Bare and Impolitic Right: Internment and Ukrainian-Canadian Redress 9780773571822
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A Bare and Impolitic Right INTERNMENT AND UKRAINIAN-CANADIAN REDRESS
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A Bare and Impolitic Right INTERNMENT AND UKRAINIAN-CANADIAN REDRESS
Bohdan S. Kordan and Craig Mahovsky
McGILL-QUEEN’S UNIVERSITY PRESS Montreal & Kingston • London • Ithaca
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McGill-Queen’s University Press --- (cloth) --- (paper) Legal deposit first quarter Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is % ancient forest free (% post-consumer recycled), processed chlorine free. This book has been published with the help of grants from the Ukrainian Canadian Foundation of Taras Shevchenko and from the Publications Funds at the University of Saskatchewan and St Thomas More College. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for its publishing program. It also acknowledges the financial support of the Government of Canada through the Book Publishing Industry Development Program ( ) for its publishing activities. National Library of Canada Cataloguing in Publication Kordan, Bohdan S. A bare and impolitic right : internment and Ukrainian-Canadian redress / Bohdan S. Kordan and Craig Mahovsky. Includes bibliographical references and index. --- (bnd) --- (pbk) . Ukrainian Canadians – Evacuation and relocation, ‒. . Ukrainian Canadians – History. I. Mahovsky, Craig II. Title. . ’. -- Photo Credits National Archives of Canada: p. : enemy alien prisoners (Spirit Lake, Que.), ; jacket front: prisoners clearing wood (Spirit Lake), ; jacket back: work party (Spirit Lake), Ron Morel Memorial Museum, Kapuskasing, Ont.: p. iii: new arrivals (Kapuskasing), ; p. : camp parade (Kapuskasing), ; p. : roll call (Kapuskasing), ; p. : camp compound (Kapuskasing), Typeset in Adobe Caslon . ⁄ and . Book design and typesetting by zijn digital.
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To Danya and Christian, with love and appreciation ‒ To Susan, with gratitude and devotion ‒
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Contents
ACKNOWLEDGMENTS
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INTRODUCTION: HISTORY AND REDRESS
Part One: What Went Wrong?
Internment in Canada: A Perspective The Nature of the Historical Wrong
Part Two: Putting Things Right
Redress and Democratic Dialogue, s On
Symbolic Redress: Reconciliation, Restoration, Responsibility NOTES
INDEX
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Acknowledgments
In , commissioned by the Ukrainian Canadian Congress and supported by a grant from the Ukrainian Canadian Foundation of Taras Shevchenko, we prepared a position paper on redress as a submission to government. Believing that there might be some value in making more widely known the arguments contained in that document, we reworked and augmented the brief to form the volume at hand. Our intention is to inform interested readers as well as to promote public deliberation and debate. In our preparation of the manuscript, we received encouragement and support from Andrew Hladyshevsky and especially Adrian Boyko, whose unflinching commitment to the project helped guide us. We much appreciate their courtesy and their constant attendance to the issue. Indeed, mere acknowledgment fails to convey our deep gratitude. We also recognize here with thanks the kind assistance of Lesya Szwaluk and Myron Momryk, who helped us secure elusive archival material. We thank also the National Archives of Canada (Ottawa) and the Ron Morel Memorial Museum (Kapuskasing, Ont.) for their kind permission to reproduce the period photographs in this book.
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Academic publishers in Canada increasingly need to seek subsidies from external funding agencies. This publication is no exception, having been made possible with the help of grants received from the Ukrainian Canadian Foundation of Taras Shevchenko and the Publications Funds at St Thomas More College and at the University of Saskatchewan. Used to offset the costs of production, this support is not only most welcome but also greatly appreciated. Acting on a passing note that a manuscript was in the making, Philip Cercone, editor-in-chief of McGill-Queen’s University Press ( ) asked us whether the press might take a look at a dra copy. The end result of that initial query is this book. We offer our sincere thanks to Philip Cercone, for his interest and conviction; to Professor John Zucchi for his vote of confidence, support, and guidance; to Joan McGilvray, for responding cheerfully to our many inquiries; and last but not least to the everdiligent Joanne Pisano, for helping us navigate through shallow waters. Finally, a note of thanks to our copy-editor on the project, John Parry. Editing is an art as well as a cra. It is also a selfless task. For his artful as well as skilful approach in making the language crisp and ideas clear and for sharing his talent, we owe a debt of gratitude. The time spent in reflection as well as in the writing and preparation of the manuscript came at the expense of our families. Patiently and without demur, they accepted our idiosyncratic preoccupation with the issue and project. They showed tremendous consideration in this regard – a signature not only of faith and steadfastness but of loving hearts as well. It is to our families that we respectfully and joyfully dedicate this book.
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ACKNOWLEDGMENTS
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A Bare and Impolitic Right INTERNMENT AND UKRAINIAN-CANADIAN REDRESS
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Introduction: History and Redress
It is said that time devours all things. We can find no better evidence of this aphorism than in long-ago events that generated such passion but today are almost inaccessible to memory. The internment of civilians in Canada during the Great War is one such event. Very little remains of the experience, and even less by way of recollection – the odd faded photograph, an archival cache of long-forgotten records, an oral account of an improbable story handed down through the decades. The internment of civilian enemy aliens in Canada during the First World War remains for most people an enigmatic affair, except for those who may say that, if it happened, then there must have been justifiable reason, given the extraordinary circumstances of the time. Among such individuals, this opinion has also reinforced the perception that the internment was entirely legitimate. Yet there are aspects of the experience, significant in terms of its wider implications, that demand attention and assessment. Mired in the politics of redress, any assessment will prove to be difficult. Interpretation is not at issue here, if only because there has been little systematic study of the subject. Rather, and more
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fundamentally, is a complete understanding of the experience possible where the primary motivating factor is a search for social justice? This concern raises several other important questions. Can we construct an objective account of historical events in the politicized context of redress? And more particularly, does pursuing redress willingly and easily compromise history? These are valid and reasonable issues, if only because history becomes discredited, as others have argued elsewhere, when its intention is to legitimate contemporary agendas.¹ Yet it is necessary to make a clear delineation: the politicization of history – the use of history for political ends – is an altogether different matter from redress as a legitimate political response to historical wrongdoing. At times, the two may seem synonymous. Nevertheless, a distinction is essential so that the proverbial lessons learned might educate as well as guide. Education and guidance, however, are not value-free processes. As they relate to the lessons of history, they are decidedly political. Both presume a commitment to accurate and reasoned deliberation of the historical facts. But, since both eschew passive reflection on past events in favour of more active engagement of the evidence, they also convey a sense of the importance of historical events for politics and for future choices. Redress serves to remind us of this simple maxim. Unfortunately, the question of the historical significance of internment in Canada during the Great War has disappeared in the recent, charged debate about the uses and abuses of history. Not all of the criticism is unfounded, uninformed, or off the point. There is much value in promoting public discussion as an antidote to the natural tendency to oversimpliſy.² Moreover, cautionary reminders about method, interpretation, and the role of scholars are crucial.³ But, if there is regret, it arises because the evidence, such as it is, suggests the arbitrary, unwarranted, and heavy-handed use of state power against a minority in apparent contradiction with democratic practice and the rule of law. These 4
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are not abstracted principles of which we must be chary in their application. Rather, they concern the essential values that underpin the country’s institutions and political culture, affecting who we believe we are as a people. History in this sense reaffirms whether the road travelled is as it is claimed to be and should be. Nor should the emphasis on reviewing and assessing the experience of Canadian internment during the First World War in the context of political and legal rights be misconstrued as an attempt at legitimizing contemporary programs aimed at redress. An analytical perspective that makes certain claims on history is valid because it is in keeping with the terms and language that would not have been unfamiliar or unknown at the time. Justice and the rule of law were not alien concepts, and any discussion about historical wrongs might well consider to what extent, how, and why such firmly entrenched and widely accepted conventions and customary notions about law and obligation were ignored.⁴ The short answer is that the extenuating circumstances of war test the normal boundaries of responsible government and political practice. This is a major consideration and emphasizes the need for greater analysis, assessment, and debate. For at stake here are the larger issues about the relationship between state and society and about the specific circumstances and conditions that might dictate the curtailment of civil rights. War is accompanied by many passions. It is insufficient, however, to suggest that war offers total immunity or that the exigencies of war serve as blanket entitlement, enabling authority to exercise unrestricted power. Then, as now, there are limitations on the state’s exercise of power, and the degree to which those boundaries are respected is a measure of lawful and legitimate state practice. In the end, whether a wrong was committed should not impinge on an objective assessment of the experience. Yet a historical wrong raises political questions about what, if any, responsibility exists to right that wrong. History is not a corrective or a panacea. Lessons, however, might emerge and therein lies the INTRODUCTION
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compelling reason to engage history politically – not to revise it or to give it an alternative meaning, but rather to ensure that the residual consequences of the event are not le unattended and to find guidance for future actions. That is the value of redress. But what form redress?⁵ In an “age of apology,” “redress” too oen means compensation.⁶ Reparation may be appropriate and even required where those against whom a wrong was committed live with its immediate effects. Less clear and more problematic is the case of past injustices where there are no survivors. The passage of time in these instances makes monetary redress and apology a questionable proposition. Assigning culpability, even granting amnesty, are rightfully the affairs of those against whom the wrong was originally carried out. But this neither excuses nor expunges the fact that a wrong occurred. Moreover, it does not obviate the need for some form of redress, even if symbolic, should the residual effects continue. All of this suggests that, in coming to terms with the past, what might possibly be negotiated is less important than the process itself as an expression of good faith. In this regard, we might well consider the restorative and reconciliatory function of redress. Yet a responsibility and an obligation nevertheless remain to right wrongs where there is both the ability and the opportunity to do so. That strong reasons to right the wrong flow directly from the useful social and political role of redress simply emphasizes this point. This slim volume has a number of objectives. It does not serve as a history of the internment, but it does assess and analyse a past government’s policy and actions by placing them within a wider discussion about Canadian and international law and the practice of Canada and other belligerents during the war (chapter ). Neither does it present a demand against today’s government for an accounting of past practices, although it outlines the responsibilities and failings of a past government with implications for present-day justice (chapter ). Moreover, it does not offer a definitive 6
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account of the redress movement of the s and s, although it does provide a sketch of the elusive, if ongoing negotiation of Ukrainian-Canadian redress (chapter ). Rather, this book presents a case (summarized in chapter ) for symbolic redress as a necessary and useful instrument in advancing the cause of justice. It is in essence a belated echo to the sense prevailing before the Great War that the domestic rule allowing for the harsh treatment of civilian aliens was “a bare and impolitic right, condemned by the conscience of modern times.”⁷ It is a statement concerned with rights and responsibilities owed not only to those who were wronged but to future generations of Canadians as well.
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Part One: What Went Wrong?
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1 Internment in Canada: A Perspective
SECURING CANADA: ENEMY ALIENS AND EMERGENCY LEGISLATION
In an effort to attract prospective immigrants to settle and develop the Canadian west, the Dominion of Canada actively recruited, between and , approximately , persons of Ukrainian ethnic origin. Largely from Ukrainian territories within the Austro–Hungarian monarchy, more than half of these immigrants had by become naturalized citizens, with the same rights and protections afforded to all Canadians. The rest, however, remained resident aliens of Austro–Hungarian nationality. With Britain’s declaration of war and the outbreak of hostilities on the European continent in August , Canada, as a part of the empire, found itself embroiled in the conflict. On August, the Dominion cabinet issued a proclamation declaring that a state of war existed and that any of “Our subjects and all persons resident,” if found aiding, abetting, or otherwise assisting the enemy, would be apprehended and “dealt with as traitors.”¹ On August, a further proclamation denied exit from Canada to Austro–Hun-
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garian and German reservists, as well as speciſying the conditions that could lead to the possible arrest and detention of aliens of enemy nationality. Otherwise, the document confirmed that so long as such individuals “quietly pursued their ordinary avocations” they would not be interfered with.² Shortly thereaer, on August, royal assent was given to legislation passed by Parliament that delegated to cabinet wide emergency powers for the duration of the war. The various sections of the War Measures Act detailed the scope of these powers, which included censorship, arrest, detention, exclusion, and deportation, as well as appropriation, control, forfeiture and disposition of property. Among other important features of the act, section provided that no person held on suspicion of being an enemy alien would be released, discharged, or tried without the consent of the justice minister. On the day the War Measures Act passed, a final proclamation outlined additional security measures.³ Aer repeating the earlier admonitions, it vested the authority to arrest and detain enemy aliens with officers of the Dominion Police and the Royal North West Mounted Police and additionally with persons authorized by the Dominion police commissioner. Release was possible if an undertaking was made to report and abide by the laws governing alien subjects. Those whose reliability could not be assured or who refused to sign the undertaking or to abide by its terms were to “be interned by such authorities and officers or militia according to the usages and laws of war in such place as provided by the militia and that if it be deemed necessary that guards be placed on persons so interned.” Learning that persons of German and Austro–Hungarian nationality were apprehensive about their own safety – “fearing some Government action that might deprive them of their freedom” – officials once again gave assurances, meant to be reasonably relied on, through a public notice.⁴ Issued September ,
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it stated that enemy aliens pursuing “their ordinary avocations” would not be interfered with, arrested, or detained. Declaring that any anxieties that they held were unfounded, the notice echoed the proclamation of August, which promised that no action would be taken against any law-abiding resident of Canada. On September, a final proclamation gave notice that any hostile acts or contravention of the law could result in arrest and internment. However, it limited the scope of this discretion: arrest and internment were not to be open-ended policy options. It made clear that violation of the law carried specific penalties and limited terms of imprisonment enforced by proceedings under the Criminal Code. Moreover, the proclamation repeated an earlier provision that release was possible if there was no evidence of threat and a signed undertaking was made to report to local authorities. During the weeks and months that followed, under the authority of the War Measures Act, cabinet approved a number of additional orders in council. ( September ) prohibited the possession or use of firearms and explosives by enemy aliens, the violation of which carried specific penalties. ( September ) prevented unauthorized personnel from being near railways or bridges and prohibited the communication or eliciting of information that could directly or indirectly be of use to the enemy, the violation of which carried specific penalties. ( October ) provided for the creation of registry offices that would control and monitor enemy aliens and instructed military authorities to make provision for the internment of offending enemy aliens as “prisoners of war,” who might be required “to do and perform such work as prescribed by them.” ( November ) approved the appointment of Major General Sir William Otter as director of Internment Operations. ( November ) – an amendment to – exempted enemyalien government employees and Armenian Christians (subjects
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of the Ottoman Porte) from registering and reporting, which seemed to imply a distinction between “friendly” and “enemy” aliens. Finally, on 6 June , responding to difficulties in the labour market and rising nativist sentiment, announced the government’s intention to apprehend and intern “aliens of enemy nationality who may be found unemployed or seeking employment or competing for employment in any community” on the grounds that it did so for their own safety. Before looking at internment in Canada, we consider the international legal framework governing the matter and the other belligerents’ practice. THEORY AND INTERNATIONAL PRACTICE: THE HAGUE CONVENTIONS, INTERNMENT, AND POWS
Theory The modern prospect of using unlimited means to injure the enemy would lead in the twentieth century to states’ growing reliance on that body of international law which pertained to the basic rules and principles governing land warfare. The purpose behind international regulation was to diminish the more egregious effects of war, primarily by safeguarding certain fundamental rights of persons who fell into the hands of the enemy, particularly prisoners of war ( s), the wounded and sick, and civilians. In the context of the First World War, the Hague Conventions (), as amended (), were the principal international conventions regulating the treatment of prisoners and, to a lesser extent, civilians in war.⁵ Canada was party to the Hague Conventions as part of the British Empire. Of particular concern, given the vicissitudes of modern warfare, was the need to identiſy who might be considered a prisoner of war. Article of the Conventions acknowledged the possibility
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that armed forces of the belligerents could consist of combatants and non-combatants. Consequently, “In case of capture by the enemy both had a right to be treated as a prisoner of war.” In its very premise however, Article still maintained a clear distinction between the two categories. Article required the detaining power to distinguish non-combatants from regular combatants in the field and to treat them as prisoners of war under certain specified conditions. “Members of mass levies,” as well as people who offered “spontaneous resistance to invading troops,” would be eligible for special protection as s. The conditions were as follows: that these forces be commanded by a person responsible for his subordinates; that they have a fixed, distinctive emblem recognizable at a distance; that they carry arms openly; and that they conduct their operations in accordance with the laws and customs of war. By itemizing the conditions that entitled non-combatants to the special protections accompanying status, the Conventions also identified the circumstances under which a particular category of civilian could be treated as a . Critically, they made no further provision for the treatment of civilian enemy aliens as s, if only because it was not foreseen that such people would require any further protection under treaty law.⁶ In essence, to the extent that resident aliens were domiciles of the host country, customary international law granted them certain substantive and procedural rights akin to those of ordinary citizens, less the special privileges and political rights reserved for native-born and naturalized citizens.⁷ In this regard, aliens, as resident members of a community within the state’s jurisdiction, were liable to the same penalties for state offences as ordinary citizens, including high treason.⁸ If the host state could not guarantee the resident enemy alien’s basic rights, then it had to provide a period of grace allowing for the subject’s unrestricted passage or return, with his or her prop-
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erty, to the country of origin. For those remaining behind, the Trading with the Enemy Acts would allow for the government’s seizure and temporary holding of business and personal assets under specific circumstances.⁹ The government was to retain such properties for the benefit of the original owners and to return them on the cessation of hostilities. Canadian law afforded the enemy alien limited protection, implicitly recognized in the public notice of September and the proclamation of September . This did not preclude the possibility of arrest, detainment, and internment. Nor did it imply the existence of rights beyond those granted by the state. During a time of war enemy aliens enjoyed rights and privileges only by special favour. But it also seemed that the rule of law would be respected, as evidenced by the authorities’ initial care in outlining the precise conditions that would lead to arrest, detention, and possible internment. Those who were identified as bona fide military s in Canada were entitled to special protection under international rules of engagement. The Hague Conventions were explicit as to the guarantees that such s could expect.¹⁰ The detaining power could use their labour as long as it compensated them according “to rates in force for work of a similar kind done by soldiers of the national army or, if there was none in force, at a rate according to the work executed.”¹¹ But the Conventions also proscribed their use in excessive, dangerous, or humiliating work and declared that they could not be compelled to do such tasks. Second-class s – i.e., not of ‘officer’ class – were required to do work only as it related to the administration, installation, cleanliness, and needs of a camp, while first-class prisoners – the equivalent of officers – were exempt from labour altogether and were to receive a financial allowance while interned. For the sake of order and security in the camps, s were expected to comply with the regulations set out by the detaining
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authorities. The Conventions made provisions to deal with noncompliance, permitting and regulating use of disciplinary punishment. They expressly forbade intimidation and the use of force. On the conclusion of the peace, all s were to be repatriated as quickly as possible, and valuables were to be returned. And aer deducting the cost of their maintenance, the detaining power was to pay them on their release the balance of wages earned during imprisonment. Practice The magnitude and intensity of the Great War had its natural corollary in the scope and scale of operations.¹² All the frontline states would not only imprison large numbers of captured combatants but also intern significant numbers of civilian enemy aliens, contrary to the spirit of both the and Hague conferences.¹³ With few exceptions, the internment of enemy aliens was the norm among the belligerents. In , Britain and Germany, for example, would begin the wholesale internment of their respective enemy-alien populations. Japan alone did not intern aliens of enemy nationality, while Portugal, rather than interning civilians, deported the small numbers on its territory. Suspicion and rivalry were the primary catalysts in the internment of civilian enemy aliens. The sinking of the passenger ship Lusitania in and the attendant public outcry were the immediate causes of Britain’s general internment of enemy aliens – an act reciprocated in kind by Germany.¹⁴ In France, the internment of civilian enemy aliens as s paralleled the rising level of anxiety in both the population and the government as German armies advanced on Paris early in the war. Only the United States, with some , resident enemy aliens on its territory, approached the problem cautiously.¹⁵ Aer it entered the war in April , it placed sharp limitations and restrictions on basic freedoms and introduced severe measures,
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including the Espionage Act () and the Sedition Act (). But the U.S. administration was repeatedly obliged to demonstrate the necessity of its actions and so relied on laws passed by Congress rather than on executive fiat. More important, the courts became directly involved in a variety of cases. While nearly all the belligerents interned enemy aliens, they showed considerable trepidation about treating civilian enemy aliens as s. Germany proposed to Britain a full exchange of interned civilians. Britain rejected the proposal, however – on the grounds that Germany would have enjoyed an unfair advantage, given that there were more German nationals resident in Britain than British subjects in the German Empire. As the war continued, the warring European states attempted collectively to work out reciprocal agreements for the release of their internees. Negotiated bilateral arrangements – between France and Germany, Germany and Italy, Britain and Austria–Hungary, and Austria– Hungary and France – led to leniency towards internees. Of some importance as well, nearly all the belligerents early in the war provided aliens with a short grace period to depart. Most, however, soon discontinued this allowance. They felt that, in an age of conscription and mass mobilization, the return of the ablebodied to their country of origin would prove detrimental. Among the warring states, there was an element of doubt associated with internment. Recognizing that civilian enemy aliens were not direct parties to the conflict and that internment was an unfortunate consequence of war, governments made every effort to ensure that the policy and practice of civilian internment would be neither harsh nor penalizing and that conditions for internees were as humane as possible. Governments in Austria-Hungary, Britain, France, Germany, Italy, and the United States generally organized and administered civilian camps to give inmates considerable autonomy.¹⁶ Moreover, since enemy aliens were civilian and not military s, they
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had no obligation to work beyond keeping the camps clean and orderly. Overcrowding and provisioning became problems, especially aer the economic blockades of . Nevertheless, the chief complaint among civilian internees was boredom. The belligerents did not conceive of internment of civilian enemy aliens as a policy objective in its own right. It was an unintended consequence of suspicion and tension and later of political machinations between states at war. Hence, and to the degree that civilian internees – though s – were considered non-combatants, there appeared to be a consensus that they enjoyed more rather than fewer rights than military prisoners and that their treatment would reflect this fact. As for military s – captured combatants – the belligerents were initially careful to follow the Hague Conventions. Work, for instance, though sanctioned, was never a central feature of their imprisonment or prison regime.¹⁷ During –6 only a small percentage of prisoners were working. As of January , for example, only percent of all military s in France were working; in March , in Britain, only , of , s were at work. Yet s in Germany worked on railways and in quarries, steel factories, and coal mines, and physical coercion seemed to the authorities an effective means to extort work from military s.¹⁸ Moreover, in the final years of the war, the belligerents showed general unwillingness to accommodate the needs of military s, causing much needless suffering. Nevertheless, they recognized, as a matter of principle, not only that s enjoyed certain rights but that a code also applied with respect to their treatment.¹⁹ Moreover, they understood that the degree to which they followed the code would be a measure of their civilization and that their behaviour would be judged as such. Whether they would follow the code was an entirely different matter.
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INTERNMENT IN CANADA: HISTORY AND ASSESSMENT
History The royal proclamation of August declared that measures would be taken against German and Austro–Hungarian reservists attempting to leave Canada, as well as against enemy subjects engaged in espionage or hostile acts. In its assurance that resident aliens would not ordinarily be interfered with, the proclamation followed the spirit of international convention. It seemed to recognize that resident enemy aliens had certain protections under international law, if only at the discretion of the state.²⁰ When promulgated, the War Measures Act was also intended to work within international norms. Though delegating wide discretionary powers to cabinet and granting an expanded role to various enforcement agencies, the act was specific and directed. It was not meant to be sweeping or penalizing legislation aimed at suppressing the rights of enemy aliens. Rather, in keeping with practice elsewhere – for example, in Britain – it was emergency legislation to be used prudently in safeguarding the security of the state. Mindful of this consideration, the authorities released approximately , of the , enemy aliens arrested and detained briefly between August and October , aer they had signed an undertaking to register and report regularly to local magistrates and other designated officials. Much, however, would change with Order in Council , October . Providing for the creation of registry offices and the internment of offending enemy aliens as s “who might be required to do and perform such work as prescribed by military authorities,” marked a policy shi. The registration of enemy aliens was nothing less than general and encompassing, and the use of internment intentional and purposeful. By the government’s own admission, there were two reasons for the new policy: the disconcerting level of unemployment among the foreign-born and British insistence at the outbreak of the war 20
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that enemy aliens in Canada looking for work not be allowed to depart for the non-combatant United States.²¹ British authorities feared that these aliens might eventually find their way to Britain and become charges on the public purse. Despite personal and political misgivings about the utility of closing the border to enemy aliens, the Canadian prime minister, Sir Robert Borden, under imperial pressure, would oblige.²² Consequently, in addition to those who were interned for being destitute – the most widely cited reason for internment – hundreds of others (the majority of them apparently not reservists) were also arrested at the Canadian–U.S. border, ignoring the international understanding regarding an allowance for leave. As for unemployment in the immigrant working class, it had a distinct political dimension. , passed amid labour unrest in June , announced the government’s intention to apprehend and intern “aliens of enemy nationality who may be found unemployed or seeking employment or competing for employment in any community.”²³ Responding to widespread and increasingly vocal anti-immigrant sentiment among the native-born, it described internment as a necessary precaution to ensure the safety of enemy aliens. , contradicting the original assurances of non-interference, revealed how much security legislation had deviated from its original purpose and intention. Equally problematic, despite an earlier distinction between “enemy” and “friendly” aliens²⁴ – the latter a designation for subject peoples of enemy origin hostile to the Central Powers because of their national aspirations – Canadian authorities generally ignored the category “friendly,” which featured prominently in British war policy. Since most enemy aliens in Canada were minority nationalities of the Austro–Hungarian Empire – namely, Ukrainians – recognition of such a difference would have restricted the government’s authority vis-à-vis members of such groups, whom it wanted to be able to intern because of the high rate of unemployment among such individuals.²⁵ Other than towards ChristINTERNMENT IN CANADA: A PERSPECTIVE
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ian minorities, or recognized sects under Ottoman rule, Canada did not apply the distinction, despite advice from Britain’s Colonial Office. Not surprisingly, the broad use of the security legislation and its elastic interpretation – minimally placing those affected under the terms of the Conventions – led to large numbers of enemy aliens being processed for internment.²⁶ This necessitated the creation of internment camps, most located in the Canadian hinterland.²⁷ Because the government wanted to offset the cost of internment and thereby keep expenditures to a minimum, it put internees designated as second-class s to work on public and, to a lesser degree, private projects.²⁸ First-class s – persons of an officer class – would not have to work and were generally segregated from the others. Labouring under both difficult conditions and threat of punishment – a source of constant complaint and bitter protest – second-class prisoners would follow a strict regime.²⁹ The schedule was unyielding, while the work was both difficult and dangerous for those unaccustomed to it. To reduce expenditures, the Internment Directorate, the military agency overseeing the operations, would enter into partnerships with federal agencies as well as other levels of government.³⁰ The system subjected the security operation to economic criteria that encouraged extensive use of internment labour on largescale projects and attracted applications from municipalities hoping to benefit from cheap labour. Since results had to justiſy the financial outlay, the work was closely monitored, highly regulated, and strictly enforced. This official policy of the compulsory use of civilian internment labour and the scale of the operation would have no equivalent among other warring states.³¹ The situation would not change fundamentally until a labour shortage – brought on by an expanding war economy – would force the government to parole the internees on an ad hoc basis 22
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over time. Those who were compliant or showed little resistance to their incarceration were released both to private agencies and to individuals willing to offer employment under close supervision.³² By year’s end , approximately per cent of the ,6 civilians interned were paroled. As for the remaining lot, officials expressed doubt as to their worth or desirability. Consequently, along with captured German merchant marines who had been interned in Canada for the duration of the war, a core group of malcontents as well as the infirm, insane, and a few choosing repatriation – totalling approximately , – were deported aer the formal conclusion of hostilities.³³ Finally, Canada did not provide for the return of earnings, assets, and property, held by the Custodian of Enemy Alien Property, until the Treaties of the Peace had been signed in . A small amount, primarily unpaid earnings, remained unclaimed. The accounts held by the custodian were eventually closed in , when the office ceased to exist, the balance being transferred into the General Revenue Fund.³⁴ An Assessment Arguably, the internment of enemy civilian aliens was a product of twentieth-century warfare. The modern phenomena of nations at war and mass mobilization clouded the distinction between combatant and non-combatant and made any non-naturalized alien of enemy origin and of military age a potential threat. In the climate of suspicion and resentment brought on by war, civilian enemy aliens thought to pose a security threat were interned as s under state-of-emergency legislation. It was a standard development among virtually all the belligerents in the Great War. Paradoxically, however, the countervailing view was that resident aliens, including those of enemy nationality, were entitled to protection under customary international and treaty law, limited though it might be.³⁵ Residence implied a degree of commitment, obligation, and reciprocity in the relationship between the immiINTERNMENT IN CANADA: A PERSPECTIVE
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grant and the host state. Even in Canada, built on the great European migrations of the late-nineteenth and early-twentieth centuries, even officials felt an obligation to extend justice to those whom it invited to its shores. But such a view was not deeply rooted in the political culture, leaving immigrants’ status open to interpretation – living within the community, but not quite part of it.³⁶ This tension about their status informed the initial uncertainty in Canadian policy. The emergency legislation, passed to satisſy legitimate internal security concerns, was at first limited in scope and purpose. This approach would gradually change, however, when internment – an emergency security measure – became an administrative measure to deal with alien unemployment. That it was deemed necessary – a factor that outweighed other considerations about their place in the nation – revealed the inherent difficulties associated with public acceptance of the foreign-born, especially in times of national stress. Sovereign right, limited by the rule of law, allowed authorities to intern enemy aliens who violated the prescribed regulations governing their behaviour. To the extent that they worked within the terms of the legislation, the domestic legality of the government’s actions was unassailable. Troubling, however, was the government’s willingness to expand its use of legislation to meet certain political and social objectives – specifically alien unemployment. Particularly telling in this regard, ( June ), giving it authority to apprehend and intern enemy aliens who were “competing for employment,” raised major questions about the nature and deeper purpose of the policy. Indeed, although the initial security measures were specific – including a provision for prosecution under the Criminal Code – the interpretation that led to internment moved practice away from the original policy objectives. This put the moral legitimacy of government action in doubt.
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But perhaps more serious was the government’s treatment of interned civilian enemy aliens as s. Having interned them as such, the state subsumed their basic legal, proprietary, and political rights, which it was entitled to do. But in doing so, it incurred a moral duty to pay heed to those rights recognized in international law and practice – whether covenants detailing the rights of s or the customary treatment of interned civilian enemy aliens as expressed internationally. In fact, in the choices that it made, the government mostly ignored the distinction between civilian and military s, at least vis-à-vis their labour, and applied the same standards to both. By conflating the two categories, government officials could use civilians as military conscript labour under the Conventions. But in such stretching of the provisions of the war conventions, Canada stood alone. Whereas other belligerents made a clear and comprehensive distinction between the two groups as a matter of principle, Canadian internment involved the uninhibited use of forced civilian labour.³⁷ This was possible because the Dominion blurred the distinction between military and civilian prisoners and ignored the generally recognized international practice of not using civilian internee labour. An extraordinary situation, it perhaps more than any other feature would define Canada’s internment policy during the Great War.³⁸ The state could force interned civilian enemy aliens to work on a variety of projects partly because they were socially and politically marginal. In the military parlance of the day, they were simply “prisoners of war” and were to be treated as such. As s, therefore, they should have been repatriated as a group to their country of origin at war’s end. They were not. Rather they were released into society, with the full expectation that they would be reintegrated.³⁹ They were members of the community but not fully welcome – an irony made all the more poignant when they applied for the
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return of confiscated assets and meagre earnings owed. Ottawa denied them these until the signing of several peace treaties in . Some would wait to collect their earnings and property until the negotiation of a cessation of hostilities took place with those states that they no longer considered their home. Others would simply get on with life in the new land, no matter how capricious the start. Critically, the internment of civilian enemy aliens had little impact on the public mind or in shaping the decisions of policy makers. Only some of those who had to carry out the military aspects of the internment, who saw interning the unemployed alien as contravening the basic principles of justice, expressed concern. Major General Sir William Otter, director general of Internment Operations, for one, was dismayed by “the tendency of municipalities to unload their indigents,” citing this as a principal cause of internment.⁴⁰ Meanwhile foreign observers noted with disapproval Canada’s internment policy.⁴¹ Yet disapproval was not the same as protest, and the policy went unchallenged. In the final analysis, Canadian officials arguably failed to meet certain internationally recognized standards and practices, and nativist sentiment and the temptation of cheap and accessible labour made moot any discussion of rights and obligations, except in the most perfunctory of ways. This outcome was unfortunate, because it would point to the seemingly irreconcilable difference between the promise of immigration and the reality of life in the new land. For some immigrants who wanted more than what they le behind, it would become a source of disappointment and lasting grievance.
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2 The Nature of the Historical Wrong
INDIVIDUAL RIGHTS AND GOVERNMENT DUTY
In the context of discussing historical grievances, redress, as a directed, political process, reinforces the notion that groups and individuals are entitled to the most basic of human rights. While informed by domestic and international jurisprudence, redress, as an analytical lens, is not limited to the passive interpretation of the law. Instead, it places the law within the broader, formative context of the relationship between a government and its people. Redress in this sense attempts to confront the damage caused by the improper use of the law in violation of the normative political and ethical principles that inform a democracy, placing an emphasis on those very same democratic principles that impart the character of justice to law. It is commonly held that each successive government is entrusted with a limited power to govern by, and in accordance, with the law. No one is above the law, but the law is above all.¹ Even though, prior to the Charter of Rights and Freedoms, , a
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Canadian court had only limited ability to censure the wisdom or policy that underlay decisions made by legislative and executive bodies,² neither Parliament nor the federal cabinet – even in times of war or emergency – was beyond the restraints on arbitrary power embodied in the rule of law.³ Moreover they had all the moral–political obligations associated with the receiving of discretionary power. Where the legislative delegation of authority included an element of discretion, this required the government to exercise authority within reason and in accordance with the law.⁴ Thus, where the government acted in good faith and according to reason, it would not be liable in law to those people injured by its actions. As for a government’s moral duty, which falls most heavily on those entrusted with such broad discretionary powers, this has never sheltered or legitimized the exercise of an arbitrary or unreasoned power. The government had no more authority, and no less obligation, than what both the law and moral standards of government explicitly, or by necessary implication, provided for. A narrow interpretation of the law uncovers no general obligation on the government to act in good faith towards its people when it acts without malice and within the law. Despite this strict reading of Canadian domestic law, law for our purposes here contains within its ambit the wider context of those political and moral obligations that underline and animate civil liberties, the rule of law, and their combined restraints on sovereign rule.⁵ Those supporting redress would argue that the arbitrary use of state power to isolate and disadvantage systematically ethnic or national groups so violates a government’s moral duty to its people that such actions fall outside the proper, legitimate scope of government activity, however broadly defined under emergency provisions. This is especially so where government exercises power over a segment of society whose rights and interests it holds in abeyance, leaving them subject and vulnerable to the just exercise
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of its discretion.⁶ In this case, a unique moral duty of care falls to the sovereign if not to preserve, then certainly to refrain from systematically causing harm or disadvantage to those who depend on its grace. In the First World War, Canada thus had a moral duty to observe a minimum standard of basic justice in relation to those under its protection and in its custody. Actions taken in violation of this duty not only undermined the just operation of Canadian society but threatened the very principles that framed the country’s social and political foundations. Then as now, society placed primacy on individual dignity, equality, and worth as the values that underpin a liberal-democratic polity.⁷ Therefore, bearing in mind the unique, formative value of law and these principles, government should have acted, if not in accordance with promotion of dignity and equality, then at the very least intruding minimally on these principles. Dignity and equality derive not from an individual’s status as citizen or from a legislative grant, but from the simple fact of being human. If social justice reflects concern with promoting these values in relation to the legitimate interests of the state, then their arbitrary or unprincipled limitation cannot be easily justified. Breaching them demands political accountability. Thus individuals and communities whose rights were violated through a past government’s neglect and indifference arguably have a strong moral claim to redress. Admittedly, however, dignity and equality are not absolute values, nor have they ever been.⁸ They, and the rights that derive from them, are subject to competing concerns. In wartime, for example, domestic law allows a government to abrogate the full exercise of individual rights in favour of national self-preservation.⁹ Redress, however, seeks to balance the state’s need for selfpreservation with a person’s right to freedom from arbitrary inter-
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ference by recognizing that the constraints on the individual must bear a rational relationship to a valid objective. In effect, though allowing for wide discretionary powers, emergency legislation such as the War Measures Act did not delegate to the state the ability to act arbitrarily. The rule of law effectively prevents governments from validly assuming the right to govern without limitation, reason, or accountability. Redress here would assume an expansive definition of the rule of law, as represented by those general principles that ground democratic state practice and justice. From this perspective, which stresses the democratic values of dignity, equality, and worth, the just exercise of authority may only minimally impair the procedural and substantive safeguards that enforce these rights. As for actions taken outside the rule of law that limit these rights, they lie beyond the legitimate authority of the state. In effect, though operating differently, both justice and the rule of law seek to prevent arbitrary abuse, abrogation, or interference with individual rights. Internationally, state interference with the basic human rights of those civilian aliens under its jurisdiction, resident or otherwise, has also been considered a wrong in itself. Customary international law obliged states to observe certain minimum standards in their treatment of foreign nationals.¹⁰ These standards sought to limit the scope of a government’s domestic legislation – including emergency acts – by holding that it could not avoid international responsibility simply by invoking provisions of its own domestic law.¹¹ This limitation did not completely extinguish the government’s ability to exercise its domestic legislative powers. Rather a delicate balance could be partially achieved – for instance, by immunizing certain government acts and actors from review in the domestic courts of a foreign land. However, for sovereign state immunity to apply, claimants had to establish a wrongful omission or act attributable to the government and the court’s jurisdiction in the 30
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matter. In the context of Canadian internment, this dual requirement begs an examination of certain state and legislative immunities and their implications for the process of redress. At the time of the internment, customary international law recognized that an “act of state” visited on an enemy alien during war precluded the injured party from suing the transgressing officer.¹² In this sense, where the Dominion imposed certain restrictions on such people, the act-of-state doctrine would appear to have given it some immunity, suggesting that its internment of these people as prisoners of war was both legal and legitimate.¹³ But international law also held that foreign nationals, being subject to the host state’s domestic law,¹⁴ were entitled to basic rights under the municipal regime and that failure to uphold those rights provided other foreign states the right to intervene on their behalf. Similarly, this principle restricted the sovereign right of states to claim immunity. In the domestic realm as well, although Canadian law rendered government policy decisions immune from judicial review, this immunity, predicated on the legitimacy of the government’s exercise of sovereign legislative power, could not replace the basic premise underlying legislative power – to govern in accordance with the law. In this sense, government actions that contradicted an obligation founded on the primacy of basic human rights cannot be prudently described as falling within the legitimate realm of state policy. Nor can war, though permitting limitations on rights, entirely extinguish this obligation. In sum, where government actions violated the basic human rights of civilian aliens, even of enemy nationality, these actions transgressed the scope of political obligation and of legitimate state action. Therefore, while resident aliens were generally subject to the host state’s municipal regime, international law dictated that this regime would apply to foreign nationals only to the extent that it conformed to international standards,¹⁵ including respect for basic human rights. THE NATURE OF THE HISTORICAL WRONG
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Moreover, even when Canadian precedent held that policy decisions under the War Measure Act were not open to domestic judicial review, this did not prevent holding past governments’ actions accountable according to the international minimum standards of the day. While the Canadian courts maintained at the time that only cabinet could determine the necessity of certain acts taken in the exercise of its discretionary emergency powers,¹⁶ these rulings appear out of step with the constitutionally sanctioned role of the courts as independent overseers of government action and of the rule of law.¹⁷ Further, these decisions failed to provide sufficient weight to then-prevailing international law and state practice.¹⁸ Such rulings, of course, had painful consequences, allowing Canada not only to violate the norms of the international community, but also to threaten the nation’s foundational principles of justice, the rule of law, and the social contract. This conclusion emerges not from the application of present-day values retrospectively, but from an assessment of those actions within their own context. While law is presumed to act prospectively, human rights are not created ex nihilo, out of thin air. Rather, law acts to recognize values fundamental to the political and legal system.¹⁹ In choosing either to follow or to ignore domestic and international law, Canada showed the extent of its commitment to the values on which its own legal foundations and the community of nations were based. The rest of this chapter examines its record. INTERNMENT IN CANADA: STANDARDS AND RESPONSIBILITIES
Because the Hague Conventions constituted the leading statement of the laws of war, Canada considered itself bound by them in its treatment of enemy prisoners during the First World War. Thus the Conventions, while helping to fix international mini-
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mum standards, also obligated Canada to maintain and provide a minimum standard of justice for prisoners of war ( s).²⁰ Though somewhat complex, the Conventions differentiated between various categories of s by distinguishing non-combatants from combatants, while allowing both groups protection as s. As we saw in chapter , Article provided that the “laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps.” Adding to this group, Article provided that civilians offering spontaneous resistance to invading troops could be considered belligerents. Article also included as belligerents individuals accompanying an army without directly belonging to it, such as war correspondents, sutlers, and contractors. In so expanding the category, the Conventions recognized both that modern warfare touches and involves both combatants and non-combatants and that both groups deserve equal protection. Because some enemy aliens in Canada were reservists of their home country, they were subject to internment as s. In general, however, the Hague Conventions do not appear to have explicitly anticipated the imprisonment of any other civilian enemy aliens. Thus it remains at best unclear whether other civilian enemy aliens could be treated as s. However, the preamble to the Conventions states: “the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” The conditions that led to Canada’s internment of civilian enemy aliens as s – the internees’ inability to flee or to seek the protection of the law in a suspicious and hostile environment – le them vulnerable to and dependent on the just exercise of official discretion. Moreover, their ambiguous status as enemies of the state resulted in a special relationship with the government. As an unintended consequence of their status, the government
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had to abide by the Conventions and to act so as not to endanger those under its authority and within its custody. The government, by blurring the distinction between civilian and military s – by interning reservists and non-reservists alike as military s – brought enemy aliens within the Conventions’ minimum standard of protection. That the war conventions would serve as a minimum standard followed from international practice that recognized that civilian prisoners were not military s and therefore were owed an even higher standard of treatment than that contained in the Conventions. Thus the government’s holding civilian internees created a more stringent moral and political obligation to these people – a point reinforced by state practice elsewhere. Even in times of war, governments, it was widely believed, had to respect the inherent dignity of those civilians falling within its custody, particularly of those who through misfortunes of war found themselves at the mercy of others. Remarkably, despite these political, moral, and legal obligations, Canadian officials promulgated a policy and acted in a manner that systematically violated a number of basic principles of law and governance. The violations led to the use of arbitrary arrest and detention, denial of justice, coerced labour, and confiscation and retention of private property. Perhaps the most important dimension of customary international law that has bearing on the rights of aliens was the general sanction against government interference in the ability of foreign nationals to have access to domestic judicial remedies.²¹ The Conventions, Section II, Chapter I, Article (h), for example, stated that “it is especially forbidden ... To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” Read in accordance with the function of the Conventions, Article (h) both offered a minimum protection of the internees’ ability to exercise and enforce their 34
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rights and preserved domestic courts’ ability to censure the state’s use of arbitrary measures against its prisoners. Canada’s Parliament, however, sought to suspend enemyaliens’ access to the domestic courts in section of the War Measures Act. Canadian courts interpreted this section as meaning that no one under detention, or suspected as an alien enemy, could be released on bail, tried, or discharged without the consent of the minister of justice. While Canadian common law prohibited enemy aliens from access to certain legal remedies, section further prevented the right of trial without prior ministerial consent.²² Thus it proscribed enemy aliens’ effective questioning, or appealing, of the legality, necessity, or arbitrary nature of their imprisonment while preventing their release.²³ Nor were internees able to petition for relief, and, despite the possibility of a trial by way of ministerial consent, there is no record that such permission was ever granted. Within the context of the emergency legislation, section created an anomalous situation.²⁴ By analogy, Canadian criminal law has always presumed innocence and requires the state to provide proof of an individual’s culpability beyond a reasonable doubt. These principles facilitate the criminal process: to impose guilt according to individual fault while protecting the individual from arbitrary state interference. Internment officials had to act on reasonable grounds, but their decisions, some taken under the auspices of the Criminal Code, were not open to judicial review, which situation potentially allowed for imprisonment based on unsubstantiated, unknown, or arbitrary concerns – for example, indigence. In essence, these shortcomings would inject a capricious element into the administration of justice. More important, during the war the Canadian judiciary refused to review individual cases of internment. In offering neither sanction nor remedy, it failed to intervene against excessive government action. The courts’ quasi-surrender of their independent functioning suggests that they were subordinating themselves to THE NATURE OF THE HISTORICAL WRONG
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the demands of military policy.²⁵ By way of comparison, under a similar regime in Britain, some of the leading members of the English bar expressed just such a concern.²⁶ Among the various other protections identified by the Conventions, Section I, Chapter I, Article , stated that s retained ownership and possession of all personal property except arms, horses, and military papers. The Canadian government confiscated property – to prevent escape, as it officially explained. And yet the confiscation of effects appears to have taken on a punitive character. The seizure of religious items and personal effects of little or no practical value, for example, suggested a punitive intent, unrelated as it was to the original purpose of maintaining security. More critically, internment authorities were later reluctant to return more substantial assets, in violation of Article , which obligated the government to safeguard and return such property on release. So cash, goods, and the proceeds of internees’ lands sold at auction remained in government accounts at the end of the war. By the government’s own admission, however, a portion simply vanished. Chapter I, Article , of the Conventions explicitly outlined conditions for state use of labour. Yet Canada put prisoners to work for the benefit of both government and private industry. Labour could be used only where it was in accordance with the prisoner’s rank and aptitude and if the tasks were neither excessive nor connected with the operations of war. The state also had to pay at the rates for work of a similar kind done by soldiers of the national army. Prisoners could apply these wages to ameliorate the conditions of their imprisonment, receiving the balance on release. Removed to frontier camps, however, civilian internees as s became a source of cheap and ready, if coerced, labour. Many were engaged in projects beyond their ability or capacity and in conditions that failed to meet international minimum stan-
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dards. Paid at the equivalent of the supplementary rate given to imperial soldiers for labour in the field, the designated rate was far below the Conventions’ required minimum, let alone fair market value. While other nations interned many enemy aliens as civilian s, Canadian policy would lead to the widespread and systematic use of civilian internees as military conscript labour, which practice continued until the camps closed in . Because of the haste and confusion of camp closures, the deportation of enemy aliens, inaccurate accounting, and administrative resistance, many internees failed to recover either their personal property or outstanding wages at war’s end. Until March , the government made no provision for the return of wages and property. For those repatriated, the government sought post facto to locate them and return their goods. Earnings, cash, and properties not returned, however, it deposited in the Consolidated Revenue Fund and held them as credits for each of the original owners. While the Custodian of Enemy Alien Property did refund some portion on the presentation of claims, no claim was made aer March . In , the outstanding balance owing to internees was finally and permanently absorbed into the General Consolidated Revenue Fund. Thereaer, all personal records, excepting the Internment Directorate’s general cashbook, were destroyed as a matter of routine. Arguably, the retention of internees’ property and wages effected a de facto expropriation without compensation, in violation of prior domestic and international law. Both Article of the Conventions and ( March ) seemed to internment officials to obligate the government to pay out all internees and to return all property. Ultimate failure to do so enriched the government while depriving the internees. This says nothing about its use of compulsory labour and of work in dangerous and harsh conditions that did not offer real or fair remuneration.
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But perhaps one should look at such unprincipled gain as part of a broader pattern – government nationalization of enemy-alien commercial property under the Consolidated Orders Concerning Trading with the Enemy, or ( May ),²⁷ and the Treaties of Peace Act.²⁸ The Consolidated Orders provided the initial justification for the taking of commercial property on the premise that it would prevent enemy aliens from sending aid back home. The peace treaties ending the conflict seemed to revive an ancient custom of war that permitted states to seize the value of enemy property as compensation for damages suffered.²⁹ Most legal scholars of the period, however, regarded this right as merely a relic.³⁰ Instead, a new rule of sequestration had emerged that allowed for the state’s temporary holding of enemy-alien property, with an obligation to return it on the conclusion of hostilities. Canada began the confiscation of goods under the Trading with the Enemy Act in . The courts invested the Custodian of Enemy Alien Property with all those rights held by the original owners. This allowed the government to seize and liquidate enemy businesses and commercial property, including patents, rights to payments under contract, and debts owed. As the war expanded, this system’s negative effect on enemy nationals grew. The Consolidated Orders of May , for example, made the custodian a wholesale liquidator, with the ultimate fate of the confiscated property to be decided at the conclusion of peace. While not providing for the outright confiscation and retention of the goods, the Consolidated Orders signalled a movement away from the obligation to return. In the peace treaties, the Allied nations sought post facto to render their own exceptional measures legitimate. They reserved the right to liquidate and retain the value of all enemy-alien property and interests taken under the various Trading with the Enemy Acts.³¹ Canada implemented these treaties through the Treaties of Peace Act, , and the Treaties of Peace Order (Austria and Bulgaria) ( ) of April . In violation of its 38
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prior international legal customary obligations, Canada declared that it could retain and liquidate all property belonging to enemy aliens located within its jurisdiction.³² While injurious to those who had lost property and wages, this was but the final element in a long list of violations. These failures spoke to the political narrowness of authorities who had a responsibility to preserve basic rights. That the internees found themselves forcibly confined without the basic protections of the law placed a greater, rather than a lesser, obligation on the internment authorities to act with reason and justice. The fact that the government of Sir Robert Borden ultimately failed to do so placed into question the very legitimacy of the government’s actions and demands accountability. An Assessment While self-preservation and military necessity may dictate the delegation of extraordinary powers to those charged with the defence of the state, specific actions taken during the course of that defence may be deemed excessive. That the government is entitled to certain immunities and the exercise of broad discretionary powers is generally accepted. However, these powers and immunities must be read in accordance with the moral and political values underpinning international and domestic legal obligations. These obligations are part and parcel of the substantive and normative basis of the right to lawful governance. Injustice, in this context, is precisely the government’s abrogation, by way of its conduct, of those fundamental legal, moral, and political understandings and principles. Among the specific violations encountered during the course of internment in Canada were the denial of justice, detention of civilians as de facto military prisoners, use of coerced labour, and confiscation and retention of property and wages. Underlying all these specific incidences was the abrogation of the implied relationship of trust that stemmed from the unfortunate circumTHE NATURE OF THE HISTORICAL WRONG
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stances of civilian enemy aliens being designated as s. Their rights were held in abeyance until the conclusion of hostilities. But the promise under which the internees had been recruited to Canada suggested the government’s political obligation and need to adhere to at least minimum standards of justice. Their residency, moreover, reinforced that central obligation. The war created difficult political circumstances, but it did not preclude the government from observing and applying minimum standards of justice. On the contrary, because of the special relationship between the government and enemy aliens as civilian internees, it had to observe an even higher standard of conduct. Other countries faced with a similar dilemma recognized their principal obligations and tried as best they could to live up to them. As front-line states, they would have a difficult time of it. Canada, in contrast, halfway across the world and facing no immediate threat, resorted to a policy and engaged in practices as if it were under extreme duress. In many ways, those charged with maintaining and preserving the fundamental principles of the country abdicated their responsibilities. There were a number of reasons for this. The courts, for one, showed extreme deference to executive authority. Equally, and as a corollary, there was a wider and more pervasive attitude that suspending personal liberties and rights would not damage the legal and political integrity of the country and its institutions. Additionally, the colonial legacy imposed certain imperial expectations and requirements that shaped Canadian policy and practice, which executive authority was loath to challenge. And finally, an underlying notion of “otherness” ensured and facilitated the use of punitive measures against an imagined enemy. What made this situation especially painful was the government’s moral obligation to preserve and protect those at the mercy of its discretion. This atmosphere would lead to some significant legal and political transgressions by the government. The denial of justice hinged on the general inability of enemy aliens to gain access to the 40
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courts, seek the most basic forms of relief, and avail themselves of the procedural and substantive safeguards integral to the proper and independent administration of justice. Terrible consequences followed. Unable to question the legality or necessity of their ambiguous status as enemies, and deemed a threat, they were at once s. But even here not quite. There was an element of ambiguity in their status as international persons, leaving them few or no rights or recourse as s before the law. Officials in pursuit of narrow objectives would use the internees under harsh conditions as a ready pool of labour. In the hinterland, where there was no effective mechanism to guarantee their welfare and treatment, authorities would contravene the basic normative and ethical understanding of the rights of prisoners at international law and the conventional differentiation between civilian and military s. In profiting from forced labour and the value of confiscated properties, the government systematically enriched itself while depriving internees. The Canadian government violated the dignity, equality, and basic human rights of civilian enemy-alien internees. The resulting wrongdoing creates an ongoing moral, political, and cultural imperative to provide acknowledgment and redress – to do justice where and if possible. For justice to be done, however, a simple statement of regret or apology arguably will not do. For the sake of those principles that fell prey so long ago to uncertainty, prejudice, and fear, it will require their reaffirmation. Redress, as part II shows, is a statement of that reaffirmation.
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Part Two: Putting Things Right
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3 Redress and Democratic Dialogue, s On
REDRESS: PRACTICAL AND MORAL IMPERATIVES
In , during a heated public exchange on Japanese-Canadian redress, Prime Minister Pierre Trudeau chastised the leader of the opposition, Brian Mulroney, for “trying to take one wrong out of Canadian history ... make great speeches about it and say that we’re going to deal with this particular problem because there’s a particular pressure group now.” Trudeau dismissed Mulroney’s support for redress as crass opportunism. He claimed that there were numerous historical wrongs about which one “could mount pressure groups,” and he concluded, “I don’t think it’s the purpose of government to right the past ... It cannot rewrite history. It is our purpose to be just in our time.”¹ Though implicitly acknowledging the possible existence of past injustices, Trudeau argued that to redress a historical wrong was to infuse history with a meaning that was both wholly inappropriate and unacceptable. The past was history, and no amount of political second-guessing or moral suasion could change or expunge what had happened.
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Trudeau’s statement encompasses a variety of presuppositions which bear repeating, as many individuals opposed to redress echo them. First, the statement about “tak[ing] one wrong out of Canadian history and mak[ing] great speeches about it” suggests that history is replete with such events and that taking them out of context gives them unwarranted significance. Second, although such events may be injustices in their proper context, attributing them significance politicizes them and shis the debate away from the subject to the claimants’ intentions. To the extent that so-called pressure groups promote justice their intentions must be suspect, casting the claim in doubt. A government therefore can be “just [only] in its own time,” rather than attempting to undo what could never be undone. Significantly, these arguments assume that history and the present function on different planes. For example, Trudeau claims that historical injustices are unfortunate but that there is a context to consider. And because no one can ever fully understand the context except in a rarefied, academic sense, present-day sensibilities and judgments only cloud the issue. They also subject the issue to moral standards that are unfair, if not inappropriate.² Consequently, those who advance redress do so for other, arguably self-serving, reasons. That redress further tends to undermine the more pressing goal of laying the foundations for a national Canadian community and its history – creating fissures within the nation’s identity by promoting sectionalism, suspicion, and rivalry – simply reinforces this point. Redress, from this perspective, seems counterproductive. These are important arguments. They highlight the difficulty in justiſying the legitimate practical and moral dimensions of redress. But they also point to a fundamental disagreement about how redress might help shape the attitudes and values of the wider community. The countervailing assumption is that there is a profound connection between past, present, and future. Rather, history informs and guides both current practices and future policy 46
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choices, serving as a welcome and much-needed political and moral compass. The starting point for redress is the recognition that a wrong has taken place – in this case, the internment of immigrant civilians in Canada as military s. Context, of course, is everything, revealing the complex decisions leading to internment. Moreover, officials based their choices on considerations that seemed pressing. But when one looks at the evolving nature of the policy, the questionable nature of internment surfaces. The liberal interpretation and elastic use of legislation, which departed significantly from the originally prescribed intention of the War Measures Act, suggest the improper or unprincipled use of the law. Even more troubling, Canada interned civilians and breached its special moral obligations to those in its custody. This study bases such a judgment on neither hindsight nor current mores. At the time of the internment there was a sense that what was occurring defied international custom and practice. Foreign observers, for example, were perplexed by the internment of civilian prisoners, concluding that it was unwarranted and unjustified, and, more particularly, they criticized the treatment accorded civilian internees.³ Deliberate in nature, the choice among Canadian authorities was not to reflect on the policy and practice. It was an injustice in the broadest sense, even by the standards of the day. But should the current government redress past wrongs? This is a seemingly impossible question: it presumes that historical wrongs can be sufficiently atoned for. Japanese-Canadian Redress: Rights and Renewal During the Japanese-Canadian redress campaign for government actions against the community during the Second World War, many members debated compensation, and a minority element suggested that seeking redress was unconscionable, given the terrible events of the past. The community had endured, and nothing now could purge the shame or help reclaim what had been REDRESS AND DEMOCRATIC DIALOGUE
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lost. Redress would only add insult to injury, while compensation would reduce the experience to a discussion about blood money and the price of justice. The inescapable conclusion was to leave the past alone.⁴ This view misreads the purpose of redress. The issue is not whether redress can ever be sufficient. It cannot. Rather, two broader moral and practical imperatives make redress necessary. First, unwillingness to confront injustice debilitates and undermines the moral context that shapes societies and values. Second, moral judgments on past injustices may affect both attitudes and actions, so that the unwillingness to confront injustice makes possible unacceptable choices now. When Prime Minister Brian Mulroney rose in the House of Commons on September and offered a formal apology to the Japanese-Canadian community for the government’s actions during the Second World War, his was a recognition of these imperatives.⁵ Declaring that the apology was necessary in order “To put things right with the surviving members ... with their children, and ours, so that they can walk together in this country, burdened by neither the wrongs nor the grievances of previous generations,” he made an unequivocal expression of solidarity with the future. More to the point, his statement acknowledged the need to confront the past so that the nation might move forward. It recognized that the past had lessons and implications for the present and future. What would be the legacy of this historical wrong, and could addressing it possibly reaffirm just principles to help shape future policies and decisions? These considerations factored into the redress settlement. The government not only acknowledged wrongdoing but also introduced new emergency legislation to replace the War Measures Act that included political safeguards for racial and ethnic minorities. The government would also compensate, on application, individuals of Japanese ancestry who were deprived of their rights and freedoms. Furthermore, it would restore Canadian citizenship 48
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to those who had been expelled or whose citizenship was revoked during the period ‒ and extend it to their living descendants as well. The compelling logic in this case was the moral imperative to do now what was both right and just. This factor is often overlooked because of the tendency to view redress strictly as a liability issue.⁶ Japanese-Canadian redress, however, was not about compensation or strict legality per se.⁷ What was offered and accepted was a symbolic gesture that aimed at reconciliation by “doing everything possible to right the wrongs of the past as best we can today.” Redress in this case was about justice, while compensation was the mechanism for achieving justice. But perhaps most important, Japanese-Canadian redress was about the necessity of political and social justice. As Minister of State for Multiculturalism Gerry Weiner remarked, after the announcement of the settlement, the government in this way “serves notice to all Canadians that the excesses of the past are condemned and that the principles of justice and equality in Canada are reaffirmed.”⁸ At issue were principles that were said to be inviolate. Underlying redress was the question of whether the present government was able and willing to recognize and accept its responsibility to reassert and recommit itself to these basic principles. Was it prepared to implement redress as a way to reconcile the past with the future, to condemn and reject past excesses in the hope that they might not be repeated? The settlement’s final form was an indication of its unqualified acceptance of this political responsibility – not because it satisfactorily addressed material losses, but because it expressed political faith. It was a serious statement about making amends and learning from the past. In negotiating redress, the government exposed as fallacious the argument that what had happened was simply a historical aberration. It accepted redress as a legitimate instrument to alert future generations about the necessity of preserving and defending a REDRESS AND DEMOCRATIC DIALOGUE
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rule-based society. But, in so doing, it implied that injustices are not random and unpredictable but the product of human passions and design. Accordingly, redress not only affirms the principle that there is an obligation to right wrongs, but also serves as a reminder about how even well-intentioned governments can act badly in the face of unanticipated challenges and about the need for vigilance in support of basic human and civil rights. Japanese-Canadian redress in the s represents a major contribution to the dialogue on democratic rights and renewal. It serves as a useful reference in promoting awareness of both tolerance and acceptance as political goals in the face of ongoing change and challenge. Moreover, by way of example, it reintroduces direction into the discussion on public policy by emphasizing principle and justice in policy choices. Perhaps this is where redress matters most. Trudeau argued that if government has a responsibility and an obligation, they are for it to be just in its own time. Redress, in keeping with Trudeau’s assertion, is not about altering history’s decisions. This it could never do. It is, however, about accepting responsibility by doing what is right, especially if the legacy of the wrong persists. Redress in effect demonstrates willingness to do justice by not allowing the consequences of a past wrong to stand. But in doing so, it also signals to this and future generations that no injustice will be allowed to go unanswered. If the purpose of government is, as Trudeau insisted, to be just in its own time, then redress is a tangible expression of justice, an example of the importance of preserving, maintaining, and defending basic principles. THE POLITICS OF UKRAINIAN-CANADIAN REDRESS
The moral and practical imperatives that were at work in the Japanese-Canadian redress settlement are similarly at work in the
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Ukrainian-Canadian case. There is the government’s primary obligation to acknowledge formally that an injustice had been committed and, equally, its responsibility to place redress within the wider debate on rights and values and their reaffirmation. But it also has a political obligation to address the unfinished business of the past in such a way that justice is not only seen to be done but actually done. In this regard, there is a clear role for the government of Canada. Immediately following the signing of the Japanese-Canadian settlement, Mulroney told the House about the agreement’s significance for the country as a whole. He declared that a formal and tangible expression of apology was necessary because the treatment inflicted “was both morally and legally unjustified, [and] it went against the very nature of our country.” Moreover, “as inadequate as apologies are, they are the only way that we can cleanse the past so that we may, as best we can, in good conscience face the future.”⁹ It was an important statement about how politics might facilitate reconciliation and renewal. It also marked a hopeful beginning for Ukrainian Canadians, underlining both the rationale and the obligation to deal finally with the historical injustice of First World War internment. It came years after Mulroney had assured the Ukrainian Canadian Professional and Business Association, in response to a petition, that the government would meet with community representatives to discuss the matter. When no meeting took place, a resolution at the Twenty-fifth Congress of Ukrainian Canadians () instructed the national executive to work with the government in securing appropriate redress. Although views were exchanged and a formal brief was submitted in to the Standing House Committee on Multiculturalism,¹⁰ it was only in the wake of the Japanese-Canadian agreement in that representatives began to hope that meetings with Minister of State for Multiculturalism Gerry Weiner would lead to a settlement.¹¹
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However, the minister implied that the Japanese-Canadian settlement was not to be regarded as a precedent because the events were unique and unparalleled.¹² To bolster support for redress, the Ukrainian Canadian Congress launched a public awareness campaign. The ensuing debate, conducted primarily in the national and ethnic press, produced intense public speculation about what constituted appropriate redress.¹³ During the debate, consensus emerged on three points. First, contrary to the government’s position, the Japanese-Canadian settlement had set a precedent. Second, on this score, Ukrainian-Canadian redress was felt to be legitimate. Third, irrespective of precedent, a redress claim was legitimate because the grievance had merit. And yet the question of whether the historical injustice warranted financial compensation proved more problematic. It was right, for example, to compensate, as individuals, those directly affected “in rough proportion to the wrong” and “only for things imposed on people without their consent.” But as for group entitlement, it was argued that the case was not yet sufficient. And, even if it was made, then perhaps the most appropriate form would be symbolic. This latent scepticism derived from viewing redress in compensatory terms, which made only those directly wronged entitled to damages. Yet an exclusively legalistic, or positivist, interpretation prevented meaningful social justice. The victims, for example, were long gone, but the government still possessed the value of non-disbursed funds to which it had no legitimate title. Accordingly, there was public willingness to accept a symbolic outcome if it could satisſy and benefit both the community and the country as a whole.¹⁴ During the debate, the community continued to press its case in Ottawa. On June , a delegation met with the parliamentary opposition. As a result of consultations, the leader of the New Democratic Party ( ), Audrey McLaughlin, called on the gov52
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ernment in the House to provide a fair hearing for redress.¹⁵ Earlier in the House, the Liberal for London East, Joe Fontana, a long-time supporter, maintained that Ukrainian-Canadian redress was “important to all Canadians” and that the government had both a responsibility to respond and an obligation to right the wrong.¹⁶ By way of contrast, Ukrainian Canadians’ meetings with Prime Minister Mulroney and various cabinet officials failed to produce results, despite indications of willingness to resolve this and other outstanding issues relating to the historic grievances of several ethnocultural communities. As the prime minister noted after discussions with representatives of the Ukrainian Canadian Congress, “there was no request for anything ... and no offer of anything.”¹⁷ The government’s guarded approach would not change despite Parliament’s unanimous approval, on September , of a private member’s Bill, brought forward by Liberal Peter Milliken. The bill recommended a resolution calling on the government to “acknowledge that the internment, disfranchisement and related repressive measures taken against Canadians of Ukrainian origin ... were unwarranted and unjust” and to “undertake negotiations ... on redress.”¹⁸ The motion again did not convince Gerry Weiner, with whom a delegation met on October ; the minister gave no indication that he was prepared to enter into discussions. The government’s reluctance to negotiate, however, did not deter the Congress. On August , executive members of the Congress told the prime minister during a meeting that they were having a legal opinion prepared, as well as an economic analysis by the accounting firm of Price Waterhouse, which would outline some of the key issues in the community’s position. The executive indicated that it would forward these documents to the government. Mulroney promised that he would review the matter when he received the reports.¹⁹ This response was the first indication from him that redress was an option. There was growing government acceptance that the REDRESS AND DEMOCRATIC DIALOGUE
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Japanese-Canadian settlement had set a precedent and that the redress of past wrongs could not be selective. The prime minister’s strong personal desire to address this and other outstanding redress issues before he left office also ensured that there would be movement on the file. The Congress submitted the two reports – “Submissions on Behalf of the Ukrainian Canadian Community on the Matter of Redress for Non-Pecuniary Losses Occasioned by Internment and Other State-Inflicted Injuries” ( January ) and “Economic Losses of Ukrainian Canadians Resulting from Internment during World War I” (February ). While the government was preparing its own response,²⁰ the Congress consulted with senior cabinet ministers requesting full consideration of the matter. It was not until May that the government, in keeping with the prime minister’s promise, finally offered an omnibus apology to five ethnic groups seeking redress for specific grievances.²¹ The central feature of the package was the proposal to name a new archives facility the “Nation Builders Hall of Record” – in lieu of financial compensation and as a tribute to multiculturalism. For the Ukrainian-Canadian community, the government responded to its recommendations by proposing to place historical commemorative plaques at various locations across the country and to create an interpretive centre at one of the internment sites in Banff National Park. The Ukrainian-Canadian delegation that met with Gerry Weiner to discuss the offer was heartened by the government’s specific proposals but, along with two other ethnocultural communities, rejected the naming of a federal records building as a gesture of reconciliation.²² The Ukrainian-Canadian representatives believed that the issues raised in their two reports – the violation of rights and economic losses – had neither been negotiated nor satisfactorily addressed.²³ More to the point, an omnibus apology and settlement failed to acknowledge the specific wrong-
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doing and seemed to vitiate the government’s role and responsibility. Reconciliation, as a central goal of redress, could begin only with an acknowledgment and undertaking to right the specific wrong through consultation and dialogue. On June Leader of the Opposition Jean Chrétien, in correspondence with the community leadership, declared: “The Liberal Party understands your concern ... we support your efforts to secure the redress of Ukrainian-Canadians’ claims arising from their internment and loss of freedoms during the First World War ... we will continue to monitor the situation closely and seek to ensure that the Government honours its promise.”²⁴ The statement seemed particularly encouraging, particularly after the Liberals won the general election in October . Initial optimism, however, soon gave way to disappointment. A settlement with the new government did not materialize, and discussions never took place. On December , the new secretary of state for multiculturalism, Sheila Finestone, tabled in the House a letter to the six communities seeking redress, indicating that there would be no negotiation. While acknowledging that previous government actions “were at odds with our shared commitment to human justice,” the minister declared that the government’s “only choice lies in using limited government resources to create a more equitable society now and a better future for generations to come.”²⁵ With this in mind, the minister announced a proposal to create a Canadian Race Relations Foundation. Part of the original Japanese-Canadian redress settlement, only now would it be implemented. Calling it a sincere expression of regret over past injustices, the minister insisted that the foundation would be a constructive step, falling within the parameters of government thinking on how best to realize other social-policy goals – combating racism, prejudice, and discrimination through educational programs and more generally by promoting fairness. It would act
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as a tangible acknowledgment of wrongdoing but also fulfil the practical political objective of promoting tolerance and social harmony, policy goals that would be in line with the aims of redress. The government’s position was unexpected in the light of Chrétien’s earlier commitment to deal with Ukrainian-Canadian internment as a specific wrong. Echoing Trudeau’s remarks of a decade earlier, Finestone stated: “We wish we could rewrite history. We wish we could relive the past. We cannot.” The point of reference for the Chrétien government, as it was for its Liberal predecessor, was the notion that history could not be undone.²⁶ The only responsible course for government was to be “forwardlooking”; the Race Relations Foundation was “an investment in our future.” That it would make additional sense made for a happy coincidence in an atmosphere of growing concern over public indebtedness. By implementing Mulroney’s agreement to establish the foundation, already budgeted in ‒, the government could appear fiscally responsible. The government felt that its commitment to create the foundation closed the matter of redress. The response from the opposition was mixed.²⁷ The Reform for Calgary Southeast, Jan Brown, roundly condemned the Liberals for setting up yet another organization that would provide “an opportunity for patronage at its worst.” The Bloc Québécois, decried the government’s decision as being unfair and irresponsible, inasmuch as it conveyed the message “that the country does not face up to its responsibilities and hides behind pious platitudes.” s Svend Robinson of British Columbia and John Solomon of Saskatchewan tabled separate motions calling on the government to acknowledge and redress the historical wrongs as a matter of principle.²⁸ Both motions, however, would find no support from the government and died on the table. The government’s stand on redress would continue with the new appointment in the Multiculturalism portfolio, Dr Hedy Fry. As with her predecessor, community representatives pressed her 56
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to engage the community to resolve the matter. But, like Finestone, she would circumvent the issue by emphasizing that the past could not be altered: “We can only try to change our future by having learned from the past.”²⁹ The implied judgment was that dwelling on the past was not particularly useful and perhaps even counter-productive, distracting politicians from more pressing policy concerns. But any lessons learned that might help frame government policy – especially on race relations – might still be useful. With this in mind, the government presented its promise to be vigilant in combating all forms of racism as a constructive response, one that avoided impractical discussion about righting historical wrongs. The government’s unwillingness to enter into discussions would neither diminish the organized community’s resolve nor divert its stated position on redress, which included increasing public awareness of events past. Following through on an early proposal made to the government, the Ukrainian Canadian Civil Liberties Association, in co-operation with community partners, undertook a campaign to commemorate places of internment as historic sites. With community funds, they erected plaques and monuments at sites across Canada.³⁰ Other initiatives included an independently produced film documentary Freedom Had a Price () and a major travelling exhibit organized by the Toronto-based Ukrainian Canadian Research and Documentation Centre entitled “The Barbed Wire Solution – Ukrainian Canadians and Canada’s First National Internment Operations.” In addition to sending petitions to Parliament and meeting with ministers,³¹ the increasingly active Ukrainian Canadian Civil Liberties Association launched postcard campaigns, produced brochures, and organized a symposium on redress.³² Finally, throughout the decade, several publications would appear that either focused on the history of internment or aired the debate on redress.³³ Teaching materials were also prepared for high-school social studies in Ontario and Alberta. REDRESS AND DEMOCRATIC DIALOGUE
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Federal reaction to these initiatives was difficult to interpret. The government, for example, assured letter writers that it had “worked closely with Ukrainian national organisations and the local Ukrainian community and supported their initiatives,” as in its installation of three interpretative panels at the Cave and Basin internment site in Banff.³⁴ Yet even though such statements imply co-operation and understanding, the record shows otherwise. There was a great deal of apprehension and private criticism. Fry, for example, asked in , “Does one have different plaques or do we take the history of all the peoples who have contributed to building Canada and put them into one story?”³⁵ This question suggests a relativist view of justice and a refusal to acknowledge internment as a specific unwarranted action by a past government. It also reflects concern over liability, suspicion about motives, and the view that wrongs cannot be righted. This sort of sentiment has led to a sceptical reading of the role and purpose of redress. It is an attitude as pervasive as it is persistent, being repeated between governments, within the bureaucracy, and among government advisers. Despite perfunctory statements about wrongdoing and regret from several ministers, the , for example, refused to air Freedom Had a Price because, remarkably, “it [had] a point of view.”³⁶ Parks Canada officials, likewise, refused to memorialize enemy-alien internment as an injustice because it considered the action legally sanctioned.³⁷ The stance underscores an unwillingness to acknowledge the injustice of internment, but it is most problematic in its impulse to repudiate the notion that the grievance has historical or political merit. Jean Charest, minister of the environment and therefore responsible for Canada Parks, for example, observed in March : “The internment within Canada’s national parks during World War I of ethnic Ukrainians, the majority of whom were, at the time, nationals of countries at war with Canada, is not, in and of
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itself, of national historic significance.”³⁸ Admittedly framed by a recommendation from his advisers at the National Historic Sites Board, the statement reflects deep reluctance to appreciate the wider implications of the historical lesson. Equally, when Derek Fraser, Canada’s ambassador to Ukraine, was quoted in the foreign press saying that there were camps not for Ukrainians – only for enemy “Austrians” – this too mirrored a narrow, historicist view, which serves as a disclaimer about responsibility for the past as well as the present and raises doubts about the interpretation of the experience itself.³⁹ Such attitudes point to the twin problems of moral relativism and ambiguous leadership, or more precisely to the shortcomings of leadership in the face of moral challenge. Less understandable, however, are the remarks of elected representatives who have disputed and/or rejected redress because they presumed that the issue revolves around gain. In December , for instance, the Conservative for Mississauga-South, Don Blenkarn, objected to tying “a dollar figure” to “claims that go back to the Dark Ages.”⁴⁰ In , Lee Morrison, Reform for Swift Current– Maple Creek, during a wide-ranging discussion on multiculturalism, asked in the House, “Why is it that the descendants of these Ukrainian settlers have their hands out now? I suspect that it is because they see everyone else lining up for grants.”⁴¹ His comment elicited a stinging rebuke from Morris Bodnar, Liberal for Saskatoon-Dundurn: “Canadians of Ukrainian ancestry are asking for redress for the internment of Ukrainians during World War I. This is not a request for a handout but, instead, is a demand for return of property seized from these new Canadians and never returned to them after the war. I hope the honourable member joins with us in this request for restitution of property wrongfully seized and retained by the Canadian government.”⁴² Though independent from the government line, Bodnar knew that Jean Chrétien had already made a commitment to con-
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clude the matter in a forthright manner. That matters could turn out otherwise was not foreseen. So how then to account for what seems at best an abjuration of political responsibility? Politics is about choices, then as now. The choice to intern enemy aliens was widely described at the time as an imperative. Unwillingness to accept and act on the responsibility of righting a wrong also involves a choice. But now, as then, the meaning of government action has not been fully appreciated – specifically, that separating political action from fundamental principles undermines the integrity of the country and its basic values, while creating the conditions that lead to political ambivalence, is a problem that seems not to cleave with leadership. Such a position signifies a narrow understanding about the role of government and the political obligation to the past, present, and future. What, for instance, is the effect of the retreat from political responsibility in the face of competing, often uninformed interpretations and conflicting opinions about the past? What messages do politicians convey when they reject redress, especially in a climate that categorically dismisses past wrongs? And, finally, what can they say to a community that desires dialogue? These are poignant reminders of the absence of moral and political leadership. During a state visit to Ukraine, arrangements were made for Prime Minister Chrétien to meet students from the National University of the Kyiv-Mohyla Academy. Touted as future leaders, the students – enormously interested in Canada as well as in the practical questions of history, given Ukraine’s tragic experience in the twentieth century – inquired about historical redress in Canada. Ironically, having just paid his respects before a memorial to the victims of Stalin’s famine-terror, the prime minister replied that he did not believe that a government or its successors should apologize for every mistake made in history. Claiming that he preferred to focus on the future rather than on the past, he 60
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added weakly, “yes ... if something wrong happened in the past, then yes, I am sorry.”⁴³ In a setting where the daily challenge of dealing with the heavy legacy of the past shaped so much, it could not have been an encouraging answer. CONCLUSION
Resistance has marked the Canadian government’s position on redress over the years. Dialogue – a hallmark of government in an open and democratic society – has been decidedly absent. Underscoring concerns over liability, it points to a narrow view that has blocked governments, while adding unnecessarily to doubt and speculation about the legitimacy of the issue. Admittedly, there may be sound reasons for a cautious approach to redress. But there are other, no less pressing aspects to the question that require prompt resolution in the spirit of openness and with a sense of right and obligation. Certainly one major obstacle is the belief that the connection between history and the present is tenuous. History is perceived not as a living, ongoing process but as events that exist or operate outside a timeline. This is unfortunate, because, in addition to offering academic lessons, internment suggests a major practical lesson: if justice is to be done, then it is crucial to redress the wrong, especially if the legacy of wrong persists. Wrongs should not remain in the past but must be confronted, because it is only in this way that people today can understand the wrong itself. Redress also clears the way for the future. It reaffirms the fundamental values that inform and underpin the nation. Jean Chrétien, like Pierre Trudeau, has argued that he preferred to look to the future rather than to the past – but what will that future hold if those principles that sustain the country, its institutions, and its culture have only limited or qualified support? In doing justice, redress insists there can be no equivocation on the basic tenets of a democratic and rule-based society. In this regard, what might REDRESS AND DEMOCRATIC DIALOGUE
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the alternative to redress be? On what principle can an injustice be allowed to go unanswered? Beyond the puzzling statements, there can be only silence or political paralysis, which, in the face of wrongdoing, represents a betrayal of political faith. These are important issues, requiring from the country’s leaders clarity of purpose and political will. But redress, as the JapaneseCanadian case demonstrates, also provides an argument for political engagement, summoning leadership to reconnect with the historical tradition of respect for rights and liberties. Doing justice, by acknowledging and redressing a wrong, reaffirms this tradition. While there may be public disagreement on the form of redress, there seems to be consensus on the underlying principles. On this point, it is instructive to recall that during the debate on redress in the s there was questioning not of the notion of righting a historical injustice but only of how best to resolve the grievance. The community and the government have a duty, an obligation, and a shared responsibility to identiſy the appropriate form of redress – one that would satisſy the community, benefit the country, yet hallow the memory of those wronged.
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4 Symbolic Redress: Reconciliation, Restoration, Responsibility
TRANSITIONAL JUSTICE AND THE ROLE OF REDRESS
Replete with images of people’s inhumanity to each other, the history of the twentieth century has reflected poorly on politics and the human condition. However, the cumulative effect of this train of injustice has not been to galvanize public sentiment. Rather, puzzlingly, it has led to indifference. Past wrongs are said to be regretted, but, as unfortunate occurrences, they are considered largely circumstantial and relative.¹ All too oen, they are perceived to be events located in a distant past or a far-away place, having little bearing on the here and now. Accordingly, the effort to right wrongs is seen as futile idealism informed by misplaced sentimentality, offering little more than false comfort and limited benefit, especially where the nature of the injustice is open to divisive opinion and speculation.² This view, however, misrepresents and underestimates the role and purpose of redress. Redress arguably does not assign blame, elicit feelings of guilt, or extract reparation. More fundamentally it attempts to serve justice by assisting people’s understanding and
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appreciation of wrong so that they can learn about its wider implications and meaning. This is a broad understanding of justice, which, in the context of overcoming a wrong, assumes three principles – namely, acknowledgment of wrongdoing, accountability, and reconciliation.³ This chapter looks at each in turn. Acknowledgment, which is integral to redress, acts as a method of catharsis. It seeks to establish an accurate, detailed remembrance of the nation’s past. It also prevents the further denial of a contentious and painful period of history, while allowing for the legitimate expression of grievance.⁴ The acknowledgment sought is not historical revisionism or official acquiescence to a politicized redaction of events. It is merely the full acceptance of that which all parties know to be wrong but which most still deny. Acknowledgment also implies accountability. In itself, accountability does not ask for any current member of the government or any specific segment of society to admit strict, legal culpability (which is rightfully placed at the feet of previous governments) or to provide individual compensation to victims. It instead underlines the constructive, restorative nature of redress. Rather than replacing the traditional judicial model of dispute resolution, redress provides a creative, flexible, and consensual means of holding accountable those past officials and institutions that created, maintained, and facilitated the wrong.⁵ Perhaps reluctance to acknowledge internment as a historical wrong emanates from the view of justice as being necessarily adversarial and punitive. Redress fits within the wider context of transitional justice, which looks to situate past abuses in their proper institutional or societal context and to allow history – including a more complete and fulsome understanding of it – to clariſy, acknowledge, and reject that which was wrong, while identiſying and strengthening the constructive elements of the past. It seeks a conscious break from those past practices that have corrupted society’s institutions. Transitional justice therefore emphasizes accountability by identiſying the circumstances and conditions lead64
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ing to injustice while insisting that the present generation and its institutions acknowledge an accurate record of past excesses in the hope of preventing their recurrence. But transitional justice is also about reconciliation. In its most simple guise, reconciliation seeks to move the parties to a more constructive, less contentious relationship by partially satisſying an acute sense of injustice and frustration through a legitimate process of open and consensual dialogue. For Ukrainian-Canadian redress, reconciliation is how government and society reject as invalid state policy the mass imprisonment of people during the First World War based on national or ethnic origin, the use of and profit from their forced labour, and the confiscation of their property, while reconciling the current state of law, precedent, and society with a society predicated on dignity and equality. Canadian society as a whole is in a process of transition from limited protection for individual rights (and the isolated abuses that occurred thereunder) to the values of equality and human dignity, with concomitant rights and obligations, as embodied in the Charter of Rights and Freedoms. As a signpost of this shi, society must seek ways of acknowledging the unjust internment of individuals, holding accountable not today’s government, but governments of the past. It must also signal that the values inherent in the internment not only are irreconcilable with society’s view of Canada but also pose a threat to the very values on which Canada was founded. RECONCILIATION AND RESTORATION
The unjust nature of First World War internment in Canada rests on three points. First, it constituted a breach of faith towards people recruited to Canada on the promise of a better life. Second, designated as second-class prisoners of war, civilian internees were sent to labour camps located on the Canadian frontier, where they were forced, under harsh conditions and severe treatment, to laSYMBOLIC REDRESS
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bour on both government work projects and in private industry – all in violation of the era’s international standards and norms. Third, during the internment, wages and personal property were confiscated; aerwards, a portion was never returned. Collectively, these violations represent an assault on basic political and moral values that centre on dignity and equality, which then as now inform and underpin Canadian society. That they flowed from a policy neither resisted nor opposed but rather reinforced by legal authority is also troubling. Critically, this past failure of the state has relevance and meaning today because, by damaging the integrity of the legal-political foundation for the state’s authority, it creates a strong moral and political imperative to redress the wrong. The moral imperative results from an understanding that past injustices have implications for current attitudes and future actions. Indeed, the unwillingness to confront injustice makes possible future choices that would otherwise be unacceptable. By acknowledging the injustice, society signals authoritatively that the violation of rights does not constitute valid state practice, even when domestic law may have condoned such actions. This reinforcement in turn invites the current government to continue the domestic and international trend of strengthening and promoting human rights. But there is also a political imperative behind redress that flows from this past assault on core values. How might current leaders best repair the damage incurred by wrongful actions, and how can the government put things right with the present generations? The history of redress shows an official lack of an appreciation of the wider implications of government inaction, especially the broader role of redress in both its restorative and its reconciliatory functions. Yet, to the extent that the impulse to reaffirm and reconcile is deeply rooted in the idea of restorative justice, the unresolved nature of the injustice beckons the government to redress the wrong.
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Redress itself is a directed and specific restorative process. It requires the full participation of all parties in arriving at an appropriate political solution that aims to acknowledge the grievance, satisſy the claim for restitution, and bring closure to an unacknowledged and painful wrong. Here, the process must allow for an expression of the wrong, the input of those affected, and the consensual formation of a just and satisfactory remedy. Above all it is predicated on a willingness to have dialogue. Although redress in the Ukrainian-Canadian case acknowledges the uniqueness of the Japanese-Canadian claim, it has strong parallels with the latter. Specifically, the Ukrainian-Canadian claim as it has been brought forward asks that a past event with lingering effects be confronted. Furthermore, it does not insist on government’s providing an encompassing or omnibus statement acknowledging guilt. Nor is the claim concerned with attaching specific blame to present parties. Rather UkrainianCanadian redress has sought to reaffirm and strengthen certain bedrock principles. Indeed, the Ukrainian-Canadian effort at redress has not been about specific or individual compensation. Rather it aims at restitution and the reconciliation of one community with past and present leaders, looking not to air individual grievances but to heal old wounds still lingering in the country’s judicial, political, and social fabric. RESPONSIBILITY
Ukrainian-Canadian redress seeks justice for those wrongfully interned. Given the will of Parliament, which in 1991 unanimously approved the bill on redress, there is much to recommend that the federal government begin the political process of negotiated redress. However, eighty years on, this restoration and reconciliation should arguably be symbolic. Only by engaging in a symbolic process of restoration and reconciliation might redress establish a
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framework to allow community and government to work together to renew the vision of a just and fair society.⁶ While Article of the Hague Conventions’ preamble states that “a belligerent party which violates the provisions of the said regulations shall, if the case demands, be liable to pay compensation” symbolic redress rejects compensation per se as a model. If what is at issue is the recognition and reaffirmation of the inherent dignity and equality of all peoples, measuring wrongdoing solely on the basis of monetary value detracts from the immediate and more important purpose at hand. That it is now impossible to calculate the initial damage caused the Ukrainian-Canadian community, the nation, and its laws and institutions is also understood. Nor could direct compensation ever remedy the harmful effect that internment had on the self-image and experiences of individuals and the broader social interaction between the community and the nation as a whole. Therefore, while justice would require that the present government should account for the value that it gained and currently retains, redress, if it is to deliver on its promise, should assume a symbolic, positive, and restorative form. This symbolism would have to go beyond mere words and gestures to demonstrate tangible recognition that a specific historical wrong had been committed. It should make clear that governments have a moral and political responsibility to ensure the dignity and equality of all groups and individuals in times of both war and peace. It would also have to emphasize that the purpose of such claims is not to rewrite history, but to learn from it. Redress, in this case, would ask of the government of Canada that it acknowledge past actions, recommit itself to the promotion and preservation of the basic human dignity and equality of all peoples at all times, and to repair, as far as possible, the damage caused by those past actions. The settlement between the government of Canada and the Japanese-Canadian community was concluded in part because the
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apology was unequivocal and the offer symbolically met the criteria of responsibility. The settlement was neither taken nor meant to be an act of contrition or atonement. What was sought was a sincere expression of good faith in that there was recognition that an injustice had been committed, that the vestiges of the initial wrong might not be allowed to stand, and that the lessons learned must be applied so that the wrong might never be repeated. Despite the unique character of the Japanese-Canadian settlement, it offers many insights into the restorative function of redress. In the present context, such a function focuses on finding creative methods of repairing the harmful effects of past actions by placing a premium on the full participation and dialogue of the parties concerned. This process deals with broader social relationships by advancing the notion that the violation of basic principles causes injury not only to those directly involved, but also to the larger community and, in this instance, to the very instruments of society. But also by emphasizing the responsibility to repair the harm caused, the process of redress underscores the need for positive reconciliation while signalling that the time has finally arrived for real dialogue. The government of Canada has explicitly recognized that both the discriminatory internment of peoples based on national origin and the expropriation of their property under emergency legislation may give both individuals and communities a valid political claim for redress. Additionally, the current government recognizes a global responsibility to ensure a minimum level of respect and protection for individual as well as for minority-group rights and for individual human dignity and security. In keeping with these acknowledged precepts, the government faces both a responsibility and an opportunity to honour these principles while giving fresh meaning to justice by redressing a wrong committed years ago against innocent people whose failing – if such we can call it – was to be born elsewhere. How the government of Canada
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chooses to respond will be a measure of its support for those values that have informed and continue to inform Canadian society and of whether, in confronting a past injustice, it stands in solidarity with an unambiguous future.
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Notes
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INTRODUCTION
F. Iacovetta and R. Ventresca, “Redress, Collective Memory and the Politics of History,” in F. Iacovetta, R. Perin, and A. Principe, eds., Enemies Within: Italian and Other Internees in Canada and Abroad (Toronto: University of Toronto Press, ), . For a general statement on the importance of informed public discussion as a counter to the tendency to oversimpliſy, see F. Iacovetta and R. Perrin, “Italians and Wartime Internment: Comparative Perspectives on Public Policy, Historical Memory and Daily Life,” in Enemies Within, –. See F. Swyripa in “The Politics of Redress: The Contemporary Ukrainian-Canadian Campaign,” in Enemies Within, ‒. Gallant v. Labrador City-Schefferville (diocese of ) () (th) (Nfld, ) states: “It is a fundamental tenet of our legal system that the common law is ‘always speaking’ in that it speaks from the moment that it is pronounced to all prior events.” While arcane, the War Measures Act and the treatment and classification of enemy aliens relied to a large extent on the operation of common law. It thus functioned in tandem with the common law rather than extinguishing it. Therefore, for example, where the government of Canada still retains the value of confiscated internee assets, current common law principles may be applicable. Although the Ontario Court of Appeal recently rejected this line of reasoning in the litigation on the Chinese head tax, the issue has yet to be brought before the Supreme Court of Canada. For an overview of recent debates on reparations, see Roy L. Brooks, ed., When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustices (New York: New York University Press, ). Redress has also implied liability. While a major consideration, this fear is chimerical. The Japanese-Canadian redress settlement, for example, involved an ex gratia payment of compensation, not an admission of liability. Moreover, the applicable law prior to held the crown immune from certain civil actions. See R. v. Mayhofer, [] ( ). NOTES TO PAGES 4–6
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But perhaps more important, it seems certain that the mere passage of time would bar any action arising out of events occurring during, and immediately following, the First World War. As the recent litigation surrounding the Chinese head tax shows, addressing historical wrongs in the legal arena is fraught with significant, fundamental difficulties. Mack v. Canada (A.G.) (), . See Norman Bentwich, The Law of Property in War (London: Sweet and Maxwell, ), , citing Hanger v. Abbott. CHAPTER 1
Canada, Extra Canada Gazette, Aug. . Canada, Canada Gazette, Aug. . Ibid., Aug. . Ibid., Sept. . The pertinent documents are reproduced in J.B. Scott, ed., The Hague Conventions and Declarations of 1899–1907 (New York: Oxford University Press, ). At the Hague Conference of , the Japanese delegation, supported by the Italian representation, sought to define still further the term prisoners of war by adding to Article the rule that “the subjects of a belligerent state, residing within the territory of the country’s enemy can not be confined in one place (internés) unless the exigencies of the war impose the necessity of such action.” This proposition was resisted because it was felt that the convention restricted the concept of war to an occurrence between states while protecting the civil population from it in every possible way. Moreover, it was thought that expanding the term to include civilian aliens would complicate the situation while unnecessarily imposing a burden on civilians, threatened as they were by the prospect of being deemed possible combatants. It was understood and agreed on that the prisoner of war designation would not extend to civilian enemy aliens (except in very specific circumstances) because the laws of nations protected the rights of civilians, and so no additional protection was required. See W. Hull, The Two Hague Conferences and Their Contributions to International Law (Boston: Ginn & Co., ), ‒. 74
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The legal scholar C. Phillipson wrote at the time: “Though there is no definitive international law on the subject, it has become a modern customary rule that enemy aliens may not be arrested, nor their property confiscated, but should be allowed a reasonable time for withdrawal ... If they are not called upon to leave, and are allowed to continue their residence, they should be treated, subject to special restrictions of the municipal law and government orders, with moderation, if not on terms of perfect equality with subjects. So long as they remain inoffensive, carefully respect the law, and fulfill other requirements demanded by the interests of public security, they ought not to be treated as enemies or even as though they were prisoners of war.” C. Phillipson, International Law and the Great War (London: Unwin, ), ‒. The proclamation of August was specific in this regard: “We do hereby warn all Our Subjects and all persons resident on being in Our Dominions who may be found doing or attempting any of such treasonable acts as aforesaid, they will be liable to be apprehended and dealt with as traitors, and will be proceeded against with the utmost rigour of the law.” Canada, Extra Canada Gazette, Aug. . Canada, Supplement to the Canada Gazette, May . See “The Hague Conventions of (II) and (IV) Respecting the Laws and Customs of War on Land,” in Scott, ed., The Hague Conventions and Declarations of 1899–1907, ‒. The full pay of a private in the Canadian Expeditionary Force was $. a day. Supplementary pay for non-military work was cents a day. The internees were paid the supplementary rate of pay, indicating that they were considered civilian detainees.Yet they would serve as military conscript labour – i.e., as military prisoners. Economic concerns dictated that the government pay them the lesser amount as civilian detainees but treat them as military conscripts. See D. Morton, The Canadian General: Sir William Otter (Toronto: Hakkert, ), . For a comparative analysis and discussion of captivity during the war, see Richard Speed, Prisoners, Diplomats, and the Great War: A Study in the Diplomacy of Captivity (New York: Greenwood Press, ). Hull, The Two Hague Conferences, ‒. NOTES TO PAGES 15–17
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British attitudes towards German nationals living in Britain and the resultant internment policy are explored in P. Panayi, “Germans in Britain during the First World War,” Historical Research , no. (Feb. ), ‒. Speed, Prisoners, Diplomats, and the Great War, ‒. See also Jörg Nagler, “Enemy Aliens in the , ‒,” in P. Panayi, ed., Minorities in Wartime: National and Racial Groupings in Europe, North America and Australia during the Two World Wars (Oxford: Berg, ), ‒. See, for example, J.D. Ketchum, Ruhleben: A Prison Camp Society (Toronto: University of Toronto Press, ). Employment was always considered incidental to the military reasons behind captivity, which explains the limited use of labour in the initial stages of the war. It was not until the effects of widespread economic blockades in took hold that prisoner labour was widely conscripted – but within the provisions of the Hague Conventions. Mistreatment of military prisoners and administrative negligence, which varied from country to country and camp to camp and of which there is ample evidence, are entirely different matters. On the role of labour, see G.H. Davis, “Prisoners of War in TwentiethCentury War Economies,” Journal of Contemporary History (), ‒. This point, for instance, is made by D. Morton in Silent Battle: Canadian Prisoners of War in Germany, 1914–19 (Toronto: Lester, ), . Richard Speed makes the argument more fully in his comparative study of captivity during the Great War, concluding, for example, that “Germany, like its Western opponents, made a serious if sometimes faltering effort to conform to the tenets of the liberal tradition in the administration of its prison camp system.” Speed, Prisoners, Diplomats, and the Great War, . The statement “That all persons in Canada of German or Austro– Hungarian nationality so long as they pursue their ordinary avocations be allowed to continue to enjoy the protection of the law and be accorded the respect and consideration due to peaceful and law-abiding citizens” was explicit about the law and alien entitlement. It 76
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would appear that identiſying aliens as enemy nationals made the protection more a function of international obligation. In effect, it was the international custom that aliens would enjoy the same protections afforded under the municipal legal regime that applied in this case. Canada, Canada Gazette, Aug. . See J.R. Carruthers, “The Great War and Canada’s Enemy Alien Policy,” Queen’s Law Journal , no. (), ‒. On Canada’s imperial connection and obligation and the implications for those aliens seeking to leave the country, the minister of justice, Charles Doherty, would state in the House of Commons: “at the outset of the war, we took the position, not only that we would allow these people to remain within the country, but I might say at the suggestion – and I might say upon the insistence – of the authorities of the Mother Country we took the position that these people, those of them at all events who were of military age, should not be allowed to leave the country.” Canada, House of Commons, Debates, April . On Borden’s misgivings, see D. Morton, “Sir William Otter and Internment Operations in Canada during the First World War,” Canadian Historical Review (), ‒. Canada, Department of the Secretary of State, Copies of the Proclamations, Orders in Council and Documents Relating to the European War (Ottawa: King’s Printer, ). Black’s Law Dictionary defines an enemy alien as “an alien residing or traveling in a country which is at war with the country of which he is a national.” The issue of which nationalities constituted “friendly aliens” is explored in D. Saunders, “Aliens in Britain and the Empire during the First World War,” in F. Swyripa and J.H. Thompson, eds., Loyalties in Conflict: Ukrainians in Canada during the Great War (Edmonton: Press, ), ‒. Carruthers suggests that it was General Otter, director of Internment Operations, who directed that, in the absence of other guidelines, the Hague Conventions be applied to civilian internees. “Otter chose as befits a military man to use the Hague regulations and the ‘prisoner of war’ status despite all of the internal contradictions and inconsistencies.” Carruthers, “The Great War,” . NOTES TO PAGES 21–2
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In total there were twenty-four camps created, of which five were “receiving” stations. The location of the camps, their facilities, and the dates they were opened and closed are identified in the published report of W.D. Otter, Internment Operations, 1914–1920 (Ottawa: King’s Printer, ). The public projects included work in the national parks, summarized by the Department of Interior in yearly reports. See Canada, Department of Interior, Annual Report of the Department of Interior, 1915 (Ottawa: King’s Printer, ); Annual Report of the Department of Interior for the Fiscal Year ending March 31, 1916 (Ottawa: King’s Printer, ); and Annual Report of the Department of Interior for the Fiscal Year ending March 31, 1917 (Ottawa: King’s Printer, ). For a description and discussion of life in the internment camps, see B. Waiser, Park Prisoners: The Untold Story of Canada’s National Parks, 1915–46 (Saskatoon: Fih House, ), ‒; B. Kordan and P. Melnycky, eds., In the Shadow of the Rockies: Diary of the Castle Mountain Internment Camp, 1915–1917 (Edmonton: Press, ); P. Melnycky, “The Internment of Ukrainians in Canada,” in Swyripa and Thompson, eds., Loyalties in Conflict, ‒; L. Luciuk, In Fear of The Barbed Wire Fence: Canada’s First National Internment Operations and the Ukrainian Canadians, 1914–1920 (Kingston: Kashtan Press, ); and B. Kordan, Enemy Aliens, Prisoners of War: Internment in Canada during the Great War (Montreal: McGill-Queen’s University Press, ), ‒. In addition to the federal Department of Interior, arrangements were made with the government for the use of civilian internment labour on road projects and for clearing bush from land for experimental agricultural purposes in Nova Scotia, northern Ontario, and Quebec. See Otter, Internment Operations, ‒. For an account of Otter’s role in organizing and administering the operations, see D. Morton, The Canadian General, ‒; and D. Morton, “Sir William Otter and Internment Operations in Canada during the First World War,” Canadian Historical Review , no. (), ‒. The case is made more fully in Kordan, Enemy Aliens, Prisoners of War, ‒. Carruthers notes that conditions “compared favourably with similar facilities in Germany.” This is true insofar as the com78
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parison is based on equivalencies. This, however, implies that civilian internees in Canada were military prisoners. They were not. As such, they would have been entitled to a higher standard of treatment. In effect, a more accurate comparison is not with the treatment accorded captured combatants in German military camps but with the treatment of civilians in special prison camps for non-combatants such as Ruhleben, outside Berlin. Carruthers, “The Great War,” . For a description of the internment of Canadian military and civilian prisoners in German camps, see D. Morton, Silent Battle. The release of the internees to private industry was still conditional in that they would be let go only if no other labour was obtainable. See M. Minenko, “Without Just Cause: Canada’s First National Internment Operations,” in L. Luciuk and S. Hryniuk, eds., Canada’s Ukrainians: Negotiating an Identity (Toronto: University of Toronto Press, ), . The disposition of these and other prisoners is described in Otter, Internment Operations. In July , with the formal conclusion of internment operations, the government held approximately $, in trust, constituting both earnings and monies confiscated. Claims were submitted and paid out until , when the balance remaining was approximately $, in unpaid earnings and an additional $, in confiscated cash. It was this balance that was turned over to the General Revenue Fund in . On international obligation and on belligerents’ efforts at compliance, see E. Satow, “The Treatment of Enemy Aliens,” Transactions of the Grotius Society: Problems of the War 2 (), ‒; and J. Garner, “Treatment of Enemy Aliens: Measures in Respect to Personal Liberty,” American Journal of International Law , no. (), ‒. See F. Swyripa, “The Ukrainian Image: Loyal Citizen or Disloyal Alien?” in Swyirpa and Thompson, eds., Loyalties in Conflict, ‒. The argument has also been made that Canada as a Dominion possessed only an incomplete form of sovereignty, forcing it to continue using imperial notions of subject status to define full membership in the polity and that subject status (as understood in ) inadequately defined individual rights, thus preventing immigrants from fully NOTES TO PAGES 23–4
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joining the polity. This “conceptual vulnerability” would affect the immigrants’ place in Canadian society and frame the status of the enemy aliens as “subjects” of other sovereigns, whose loyalties as a result were thought politically and logically to lay elsewhere. See J.H. Farney, “Alien Subjects or Immigrant Citizens? Canada’s Decision to Intern Enemy Aliens in the Great War,” thesis, University of Saskatchewan, . On the distinction made by the belligerents between interned civilian enemy aliens and military s, Kordan makes the argument more fully in Enemy Aliens, Prisoners of War, ‒. The point is developed in ibid., ‒. R.H. Coats, “The Alien Enemy in Canada: Internment Operations,” in Canada in the Great World War, Vol. (Toronto: United Publishers, ‒), . Otter, Internment Operations, . See, for example, the U.S. consular report “Report on Conditions of German, Austro–Hungarian, Turkish, and Bulgarian Subjects in Quebec Consular District and in the Detention Camp at Spirit Lake,” as cited in L. Luciuk, In Fear of the Barbed Wire Fence, ‒n. CHAPTER 2
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For the classic statement of this principle, see A.V. Dicey, Introduction to the Study of the Laws of the Constitution (London: Macmillan, ), . In the context of the War Measures Act, see Re Gray (), ; , ‒. Fort Frances Pulp and Paper Company v. Manitoba Free Press Company, [] ; Reference Re the Board of Commerce Act, 1919 and the Combines and Fair Prices Act, 1919, [] ; and P.W. Hogg, Constitutional Law of Canada, nd ed. (Toronto: Carswell, ), ‒. J.R. Carruthers, “The Great War and Canada’s Enemy Alien Policy,” Queen’s Law Journal (), . See also Re Gray and Re Regulations (Chemicals) under War Measures Act, [] , . Young v. “Scotia”, [] ( ), provides that obeying the law may be a legal duty, but, in most instances, the better view is that the obligation is a moral duty. NOTES TO PAGES 25–8
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Carruthers, “The Great War,” ‒. Ibid., ‒. This line of principle, in its many guises, can be traced through many foundational “rights” documents in the Western tradition such as the Magna Carta, the notion of the common law constitution, the preamble of the U.S. Declaration of Independence, and Article of the Declaration of the Rights of Man and the Citizen () and in cornerstone writings such as John Locke’s Second Treatise of Civil Government () and Thomas Paine’s Rights of Man (). P.W. Hogg, “The Constitution and Rights prior to the Charter of Rights and Freedoms,” in N. Richard, C. Bronaugh, B. Hoffmaster, and S.B. Sharzer, eds., Readings in the Philosophy of Constitutional Law (Dubuque, Iowa: Kendall/Hunt Publishing Co., ), . See J.H. Morgan and T. Baty, War: Its Conduct and Legal Results (New York: E.P. Dutton and Company, ), . The authors argue that the defence prerogative existed only to meet a danger that is both actual and imminent. Norwegian Shipowners’ Claims against the United States, American Journal of International Law, (), . See also Polish Nationals in Danzig (), Ser. / , No. , , as cited in H.M. Kindred, J. Castel, W.C. Graham, L.C. Reif, D. Fleming, A.L.C. de Mestral, I.A. Vlasic, and S.A. Williams, International Law Chiefly as Interpreted and Applied in Canada, th ed. (Toronto: Emond Montgomery Ltd., ), : “a State cannot adduce as against another State its own Constitution with a view to eroding obligations incumbent upon it under international law or treaties in force.” Norwegian Shipowners’ Claims. See also Official Records of the General Assembly, Fourth Session, Supplement No. 10 ( /), ‒. Morgan and Baty, War, . Black’s Law Dictionary defines “act of state” as a judicially created doctrine that precludes domestic courts from inquiring into the validity of governmental acts of a recognized foreign sovereign committed within its own territory. While it was originally considered absolute, modern opinion takes a more limited view of this immunity. See also State Immunity Act, , c. –. This immunity, however, failed to shelter the Dominion of Canada when in a number of cases it acted against its own fully naturalized citizens. Representing but a small portion of those interned, this secNOTES TO PAGES 28–31
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ond class’s highly suspect prosecution suggests the lengths to which authorities disregarded notions of citizenship and its attendant rights in a moment of perceived crisis. Kate A. Hoff Case (), . Norwegian Shipowners’ Claims; Kindred et al., International Law, . R. v. Superintendent of Vine Street Police Station, [] , and R. v. Halliday, [] . Morgan and Baty, War, ‒. See also Carruthers, “The Great War,” . Carruthers, “The Great War,” . Sir William Blackstone, Blackstone’s Commentaries on the Laws of England (Philadelphia: Rees Welsh and Co., ), ‒. For a more modern statement, see Gerald Gall, The Canadian Legal System (Toronto: Carswell, ), . D. Schindler and J. Toman, The Laws of Armed Conflicts (Geneva: Martinus Nijhoff Publishers, ), . See M. Whiteman, Damages in International Law (Washington, : Government Printing Office, ), . For a definition of the denial of justice, see also Kindred et al., International Law, , citing Article of the “Harvard Draft Convention on the Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners.” Re Beranek (), , and Re Gusetu, Gusetu v. Date (), Can. . See M. Minenko, “Without Just Cause: Canada’s First National Internment Operations,” in L. Luciuk and S. Hryniuk, eds., Canada’s Ukrainians: Negotiating an Identity (Toronto: University of Toronto Press, ), . See Morgan and Baty, War, . Carruthers, “The Great War,” . Morgan and Baty, War, . Canada, Supplement to the Canada Gazette, May . Treaties of Peace Act, 1919 (Can. nd Sess.), c. . Ernest Schuster, “The Peace Treaty and Its Effects on Private Property,” in C.M. Picciotto, ed., British Yearbook of International Law (London: Oxford University Press, ), . NOTES TO PAGES 31–8
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L. Oppenheim, International Law, Vol. (London: Longmans, Green and Co., ), ‒. See also W.E. Hall, Treatise on International Law (London: Oxford University Press, ), ; and T.J. Lawrence, Principles of International Law (London: MacMillan, ), . For a fuller account of this argument, see J.A. Gathings, International Law and the American Treatment of Enemy Alien Property (Washington, : American Council on Public Affairs, ). On January , Canada and Germany entered into an agreement to give effect to the “Young Plan,” stipulating the transfer back by Canada of non-liquidated property of German nationals seized under the Treaties of Peace Act; Richter v. Canada, [] Ex. , ‒. CHAPTER 3
Canada, House of Commons, Debates, June . The argument is made more generally by J.L. Granatstein in his ardent defence of historicism, Who Killed Canadian History? (Toronto: Harper Collins, ). See also C.W. Humphries, “The Past and the Culture of Compliance: My History, Your History, No History,” in T. Symons, ed., The Place of History: Commemorating Canada’s Past (Proceedings of the National Symposium held on the Occasion of the th Anniversary of the Historic Sites and Monuments Board of Canada, ), ‒. On Canada’s treatment of enemy alien prisoners, a number of U.S. consular reports privately censured the harsh conditions and punitive measures taken against the internees, finding, for example, fault with authorities for either having overstepped the limits of civilized behaviour or for not having provided sufficient protection against malicious and cruel intent. All of this the reports interpreted in terms of their wider recognition that the policy not only lacked common sense but was also unprincipled, running contrary to the best interests of the country, because most of the prisoners “were inoffensive men ... desirous of becoming Canadian citizens.” See, for example, the reports as cited in L. Luciuk, In Fear of the Barbed Wire Fence: NOTES TO PAGES 38–47
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Canada’s First National Internment Operations and the Ukrainian Canadians, 1914–1920 (Kingston: Kashtan Press, ), n and ‒n. On the divisions and debate over the meaning and purpose behind the Japanese-Canadian redress movement, see M. Omatsu, Bittersweet Passage: Redress and Japanese Canadian Experience (Toronto: Between the Lines, ); and R. Miki and C. Kobayashi, Justice in Our Time: The Japanese Canadian Redress Settlement (Vancouver: Talonbooks in association with the National Association of Japanese Canadians, ). The Japanese-American redress movement similarly confronted haunting questions about the past and the role and purpose of redress. See M.T. Maki, H. Kitano and S.M. Berthold, Achieving the Impossible Dream: How Japanese Americans Obtained Redress (Urbana: University of Illinois Press, ); and L. Hatamiya, Righting a Wrong: Japanese Americans and the Passage of the Civil Liberties Act of 1988 (Stanford, Calif.: Stanford University Press, ). Canada, House of Commons, Debates, Sept. . On liability, see the Introduction to this volume, n. See National Association of Japanese Canadians, Democracy Betrayed: The Case for Redress – A Submission to the Government of Canada on the Violation of Rights and Freedoms of Japanese Canadians during and after World War II, nd printing ( Jan. ), ; National Association of Japanese Canadians, Justice in Our Time: Redress for Japanese Canadians (Vancouver: Greater Vancouver Japanese Canadian Citizens Association Redress Committee for the , n.d.), ; and Miki and Kobayashi, Justice in Our Time, . Canada, Secretary of State for Multiculturalism, the Hon. Gerry Weiner, “Press Statement,” Sept. . Canada, House of Commons, Debates, Sept. . The brief “A Time for Atonement: Canada’s First National Internment Operations and the Ukrainian Canadians,” prepared by L.Y. Luciuk on behalf of the Ukrainian Canadian Committee (Civil Liberties Commission), was submitted December to the Standing Committee on Multiculturalism. For a transcript of the proceedings, see Canada, House of Commons, Minutes of Proceedings and Evidence
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of the Standing Committee on Multiculturalism, Issue No. , Dec. . A further representation on redress was made before the committee six months later. See Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Multiculturalism, Issue No. , June . A briefing document produced by the Ukrainian Canadian Committee (Civil Liberties Commission), entitled “Canada’s First National Internment Operations and the Ukrainian Canadians: The Case for an Acknowledgement and Redress,” was given to the minister at a meeting in Montreal, October . A further submission, “The Ukrainian Case for Acknowledgement and Redress,” was presented to the minister at a Toronto meeting, October . A settlement looked imminent and both meetings received extensive coverage in the press. See Edmonton Journal, Oct. ; Globe and Mail, and Oct. ; Regina Leader-Post, Oct. ; Winnipeg Free Press, , , and Oct. and Nov. . Globe and Mail, Oct. . The remarks were a restatement of a position articulated earlier by Gerry Weiner, who later retreated under public pressure, only to return to that stance. See Globe and Mail, Sept. ; Toronto Star, Sept. ; Winnipeg Free Press, Sept. and , , and Oct. ; Edmonton Journal, Sept. and Oct. ; and Regina Leader-Post, and Oct. . The various news items and editorials at the core of the public discussion are reproduced in L.Y. Luciuk, ed., Righting an Injustice: The Debate over Redress for Canada’s First National Internment Operations (Toronto: Justinian Press, ). Prime Minister Trudeau, in a cursory remark to the House during a brief exchange on redress, acknowledged that redress might be possible if means other than direct compensation were available. Canada, House of Commons, Debates, April . Ibid., June . Ibid., June . The delegation of the Ukrainian Canadian Congress (formerly the Ukrainian Canadian Committee) met with the prime minister, Deputy Prime Minister Don Mazankowski, and the Deputy Speaker of
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the House, Steve Paproski, in Edmonton on November . A briefing document entitled “Meeting with The Right Honourable Brian Mulroney Prime Minister of Canada and the Honourable Don Mazankowski Deputy Prime Minister of Canada,” which included background notes, was submitted to the government earlier for consideration. Willingness to resolve the issue in a symbolic manner was signalled to a Congress delegation in a meeting with Gerry Weiner and senior ministry staff in Ottawa on December . Mr I.W. Bardyn, Redress Chair, Ukrainian Canadian Congress, to the Hon. Gerry Weiner, Minister of State for Multiculturalism, Dec. ; copy in the possession of the authors of this book. The prime minister’s remarks were reported in the Globe and Mail, November . Canada, House of Commons, Debates, Sept. . Mr I.W. Bardyn, Vice-President, Ukrainian Canadian Congress, to the Rt Hon. Brian Mulroney, September ; copy in authors’ possession. The Congress’s Redress Committee commissioned a legal brief and an international law brief from Anne Derrick and Mary Ellen Turpel, respectively, to outline the principles for negotiating redress. The briefs were combined as “Submissions on Behalf of the Ukrainian Canadian Community on the Matter of Redress for Non-Pecuniary Losses Occasioned by Internment and Other State-Inflicted Injuries” ( May ; draft, Jan. ). A report detailing monetary losses, prepared by Claire Livingston and Martin Roberts of Price Waterhouse (Vancouver), appeared as “Economic Losses of Ukrainian Canadians Resulting from Internment during World War I” ( Jan. ). Initially for just the prime minister, the minister of state for multiculturalism, and executive members of the Congress and the Redress Committee, the documents were eventually made public in May in the final stages of negotiation with the government. Gerry Weiner made the offer to representatives of the ChineseCanadian, Italian-Canadian, Jewish-Canadian, Sikh-Canadian, and Ukrainian-Canadian communities at a closed, unpublicized meeting on May . NOTES TO PAGES 53–4
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On the reaction of the various groups to the government’s settlement package, see Globe and Mail, May . After the offer was rejected, the parliamentary secretary to the minister of multiculturalism, Vincent Della Noce, replying to an appeal from the floor of the House of Commons to act on redress, stated: “I know that some communities are playing politics on this issue. I hope they stop because in years [with reference to the Italian-Canadian community] there was nothing done about this.” Canada, House of Commons, Debates, June . On April in Toronto, national representatives of the Chinese-Canadian, Italian-Canadian, Japanese-Canadian, and Ukrainian-Canadian communities agreed to co-ordinate efforts in urging independent redress on a number of outstanding issues. The resulting National Redress Alliance made it clear in correspondence with the prime minister, before the offer of May , that a collective compensation package was unacceptable. The variable nature of the wrongs committed against targeted communities required that redress in each case be specific and directed. National Redress Alliance to the Rt Hon. Brian Mulroney, Jan. ; and “Report of the Activities of the Redress Committee, February ‒April ”; copies in authors’ possession. Mr I.W. Bardyn, Redress Chair, Ukrainian Canadian Congress, to the Rt Hon. Kim Campbell, June ; copy in authors’ possession. The Hon. Jean Chrétien, Leader of the Opposition, to Mr I.W. Bardyn, Redress Chair, Ukrainian Canadian Congress, June ; copy in authors’ possession. Canada, House of Commons, Debates, Dec. . See also Globe and Mail, Dec. . The prospect of a unilateral decision prompted Progressive Conservative Senator Raynell Andreychuk (Saskatchewan) to make a statement in the Senate urging the government “to pick up where the previous [government] left off by properly resolving the compelling issue of Ukrainian Canadian internment redress.” Senate, Debates, Dec. . The Ukrainian Canadian Congress replied to the initiative of the minister for multiculturalism “You will understand the sense of disappointment and in some sense betrayal, when an important issue like the internment of Ukrainian NOTES TO PAGES 54–5
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Canadians receives such a poor response from the present-day government.” Mr O. Romaniw, President, to the Hon. Sheila Finestone, Secretary of State (Multiculturalism), Dec. ; copy in authors’ possession. The reaction of the Ukrainian Canadian Civil Liberties Association appeared in an opinion-editorial, Winnipeg Free Press, Jan. . Trudeau would remark in the House: “On other occasions I have personally expressed to Japanese Canadians the regret that I feel about the terrible acts which happened to them. There is no justification for them after the fact. To me this is in the category of those who want to rehabilitate Riel. Riel stands as he stands.” And again, “I do not see how I can apologize for some historic event to which these people in this House were not a party. We regret that it happened.” House of Commons, Debates, April and June , respectively. Ibid., Dec. . Canada, House of Commons, Motions on the Order Paper, ‒, ‒, Feb. . Also reacting to news of the termination of redress discussions, Progressive Conservative Senator Don Oliver (Nova Scotia) urged the government to reconsider its decision, arguing that “the degree of political sophistication of a country can be determined by the treatment afforded its minorities.” Canada. House of Commons, Senate, Feb. . Ukrainian Weekly, 6 Feb. . These included Kingston’s Fort Henry, Ont. (August ), Castle Mountain, Alta. (August ), Kapuskasing, Ont. (October ), Banff, Alta. ( June ), Jasper, Alta. (October ), Lethbridge, Alta. (May ), Nanaimo, (May ), Vernon, ( June ), Brandon, Man. (November ), Toronto, Ont.: Exhibition Grounds (October ), Winnipeg: Manitoba Legislature (October ), Victoria, ( July ), Spirit Lake, Que. (August ), Revelstoke, (September ), Petawawa, Ont. (October ), Field, ( June ), Amherst, (September ), Sicamous, ( June ), and Drumheller, Alta. (August ). The local and ethnic press covered the unveilings and accompanying ceremonies extensively in each case.
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Symbolically important, at Dauphin’s Memorial Park, site of Canada’s National Ukrainian Festival, Governor General Adrienne Clarkson on August previewed a special general plaque commemorating the First World War internment experience in Canada. She noted that the internment of Ukrainians as enemy aliens during Canada’s first national internment operations represented “one of the sadder stories in the difficult steps that immigrants have had in this country.” Winnipeg Free Press, Aug. ; Ukrainian News, ‒ Aug. . Congress delegations met separately with Stéphane Dion, president of the Privy Council and minister for intergovernmental affairs, and Dr Hedy Fry, secretary of state (Multiculturalism), on four occasions during and to impress on the minister that the matter of redress was still outstanding. In response to a query on the need for a settlement, officials accompanying Fry at a meeting in Regina on March pointed to a list of projects already funded by the Directorate of Multiculturalism. “Notes on meeting with Minister,” n.d.; copy in authors’ possession. The Ukrainian Canadian Civil Liberties Association, on a parallel track, met on April with the leader of the Reform Party, Preston Manning, and, along with the Congress, on October with Sheila Finestone. The Association pressed for additional meetings with cabinet officials in the years to follow. It also made a number of submissions, including “Ukrainian Canadian Restitution Proposal,” November ; “Request to the Minister Responsible for the Status of Women,” October ; and “Request to the Deputy Prime Minister and the Minister of Canadian Heritage, the Honourable Sheila Copps, ,” January . The Association’s symposium “Coming to Terms” took place at the Whyte Museum of the Canadian Rockies in Banff on October . Invited as principal speakers, representatives of all the major political parties presented papers outlining their party’s respective positions on redress. In comments from the floor, Peter Milliken, Liberal and author of the Private Member’s Bill on Redress of September , admitted that Prime Minister Chrétien would not
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officially acknowledge the internment because it was an admission of liability, asking “What else is intended by an acknowledgement?” Calgary Sun, Oct. . The publications, intended to publicize the issue, included a reprint of the Congress’s original brief by L. Luciuk, A Time for Atonement: Canada’s First National Internment Operations and the Ukrainian Canadians, 1914–1920 (Kingston: Limestone Press, ), which reappeared in an expanded edition as In Fear of the Barbed Wire Fence: Canada’s First National Internment Operations and the Ukrainian Canadians, 1914–1920 (n.p.: Kashtan Press in association with the Ukrainian Civil Liberties Association, ). Other volumes included B. Kordan, Righting Historical Wrongs: Internment, Acknowledgement and Redress (Saskatoon: Ukrainian Canadian Congress – Provincial Council, ); L. Luciuk, ed., Righting an Injustice: The Debate over Redress for Canada’s First National Internment Operations (Toronto: Justinian Press, ); J. Gregorovich, ed., Commemorating an Injustice: Fort Henry and Ukrainian Canadians as “Enemy Aliens” during the First World War (Kingston: Kashtan Press for the Ukrainian Canadian Civil Liberties Association, ); L.Y. Luciuk and B. Sydoryk, eds., “In My Charge”: The Canadian Internment Camp Photographs of Sergeant William Buck (Kingston: Kashtan Press, ); and L.Y. Luciuk, with N. Yurieva and R. Zakaluzny, comps., Roll Call: Lest We Forget (Kingston: Kashtan Press for the Ukrainian Civil Liberties Association and the Ukrainian Canadian Congress, ). Letter from the Hon. Dr Hedy Fry, Secretary of State (Multiculturalism) to Professor Orest Cap, Winnipeg, Aug. ; copy in authors’ possession. Ukrainian Weekly, Feb. . Edmonton Journal, May and June ; Winnipeg Free Press, Sept. ; and Montreal Gazette, Feb. . While Parks Canada agreed to install interpretive panels at the Cave and Basin site in Banff National Park, the wording of the text on a proposed plaque at Castle Mountain became a matter of tension and controversy. “To ensure historical accuracy and integrity,” Parks officials would not permit the use of the word “unjust” to characterize the internment and informed the Congress and the Association NOTES TO PAGES 57–8
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that “unless this requirement is met” the department would not proceed with a licence of occupation. The condition was accepted under protest. Mr R. Harding, Heritage Program Manager, Parks Canada, Canadian Heritage, to L. Luciuk, Director of Research, , July ; Dr L. Luciuk to Mr R. Harding, July ; L. Hawryshkiw, Executive Director, to Mr R. Harding, July ; and Dr L. Luciuk to Mr R. Harding, July ; copies in authors’ possession. See Kingston Whig-Standard, July ; and Montreal Gazette, Aug. . Curiously, a redevelopment plan that would include commercial operations at the Cave and Basin site was being proposed at the time of the negotiations. Commercial development, however, raised strong objections, leading eventually to the abandonment of the commercial aspect of the project. See Calgary Herald, and April . Edmonton Journal, March and , , and April ; Toronto Star, May . In the House of Commons, Ross Harvey, an , reminded the government that the unanimous parliamentary resolution that declared First World War internment unjustified and unwarranted called on the government, among other things, to establish “a permanent historic educational exhibit” in the National Parks. Canada, House of Commons, Debates, April . As reported in the Ottawa Citizen, Dec. . Alberta Report, Dec. . Canada, House of Commons, Debates, Oct. . Ibid, Oct. . Material losses have constituted a major issue in the debate on Ukrainian-Canadian redress. Consensus has emerged generally around restitution, as opposed to the more contentious notion of compensation. Specifically, there should be an accounting for properties and wages seized and still in the possession of the government, with the view to applying the amount to public awareness and education on human rights. The most recent expression of this position is Bill ‒, a private member’s bill presented in by Alliance-Independent-Conservative Inky Mark. The purpose of the proposed enactment “is to provide for redress for the injustice done to persons of Ukrainian descent and other Europeans during the First World War, to comNOTES TO PAGE 59
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memorate this sad event in Canadian history and to provide for restitution to be made. The restitution is to be devoted to educational materials dealing with Canada’s past internment policies and activities, understanding about tolerance and the role of the Canadian Charter of Rights and Freedoms.” Ukrainian News, ‒ Feb. ; and Ukrainian Weekly, Jan. . CHAPTER 4
See, for example, comments of the Rt Hon. Pierre Elliott Trudeau in House of Commons, Debates, April . Roy Brooks has observed that, in what has been described as an age of apology, there has been a tendency to view redress – the “canonization of sentimentality” – as part of a larger “contrition chic” trend. See R.L. Brooks, “Age of Apology,” in R.L. Brooks, ed., When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (New York: New York University Press, ), . See P.B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, ), ‒. B. Kordan, Righting Historical Wrongs: Internment, Acknowledgment and Redress (Saskatoon: Ukrainian Canadian Congress – Provincial Council, ), ‒. For a further discussion of the role of reconciliation or truth commissions, see Hayner, Unspeakable Truths, ‒. The argument is made more fully in Kordan, Righting Historical Wrongs, ‒.
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Index
act of state: definition, n; and effect, ‒ Andreychuk, Reynell (Liberal senator), n arbitrary use of state power. See redress; rule of law; War Measures Act Armenian Christians. See friendly aliens basic human rights: and customary international law, ‒; and legitimate scope of state action, ; and obligation to acknowledge and redress violation of, . See also redress Blenkarn, Don (Progressive Conservative ), Bodnar, Morris (Liberal ), Borden, Sir Robert (prime minister of Canada), , , n Britain: and Canadian declaration of war, ; and catalysts for internment, ; and independence of judiciary, ; and internment policy, ; and prevention of enemy alien departure, ; and use of labour, ‒. See also War Measures Act Brown, Jan (Reform ), Canadian Race Relations Foundation, Charest, Jean (Conservative ), ‒
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Chrétien, Jean (prime minister of Canada): and Kyiv-Mohyla students, ; and promise, , ‒, n. See also Trudeau, Pierre Elliott Clarkson, Adrienne (governor general of Canada), n Consolidated Orders Concerning Trading with the Enemy ( ), ‒ Criminal Code, Custodian of Enemy Alien Property, , ‒ Dion, Stéphane (president of the Privy Council, Intergovernmental Affairs), n Dominion Police, enemy aliens: and common law, , n; and confiscation of property, ‒, ‒; as s, , ‒, ; and public’s awareness of, ; and registry of, ; and sovereign right, ; and special relationship, ‒; and unemployment, ; and use of labour, ‒. See also act of state; Britain; friendly aliens; Hague Conventions; proclamations; public notice; War Measures Act Finestone, Sheila (Liberal , Multiculturalism), ‒, n Fontana, Joe (Liberal ), France: and internment policy, ‒; and use of labour, Fraser, Derek (Canadian ambassador to Ukraine), Freedom Had a Price, friendly aliens, n Fry, Hedy (Liberal , Multiculturalism), ‒, n Hague Conventions: and binding effect of, , , n; and classes of belligerents, ‒, ; and compensation, ; and guarantees, ; and labour, , ‒, , ‒, n internment: and accountability, , , ; and analytical method, ‒; and belligerents’ policy, ‒; and catalysts of internment, ; and concern over liability, ; and customary international law, ; and domestic legality, ; and foreign protest, ; and judicial review, ; and lasting effect of, ‒; and obligation to act with justice, ; and public 94
INDEX
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awareness, ; and questionable nature of, ; and return of property, ‒; and special relationship, ; and twentieth-century warfare, ; and unemployment, , ; unjust nature of, . See also act of state; Bodnar, Morris; Chrétien, Jean; Finestone, Sheila; Fraser, Derek; friendly aliens; Milliken, Peter; proclamations; public notice; transitional justice Italy, and internment policy, Lusitania, Mark, Inky (independent ), n McLaughlin, Audrey (New Democratic ), Milliken, Peter (Liberal ), , n Morrison, Lee (Reform ), Mulroney, Brian (prime minister of Canada), , , , , orders in council: ( March ), ; ( May ), ; ( April ), ; ( June ), ; ( September ), ; ( September ), ; ( October ), , ‒; ( November ), . See also Consolidated Orders Concerning Trading with the Enemy ( ); Treaties of Peace Order (Austria and Bulgaria) ( ) Otter, Major General Sir William, , , n Parks Canada, , n Portugal, Price Waterhouse, proclamations: August , , n; August , , ; August , ; September , ‒. See also public notice public notice, September , ; and limited protection under, . See also proclamations redress: and compensation, , ‒, ‒, ‒; and democratic renewal, , ; and interpretive lens, ; and Japanese-Canadians’ claim, ‒; and legitimacy, ; and moral claim to, ; and Race Relations Foundation, ‒; and reaffirmation, ‒; and resistance to, ; and role INDEX
95
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of, ; and sovereign right, ; and symbolic nature, ‒. See also basic human rights; Blenkarn, Don; Bodnar, Morris; Chrétien, Jean; McLaughlin, Audrey; Milliken, Peter; rule of law; Solomon, John; transitional justice; Trudeau, Pierre Elliott; Ukrainian Canadian Civil Liberties Association; Ukrainian Canadian Congress Robinson, Svend (New Democratic ), Royal North West Mounted Police, rule of law: and application of, ‒; and conditions of arrest and internment, ; and judiciary, ; and obligations, ; and sovereign right, , , . See also arbitrary use of state power; War Measures Act Solomon, John (New Democratic ), sovereign right, Trading with the Enemy Acts, , transitional justice, ‒ Treaties of Peace Act, , n, n Treaties of Peace Order (Austria and Bulgaria) ( ), Trudeau, Pierre Elliott (prime minister of Canada), ‒, , , , n, n Ukrainian Canadian Civil Liberties Association, , n, n Ukrainian Canadian Congress, ‒, n, n Ukrainian Canadian Professional and Business Association, United States, ‒, War Measures Act: and arbitary power, ; and cabinet powers of discretion, , ; and intent, , ; and international norms, ‒; and orders in council, ‒. See also arbitrary use of state power; rule of law Weiner, Gerry (Progressive Conservative , Multiculturalism), 4, , , n, n, n, n
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