Reference Re Persons of Japanese Race
Reference Re Persons of Japanese Race is a famous decision of the Judicial Committee of the Privy Council, which upheld a Supreme Court of Canada ruling declaring a government order to deport Canadian citizens of Japanese descent to be valid.
Background
In January 1942, paranoia among white Canadians on the west coast had reached its peak. On February 24, 1942, an order-in-council passed under the Defence of Canada Regulations made under the War Measures Act gave the federal government the power to intern all "persons of Japanese racial origin." Nearly 21,000 people of Japanese descent were placed in these camps.In December 1945, the federal Cabinet issued three Orders in Council:
After the war, these Orders in Council that authorized the deportation were challenged on the basis that the forced deportation of the Japanese was a crime against humanity and that a citizen could not be deported from their own country. The federal Cabinet posed the following reference question to the Supreme Court of Canada:
The matter was heard by the Supreme Court in the first case heard in the newly constructed building housing the Court.
At the Supreme Court
The SCC rendered a mixed ruling:Three justices stated that the Orders in Council continued to have effect after the War Measures Act ceased to be in force on 1 January 1946, by virtue of the National Emergency Transitional Powers Act, 1946.
Reasons given for the ruling
| Order in Council | Order in Council | Rinfret CJ | Kerwin J | Taschereau J | Hudson J | Estey J | Kellock J | Rand J |
| O.C. 7355 | as to Japanese nationals who are not Canadian nationals | |||||||
| O.C. 7355 | as to naturalized British subjects of Japanese origin | |||||||
| O.C. 7355 | as to natural born British subjects of Japanese origin | ultra vires insofar as it prevents such persons from withdrawing consent at any time and in any manner. | ||||||
| O.C. 7355 | as to wives and children of the above | ultra vires in relation to those who do not come within the first two classes | ||||||
| O.C. 7356 | as to naturalized British subjects losing their status after deportation | intra vires insofar as it takes away incidental rights and privileges of persons of the Japanese race as Canadian nationals, but ultra vires to the extent that it provides for loss of the status of a British subject by naturalization. | intra vires insofar as it takes away incidental rights and privileges of persons of the Japanese race as Canadian nationals, but ultra vires to the extent that it provides for loss of the status of a British subject by naturalization. | |||||
| O.C. 7357 | as to inquiries to be held with respect to requests for repatriation | not ultra vires, subject to the observance of the requirements of the British Nationality and Status of Aliens Act, 1914 as to grounds for the revocation of naturalization. | intra vires save insofar as it may purport to authorize a departure from the provisions of the Naturalization Act. |
Rinfret CJ and Kerwin and Taschereau JJ, being the only three justices to uphold the validity of all three Orders in Council in their entirety, held that they were lawful because such orders arising from the War Measures Act are legislative in nature equivalent to an Act of Parliament in line with previous jurisprudence.
At the Privy Council
The case was appealed to the Judicial Committee of the Privy Council, which declared that all three Orders in Council were intra vires, for the reasons given at the SCC by Rinfret CJ and Kerwin and Taschereau JJ.Aftermath
In 1946, 3,965 people were repatriated to Japan.In 1947, due to various protests among politicians and academics, the federal cabinet revoked the legislation to repatriate the remaining Japanese Canadians to Japan. It was only in April 1949 that all restrictions were lifted from Japanese Canadians. However, former Canadian citizens of Japanese ancestry now living in Japan were denied passports.
The Canadian government also launched a Royal Commission in 1947 to examine the issue of compensation for confiscated property. By 1950, the Bird Commission awarded $1.3 million in claims to 1,434 Japanese Canadians; however, it accepted only claims based on loss of property, refusing to compensate for wrongdoing in terms of civil rights, damages due to loss of earnings, disruption of education or other issues.
On September 22, 1988, Prime Minister Brian Mulroney gave a formal apology and the Canadian government announced a compensation package, one month after President Ronald Reagan made similar gestures in the United States. The package for interned Japanese Canadians included $21,000 to each surviving internee, and the reinstatement of Canadian citizenship to those who were deported to Japan. The agreement also awarded $12 million to the NAJC to promote human rights and support the community, and $24 million for the establishment of the Canadian Race Relations Foundation to push for the elimination of racism. Nothing was given for those that had been interned and died before compensation was given out.