (7355); the three Orders constitute one scheme, the validity of which depends upon the first Order in Council.
I have outlined above the preamble of the first Order in Council. The Order contains certain definitions. "Deportation" is stated to mean the removal, pursuant to the authority of this Order (7355), of any person from any place in Canada to a place outside Canada. "Deported" is stated to mean removed or sent from Canada pursuant to the authority of this Order. "Minister" means the Minister of Labour. "Request for repatriation" means a written request or statement of desire to be repatriated or sent to Japan.
The Order establishes three categories of persons who may be deported to Japan. The first category includes every national of Japan, who is not also a Canadian national, of sixteen years of age or over, resident in Canada who was detained pursuant to the provisions of the Defence of Canada Regulations or of Order in Council P.C. 946 of February 5th, 1943, as amended by Order in Council P.C. 5637 of August 16th, 1945, at midnight of September 1st, 1945, the day before the formal unconditional surrender of the military forces of Japan.
The second category includes certain persons of the Japanese race of sixteen years of age or over resident in Canada, who have made written requests for repatriation. It includes either a national of Japan, a person who