"Promises of Law: The Unlawful Dispossession of Japanese Canadians" on SSRN
The article will appear in vol.54 (3) of the Osgoode Hall Law Journal.
This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of twenty-one thousand Canadians of Japanese descent, the Canadian government enacted Orders in Council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese-Canadian community and concern from within the corridors of government resulted in amendments to those orders which made clear that the Custodian held that property as a “protective” trust, and would return it to Japanese Canadians at the conclusion of the war. That is not what happened. In January 1943, a new order in council authorized the sale of all property seized from Japanese Canadians. The trust abandoned, a promise broken, the Custodian sold everything it had taken. This article traces the promise to protect property from its origins in the federal bureaucracy and demands on the streets to its demise in Nakashima v Canada, the Exchequer Court decision that held that the legal promise carried no legal consequence. We argue that the failure of the promise should not obscure its history as a product of multi-vocal processes, community activism, conflicting wartime pressures, and competing conceptions of citizenship, legality, and justice. Drawing from a rich array of archival research, our article places the legacy of the property loss of Japanese Canadians at the disjuncture between law as a blunt instrument capable of gross injustice and its role as a social institution of good faith.