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The Politics of Racism by Ann Gomer Sunahara

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Afterward: Redress

In the seven years after this book was published in 1981, new laws and political developments altered the entire landscape of human rights in Canada. On April 17, 1982, the legal and equality rights of Canadians were enshrined in the Canadian Charter of Rights and Freedoms.1 Section 15 expressly acknowledged the equality of all Canadians before and under the law and prohibited discrimination on the basis, among others, of race.2 In July, 1988, the War Measures Act was replaced by the Emergencies Act.3 Finally, on September 22, 1988, the government of Prime Minister Brian Mulroney acknowledged the wartime wrongs experienced by Japanese Canadians and sought Parliamentary approval for an Order in Council4 providing compensation of $21 000 for each individual wronged. The Redress agreement also included a community fund to rebuild the infrastructure of the destroyed community, pardons for those convicted of disobeying Orders made under the War Measures Act, Canadian citizenship for those wrongfully deported to Japan in 1946 and for their descendants and $24 million in funding for a Canadian Race Relations Foundation.5 Significantly, that redress agreement was a negotiated settlement, not an imposed settlement.

The importance of constitutional protections for human rights is evident from the experience of Japanese Americans. Although the Constitution of the United States did not prevent their uprooting from the Pacific coast, it provided Japanese Americans with the legal tools that liberated them from their similarly unjust detention on January 5, 1945, over four years before Japanese Canadians regained their civil liberties on April 1, 1949.6 Pierre Trudeau, the Prime Minister responsible for the Charter, saw it as a way of preventing any other group from suffering similar discrimination.7

Pierre Trudeau's confidence in the Charter as the means of preventing a reoccurrence of what was done to Japanese Canadians, however, is debateable.8 As in the United States, the constitutional protections for human rights in Canada are not perfect. While section 15 of the Charter of Rights and Freedoms makes every individual equal before and under the law and grants them the right to the equal protection and equal benefit of the law without discrimination, section 339 permits Parliament to expressly declare that an Act of Parliament shall operate "notwithstanding" a provision included in section 2 (the fundamental freedoms) or sections 7 to 15 (the legal and equality rights) of the Charter. Where Parliament declares that an Act operates despite the equality provisions in the Charter, then the Act and any regulations made under it can discriminate on the basis of one or more of the prohibited grounds of discrimination; for example, race. This flaw is compounded by the fact that some rights, like the mobility provisions in section 610 of the Charter, apply only to Canadian citizens. But there is nothing in the Charter to protect the right of an individual to remain a Canadian citizen. Given that among the first steps taken by the Nazis against Germany's Jews was to deprive them of their German citizenship, this omission may be critical in any future governmental action against a minority.

The second development, the repeal of the War Measures Act, was a fundamental part of the campaign by Japanese Canadians in the 1980s for redress of the wrongs suffered at the hands of racist politicians during Second World War. Armed with recently published histories of their wartime experiences,11 the National Association of Japanese Canadians – the successor to the National Japanese Canadian Citizens' Association – sought to persuade the federal government to acknowledge those wartime wrongs, to negotiate compensation for those who were wronged and, most importantly, to make changes to Canada's laws to prevent other Canadians suffering similar wrongs.

The campaign initially divided Japanese Canadians. One group, centred in Toronto, wanted to accept a token group settlement of $6 million offered in 1984 by the Mulroney government. They saw this settlement as politically realistic and feared retaliation against Japanese Canadians if they demanded more. A second group, led by NAJC President Art Miki, saw that token offer as a continuation of the wartime attitude that Japanese Canadians could be treated as a weak, amorphus group on whom a settlement could be imposed. To Miki and the other leaders of the NAJC, a just process of negotiation was as important as the achievement of redress. They wanted a negotiated, not an imposed, settlement and a monetary acknowledgement that the human rights of individuals had been abused, not just group rights.

Success, they knew, required educating all the parties involved: politicians, the media, Japanese Canadians and the general public. To this end, between 1984 and 1988, the NAJC held a series of publications, seminars, house meetings and conferences; lobbied and petitioned the government and ethnic, religious and human rights groups; and composed and distributed studies and press materials.12 Much of the material was compelling. Running the gambit from emotional personal recollections to cold academic studies, the material documented the price of the uprooting and the need for redress. Joy Kogawa's best selling fictional account of the uprooting, Obasan,13 introduced thousands of ordinary Canadians to the wartime history of Japanese Canadians by putting them vicariously inside the experience. At the other extreme was a study conducted by the respected accounting firm, Price Waterhouse, which revealed that the economic losses from the wartime property confiscation were $443 million in 1986 dollars.14 By 1986, polls showed that 63% of Canadians supported redress and 45% favoured individual compensation.15 However, despite these polls the responses from the government of Brian Mulroney continued to refuse to consider anything but a lump sum group settlement.

But in the 1980's Japanese Canadians were not the only group seeking redress. Importantly, the Japanese American Citizens' League was conducting a similar campaign in the United States. In 1982 a bipartisan Congressional Commission studied and reported on the uprooting of Japanese Americans, roundly and unanimously condemning it as unjust.16 Following that report the JACL had lobbied Congress heavily for individual compensation for the violation of the constitutional rights of Japanese Americans. On September 17, 1987, they achieved their first victory. In honour of the 200th anniversary of the adoption of the U.S. Constitution, the US House of Representatives passed House Resolution 442, the Civil Liberties Act of 1987. Under this Act, each Japanese American who had been detained in the U.S. concentration camps during the Second World War, and who was alive on the day that the Bill became law, would receive individual compensation of $US 20 000.17 To make HR442 law, however, the JACL had to get a similar Bill passed by the Senate and to persuade U.S. President Ronald Reagan to sign the joint Bill into law. Neither was an easy task.

Also in 1987, the government of Brian Mulroney decided to replace the War Measures Act with more modern legislation that would permit graduated responses to different kinds of emergencies. The NAJC's legal committee examined the Bill tabled in June 1987 and found it to be very wanting. As first tabled, they concluded, it would permit the government in time of emergency to do everything that had been done to Japanese Canadians under the War Measures Act. In one way, it was worse than the War Measures Act, since it permitted secret Orders-in-Council. The Vice-Chair of the Committee, lawyer and historian Ann Sunahara, prepared a 65-page brief in which the proposed new Act was tested for practicality using actual events from the history of Japanese Canadians. Prepared, the NAJC petitioned to appear before the Legislative Committee that was tasked with consulting with interested persons on its content. Appearing before a Parliamentary committee is not a right; nor is it automatic. When the request of the NAJC was initially refused, the NAJC sought the intervention of the New Democratic Party M.P.s on the Committee. Derek Blackburn argued that the victims of the War Measures Act should be consulted on the content of its successor Act. On that basis the NAJC was invited to appear on March 15, 1988, the final day of presentations.18 Using the brief,19 presenters Roy Miki and Ann Sunahara demonstrated to the committee and to the bureaucrats who designed the Act how the injustices of the past could be repeated under the existing draft of the Bill. Both the Legislative Committee and government officials listened carefully.

Over the next three weeks, Legislative committee considered 85 amendments directed at correcting the problems identified by the NAJC. In the end 65 were adopted. Among them were further restrictions on when the emergency powers could be used, expansion of Parliament's ability to supervise the Cabinet's use of emergency powers, expanded powers for Parliament to revoke an Order-in-Council, a mandatory post-emergency inquiry into how the emergency powers had been used, mandatory compensation for any abuse of emergency powers and, most importantly, section 4, which reads:

  1. Nothing in this Act shall be construed or applied so as to confer on the Governor in Council the power to make orders or regulations
    1. altering the provisions of this Act; or
    2. providing for the detention, imprisonment or internment of Canadian citizens or permanent residents as defined in the Immigration Act on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 4 is an attempt to prohibit a future Cabinet from amending the Emergencies Act by Order-in-Council. Specifically, section 4 is intended to prevent a future government from using section 33 of the Charter to override the equality rights set out in section 15 of the Charter. The Emergencies Act is a great improvement over the War Measures Act. However, it is only an Act of Parliament. It can be abolished or amended at any time.

The spring of 1988 was also active on other redress fronts. On April 14, the NAJC held a high profile, well-publicized redress rally on Parliament Hill in Ottawa. Attended by representatives from Japanese Canadian communities across Canada, Nisei veterans and representative of ethnic, religious and civil liberties groups that supported redress, the organizers were pleasantly surprised when the Minister for State for Multiculturalism, Gerry Weiner, also attended. His speech rehashed the old policies but he offered a ray of hope: an offer to reopen redress talks with the NAJC.20 This offer was followed on April 20th by the news that the U.S. Senate had approved its version of HR442.21

By mid-June 1988 the Mulroney government had recognized the groundswell of support for redress and tentative negotiations began with the NAJC. But, to the disappointment of the NAJC, the scheduled July meeting was cancelled by the government without explanation. On August 10, 1988, US President Ronald Reagan signed HR442 into law. Japanese Americans had achieved redress. A week later, on August 18, 1988, after learning that the NAJC was planning to hold a press conference in Ottawa on August 28th, the Minister Weiner's office finally contacted the NAJC President, Art Miki, to recommence discussions. On August 25th, the negotiations recommenced in Montreal with an added surprise: Minister Weiner was no longer the decision maker. That role had been given to Lucien Bouchard, a Minister of State and close confidant of Prime Minister Mulroney. It was soon clear that the government was willing, in principle, to agree to individual compensation. What had to be decided was the amount of individual redress and the non-monetary compensation. On August 27, 1988, after 17 hours of negotiations, an agreement was reached and the negotiators sworn to secrecy.22

On 22 September 1988, Prime Minister Mulroney announced the agreement between the NAJC and the federal government. Speaking in the House of Commons, he acknowledged the wartime wrongs and announced compensation of $21 000 for each individual directly wronged, a community fund to rebuild the infrastructure of the destroyed community, pardons for those wrongfully convicted of disobeying orders under the War Measures Act, Canadian citizenship for those wrongfully deported to Japan and their descendants and $24 million in funding for a Canadian Race Relations Foundation.23 By 1993, 17,948 survivors had received individual compensation and a $12 million community fund had been used to build community centres in most major centres between Montreal and Victoria and to fund a variety of cultural and educational and civil rights projects, programs and conferences.

The full story of the redress campaign cannot be told for some time. Access to the necessary government documents is closed for 20 years.24 That material will only become fully available in 2008. The long term effects of the redress settlement also remain unknown. Will knowledge of the history of Japanese Canadians prove an effective deterrent against racism in Canada? While the experience of Japanese Canadians is not the worst example of the effects of racism, it may be the best known and best documented. It is also the first example in Canada of a victim minority exposing the perfidy of the actions against them and achieving acknowledgement of the wrongs committed and individual redress for those wrongs. If the compelling story of Japanese Canadians were not a sufficient deterrent, the knowledge that the perpetrators of the wrongs against them were exposed in the public record may yet help to deter those who use bigotry as a political tool.

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Notes

  1. The Charter is set out in Part I of Schedule B to the Constitution Act, 1982. It was enacted as Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11, which came into force on April 17, 1982. Section 15 came into effect three years after the Charter came into force; that is on April 17, 1985. [BACK]
  2. Subsection 15. (1) states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [BACK]
  3. 3. Statutes of Canada 1988, c. 29, assented to 21 July, 1988. [BACK]
  4. P.C. 1988-9/2552, October 31, 1988. [BACK]
  5. Established by the Canadian Race Relations Foundation Act, 1991, c. 8, [C-21.8], assented to February 21, 1991, in force October 28, 1996, see SI/96-98. [BACK]
  6. For the Japanese American cases see Peter Irons, Justice at War: The Story of the Japanese American Internment Cases, Oxford University Press, 1993. The content of this book is summarized in Sunahara, M.A. "Justice at War: a Review Essay", 1985 Supreme Court Law Reports, Vol 7, pp. 559-568. [BACK]
  7. House of Commons, Debates, June 29, 1984. [BACK]
  8. For a full discussion of this issue see: Sunahara, M.A. "Justice at War: The Story of the Japanese American Internment Cases", 1985 Supreme Court Law Reports, Vol 7, pp. 559-568. This review essay tests the hypothesis that the Charter would prevent a similar uprooting by using a study of the U.S. constitutional cases. [BACK]
  9. 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. [BACK]
  10. 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. [BACK]
  11. The histories included this book and Kitagawa, Muriel, This is My Own: Letters to Wes and Other Writings on Japanese Canadians 1941-1949, Roy Miki ed., Talonbooks, Vancouver, 1985 and Ito, Roy, We Went to War: The Story of the Japanese Canadians Who Served During the First and Second World Wars, Canada's Wings, Stittsville, Ontario, 1984. [BACK]
  12. For a summary of the redress campaign from the Japanese Canadian point of view see: Miki, Roy and Kobayashi, Cassandra, Justice in Our Time: The Japanese Canadian Redress Settlement, Talonbooks, Vancouver, 1991 and Kobayashi, Cassandra and Miki, Roy, eds, Spirit of Redress: Japanese Canadians in Conference, JC Publications, Vancouver, 1989; Miki, Roy, ed. Redress for Japanese Canadians: A Community Forum, Vancouver, JCCA Redress Committee, 1984. For a fictional view of the redress campaign see Koyawa, Joy, Itsuka, Viking Press, 1992. [BACK]
  13. Lester & Orphen Dennys, Toronto, Ontario, 1981. [BACK]
  14. National Association of Japanese Canadians, Economic Losses of Japanese Canadians After 1941: A Study Conducted by Price Waterhouse, Vancouver, BC, Winnipeg: NAJC, 1985. [BACK]
  15. Miki, Roy and Kobayashi, Cassandra, Justice in Our Time, pg. 94. [BACK]
  16. United States, Commission on the Wartime Relocation and Internment of Civilians, Personal Justice Denied: The Report of the Commission on the Wartime Relocation and Internment of Civilians, U.S. Government Printing Office, December, 1982. [BACK]
  17. Ibid, pg. 110. [BACK]
  18. The NAJC appeared together with a delegation from the Ukrainian community, who had been similarly victims of the War Measures Act during the First World War. [BACK]
  19. "Submission to the Legislative Committee on Bill C-77" , the National Association of Japanese Canadians, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-77, March 15, 1988. [BACK]
  20. Miki, Roy and Kobayashi, Cassandra, Justice in Our Time, pp. 118 - 132. [BACK]
  21. Ibid, pg. 110. [BACK]
  22. Ibid, pp. 110, 134 to 137 and interviews by the author with Art Miki, Roy Miki and Maryku Omatsu. [BACK]
  23. The redress settlement cost the government $405,908,000. $376,908,000 was paid out in individual compensation to the 17,948 survivors who were alive on September 22, 1988; $24 million was allocated for the establishment of the Canadian Race Relations Foundation, $12 million for a fund to rebuild Japanese Canadian community institutions and ties and $3million for the administration of the redress settlement. Ironically, Japanese Americans have not done as well. Although 64,000 survivors registered with the Office of Redress Administration, the compensation money was not forthcoming. The U.S. legislation provided that the payments would be made over 10 years but did not include entitlement funding. Only in 1990 did Japanese Americans obtain that entitlement funding. The first cheques were issued on October 9, 1990 to the oldest qualified persons, all of whom were over 100 years of age: Ibid, p. 110 Because the US compensation is issued in order of age, by the time Japanese Canadians had been fully paid out in 1993, only Japanese Americans over the age of 80 had received their share – and the survivors are reportedly dying off at a rate of 200 per day. [BACK]
  24. Access to Information Act, subsection 21(1). [BACK]

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