Orders in Council were made by the Governor in Canada under the authority of The War Measures Act. One authorised the Minister of Labour to make orders for the deportation to Japan of a specified group of persons aged 16 or over who were resident in Canada and who had made a request for repatriation. The Order also provided that the wife and children under 16 years of age of any person for whom the Minister made an order for deportation to Japan, might be included in such an order and deported with such a person. The effect was that a wife of a person within the specified groups could be returned without her consent even though she may have had no links by birth, race or nationality to Japan.
Held: The appeal agaiinst the upholding of the orders failed. The statute was interpreted to authorise removal from Canada not merely of persons of Japanese origin who requested repatriation, but also of their wives and children under 16 who resisted their own removal.
Lord Wright summarised part of the argument for the appellants: ‘The order . . 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.’ He asked whether there was: ‘any matter which justifies the judiciary in coming to the conclusion that the power was in fact exercised for an unauthorised purpose.’ He answered: ‘In their Lordships’ opinion there is not. The first three sub-sections of section S.2 no doubt deal with the matter which primarily engaged the attention of the Governor in Council [i.e. the sub-sections dealing with the removal of the specified group] 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 16 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.’
Judges:
Wright L
Citations:
[1947] AC 87
Jurisdiction:
Canada
Cited by:
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Lists of cited by and citing cases may be incomplete.
Constitutional
Updated: 01 May 2022; Ref: scu.242142