Thursday Thinkpiece: Challenging Exile: Japanese Canadians and the Wartime Constitution

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Challenging Exile Japanese Canadians and the Wartime Constitution

Author: Eric M. Adams and Jordan Stanger-Ross
Publisher: UBC Press
Publication Date: July 1, 2025
ISBN: 978-1-990735-75-2 (pbk)
E-book and audiobook also available
Release date: Oct. 15, 2025
ISBN:9780774872843
328 pages, 6 x 9
71 b&w photos, 4 maps, 4 b&w illus.
Paperback | $34.95

Excerpt: 

In September 1945, at the end of the Second World War, 10,572 Canadians of Japanese descent faced exile to Japan. Tree years earlier, the federal cabinet had used the sweeping powers of the War Measures Act to uproot them from their homes. The government ordered “all persons of Japanese racial origin,” whether “wholly” or partially “of the Japanese Race,” to leave coastal British Columbia “forthwith.” A cascade of injustice followed. Federal orders compelled Japanese Canadians into crowded internment camps, to labour on isolated highways or farms, and scattered families to towns and cities across Canada. The government seized and then sold the homes and personal belongings that Japanese Canadians had been forced to leave behind. As the war neared its conclusion, cabinet devised a new policy. Canada proposed to banish to Japan as many Japanese Canadians as possible.

***

The legality of the exile of Japanese Canadians would be finally decided in Britain. A case that began in a local uprooting and displacement of people, the seizure and sale of property, would end in legal arguments about exile from a nation-state, borders and citizenship, international law and rights. It would end far from the BC coast – Powell Street, the farms of the Lower Mainland, the fishing shacks and canneries of Nanaimo and Steveston – far, too, from Ottawa and Vancouver, where politicians and civil servants formed their decisions about exile. The case would end in an old idea of Canada, in which British Law Lords stood in judgment over Canadian legal affairs, including the most fundamental aspects of Canadian constitutional law. Exile would be decided by the Judicial Committee of the Privy Council.

Andrew Brewin few to London on 13 June 1946, aboard a converted Lancaster bomber, now delivering mail and passengers across the Atlantic for Trans-Canada Air. He set up at Brown’s Hotel – his home for six weeks. Neither John Cartwright nor Arthur MacLennan, Brewin’s co-counsel at the Supreme Court of Canada, accompanied him. Even if Cartwright had been inclined to continue his involvement in the case, it was not possible. Just prior to the release of the Supreme Court decision, Ottawa had appointed him to prosecute the Canadians accused of spying for the Soviets. Junior counsel no more, on the biggest legal stage, Brewin would now lead the case.

His initial task was to hire British lawyers to serve as co-counsel to help navigate the technicalities of procedure and cultural formalities at the Privy Council. He first retained one of London’s finest lawyers, Sir Walter Monkton, the former Solicitor General. When Monkton withdrew his services at the last minute for reasons that are lost to history, Brewin asked Sir Hartley Shawcross, Britain’s Attorney General, to recommend a replacement. Shawcross had just the man for the job: his brother. Educated at Oxford and called to the English bar in 1931, Christopher Shawcross had recently been elected as a Labour MP and spent the next half decade active in both politics and law. The final member of the CCJC legal team would be Geoffrey Wilson. A Quaker and pacifist, Wilson had spent the war years working for the Labour politician Sir Stafford Cripps, including in the British Embassy in Moscow. Shawcross and Wilson may have helped in shaping some of the argument in the weeks leading up to the hearing, but Brewin alone would deliver it in court.

The counsel table for the other parties had changed too. Stricken with cancer, Aimé Geoffrion was unable to represent Canada on the appeal, ending his illustrious litigation career. He died on 15 October 1946 and never knew the fate of two of the last cases he argued at the Supreme Court: the exile case and the reference case on ending appeals to the Privy Council. Geoffrion’s co-counsel on the exile case, David Mundell, was not available either. He, too, had been conscripted by Ottawa to serve as commission counsel in the spy hearings.

Representing Canada was a team comprised of Montreal lawyer Hugh O’Donnell, Frank Gahan, a Canadian member of the English bar, and Wilbur Jackett, a rising star in the Department of Justice. Although none could match Geoffrion’s experience, each was an accomplished lawyer. O’Donnell had appeared frequently before the Supreme Court, Gahan had argued many cases before the Privy Council, and Jackett would eventually succeed Fred Varcoe as Deputy Minister of Justice before completing his career as the first Chief Justice of the Federal Court of Canada.

British Columbia was also represented by new counsel. Royal Maitland, the Attorney General, had died of pneumonia at the end of March 1946. Taking his place before the JCPC was Gordon Wismer, British Columbia’s new Attorney General, with assistance from Geoffrey Crispin of the English bar. Wismer was reluctant to proceed with the appeal, worried that the JCPC might find reason to strike down more of the exile provisions, but he was there to continue British Columbia’s argument that the three Orders-in-Council were legal in their entirety.

The collection of lawyers entered the Downing Street courtroom on 16 July to begin the first of four days of argument. According to tradition, though the judges wore sober suits, the lawyers were attired in the traditional black barrister robes and white wigs of the English bar, with O’Donnell wrapped in the silk robes that marked his status as King’s Counsel. The five Privy Council judges – Wright, Uthwatt, Porter, Simon, and Duff – took their places at the large oak table at the front of the room, as counsel gathered their papers and anxious thoughts. Brewin stepped to the podium with his materials, arranging the many pages of hand-scrawled notes he would rely upon in making his submissions, and began.

***

Brewin’s submissions on behalf of the CCJC and Saskatchewan unfolded over more than two days. The CCJC’s written argument outlined ten individual grounds of appeal, half a dozen of which were distinct. It had not appreciably changed from the one advanced at the Supreme Court. In essence, it asserted that exile could not be authorized after the war and emergency had passed; the three Orders-in-Council interfered with provincial jurisdiction over property and civil rights; the War Measures Act could not authorize Orders that were fundamentally illegal or, at least, unknown to law, specifically the exile of citizens against their will; exile was contrary to international law; the Orders contravened British legislation governing the rights of British subjects; and their concept of “race” was so vague as to be impossible to administer.

Conscious of the sweeping powers of the wartime constitution under the existing case law, Brewin began by attempting to confine such authority to moments of actual war. The unconditional surrender of Japan had occurred almost a full year ago and months before cabinet had enacted the three Orders, he pointed out. “These orders-in-council constitute interference with citizenship rights,” Brewin argued, and “after Jan. 1, 1946 [and the ending of the War Measures Act], no such emergency existed as to justify such interference with the normal constitutional structure of Can­ada.” Without the necessary emergency as a constitutional backdrop, Parliament, and by extension cabinet, could not interfere with the property and civil rights of Japanese Canadians, which fell under provincial jurisdiction.

Turning from constitutional to statutory interpretation, Brewin argued that the War Measures Act, when it was operative, did not contain the power to authorize the exile of Canadian citizens and British subjects. Counselling the JCPC to interpret the Act narrowly, he stated that the principles of international law and the comity of nations precluded the power to exile citizens.