Afterword: Redress

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 debatable.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. Importantly, 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, amorphous 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 1980s 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 into 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 MP 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:

4. 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. 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 and, significantly, with all its checks and balances, in the last 20 years after it was passed, it was never used.

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 meeting scheduled for July 1988was cancelled by the government without explanation. On August 10, 1988, US President 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 28^th, the Minister Weiner’s office finally contacted the NAJC President, Art Miki, to recommence discussions.  On August 25^th, the negotiations recommenced in Montreal with an added surprise.  Gerry Weiner was no longer the decision-maker.  That role fell to Lucien Bouchard, a Minister of State and close confident 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 Japanese Canadian 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.

While Roy Miki’s, Redress: Inside the Japanese Canadian Call for Justice, is an excellent history of the redress campaign from the perspective of Japanese Canadians, the government’s side of the story cannot be told for some time.  Access to the necessary government documents is closed for 20 years. ²⁴ That material only came available in 2008 and parts of that material, like the records of Prime Minister Brian Mulroney, will remain closed for longer.

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REDRESS AS PRECEDENT

Redress for Japanese Canadians has proven to be a precedent for rectifying historical injustice. Firstly, the history of Japanese Canadians itself has proved a deterrent against racism by politicians in Canada. While the experience of Japanese Canadians is not the worst example of the effects of racism in Canadian history, it remains one of 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 facts of Japanese Canadian history were not a sufficient deterrent, the knowledge that the perpetrators of the wrongs against them were exposed in the public record is a deterrent for those who use bigotry as a political tool.

The most lasting effects of redress may lie in how the redress campaign, and its implementation, changed the decision-making process of government and its attitude to use of public relations, public education and ex-gratia payments to solve injustices. Ex-gratia payments are payments that a government makes because it is the right thing to do; not because the law requires it.

Before redress, political thinking was that injustices done by past governments were their responsibility and nothing could or should be done about them. Past injustice was not the responsibility of a successor government ²⁵ —or of current taxpayers. The job of the current government was to prevent abuse on its own watch and, if possible, to create laws that would protect Canadians from abuse by future governments—laws like the Canadian Charter of Rights and Freedoms.

The first distinguishing feature of the redress campaign was that it challenged the idea that you could create an abuse-free future without acknowledging and correcting the abuses of the past. The redress campaigners argued that, until and unless, a just society acknowledged past wrongs—and, if possible, corrected the fallout from those wrongs—there could be no abuse-free future because the problems generated by past abuses would necessarily continue.

Secondly, the redress campaign was successful because it was a principled campaign. It was not a just cry that Japanese Canadians had been victimized by nasty politicians and inept bureaucrats—although that was very true. Rather, it was a campaign that resonated with Canadians because its fundamental message was that Canadian democracy had been undermined by preventable abuses of power. And until those abuses were acknowledged and corrected, they would remain a sword of Damocles hanging over the head of every Canadian. If the rights of one Canadian could be abused, then the rights of any Canadian could be abused.

The principles that evolved during the redress campaign are compelling. Consider the questions that you must ask to determine whether redress is appropriate:

1. Was a human or civil right abused, ignored or abrogated?
2. Was that abuse the result of a law or policy or the act or omission of a government agent or contractor?
3. Did that government have a significant connection to the victims of the abuse?
4. Is the government from which redress is sought a successor government to the one that did the wrong?
5. How can the wrong best be rectified?

• by an acknowledgment?
• by a general reform of the law or the policy?
• by institutional measures or reforms?
• if the victims are still alive and identifiable, by individual compensation? or
• by a combination of any or all of the above

6. And, lastly but very importantly: How do those directly affected want the wrong to be rectified?

Good bureaucrats and policy wonks and wise politicians love principled decisions like redress. Because if a problem is analyzed using tested, neutral principles, then the resulting policy will be sound, and equally importantly, capable of replication. My experience in 16 years of working in the federal public service is that good bureaucrats and wise politicians hate “political” solutions. Political solutions always come back to bite the department that is forced to implement them—and to sully the reputation of the government that makes them. So it should come as no surprise then, that having learned a good, workable set of principles through the redress campaign, that bureaucrats and politicians—both federal and provincial—have applied the redress principles to other situations.

Take, for example, Health Canada’s search for a solution to the problem of hemophiliacs infected with HIV-AIDs through tainted blood. The resulting lawsuits could take years to resolve and, in the meantime, the infected persons were dying. If the problem was dealt with on a basis of strict negligence law, it was a lose-lose situation—full of complicated, time consuming and very expensive legal issues.

But the redress principles provided a more humane answer:

1. a human and civil right had been abrogated—indeed a Charter right had been abrogated—a right to security of the person;
2. the victims were infected with HIV/AIDS because of an act or omission of a government agent or contractor;
3. the victims were citizens who had looked to their government to provide a safe source of blood products to treat their disease; and
4. the government that was trying to give them justice was a successor government to the one under whose watch the error had occurred.

That left only the question of how to rectify the wrong in consultation with the affected persons. In the end, after the Krever Inquiry and negotiations with representatives of the affected hemophiliacs and their family members, with the medical profession and with the blood products industry, the infected persons not only got full implementation of the recommendations of the Krever Inquiry, but also money and drugs during the lifetime of the infected persons and a sum to help their families make the transition on their death.

Since Redress was achieved in 1988, there have been other examples of the same analysis leading to ex-gratia payments and changes in government policies. The examples include redress for:

• the Chinese Head Tax;
• exposure to Agent Orange near Gagetown, New Brunswick—redress that includes compensation for the disabled children of the affected workers and soldiers;
• the exposure of military personnel to radiation during nuclear tests;
• abuse at the Nova Scotia Home for Coloured Children; and
• notably, the abuse of First Nation and Inuit children in residential schools, schools that were intended to destroy their culture.

The lasting strengths of redress come not only from the principles for deciding whether redress is appropriate, but also from seeking good, permanent solutions—not quick fixes. Good solutions require the involvement of those who are most directly affected. Those most directly affected must play an active role in working out the form that the redress should take—both because it is the democratic thing to do, and because imposing a solution is paternalism at its worst. As in the Japanese Canadian Redress Campaign, a negotiated solution gives control back to the persons injured by the bad law, policy, act or omission; that is, it empowers them. And that is one of the most important lessons to be drawn from redress—the solution must empower the injured.