The Unlawful Dispossession of Japanese Canadians

Excepted from Eric Adams and Jordan Stanger-Ross, “Promises of Law - The Unlawful Dispossession of Japanese Canadians” Osgoode Hall Law Journal 54.3 (2017) 687-740.

While interning Japanese Canadians, the federal government seized control of all of their real and personal property within the “protected area in British Columbia.” In the spring of 1943, federal officials began to sell virtually everything that the government had taken, often below market value. Families lost heirlooms, vibrant businesses, and everyday possessions. They lost cars, boats, books, toys, furniture, and cameras. They lost homes and farms. Beyond the tangible, Canadians of Japanese descent lost opportunities, neighbourhoods, and communities. They lost connections to place. They lost retirements, livelihoods, and educations. They lost agency over their property and life choices. They lost, as Rikizo Yoneyama poignantly expressed in a defiant letter to the Minister of Justice, “more than just a home.” Japanese Canadians, he lamented, lost “the foundation of security and freedom as Canadian citizens.”

The sale of Japanese-Canadian-owned property was consistent with other moments in Canadian history when promises lost meaning as government interests shifted, officials’ memories (conveniently) faded, and new legal interpretations of those promises took their place. The events chronicled here echo the federal government’s treaty promises to First Nations, which were backed by oral promises that officials later abandoned in favour of narrow legal interpretations—with devastating consequences for Indigenous peoples.

The dispossession of Japanese Canadians is another instance in which the Crown created circumstances of dispossession coupled with a paternalistic promise of protection that it did not keep. When the federal government seized the property of Japanese Canadians, it made assurances in law, repeated by officials to Japanese Canadians on the doorsteps of their homes, that the property would be held as a “protective measure only” and would someday be returned. 

[…]

The promise to protect property and its subsequent violation emerged out of the context of Canada at war. In the emergency federal cabinet meeting on 1 September 1939, following news that Germany had attacked Poland, Justice Minister and Acting Secretary of State, Ernest Lapointe, proclaimed an apprehended state of war and invoked the War Measures Act (WMA). As in the First World War, the WMA transferred virtually unlimited legislative authority to the federal cabinet. In the broad words of the Act: “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 … deem necessary or advisable for the security, defence, peace, order and welfare of Canada.”  The Act specifically placed “appropriation, control, forfeiture and disposition of property” within federal executive control. In litigation arising out of the First World War, the Judicial Committee of the Privy Council upheld the constitutionality of the WMA under the federal power to legislate for the “peace, order, and good government of Canada” in times of national crisis. As one government committee summarized, the Act granted “the Executive ample authority to take pretty well whatever action might be found to be necessary to meet the exigencies of war.”

Long before the war in the Pacific, Japanese Canadians had been the subject of racist treatment under the law. In keeping with longstanding state hostility to Japanese Canadians, on 1 October 1940, the Cabinet War Committee established a “Special Committee on Orientals in British Columbia,” to keep “the Government constantly informed … as to the oriental situation in that Province.” Hundreds of orders in council restricting the liberty of Japanese Canadians followed. The eventual dispossession, internment, incarceration, exile, and prohibitions on returning to British Columbia were all products of law: Orders in council drafted by a federal bureaucracy and approved by committees of cabinet. 

Following Canada’s declaration of war against Japan on 7 December 1941, the legal focus on Japanese Canadians intensified. A series of orders in council over the ensuing months enabled the uprooting and dispossession of all those living within the “protected area” of British Columbia, an enormous area of land covering the coast to 100 miles inland.  As a precursor to the internment, in late February 1942, Order 1486 empowered the government to “require any and all persons to leave such protected area.” On 4 March 1942, Order 1665 put the internment policy into legal effect. Citing the necessity of “the security and defence of Canada,” the Order established the British Columbia Security Commission (BCSC), headquartered in Vancouver, “to plan, supervise and direct the evacuation from the protected areas of British Columbia of all persons of the Japanese race.” The uprooting and internment of Japanese Canadians created an immediate problem of what to do with the empty properties and vulnerable possessions of Japanese Canadians forced from their homes. The solution was for the Secretary of State, Norman McLarty, to take custody of seized property, and promise its protection. 

[…]

Under the heading “Custody of Japanese Property,” Order 1665 provided as follows: 

12.(1) As a protective measure only, all property situated in any protected area of British Columbia belonging to any person of the Japanese race resident in such area … shall be vested in and subject to the control and management of the Custodian as defined in the Regulations respecting Trading with the Enemy, 1939; provided, however, that no commission shall be charged by the Custodian in respect of such control and management.

Section [12(3)] concluded that the “property, rights and interests so vested in and subject to the control and management of the Custodian … shall be dealt with in such manner as the Governor in Council may direct.”

[…]

Facing internment, Japanese Canadians could see the precarious position of their property and they demanded its protection. Undersecretary of State Coleman realized that the promise of protection in Order 1665 was insufficient. On 16 March he explained to the Departments of Justice and External Affairs that “leaders in [the Japanese-Canadian] community” were “exercised” about the property situation and indicated that the BCSC regarded this as a matter of “importance and urgency.” He recommended an amendment to Order 1665, which included “dropping completely” the offending clause, 12(3). “I do not think,” wrote Coleman, “it was ever contemplated by the Government that they would deprive the Japanese owners of their property or the proceeds thereof.” The existing wording, however, left the law “susceptible of the interpretation that something in the nature of confiscation is taking place and I am sure,” he repeated, “this was not the intention of this Government.” Citing the necessity to encourage Japanese Canadians to register their property with the Custodian, and the “very heavy responsibilities” placed upon the BCSC, Coleman proposed a rewording of the law. 

The promise to protect emerged from a number of interests that, for the moment, intersected. One thread […] drew together a connection between the rights of British subjects, common law property rights, and rights of natural justice. Normative concerns for fairness were bolstered, however, by instrumental values that sought cooperation, administrative simplicity, and cost effectiveness in the implementation of the racialized internment and dispersal of Japanese Canadians. Coleman, for his part, made a pragmatic case. 

Japanese Canadians were “exercised” and their fears about the handling of their property jeopardized the activities of both the BCSC and the Custodian. His proposed amendments, which would take the form of Order 2483 on 27 March 1942, aimed to reassure Japanese Canadians and hence facilitate the work of the uprooting. And yet, his argument also conveyed something of Read’s view that confiscation would violate core principles of property rights. Coleman took for granted, at least rhetorically, that the government would not confiscate the property of British subjects. Almost a year later, Coleman and his supervisor, the Secretary of State, described a contemplated new Order that would force the sale of all Japanese-Canadian-owned property as a significant shift away from the protection envisioned in Order 2483.

Just over three weeks after Order 1665 became law, the cabinet amended it with Order 2483. The preamble explained the reasons for the revisions, noting “that it is desirable to provide that any plan with regard to the placement of such persons be limited to making provision for the temporary placement only of such persons during the continuation of the state of war now existing.” The preamble also cited recommendations by the BCSC that “a greater degree of protective control over persons of the Japanese race and the property of such persons be provided for.” The substantive provisions stipulated the powers of the Commission to include “the temporary placement only” of Japanese Canadians “during the continuation of the state of war now existing.” Additionally, section 12 was amended to add the following: 

12.(2) The Custodian may, notwithstanding anything contained in this Regulation, order that all or any property whatsoever, situated in any protected area of British Columbia, belonging to any person of the Japanese race shall, for the purpose of protecting the interests of the owner or any other person, be vested in the Custodian, and the Custodian shall have full power to administer such property for the benefit of all such interested persons, and shall release such property upon being satisfied that the interests aforesaid will not be prejudiced thereby.

[…]

As would become evident in the Nakashima case, the Orders that constituted the dispossession created a cross-weave of conflicting powers and responsibilities. Aspects of the orders suggest essentially unlimited governmental power over all Japanese-Canadian-owned property, including the power to dispose of the property for any reason. Reference to the Regulations Respecting Trading with the Enemy also indicated a pervasive tendency to conflate Japanese Canadians with the country of Japan and to cast loyal Canadians of Japanese descent as enemies. But the wide powers of disposal and racist framing must be considered alongside provisions that created a legal trust. Beginning with the notion that property was being held in “custody,” without charging administrative fees, the orders overlaid the vesting of Japanese-Canadian-owned property in the Custodian with a legally significant purpose: “[A]s a protective measure only.” Order 2483 further stipulated that property was to be held for the “benefit” of “interested persons” (earlier defined as “the owner or any other person”—presumably family members and creditors without title). Moreover, given that the orders granted only the “temporary” power to remove and intern Japanese Canadians, the orders assumed that property would be returned to original owners at the conclusion of “the state of war now existing.” Read together, and in sequence, the orders circumscribed the Custodian’s powers over Japanese-Canadian-owned property with deliberate limits. Without saying so expressly, Order 1665 as amended by Order 2483 created a legal trust.

[…]

During the summer and fall of 1942, federal officials began to contemplate a breach of the legal trust and a betrayal of the promise to protect. Officials in the Custodian’s office faced mounting pressure to sell Japanese-Canadian-owned farms (from staff of the Soldier Settlement Board, which wanted them for veterans) and urban properties (particularly in the City of Vancouver, where officials contemplated a redevelopment of the largest prewar Japanese-Canadian neighbourhood). As the Custodian’s office considered these proposals, they began to discuss the sale of all Japanese-Canadian-owned property, including real estate and personal belongings. These communications continued to focus on pragmatic concerns. McPherson in particular came to see sale as the most feasible solution to the problems of property management. At the same time, the sales would allay concerns about costs of the internment, since the funds realized in the sale of the property would be credited to the Japanese-Canadian property-owners and put towards the costs of maintaining internment.  By leaving Japanese Canadians with virtually nothing in British Columbia, the forced sales also advanced the aim, shared by almost all officials (even advocates of robust trusteeship), to permanently disperse Japanese Canadians from the province. In a letter to the Minister of Justice, Louis St. Laurent, Secretary of State McLarty (a former lawyer as well), conveyed the policy consensus that, “[t]he situation in British Columbia concerning both urban and farm properties of Japanese who have been evacuated is exceeding difficult.” “[I]t was the unanimous view of the members of Council who looked into the problem,” he wrote, “that it would probably be necessary to take steps to liquidate, with appropriate safeguards for the protection of the interests of the owners of the Japanese race.” In effect, the government decided that all Japanese-Canadian-owned property remaining in the “protected area” would be sold. 

On 19 January 1943, the Government announced in Order 469 that “the evacuation of persons of the Japanese race from the protected areas has now been substantially completed and that it is necessary to provide facilities for liquidation of property in appropriate cases.” “Wherever,” Order 469 stated, 

under Orders in Council … the Custodian has been vested with the power and responsibility of controlling and managing any property of persons of the Japanese race evacuated from the protected areas, such power and responsibility shall be deemed to include and to have included from the date of the vesting of such property in the Custodian, the power to liquidate, sell, or otherwise dispose of such property.

Sales of the real property of Japanese Canadians began in the spring of 1943. Within the year, the Custodian had sold the majority of Japanese-Canadian-owned property, although periodic sales continued for more than six years thereafter.

Despite the fact that Order 469 reiterated that the Custodian’s power of “management and control” included the authority to sell, that power had always been present as long as the Custodian acted according to the terms of the trust: Namely, selling property only if such sales were for the protective benefit of Japanese-Canadian owners, and if the property could not be returned at the conclusion of the war. The power to sell was always qualified by a legal promise to protect the owners’ interest in their property. The government’s promise to protect was all the more important since the government had created the conditions that made the protection necessary in the first place; it was the uprooting that emptied houses, abandoned vehicles in driveways, and left household possessions the target of looters and thieves. It was the demands of Japanese Canadians, and the threats of their resistance, in addition to internal concerns about property rights and natural justice, that led to the promise to protect.