Co-Operative Committee on Japanese Canadians and Another v Attorney General for Canada and Another

JurisdictionUK Non-devolved
JudgeT. Rinfret,P. Kerwin,R. Taschereau,Rand J.,Kellock J.,Estey J.
Judgment Date02 December 1946
CourtPrivy Council
Docket NumberCase No. 11
Date02 December 1946
[PRIVY COUNCIL.]CO-OPERATIVE COMMITTEE ON JAPANESE CANADIANS AND ANOTHER APPELLANTS; AND ATTORNEY-GENERAL FOR CANADA AND ANOTHER RESPONDENTS.ON APPEAL FROM THE SUPREME COURT OF CANADA.1946 Dec. 2.VISCOUNT SIMON, LORD WRIGHT, LORD PORTER, LORD UTHWATT and SIR LYMAN DUFF.

Canada - Orders in Council - Deportation to Japan of specified persons - Deprivation of status as British subject or Canadian national - Deportation of wives and children of deported persons - Validity - War Measures Act, R. S. C. 1927, c. 206, ss. 3, 6 - National Emergency Transitional Powers Act, 1945, S. C., c. 25, ss. 2 (e), 4 - British Nationality and Status of Aliens Act, 1914 (4 & 5 Geo. 5, c. 17)(as amended to 1922) (12 & 13 Geo. 5, c. 44), s. 9 - Colonial Laws Validity Act, 1865 (28 & 29 Vict., c. 63), ss. 2, 3 - Statute of Westminster, 1931 (22 Geo. 5, c. 4), s. 2 - Orders in Council of Dec. 15, 1945 (P. C. 7355, 7356, and 7357) of Canada.

Three Orders in Council, P. C. 7355, 7356 and 7357, dated December 15, 1945, stated in their recitals to be made by the Governor in Council under the authority of the War Measures Act, R. S. C. 1927, c. 206, and which were continued in force by an Order in Council passed pursuant to s. 4 of the National Emergency Transitional Powers Act, 1945, provided in substance as follows:— Sub-sections 1, 2 and 3 of s. 2 of P. C. 7355, authorized the Minister of Labour to make orders respectively for deportation to Japan of the following persons, of sixteen years of age or over, who were resident in Canada and had made a request for repatriation: (1.) Every person, other than a Canadian national, who was a national of Japan; (2.) every naturalized British subject of the Japanese race, and (3.) natural-born British subjects of the Japanese race. By sub-s. 4 of s. 2 of P. C. 7355 “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.”

P. C. 7356 provided that a British subject by naturalization who was deported under P. C. 7355 should, as from the date of deportation, cease to be either a British subject or a Canadian national. P. C. 7357 provided, inter alia, for the appointment of a Commission to make inquiry concerning the activities, loyalties and extent of co-operation with the Government of Canada during the war of Japanese nationals and naturalized persons of the Japanese race in cases where their names were referred to the Commission by the Minister of Labour for investigation with a view to recommendation whether in the circumstances of any such case such persons should be deported:—

Held, that the three Orders in Council were in their entirety intra vires the Governor in Council. On its true construction the War Measures Act authorized the making of orders for deportation of any person, whatever his nationality, and the deprivation, so far as the law of Canada was concerned, of his status under that law as a British subject or Canadian national.

The Orders in question were “law” made by the Parliament of the Dominion at the date of their promulgation, which was after the passing of the Statute of Westminster, and accordingly the Colonial Laws Validity Act, 1865, afforded no ground for questioning the validity of the Orders in so far as they were repugnant to the British Nationality and Status of Aliens Act, 1914–18, of the Imperial Parliament.

Lastly, with regard to sub-s. 4 of s. 2 of P. C. 7355, the substance of the matter had to be considered, and the power was not used for an unauthorized purpose when under sub-s. 4 an order was made for the deportation of the wives and children (under 16) of persons with respect to whom a deportation order had been made. Opinion of the Supreme Court of Canada[1946] S. C. R. (Can.)248, affirmed.

APPEAL (No. 58 of 1946) by special leave by the Co-operative Committee on Japanese Canadians and by the Attorney-General for Saskatchewan from the opinion certified by the Supreme

Court of Canada (February 20, 1946), on a reference ordered by the Governor-General in Council under s. 55 of the Supreme Court Act, R. S. C. 1927, c. 35. The question referred for hearing and consideration was as follows:— “Are the Orders in Council, dated December 15, 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 facts, the terms of the three Orders in Council and the provisions of the relevant statutory provisions set out below are taken from the judgment of the Judicial Committee.

The recitals to the Orders in Council which it was sought to impeach showed that they purported to have been made under the authority of the War Measures Act. That Act was first passed by the Parliament of Canada in 1914, and was now c. 206 of the R. S. C. 1927. Section 2 provided that the issue of a proclamation by His Majesty, or under the authority of the Governor in Council, should be conclusive evidence that war, invasion, or insurrection, real or apprehended, existed and of its continuance until by the issue of a further proclamation it was declared that war, invasion or insurrection no longer existed. The proclamation first called for by that section was duly made but no proclamation that the war no longer existed had been made. The relevant sections of that Act were as follow:—

“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 ….”

6. The provisions of the three sections last preceding shall only be in force during war, invasion, or insurrection, real or apprehended.”

The three Orders in Council were all made on December 15, 1945. The preamble to the first Order (P. C. 7355) contained the following recitals:— “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 …. for the security, defence, peace, order and welfare of Canada, that provision be made accordingly.”

The first Order (s. 2, sub-ss. 1, 2, 3 and 4) then authorized the Minister of Labour to make orders for deportation “to Japan” of the following persons.

(1.) Every person of sixteen years of age or over, other than a Canadian national, who was a national of Japan resident in Canada and who had since December 8, 1941 (the date of the declaration of war by the Dominion against Japan) made a request for repatriation or who had been detained under certain regulations and was so detained on September 1, 1945.

(2.) Every naturalized British subject of the Japanese race of sixteen years of age or over resident in Canada who had made request for repatriation, provided that such request had not been revoked in writing before midnight on September 1, 1945.

(3.) Natural-born British subjects of the Japanese race of sixteen years of age or over resident in Canada, who made a request for repatriation and did not revoke it in writing before the Minister had made an Order for “deportation.”

Sub-section 4 of s. 2 provided as follows:— “(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 remaining provisions of that Order were of an ancillary or administrative nature.

The second Order (P. C. 7356) provided that any person being a British subject by naturalization under the Naturalization Act, c. 138, R. S. C. 1927, who was deported from Canada under the provisions of P. C. 7355, should as from the date on which he left Canada in the course of such deportation, cease to be either a British subject or a Canadian national.

The third Order (P. C. 7357) provided for the appointment of a Commission to make inquiry concerning the activities, loyalties and extent of co-operation with the government of Canada during the war of Japanese nationals and naturalized persons of the Japanese race in cases where their names were referred to the Commission by the Minister of Labour for investigation with a view to recommendation whether in the circumstances of any such case, such persons should be deported. The Commission was also at the request of the Minister of Labour to inquire into the case of any naturalized British subject of the Japanese race who had made a request for repatriation, and make recommendations. It was then provided that any person of the Japanese race who was recommended by the Commission for deportation, should be deemed to be a...

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    • Irwin Books The Colour of Justice. Policing Race in Canada Part three
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