CO-OPERATIVE COMMITTEE ON JAPANESE CANADIANS AND ANOTHER, APPELLANTS;
ATTORNEY-GENERAL FOR CANADA AND ANOTHER, RESPONDENTS.
Authoritative version at:  A.C. 87*
ON APPEAL FROM THE SUPREME COURT OF CANADA.
DATES: 1946 Dec. 2.
COUNSEL: F. A. Brewin (of the Canadian Bar) and C. Shawcross for the appellant the Cooperative Committee on Japanese Canadians
H. E. ODonnell K.C. (of the Canadian Bar), Gahan and W. R. Jackett (of the Canadian Bar) for the respondent the Attorney-General for Canada
F. A. Brewin and G. Wilson (of the Canadian Bar) for the appellant the Attorney-General for Saskatchewan
SOLICITORS: For both appellants: Lawrence Jones & Co.
For Attorney-General for Canada: Charles Russell & Co.
For Attorney-General for British Columbia: Gard, Lyell & Co.
Gordon Wismer K.C. (of the Canadian Bar) and Crispinfor the respondent the Attorney-General for British Columbia
JUDGES: 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 [*88] 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  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 [*89] 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; [*90]
(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. [*91]
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 person subject to deportation under the provisions of P. C. 7355, and as from the date on which he left Canada in the course of deportation, he should cease to be either a British subject or a Canadian national.
On December 28, 1945, the Governor in Council passed Order in Council P. C. 7414, pursuant to s. 4 of the National Emergency Transitional Powers Act, 1945, providing that all orders and regulations lawfully made under the War Measures Act or pursuant to authority created under the said Act in force immediately before the day the National Emergency Transitional Powers Act, 1945, should come into force, should, while the latter Act was in force, continue in full force and effect subject to amendment or revocation under the latter Act. The result of that legislation was that the Orders in Council were now in force, if at all, by virtue of the Transitional Act.
In connexion with the question raised by this case, three Acts of the Imperial Parliament were relevant. The first of those was the Colonial Laws Validity Act, 1865. Sections 2 and 3 of that Act ran as follows: 2. Any Colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the force and effect of such Act, shall be read subject [*93] to such Act, Order, or Regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
3. No Colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, Order or Regulation as aforesaid.
The second was the Statute of Westminster, passed in the year 1931, which was duly adopted by the Parliament of Canada. Section 2 of that Act was in the following terms: 2. (1.) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.
(2.) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.
The third Act was the British Nationality and Status of Aliens Act, 1914. Part I of that Act related to Natural-born British Subjects. Part II related to the Naturalization of Aliens, and s. 9 provided that Part II. should not, nor should any certificate of naturalization granted thereunder, have effect within any of the Dominions specified in the Schedule (which included Canada) unless the legislature of the Dominion adopted Part II. The Act of the Imperial Parliament was subsequently amended. The Parliament of Canada, by the Naturalization Act, 1914, did not in terms adopt the Imperial Act of 1914, but passed almost identical legislation. In 1915 the Parliament of Canada amended the Naturalization Act so as to introduce the amendments that had been made by the Parliament of Great Britain in Part II. of the British Nationality and Status of Aliens Act, 1914. That Act of 1915 contained a recital to the effect that the Dominion had adopted Part II of the British Act.
In the Supreme Court of Canada, in answer to the question submitted, Rinfret C.J., Kerwin and Taschereau JJ. gave the opinion that the Orders in Council in question were not ultra [*94] vires the Governor in Council either in whole or in part. Hudson and Estey JJ. were of the opinion that the Orders in Council were not ultra vires the Governor in Council, with the exception of sub-s. 4 of s. 2 of P. C. 7355. Rand J. was of the opinion that P. C. 7355 was not ultra vires the Governor in Council in relation to Japanese nationals and to persons of the Japanese race naturalized under the Naturalization Act of Canada, as well as to persons voluntarily leaving Canada, but was ultra vires in relation to the compulsory deportation of natural-born British subjects resident in Canada and of the wives and children under sixteen who did not come within the first two classes. Kellock J. was of the opinion that P. C. 7355 was not ultra vires, except sub-ss. 3 and 4 of s. 2. Rand and Kellock JJ. were also of the opinion that P. C. 7356 and 7357 were ultra vires in certain respects.
1946. July 16, 17, 18 and 19. F. A. Brewin (of the Canadian Bar) and C. Shawcross for the appellant the Cooperative Committee on Japanese Canadians. The unconditional surrender of the Japanese was in August, 1945, so that the Orders in Council of December, 1945, were made when the war was over. Four classes of persons are involved in P. C. 7355, and sub-s. 2 of s. 2 of that Order applies to naturalized British subjects under whatever Act they were naturalized, whether Imperial or the Act of another Dominion, in contrast with P. C. 7356, where the Naturalization Act of Canada is expressly mentioned. There is no definition of person of the Japanese race. No orders of deportation have vet been made. The appellants object to the validity of deportation to Japan as not being authorized by the War Measures Act, 1914; the Parliament of Canada did not by the terms of that Act delegate to the Governor in Council the power to make orders providing for the exile, to Japan, of British subjects whether by birth or naturalization, resident in Canada, as provided by P. C. 7355 and 7357. [The War Measures Act, 1914, now R. S. C. 1927, c. 206, and the National Emergency Transitional Powers Act, 1945, under which the Orders, if valid, now take effect, were referred to.]
The Orders in Council, made under the War Measures Act of 1914, are repugnant to the Imperial British Nationality and Status of Aliens Act, 1914, which was adopted by, and extends to, the Dominion of Canada. The Colonial Laws Validity Act, 1865, therefore applies. Parliament could not enact the Orders [*95] until after the Statute of Westminster, 1931; regulations made under a previous Act are not enough. In the general language of the War Measures Act must be read, at least before the Statute of Westminster, an implied limitation that it did not authorize the Governor in Council to do something it could not do, namely, to make a regulation or order inconsistent with an Imperial statute. [Reference was made to Reference as to the Validity of the Regulations in relation to Chemicals enacted by Order in Council and of an Order of the Controller of Chemicals made pursuant thereto (1), and to Macleod v. Attorney-General for New South Wales (2).] If my argument is right, that before 1931 the Parliament of Canada itself could not even in express terms pass an Act repugnant to the British Nationality and Status of Aliens Act, then the general language of the War Measures Act must be read subject to that limitation. The Statute of Westminster has not affected or changed the proper interpretation of statutes passed before it came into force. In other words, if there was a statute such as the War Measures Act in force before the Statute of Westminster, which had on a proper interpretation certain implied limitations or conditions, there was nothing in the Statute of Westminster to say that it should be interpreted in a different sense.
The next point is that Parliament did not, on the proper construction of the War Measures Act, delegate to the Governor in Council the authority to remove forcibly to Japan British subjects resident in Canada. If correct, that submission applies to natural-born British subjects (sub-s. 3 of s. 2 of P. C. 7355), naturalized British subjects of the Japanese race (sub-s. 2 of s. 2) and also covers the wives and children (sub-s. 4 of s. 2). The only case in which the function of the enumerated heads of s. 3 of the War Measures Act was referred to was Re Gray (3). All those enumerations would be quite unnecessary if the opening general words were so broad as to permit anything at all to be done. It is submitted that where Parliament has said, using the language in Grays case (3), that the powers of the Governor in Council can go even as far as the forcible removal of aliens as a preventative war time measure, then the expulsion of British subjects to a country from which they have not come is going beyond the margin, and is a matter on which there is an unresolved doubt. [Reference was made to Maxwell on the Interpretation of Statutes, 8th ed., p. 130.] Even general
(1)  S. C. R. (Can.) 1, 10.
(2)  A. C. 455.
(3) (1918) 57 S. C. R. (Can.) 150, 177. [*96]
words should not be interpreted as being intended to be anything repugnant to international law or the comity of nations unless it is clear that they be so. It is purely a rule of construction which, it is submitted, applies in this case both to the meaning of the word deportation and to the general words with which the section opens: The Le Louis (1); Croft v. Dunphy (2). The comity of nations recognizes the right to deport aliens, but by clear implication it does not recognize the right to force a country to accept nationals of another country, and in the present case the receiving country is not the place of origin: Oppenheims International Law, 4th ed., vol. I., pp. 560, 562; Wheatons International Law 6th ed., pp. 210-11; Halls International Law, 6th ed., vol. I., p. 493; and Attorney-General for Canada v. Cain (3). On the meaning of deportation see Websters Dictionary. Reliance is also placed on the fact that in a whole series of Canadian Acts, beginning with the Immigration Act, R. S. C. 1927, c. 93, there is a statutory definition given to the word deportation which is not broad enough to cover what is proposed to be done here. [Reference was also made to Shin Shim v. The King (4).] Further, the Imperial Aliens Act, passed a few days before the Canadian Act, provides for the deportation of aliens only. On the question of construction I call in aid the well known principle that statutes which invade the liberty of the subject should be expressed in clear and unambiguous language. It is conceded that that general rule must give way to the pressing purposes of war: Liversidge v. Sir John Anderson (5), but where there is an ambiguous work like deportation very different considerations apply.
These Orders in Council constitute an interference with property and civil rights, a field assigned exclusively to the Provincial legislature under head 13 of s. 92 of the British North America Act, 1867. After January 1, 1946, no such emergency existed as justified such an interference as we have here with the normal constitutional structure, and to the extent that s. 4 of the National Emergency Transitional Powers Act, 1945, purports to authorize the Governor in Council to carry out something not already begun it is ultra vires. It is conceded that on the authority of Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. (6), the Provincial power under property and civil
(1) (1817) 2 Dodson 210, 239.
(2)  A. C. 156, 177-8.
(3)  A. C. 542, 545.
(4) S. C. R. 57 (Can.) 378.
(5)  A. C. 206.
(6)  A. C. 695. [*97]
rights could be overriden while an emergency lasts, but even during the war it could only be overriden to the extent that it was related to the emergency. Legislation of the Dominion interfering with the normal constitutional structure in relation to property and civil rights and not connected with post-war necessity is invalid: In re Price Bros. & Company and the Board of Commerce of Canada (1), where the difference between the war and post-war situation is pointed out.
The next point is that if these Orders in Council which, it is contended, are all part of one scheme, are invalid, they are not severable, and must all fall together. In other words, if the argument that P. C. 7356 and 7357 are invalid is correct, then they are such an essential part of the scheme that the rest of the Orders cannot stand. The court cannot presume that the Governor in Council would have seen fit to carry out the truncated orders and to give validity to what is left: In re the Validity of Manitoba Act (2), and on appeal, sub nom. Attorney-General for Manitoba v. Attorney-General for Canada (3).
The last mater is in relation to the question of loss of nationality; that loss is not effectively achieved by these orders for deportation because the loss of status as a British subject is necessarily incidental to effective legislation in relation to deportation. The Orders in Council empowering orders to be made for the deportation of persons of the Japanese race are so vague that they are incapable of application to ascertained persons and are therefore inoperative and invalid, and do not constitute orders or regulations such as the Governor in Council is empowered to make under the provisions of the War Measures Act.
F. A. Brewin and G. Wilson (of the Canadian Bar) for the appellant the Attorney-General for Saskatchewan associated themselves with the submissions made on behalf of the Co-operative Committee on Japanese Canadians, and contended that the proper answer to the question referred should have been that the impugned Orders in Council were in their entirety ultra vires the Governor in Council.
H. E. ODonnell K.C. (of the Canadian Bar), Gahan and W. R. Jackett (of the Canadian Bar) for the respondent the Attorney-General for Canada. With regard to the right to deport British subjects, and whether deportation is wide
(2)  S. C. R. (Can.) 317, 323.
(3)  A. C. 561, 568. [*98]
enough to include them, the widest possible powers were deemed to be necessary for the Governor in Council in 1939 as in 1914, when the War Measures Act was passed. The words deportation and exclusion in the War Measures Act include the power to remove from Canada all those mentioned in the Orders in question. The opening words of s. 3 of that Act, giving plenary authority to the Governor in Council, and the statement that the enumeration which follows shall not restrict the generality of the opening words, are sufficient to give the Governor in Council the necessary powers to pass the Orders even if that power were not included in the words exclusion and deportation. The language of s. 3 is to be given its natural effect; the words are very broad and general: Attorney-General for Alberta v. Attorney-General for Canada (1). The Governor in Council was entitled to consider whether a person might be deported, British subject, alien or anyone who was within the contemplation of Parliament as the Act indicates without distinction. On the interpretation the appellants seek of the word deportation two words have to be read into the section, of aliens. [Reference was made to the definition of deportation in the Oxford English Dictionary, to Eshugbayi Eleko v. Government of Nigeria (Officer Administering) (2), and to the Immigration Act, R. S. C. 1927, c. 93, s. 2 (c).] Deportation in s. 3 of the War Measures Act is unqualified and is broad enough to cover all classes of persons, and the general power is not in any way cut down by the specific enumeration in s. 3: Re Gray (3).
Gahan followed. These three Orders in Council are law made by the Parliament in Canada, and they are laws made after the passing of the Statute of Westminster. Laws as used in that Act include laws, orders or regulations pursuant to delegated authority. It is said for the appellants, however, that the authority under which the Orders in Council were made the War Measures Act was long antecedent to the Statute of Westminster. It is submitted that it follows as a logical necessity that if the date of the making of the law is after the passing of the Statute of Westminster, the law is one of the Parliament of Canada, and notwithstanding the fact that the authority for making the law is antecedent, the law itself is intra vires. For the Colonial Laws Validity Act, 1865, to have any bearing on this matter the appellants must show an Act of
(1)  A. C. 356, 370.
(2)  A. C. 662.
(3) 57 S. C. R. (Can.) 150. [*99]
the Imperial Parliament which by express words or necessary intendment applies to Canada and a law of the Canadian Parliament which is repugnant to the Imperial Act. They purport to find that Imperial legislation in the British Nationality and Status of Aliens Act, which, they say, was adopted by Canada, and that therefore it is an Act which extends to Canada to which the Orders in Council are repugnant. The key to the position is that the word adopted can be used in two different senses. When in the Imperial Act Parliament speaks of adopting this Act, it means taking such action as would make the Imperial Act part of the law of Canada so that it is that Act which operates in Canada. Adoption may be used in quite a different sense, however; for instance, there are bodies in Canada for promoting uniformity of law in the Provinces, and one Province in that sense adopts the laws of the other; but none of those adoptions mean that the legislation of the one Province is operative in the other, and it is submitted that the Canadian Parliament was very deliberately refraining from making the English law operative in Canada, although it was carefully providing that under its own rule the same result would be produced. The British Nationality and Status of Aliens Act is not an Act which extends to Canada unless Canada adopts the Act. That must be done directly by the Parliament of Canada. In the Imperial Act there is a provision that that Act and the certificate of naturalization granted should have no effect in any of the self-governing Dominions unless the Dominion adopted it. Canada was not adopting the Act in that sense; it was passing parallel legislation, and therefore the position is that under s. 9 of the Imperial Act a certificate of the Secretary of State granted to an alien in England, who then went to Canada, would have no effect in Canada because Canada was not adopting the Act. Canada, wishing to approve of the scheme of the British legislation, has in fact enacted that within the bounds of Canada a certificate granted by the British shall have the same force as if the Canadian Minister had himself granted a Canadian certificate. The test is, what the Parliament of Canada did; the Imperial Act was not adopted in Canada, and by express terms it was not extended. If, therefore, the Imperial Act has not been adopted, the question of repugnancy does not arise.
It is submitted that the view of Rinfret C.J. and the two judges who concurred with him is right, and that the three [*100] Orders in Council are in their entirety valid. With regard to severance, in Attorney-General for Ontario v. Attorney-General for Canada (1) and Insurance Act of Canada, In re (2) there was a series of enactments which could be separated, while here there is only the one question. This is not a case where the women and children have to be deported, it is a discretion given to the Minister. If the other parts are valid, the provision that in suitable cases the wives and children should be deported is ancillary and should be held valid.
Gordon Wismer K.C. (of the Canadian Bar) and Crispinfor the respondent the Attorney-General for British Columbia, supported and adopted the argument for the Attorney-General for Canada. As to severability, it was suggested for the appellants that the Order taking away nationality and changing the status was ultra vires, and that therefore the whole Order would be bad. It is submitted that the Order, if invalid, is severable, and that the orders could be carried into effect even if it is found that one class cannot be included: Attorney-General for Canada v. Attorney-General for Ontario (3). In any event it is contended that these Orders in Council refer to persons who have no other racial origin than Japanese.
F. A. Brewin replied. If the Parliament of Canada is not to be taken by the course of what was done to have adopted the British Nationality and Status of Aliens Act, then certificates of nationalization granted by the Canadian authority have not got Imperial validity, and the holders are aliens within the rest of the Commonwealth and the United Kingdom a sweeping effect. By their own recital the Parliament of Canada has adopted the Imperial Act. [Reference was made to British Coal Corporation v. The King (4) and Minister of Health v. The King (On the Prosecution of Yaffe) (5).]
LORD WRIGHT, delivering the judgment of the Board, stated the terms of the Orders in Council and the provisions of the relevant legislation as set out above, and said that it was convenient first to deal with the question raised as to the effect of the Naturalization legislation of the Dominion on the topic of the adoption of the British Nationality and Status of Aliens Act. His Lordship continued: The contention of the appellants was that the Parliament of Canada did
(1)  A. C. 405, 409.
(2)  A. C. 41.
(3)  A. C. 355.
(4)  A. C. 500, 507.
(5)  A. C. 494, 503. [*101]
adopt Part II of the Imperial Act in the sense in which that word was used in the Imperial Act, and that in consequence Part II formed part of the law of the United Kingdom extending to the Dominion. The contention of the respondents was that the Canadian Statutes are only parallel legislation. In arriving at a conclusion as to the advice their Lordships think it right to tender to His Majesty they find it unnecessary to express an opinion as to the correctness or otherwise of the contention of the appellants. Their Lordships will assume that the appellants are right in their contention, but they do not express any opinion one way or another on it.
There was a considerable diversity of opinion between the members of the Supreme Court on some of the points which fell for decision under the reference. In one important respect at least the invalidity of sub s. 4 of s. 2 of P. C. 7355 the views of the majority of the Court were adverse to the respondents. No cross-appeal was lodged. This in the circumstances was only the absence of a formality. A determination on the legal effect of the orders as a whole is necessary to arrive at a conclusion on the matters in respect of which the appellants appealed. The whole matter was fully debated before their Lordships and their Lordships accordingly propose to deal with the orders in their entirety. Their Lordships now turn to the question at issue. On certain general matters of principle there is not, since the decision in Fort Frances Pulp & Power Co. v. Manitoba Free Press Co. (1), any room for dispute. Under the British North America Act property and civil rights in the several Provinces are committed to the Provincial legislatures, but the Parliament of the Dominion in a sufficiently great emergency, such as that arising out of war, has power to deal adequately with that emergency for the safety of the Dominion as a whole. The interests of the Dominion are to be protected and it rests with the Parliament of the Dominion to protect them. What those interests are the Parliament of the Dominion must be left with considerable freedom to judge. Again, if it be clear that an emergency has not arisen, or no longer exists, there can be no justification for the exercise or continued exercise of the exceptional powers. The rule of law as to the distribution of powers between the Parliaments of the Dominion and the Parliaments of the Provinces comes into play. But very clear evidence that an emergency has not arisen, or that the emergency no longer
(1)  A. C. 695. [*102]
exists, is required to justify the judiciary, even though the question is one of ultra vires, in overruling the decision of the Parliament of the Dominion that exceptional measures were required or were still required. To this may be added as a corollary that it is not pertinent to the judiciary to consider the wisdom or the propriety of the particular policy which is embodied in the emergency legislation. Determination of the policy to be followed is exclusively a matter for the Parliament of the Dominion and those to whom it has delegated its powers. Lastly, it should be observed that the judiciary are not concerned when considering a question of ultra vires with the question whether the executive will in fact be able to carry into effective operation the emergency provisions which the Parliament of the Dominion either directly or indirectly has made. It is unnecessary, therefore, for their Lordships to take into review or even to recount the particular circumstances obtaining within the Dominion that led to the Orders in question or the arrangements made with a view to their execution.
The validity of the War Measures Act was not attacked before their Lordships, and, consistently with the principles stated, was not open to attack; The validity of the orders was challenged on many grounds. Their Lordships have considered not only the points put forward on behalf of the appellants, but whether the orders were susceptible of criticism for reasons not put forward. Their Lordships are satisfied that all possible grounds of criticsm were in one form or another included in the grounds on which the appellants relied. For the validity of the orders it is necessary first, that on the true construction of the War Measures Act, they fall within the ambit of the powers duly conferred by the Act on the Governor in Council, second, that, assuming the orders were within the terms of the War Measures Act, they were not for some reason in law invalid. The points taken were, first, that the War Measures Act did not on its true construction authorize orders for deportation to be made as respects British subjects or Canadian nationals, and that it should in certain respects receive a limited construction: second, that if the Act purported on its construction to authorize the making of such orders, yet the orders made would be contrary to the Imperial Statute, British Nationality and Status of Aliens Act, and therefore to that extent invalid: third, that the provision contained in s. 2, sub-s. 4, of P. C. 7355 (relating to the wives and children of persons in respect of whom an order for deportation had been [*103] made) was for a specific reason invalid: fourth, that in any event the order made under the National Emergency Transitional Powers Act continuing the former orders of the Governor in Council was invalid.
The first point raises questions of construction with which their Lordships must now deal. The language of the War Measures Act is in general terms, but it was argued that certain limitations were as a matter of construction of the Act to be implied and that to the extent to which any order purporting to be made under the Act fell outside its proper ambit, the order would of necessity be invalid. The first suggested limitation was based on the Colonial Laws Validity Act, 1865. At the date when the War Measures Act came into force legislation made by the Parliament was in its effect subject to the provisions as to repugnancy contained in the Act of 1865, and it was argued that the War Measures Act should be construed as confined in its possible ambit to the making of orders which would, consistently with the Colonial Laws Validity Act, 1865, then be valid as law within the Dominion. If that was so the orders were not authorized by the War Measures Act in so far as they were repugnant to the British Nationality and Status of Aliens Act, 1914-18, which was an Act of the Imperial Parliament and in the appellants contention extended to the Dominion as part of the law of the United Kingdom. Their Lordships are unable to accept this contention. The effect of the Colonial Laws Validity Act, 1865, was only that Canadian legislation repugnant to the statutory law of the United Kingdom applying to the Dominion was inoperative. The only conclusion to be drawn from a consideration of the Colonial Laws Validity Act is that the War Measures Act did not on its true construction confer a power beyond the extent to which it might at the date of its use be validly exercised. The statutory law of the United Kingdom is not static and, in their Lordships opinion, there is no justification for the imputation that the Parliament of Canada legislated on the footing that it is static. The effectiveness of legislation of the Parliament of the Dominion at the date when those delegated powers are exercised, not the limitation on that legislation at the date when the War Measure Act was passed, is, so far as the Act of 1865 is concerned, the relevant matter.
Secondly, it was argued that, as a matter of construction, the War Measures Act did not authorize the making of orders having an extra-territorial operation. This point was relevant by [*104] reason that the orders in question in terms authorized deportation. This point may be shortly disposed of. Extra-territorial constraint is incident to the exercise of the power of deportation (Attorney-General for Canada v. Cain (1)), and was, therefore, in contemplation. Any lingering doubts as to the validity in law of an Act which for its effectiveness requires extra-territorial application were, it may be added, set at rest by the Canadian Statute, the Extra-Territorial Act, 1933.
Thirdly, it was argued that the War Measures Act should be construed as authorizing only such orders as are consistent with the accepted principles of international law, and that the forcible removal to a foreign country of British subjects was contrary to the accepted rules of international law. The Act therefore as a matter of construction did not, it was said, purport to authorize orders providing for such removal. It may be true that in construing legislation some weight ought, in an appropriate case, to be given to a consideration of the accepted principles of international law (cf. Croft v. Dunphy (2)), but the nature of the legislation in any particular case has to be considered in determining to what extent, if at all, it is right on a question of construction to advert to those principles. In their Lordships view those principles find no place in the construction of the War Measures Act. The Act is directed to the exercise by the Governor in Council of powers vested in the Parliament of the Dominion at a time when war, invasion, or insurrection or their apprehension exists. The accepted rules of international law applicable in times of peace can hardly have been in contemplation, and the inference cannot be drawn that the Parliament of the Dominion impliedly imposed the limitation suggested.
The next question of construction arising under the Act has more substance. It was said that there was inherent in the word deportation as part of its meaning the necessity that the person to be deported was as respects the State exercising the power an alien. The express power given to expel persons from Canada was therefore limited to aliens, i.e., persons who were not Canadian nationals. It was not permissible to treat as authorized by the general power a power to make orders for deportation in relation to a class of persons impliedly excluded from deportation by the terms of the specific power. There was therefore an implied prohibition against the deportation of Canadian nationals. On this
(1)  A. C. 542.
(2)  A. C. 156. [*105]
argument it may be conceded that commonly it is only aliens who are made liable to deportation, and that in consequence, where reference is made to deportation, there is often imported the suggestion that aliens are under immediate consideration. The dictionaries, as might be expected, do not altogether agree as to the meaning of deportation, but the Oxford English Dictionary gives as its definition The action of carrying away: forcible removal, especially into exile: transportation. As a matter of language, their Lordships take the view that deportation is not a word which is misused when applied to persons not aliens. Whether or not the word deportation is in its application to be confined to aliens or not remains therefore open as a matter of construction of the particular statute in which it is found. In the present case the Act is directed to dealing with emergencies; throughout it is in sweeping terms, and the word is found in the combination arrest, detention, exclusion and deportation. As regards the first three of these words, nationality is obviously not a relevant consideration. The general nature of the Act and the collocation in which the word is found, establish, in their Lordships view, that in this statute the word deportation is used in a general sense and as an action applicable to all persons irrespective of nationality. This being in their Lordships judgment the true construction of the Act, it must apply to all persons who are at the time subject to the laws of Canada. They may be so subject by the mere fact of being in Canada, whether they are aliens or British subjects or Canadian nationals. Nationality per se is not a relevant consideration. An order relating to deportation would not be unauthorized by reason that it related to Canadian nationals or British subjects Even if this were not the case, the same result may be reached by another route. The general power given to the Governor in Council in the opening part of s. 3 of the Act is not in this statute limited by reference to the acts particularly enumerated, and their Lordships see no reason for differing from the view expressed by Rinfret C.J. that the order was justifiable under that general power (see King-Emperor v. Sibnath Banerji (1)
There remains one further question of construction of The War Measures Act, namely, whether it authorized the making of an order which provided that deported persons should cease to be either British subjects or Canadian nationals. That matter must be considered in the light of views which their
(1) (1945) L. R. 72 I. A. 241. [*106]
Lordships have already expressed as to the construction of the Act. They see no reason for excluding from the scope of the matters covered by the general power contained in s. 3 a power to take from persons who have in fact under an order for deportation left Canada their status under the law of Canada as British subjects and Canadian nationals.
The result is that on its true construction the War Measures Act authorized the making of orders for deportation of any person whatever be 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 next question is whether The Colonial Laws Validity Act, 1865, applies to the orders of the Governor in Council. If it does, then in so far as they are repugnant to the British Nationality and Status of Aliens Act (which their Lordships are assuming to be an Act of the Imperial Parliament extending to Canada) they are invalid unless the provisions of the Statute of Westminster can be relied on. The contention of the appellants was that the orders, though law made after the date of the Statute of Westminster, were not law made after that date by the Parliament of the Dominion. The activities of Parliament in the matter in question had, it was said, ceased in 1927. The orders were not of its making. The passing by the Parliament of the National Emergency Transitional Powers Act, 1945, was, for the purpose in hand, immaterial, for the reason that s. 4 empowered the Governor in Council to order the continuance only of orders and regulations lawfully made under the War Measures Act. Their Lordships agree that in considering this particular matter the National Emergency Transitional Powers Act, 1945, cannot be prayed in aid of the validity of the orders, but in their opinion the orders in question were made after the passing of this Act [i.e., the Statute of Westminster] by the Parliament of the Dominion as that phrase is used in the Statute of Westminster. This, again, is a question of construction. Both in sub-ss. 1 and 2 of s. 2 of the Statute of Westminster the matter which is dealt with is law, and that is a general term which includes not only statutes but also orders and regulations made under statutes. Undoubtedly, the law as embodied in an order or regulation is made at the date when the power conferred by the Parliament of the Dominion is exercised. Is it made after that date by the Parliament of the Dominion? That Parliament is the only legislative authority for the Dominion as a whole and it has chosen to make the law through [*107] machinery set up and continued by it for that purpose. The Governor in Council has no independent status as a law-making body. The legislative activity of Parliament is still present at the time when the orders are made, and these orders are law. In their Lordships opinion they are law made by the Parliament at the date of their promulgation. A contrary conclusion would, in their Lordships view, place an artificial and narrow construction on wide terms used in an Act of Parliament the subject-matter of which demands that a liberal construction should be put on the language used. In the result, therefore, the Colonial Laws Validity Act, 1865, affords no ground for questioning the validity of the orders.
The next matter arises on sub-s. (4) of s. 2 of P. C. 7355. Under that provision an order for deportation may be made as respects the wives and children (not over the age of sixteen years) of persons with respect to whom an order for deportation has been made. The case sought to be made runs as follows: The recitals in the order relate only to the desirability of making provision for the deportation of persons referred to in sub-ss. 1, 2 and 3 of s. 2 of the order. In the case of the classes of persons referred to in sub-ss 1, 2 and 3 (leaving aside detainees) request for repatriation was at some stage necessary; a request was considered by the Governor in Council to be a substantive matter, but no such request is required as respects the persons mentioned in sub-s. 4, and the only apparent reason for subjecting them to liability for deportation is that an order for deportation has been made as respects the husband or father. The order, therefore, not only does not show that by reason of the existence of real or apprehended war it was thought necessary for the security, peace, order, defence or welfare of Canada to make provision for their deportation but, when considered in substance, shows that these matters were not taken into consideration. A deportation of the family consequential on the deportation of the father might, indeed, be thought desirable on grounds other than those requisite for a due execution of the powers given and, it is contended, it is apparent that it is grounds not set out in the statute which alone have here been taken into consideration. The incompleteness of the recital is, in their Lordships view, of no moment. It is the substance of the matter that has to be considered. Their Lordships do not doubt the proposition that an exercise of the power for an unauthorized purpose would be invalid, and the only question is whether there is apparent any matter which [*108] justifies the judiciary in coming to the conclusion that the power was in fact exercised for an unauthorized purpose. In their Lordships opinion there is not. The first three sub-sections of s. 2 no doubt deal with the matter which primarily engaged the attention of the Governor in Council, but it is not in their Lordships view a proper inference from the terms of those sub-sections that the Governor in Council did not also deem it necessary or advisable for the security, defence, peace, order and welfare of Canada that the wives and children under sixteen of deportees should against their will also be liable to deportation. The making of a deportation order as respects the husband or father might create a situation with which, with a view to forwarding this specified purpose, it was proper to deal. Beyond that it is not necessary to go.
The last matter of substance arises on the National Emergency Transitional Powers Act, 1946. It was contended by the appellants that at the date of the passing of this Act there did not exist any such emergency as justified the Parliament of Canada in empowering the Governor in Council to continue the orders in question. The emergency which had dictated their making namely, active hostilities had come to an end. A new emergency justifying exceptional measures may, indeed, have arisen, but it was by no means the case that measures taken to deal with the emergency which led to the Proclamation bringing the War Measures Act into force were demanded by the emergency which faced the Parliament of Canada when passing the Transitional Act. The order under the Act continuing the orders in question was therefore prima facie invalid. This contention found no favour in the Supreme Court of Canada, and their Lordships do not accept it. The preamble to the Transitional Act states clearly the view of the Parliament of the Dominion as to the necessity of imposing the powers which were exercised. The argument under consideration invites their Lordships, on speculative grounds alone, to overrule either the considered decision of Parliament to confer the powers or the decision of the Governor in Council to exercise them. So to do would be contrary to the principles laid down in Fort Frances Pulp & Power Co. v. Manitoba Free Press Co. (1) and accepted by their Lordships earlier in this opinion.
One remaining matter relied on by the appellants should be mentioned. First it was said that the words of the Japanese race were so vague as to be incapable of application to ascertained
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persons. It is sufficient to say that in their Lordships opinion they are not. All that can be said is that questions may arise as to the true construction of the phrase and as to its applicability to any particular person, but difficulties of construction do not affect the validity of the Orders.
In the result, their Lordships find themselves in agreement with the conclusion at which Rinfret C.J. and Kerwin and Taschereau JJ. arrived, and for the reasons they have expressed will humbly advise His Majesty that none of the Orders in Council is in any respect ultra vires and that the appeal should be dismissed. There will be no order as to costs.
* Copyright duration in Canada is 50 years. This document is in the public domain in and for Canada and only the proprietary format has been removed. See Copyright Law in Canada. The subject matter of this judgment remains of vital political importance today. See Ann Gomer Sunahara, The Politics of Racism (2000); cf. I. Abella & H. Troper, None is Too Many: Canada and the Jews of Europe, 1933-48. (1983). ed.