Reference re Persons of Japanese Race
Encyclopedia
Reference re Persons of Japanese Race [1946] S.C.R. 248 is a famous decision of the Supreme Court of Canada
where the Court upheld a government order to deport Canadian citizens of Japanese descent.
, issued an Order in Council to require all Japanese nationals, including those who were born in Canada, to be given the choice of being sent to Japan or being placed in internment camps
. Nearly 21,000 people of Japanese descent were placed in these camps.
After the war, the Order in Council that authorized the deportation was 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
referred
the matter to the Supreme Court in what was to be the first case heard in the newly constructed building housing the Court.
In dissent, Justice Ivan Rand
and Justice Roy Kellock
applied the concept of the unwritten bill of rights
. They found that it was beyond the power of the federal government to eject citizens from their own country without a proper hearing.
, at that time the highest court for Canada, which upheld the decision of the Supreme Court. In 1947 the deportation order was repealed, after 4,000 Japanese Canadians had already left the country.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court upheld a government order to deport Canadian citizens of Japanese descent.
Background
In January 1942, paranoia among white Canadians on the west coast had reached its peak. The federal government, under the War Measures ActWar Measures Act
The War Measures Act was a Canadian statute that allowed the government to assume sweeping emergency powers in the event of "war, invasion or insurrection, real or apprehended"...
, issued an Order in Council to require all Japanese nationals, including those who were born in Canada, to be given the choice of being sent to Japan or being placed in internment camps
Japanese Canadian internment
Japanese Canadian internment refers to confinement of Japanese Canadians in British Columbia during World War II. The internment began in December 1941, following the attack by carrier-borne forces of Imperial Japan on American naval and army facilities at Pearl Harbor...
. Nearly 21,000 people of Japanese descent were placed in these camps.
After the war, the Order in Council that authorized the deportation was challenged on the basis that the forced deportation of the Japanese was a crime against humanity
Crime against humanity
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings...
and that a citizen could not be deported from their own country. The federal Cabinet
Cabinet of Canada
The Cabinet of Canada is a body of ministers of the Crown that, along with the Canadian monarch, and within the tenets of the Westminster system, forms the government of Canada...
referred
Reference question
In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....
the matter to the Supreme Court in what was to be the first case heard in the newly constructed building housing the Court.
Opinion of the Court
In a five-to-two decision, the Court held that the law was valid. Three of the five judges found that the order was entirely valid. The other two found that the provision including both women and children as threats to national security was invalid.In dissent, Justice Ivan Rand
Ivan Rand
Ivan Cleveland Rand, CC was a Canadian lawyer, politician, academic, and Justice of the Supreme Court of Canada....
and Justice Roy Kellock
Roy Kellock
Roy Lindsay Kellock, was a Canadian Justice of the Supreme Court of Canada. Born in Perth, Ontario, he graduated from McMaster University with a B.A. in 1915. Justice Kellock was called to bar in 1920 and appointed to the Court of Appeal for Ontario in 1942...
applied the concept of the unwritten bill of rights
Implied Bill of Rights
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada...
. They found that it was beyond the power of the federal government to eject citizens from their own country without a proper hearing.
Aftermath
The case was appealed to the Judicial Committee of the Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, at that time the highest court for Canada, which upheld the decision of the Supreme Court. In 1947 the deportation order was repealed, after 4,000 Japanese Canadians had already left the country.
See also
- List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
- Korematsu v. United StatesKorematsu v. United StatesKorematsu v. United States, 323 U.S. 214 , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II....
32 U.S. 214 (1944) - similar US case