Reference re Validity of Orders in Council concerning Persons of the Japanese Race, [1946] S.C.R. 248

In January 1946 the judges of the Supreme Court of Canada heard their first case in the building which houses the court today: Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race, [1946] S.C.R. 248 otherwise
known as the Japanese Deportation case. In a nutshell, the federal government used the War Measures Act to issue orders-in-council to require all Japanese, including those who were born in Canada, to be given the choice of being sent to Japan or being placed in internment camps.

On behalf of the majority, Chief Justice Rinfret held the orders-in-council were constitutional and that the Cabinet
‘was the sole judge of the necessity or advisability of these measures.’ Please review the case and write an essay exploring the legal rationale used by the Supreme Court in this matter. In your view, was there an effective legal means for the Supreme Court to decide in 1946 that the action taken by Ottawa, in this case, was a violation of the basic civil rights of the affected individuals?

Recall that there is no Charter of Rights and Freedoms in the Constitution at this time. If this was a violation of basic rights, how could the Supreme Court judges, in this case, establish civil rights for these persons given the lack of a constitutional
provision explicitly protecting such rights? Would it have been improper of the Court to advance civil rights at this time given the lack of an explicit set of rights in the constitution? Please explain.

Table of Contents

Violation of basic rights. 4

How the Supreme Court judges in this case establish civil rights. 5

The War Measures Act 5

The national emergency transitional powers act 6

Habeas corpus. 7

The rights of the impacted persons. 8

The Immigration Act 9

Action taken by Canadians. 10

Adoption of Habeas corpus from Britain and into Canadian rights. 11

Government justification. 12

The case Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race, [1946] S.C.R. 248[1], or as frequently termed as Japanese deportation case, summarized the ruling by the supreme court that considered government action to deport the Canadian citizen of Japanese origin as applicable. The ruling in the case hampers on many human rights of not only Japanese Canadians but as well as on Japanese immigrants.

This paper will start by describing and exploring the pre-existing chauvinism against the Japanese origin who reside in Canada to exemplify the state of the Japanese population predating the order. After the introduction of chauvinism and fear among many Canadians, the order made under the War Measures Act will be set up. Through the study on this subject, it was evident that there were many rightful approaches for those impacted by the order and mainly were safeguarded.

This paper will focus on demonstrating the extent to which those rights might be created. After the introduction of the current powers, it was deemed appropriate to query if the court must have superior civil liberties and oppose the action of the government. The case was being highly broadcasted, and the public had started to complain about the extradition order, it was established that the court must depict superior civil right as well as safeguard those of the Japanese race, it was determined that courts must paint excellent public power and preserve the Japanese race.

The last point led to inquiring whether race played a significant role in the documented verdict of the marginal and majority concerning the case, and the finding will be discussed in detail. Eventually, this paper will summarise with an entire decision on the validity of the evidence concerning the right of those individuals involved because of the circumstance surrounding the Japanese race in Canada. In the preceding years, the government tried to incorporate the Japanese into the Anglo-Canadian ideal. During this period, the chauvinistic population thought that Japanese Canadians were not in a position of assimilating, whereas the liberal thought that they might and must be incorporated. A liberal assumed that to be incorporated, and the minority might require to be regionally dispersed as the law seems to permit the immigrant culture and was planned to the justification behind chauvinism. 

Violation of basic rights

The government’s demeanor that assimilation was relevant to deal with the issue of racial discrimination and focus of Japanese Canadians in British Columbia in specific led to the introduction of confinement camps and the transfer of families of Japanese origin[2].  Nonetheless, it was not sufficient to relieve the fear of Canadians concerning the Japanese Canadians, a Japanese national living in Canada. Three orders in council were issued by the federal cabinet under the War Measures Act[3] to sanction the extradition of those falling in this category.

All the Japanese nationals living in Canada at that time were forced to appeal for repatriation after the assertion of war with Japan, and those who remained incarcerated under the defense of Canada policy on September 1st, 1945. Every adopted British subject of Japanese origin who appended for repatriation and had not canceled his or her request in writing before September 1st, 1945. All natural-born British of Japanese origin who had requested a return and that appeal had not to be withdrawn subsequent to the order of extradition, and eventually, all of the wives and children of those implicated.[4]

How the Supreme Court judges in this case establish civil rights

The War Measures Act

The federal government approved The War Measures Act to bestow some powers merely held by congress upon the governor in the convention.[5] Furthermore, the War measure act set to fix the immigration act when considered relevant for the safety, defense, concord, order, and wellbeing of Canadians In the presence of real detained war.[6]  As Canada was in the past engaged in a war against Japanese, it was warranted by the government that under the war measure Act, and of concern for the security of the Canadians, that the group above of Japanese origin be deported from Canada.[7]

Chauvinism against Japanese immigrants, a Japanese Canadian, had been existing in the past in Canada to the pacific war and, more specifically, in western Canada. Because of the fear and chauvinism living within Canada concerning those of the Japanese origin, it might be drawn to some extent that Ottawa’s repatriation policy might be due to the government considering the war as an excellent opportunity to purge Canadian of the Japanese origin.[8]

The national emergency transitional powers act

The government, as well as introduced in 1945, the national emergency transitional powers act. This act was to assume the war measure act when it no longer had soundness when Canada was no longer engaged in war.[9] This act called for the continuance of some transitional Powers provided in the war measure Act to be practiced by the governor in council, given that Canada was still in the state of national crisis.[10] Canada was engaged in a war against the Japanese just before the order extradition was passed. Nonetheless, it was dubious as to if there were sufficient current threats or states of crisis at the time of order to warrant extradition.

The initial approach that right might be created or those impacted by the case deal with the procedure of extradition was to follow to key steps engaged in extradition. The initial stage of extradition was to arrest the deportee in lawful detention, and the act of deporting, a subject might not be questionable devoid the consent of the government. Nonetheless, the first step was open to query.[11]

 Even though the war measure act accounted for this and allowed order for extradition nor taking into consideration the court order of habeas corpus, any arguments that were made in Canada was no longer under crisis or war nor in a situation of a disaster, making the exception null.[12] This argument reference a close connected precedent from the case Fort Frances Pulp and Power Co. v. Manitoba Free Press in 1923, in which it was argued that even though no statement had been given which declare the war no longer existed, the fighting stopped. The presence of war might no longer be employed as a justification or upholding exceptional standards as mandatory for the safety of Canada.[13]

Habeas corpus

If the court might found that war situations had stopped and there was no longer a justification for extraordinary standards like the one being proposed in this order, the extraditions of deportees after their real extradition might have been argued in the courts by an injunction of habeas corpus. Even though at this time, the directive of habeas corpuswas not provided by the power act, it was part of the common law of England and adopted by Canada as well as the implied bill of rights.[14] Habeas corpus had been brought up as right in the past cases in Canada, like the case of immigration Acts V.Wong.[15]

The injunction of habeas corpus in Canada was drawn from the habeas corpus Act of 1679.[16]  The act provided that the court was mandated to practice the fairness of detainees extradite by bringing them before the judge to secure personal freedom and get rid of unfair incarceration.[17] . In addition, the habeas corpus Act safeguarded subject by any court or initiation for any justification, excepting sincerity, from deportation.[18]  Extradition, in this case, was mainly because of the conviction of those Japanese residents, it rested in their request for deportation, in this case, it was not solely due to conviction or felony of those of repatriation, which went against the right pointed out within the Habeas Corpus Act.[19]

Habeas corpus, even though not specially stated in section 15 of the Immigration Act, was referred to when the immigration act pointed out that hearing of every case brought before the committee of inquiry was demanded to be distinct from the public. Moreover, every immigrant has a right to have a representative by counsel in the case that was proof indication against them acknowledged by board[20]  This case predates the chatter of rights and freedom; nonetheless, the quote from the immigration Act might act as an example of the current right of immigrants in Canada against unfair detention and extradition. The Japanese extraditions Case failed to appreciate these rights, Canada was no longer in a state of crisis, and this order was providing the governor in council powers confide by the act that was no longer applicable as a result, the order in council might be understood as ultra vires of the governor in committee, beyond their lawful rights.

The rights of the impacted persons

It might be as well be argued that concerning the rights of the impacted persons, which were the Canadian citizen, that the power of the federal government in terms of extraditions was a constraint to the extraditions of alien.[21] It is pointed out in the Immigration Act that ‘Alien’ was deemed an individual who was not a British subject.[22] As a result, the extradition of the citizen as recommended by this order was conflicting to the past extradition law outlined by the Immigration act. Furthermore, extraditing citizens was, at the time, been to go against the principle of international law and had been in recent years declared a war crime by the latest created United Nations.[23]  On this point, nonetheless, it might be argued that there is a primary definition for the means of the term” deportation” some of the descriptions do not denote only to “alien,” which provides the order in council a counter-arguments when this point was brought up in court.[24]

The definition of the critical term employed by the order in council was indistinct when being employ to express their perusal provision permitted for extreme discussion over the right use of the term.[25] Notably, many intricacies were surrounding the relevant definition that was appropriate to Japanese Canadians, and the order was a substantial source of discussion.

The Immigration Act

The Immigration Act provided that “where extradition of the head of the family is given, every depended member of the family might be extradited at the same time[26]These provisions had been taken into consideration with order 7355, “(4) the wife and the children’s under the age o 16 for whom the minister makes an order for extradition to Japan might e included in such order and extradited with such persons.”[27]  

This had been established to ensure families stay together despite extradition order. Nonetheless, even though it was passed at the time of the initial ruling on the law, subsection 4 was overridden in the subsequent hearing. The first establishment might have chosen families financing through the government to cover the cost of extradition. Nonetheless, it turns to be that it existed to allot financing.[28] Along with the order were the clauses that the government might seize the assets, which render them unfit to fund a move to Japan by themselves devoid of government support.[29]

Action taken by Canadians

 Because of extraditions order, many institutions turned to raise money, supply pamphlets, plan public gatherings, and write to parliament.  All of this was undertaken with the simple Message that extraditing Canadians nationals of Japanese origin was against Canadian freedom and might not be permitted to occur. It was not very long when they gained public support, while the “anti-deportation movement of January and February 1946 created the strongest outbreak of impulsive public response in the long career of Prime Minister William Lyon Mackenzie King”.[30]

If one deems the state in Canada to be non-evolving, it might be drawn from the public position on this matter that it might not be indecent of the court to advance civil rights at this time provided the action of the Canadian government was deemed null.  The legal split of the court on order mortified the government since they were put in a position to lawfully extradite the adult who had signed repatriation demand.[31] The concern of the government is accountable for separating many families along with the proof of the public’s condemnation of the extradition order; a reminder was thwarting the government less significant, unlike going the wish of the Canadian society and Canadian democracy.

The documented verdict of the majority and the minority were impacted by the race ostensibly equal. There was an entire chauvinism against those Japanese raised in Canada at the time of the order. As a result, it is somehow comprehendible that the verdict to go through with the deportation order be made, as it was a well-known conviction at the time of the hearing.[32]

The case Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race, [1946] S.C.R. 248[33] was a result of national fear relating to the Japanese race. As the pacific war started, especially relating to the Japanese Canadians began to worry about the focus of Japanese citizens and the immigrants in some areas in Canada. Worry grew with the war, and ultimately the government opened incarceration camps to aid the apprehension of the rest of the Canadian community.[34]

Adoption of Habeas corpus from Britain and into Canadian rights

In the interest of the security of Canada during the war against Japanese, it was comprehendible that the government might recommend an order to deport some people of Japanese origin who had applied for repatriation with the country of Japanese terms of war. Nonetheless, this was something that might merely be considered relevant at the time of war, or at the time of state crisis, which prompted the ratification of the War measure Act

It might be argued that at the time the order for extradition was put into law; Canada was not in a state of emergency. So, if this was the case, there were many approaches that the rights of those affected by the order were dishonored, as the power shown by the governor in council might be considered ultra vires. By injunction of habeas corpus and as well pointed out in the Immigration Act, every individual who faces extradition had the right to seek council and bring their case to the judge. Habeas corpus was a thing that had long been adopted from Britain and instilled into Canadian rights an must be upheld and respected.[35]  In addition, with terms that were extremely indistinct within the order, it was unapparent to whom the extradition referred to if it is wholly “aliens” or Japanese Canadians. In addition, the law was as well obstructed on rights located within the migration act when it focused on separating many families at the time of extraditions of a single-family member, for justification other than conviction or crime.[36]

Government justification

The government warranted their actions with the use of the War measure Act to deport many of those Japanese origins devoid of cause and process. They infringed on the right of a Japanese immigrant and Japanese Canadian, all while offending Canadian egalitarianism. Despite the fear of the probable threats of Japanese race or Japanese Canadians that had put in an appeal for repatriation, it was primarily unfair to arrest and deport good citizens of Canada who had been under attack merely for their ethnic background.[37] 


Habeas Corpus Act. 31 Car. 2, c. 2, 1679.

Immigration Act, R.S.C., 1985, c. I‑2, s.15.

National Emergency Transitional Powers Act, 1945 (c. 25).

Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race, [1946] S.C.R. 248

War Measures Act, R.S.C., 1927, c. 206.

Canada v. Wing [1923] B.C.J. No. 104.

Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. [1923] J.C.J. No. 2, 21.

Wong v. Immigration Act [1922] [31 B.C.R. 145].

Lambertson, R. Repression and Resistance, Canadian Human Rights Activists, 1930-1960, c.3 p. 112.

Law and Society, A Contemporary Reflection and Analysis of the 1946 Judgment: Reference to the Validity of Orders in Council in Relation to Persons of Japanese Race, 2014.

Sunhara, A. G. The Politics of Racism c. 7.

[1] Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race, [1946] S.C.R. 248

[2] Ibid.

[3], R.S.C., 1927, c. 206.

[4] Supra note one at 2(1-4)

[5] Supra note 4.

[6] Ibid at s.6.

[7] Supra note 1.

[8] Lambertson, R. Repression and Resistance, Canadian Human Rights Activists, 1930-1960, c.3 p. 112.

[9] National Emergency Transitional Powers Act, 1945 (c. 25).

[10] Ibid.

[11] Supra note 3.

[12] Supra note 4 at s. 3.

[13] Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. [1923] J.C.J. No. 2, 21.

[14] Canada v. Wing [1923] B.C.J. No. 104.

[15] Wong v. Immigration Act [1922] [31 B.C.R. 145].

[16] Habeas Corpus Act. 31 Car. 2, c. 2, 1679.

[17] Ibid.

[18] Supra note 1.

[19] Supra note 17.

[20]—Immigration Act, R.S.C., 1985, c. I‑2, s.15.

[21] Supra note 3.

[22] Supra note 21 at s. 2 (e)(f).

[23] Supra note 3.

[24] Supra note 1.

[25] Law and Society, A Contemporary Reflection and Analysis of the 1946 Judgment: Reference to the Validity of Orders in Council in Relation to Persons of Japanese Race, 2014.

[26].” Supra note 21 at s. 45 (5).

[27] Supra note one at 2(4).

[28] Supra note 26.

[29] Supra note 26.

[30] Supra note 3.

[31] Ibid.

[32] Supra note 3.

[33] Supra note 1.

[34] Supra note 3.

[35] Supra note 18.

[36] Supra note 22.

[37] Supra note 27.