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RETURN To an Order of the House for a Return of copies of judgments of any Court, in each ease of prosecution… British Columbia. Legislative Assembly 1909

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 9 Ed. 7 Judgments in re Nakane and Okazake. G 59
RETURN
To an Order of the House for a Return of copies of judgments of any Court, in each
ease of prosecution under authority of Chapter 23, 1908, intituled "An Act to
Regulate Immigration into British Columbia."
W. J. BOWSER,
Attorney-General.
Attorney-General's Department,
15th February, 1909.
IN RE NAKANE AND OKAZAKE.
February 21st, 1908.
Hunter, C. J. : It is, as I understand it, admitted at the outset that the applicants here
are subjects of the Emperor of Japan, and they come to Court questioning the validity of their
detention under the Act, which has been recently passed by the British Columbia Legislature,
which, for the sake of brevity, I shall refer to as the Natal Act.
Now, so far as I can see, it is not necessary on the present occasion to consider how far
this so-called Natal Act is repugnant to the provisions of the Canadian Immigration Act.
I have only to consider on the present occasion, it seems to me, how far the provisions of
this Act interfere with or nullify the Act known as the Japanese Treaty Act, which was passed
in 1907 by the Parliament of Canada. Now, that Act recites the Treaty which exists between
the Imperial Government and the Japanese Government, and proceeds to enact that the provisions of that Treaty are sanctioned—that being the expression that is used in the Act—
(Cassidy, K. C.—Interrupting: The Convention is sanctioned, not the "provisions," but
just the Convention,)
Well, I do not understand that there is any substantial distinction. That is not my view.
The learned counsel for the Province raises the point that this is mere " Schedule," and that
as the Canadian Parliament saw fit to enact only that, they approved of the Convention that
was contained in this Schedule.
To my mind, the fact that the provisions are contained in the Schedule neither adds to
nor subtracts from the efficacy of the law. It has been laid down time and again by eminent
jurists, for instance, by Lord Justice Brett, in Attorney-General v. Lamplough (1878), 3 Ex. D.
214, that it is immaterial whether an enactment is contained in the Schedule or in the body
of the Act, but although in the Schedule, they are as much a part of the Act as if contained
in the body of the Act. Now, I think it must be plain that when the Dominion Parliament
sanctioned this Treaty between the Imperial Government and the Emperor of Japan, they
intended to make the provisions of that Treaty a part of the law of Canada.
And then the only question is, have they that power 1 I have no doubt, under the
combined operation of section 132 and section 96 of the British North America Act, that the
Dominion Parliament did have that power. Section 95 provides that the Parliament of Canada
has power from time to time to make laws in relation to agriculture in all or any of the G 60 Judgments in re Nakane and Okazake. 1909
Provinces, and in relation to immigration in all or any of the Provinces, and any law of the
Legislature of the Province relative to agriculture or immigration shall have effect in and for
the Province, so long and so far only that it is not repugnant to any Act of the Parliament of
Canada; and the other section empowers the Parliament of Canada to make any law necessary
or proper to secure the performance of Canada's obligations as a part of the Empire; in other
words, to confirm by positive law that which otherwise would rest on convention or agreement
only.
That being so, the question at once comes up as to whether the provisions of the Natal
Act in any way nullify or are contradictory to the provisions of the Act of the Parliament of
Canada, which is known as the Japanese Treaty Act.
The provisions of the Natal Act lay down certain conditions upon which any person
seeking to enter the Province may enter, which conditions must be complied with before
admission is granted. Among those conditions is the requirement by which a person shall, if
requested to do so by the Immigration Officer, write out in English, or any language of Europe,
an application to the Provincial Secretary to the effect set out in a certain Schedule.
When we come to compare the provisions of the Japanese Treaty Act with those of the
Natal Act, we find it is agreed that the subjects of either of the contracting parties shall have
full liberty to enter, travel or reside in any of the dominions or possessions of the other contracting party, and shall enjoy full protection for person and property, etc.
It will be observed that the language is " the subjects," and such subjects as may be
permitted by any Province, that is to say, all the subjects, except, of course, such subjects as
are excluded by the authority of the Parliament which is granting the right; and we find that
in the Canadian Immigration Act the Dominion Parliament has specified certain classes of
people who shall be debarred from entering into the country, and there is no limitation or
mention made as to their nationality or source of origin, but anyone coming within any of
these special classes is debarred, whether Japanese or Chinese or any other nationality. And
as the Canadian Immigration Act must be read together with the Japanese Treaty Act, the
joint effect of those two Acts is that the subjects of the Emperor of Japan, other than those
coming within those special classes, shall have the full right and liberty to enter, travel or
reside in any part of this Dominion.
Therefore, as the power of the Province to pass immigration laws is conditioned upon such
laws not being repugnant to those passed by the Parliament of Canada, it follows that to the
extent to which the Natal Act is inconsistent with the Canadian legislation, to that extent it
is inoperative, and, therefore, the applicants are entitled to their discharge.
FULL COURT.
25th February, 1908.
Irving, J. : This is an appeal from the Chief Justice, who on a writ of Habeas Corpus
released two Japanese who were detained under a warrant of commitment given under the
provisions of the "British Columbia Immigration Act, 1908."
The Chief Justice came to the conclusion that the Immigration Act, 1908, was not applicable to the subjects of the Emperor of Japan. 9 Ed. 7 Judgments in re Nakane and Okazake. G 61
The "British Columbia Immigration Act, 1908," is founded on powers conferred by
section 95 of the British North America Act upon the Provincial Government. By that
section it is declared as follows :—
" 95. In each Province the Legislature may make laws in relation to Agriculture in the
Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from time to time make laws in relation to Agriculture in all or any of
the Provinces, and to Immigration into all or any of the Provinces ; and any law of the
Legislature of a Province relative to Agriculture or to Immigratien shall have effect in and for
the Province as long and as far only as it is not repugnant to any Act of the Parliament of
Canada."
It is to be observed that under section 95 the legislation of the Province shall have effect
in a Province "so long and as far only as it is not repugnant to any Act of the Parliament
of Canada."
By a Statute, assented to on the 30th of January, 1907, entitled "An Act respecting a
certain Treaty between Canada and Japan," it is recited that a Convention was signed between
the United Kingdom and Japan concerning commercial relations between Canada and Japan,
and subsequently ratifications of the said Convention were exchanged. It then declared that
the Convention, which is set forth in the Schedule to the Act, was " thereby sanctioned."
By article one of the Treaty referred to in the Convention, it is provided that—
" The subjects of each of the two high contracting parties shall have full liberty to enter,
travel or reside in any part of the dominions and possessions of the other contracting party."
On behalf of the Province it is said that this Act, to which I have referred, is not an Actor a Statute at all, and that the Dominion Government, even if it had power to sanction or
give effect to this Treaty, have not done so. With regard to their power to give effect to the
Treaty, the answer is to be found in the 132nd section of the British North America Act, as
follows :—
"132. The Parliament and Government of Canada shall have all powers necessary or
proper for performing the obligations of Canada or of any Province thereof, as part of the
British Empire, towards Foreign Countries, arising under Treaties between the Empire and
such Foreign Countries."
Then the question remains, has the Imperial Government, in the Act, given effect to the
Treaty? The language is, "The Convention, etc., set forth in the Schedule is hereby
sanctioned." That seems a very apt and proper way of giving effect in Canada to all the terms
of the Treaty. Without an Act giving effect to the Treaty there would be no binding law
governing the officials of this country. The word " sanction " signifies to ratify a decree or
ordinance—in an extended sense to make anything binding. In itself, it conveys the idea of
authority by the person sanctioning. It is the lending of a name, an authority or an influence,
in order to strengthen and confirm a thing. It may not be out of place to give the following
quotation where it is used by Addison :—
" Men of the greatest sense are always diffident of their private judgment until it receives
a sanction from the public."
That Act, I think, is a complete answer to the present appeal. It is not possible that
there can be two legislative bodies having equal jurisdiction in this matter, and where the
Dominion Parliament has entered the field of legislation, they occupy it to the exclusion of
Provincial legislation.
I would dismiss the appeal. G 62 Judgments in re Nakane and Okazake. 1909
Morrison, J.: The only point seriously argued before us is whether 6 & 7 Ed. VII., Cap.
50, intituled " An Act Respecting a Certain Treaty Between Canada and Japan," which purports to sanction the Convention between the United Kingdom and Japan respecting commercial
relations between Canada and Japan, has given its provisions the force and effect of a law of
Canada.
Mr. Cassidy seems to me to have taken much higher ground than the nature and circumstances of this case justify. If the Convention in question were a High Treaty dealing with
the more grave and important political and diplomatic questions which sometimes concern
nations, his forceful and ingenious argument would be quite appropriate.
The Anglo-Japanese Convention, however, is a Convention-Treaty dealing with a subordinate question wherein the hiah contracting parties are bound to observe the stipulations
contained in the Treaty, and as those stipulations are respecting Canada's commercial relations
with Japan the obligation is imposed upon Canada to take legislative action, which obligation
was discharged by the enactment above referred to, without which sanction the Courts of this
country could not enforce the provisions of the Treaty.
The provisions of the Treaty affect the whole of Canada as well as the whole of Japan, and
both parties thereto contemplated uniformity in their enforcement.
Therefore, the provisions of this Treaty, thus sanctioned by Canada, being in harmony
with the existing Federal enactments respecting immigration, must be taken as a law of
Canada touching immigration. That being so, is the British Columbia enactment, known as the
,' British Columbia Immigration Act, 1908," repugnant to it? In my opinion, it is, in every sense
of the term. Although the subject of immigration in some respects and for some purposes falls
within the jurisdiction of the Provincial Legislatnre, yet where there is already an enactment
on the subject by the Federal Parliament, it must be shown that the Provincial legislation is
in furtherance or aid of the Federal legislation. And, in doing so, regard must be had to the
character, nature, scope of the Federal enactment.
The exercise of the power given the Federal Parliament by sections 132 and 95 of the
British North America Act completely destroys any effect the Provincial Act was intended to
have, so far as the subjects of Japan are concerned.
I entirely agree with the learned Chief Justice upon this point, the only one adjudicated
upon by him, and upon which the appeal arises.
Clement, J. : I agree entirely with the learned Chief Justice and my brothers Irving and
Morrison on the one real point of these appeals. To my mind, the case for the appellant
Attorney-General is hopeless; so hopeless that I feel constrained to express my regret that it
should ever have been thought proper to attempt to enforce the " British Columbia Immigration
Act, 1908," as against these respondents.
We live under a Federal system of Government. With regard to certain matters the
Canadian people speak a unit, while as to other matters we speak separately, and, if we choose,
diversely by Provinces. The system was brought to birth only after long travail. The minds
of our best men were long occupied in fixing upon the proper line of diversion between matters
of general or Canadian concern aud matters of more immediately local or Provincial concern,
and the result of their labours, as embodied in the British North America Act, should be
loyally recognised and respected. No doubt honest differences of opinion may exist in many
cases as to where the line is drawn by that Act, or as to the question on which side of the line 9 Ed. 7 Judgments in re Nakane and Okazake. G 63
a particular matter should fall; but to suggest doubt where no real doubt exists, and particularly
as to matters apt to inflame, is not, in my judgment, to be commended. Such a matter we
have here. This matter of Japanese immigration has been dealt with properly, that is to say
constitutionally, by the Parliament of Canada; and I must say that, to my mind, it smacks
strongly of disloyalty to our settled form of Government when the authorities of one Province
undertake to override and render abortive the will of the people of Canada—et quorum pars
magna nos—constitutionally expressed in an Act of the Parliament of Canada; and when
they even make bold to forbid the honourable observance of our solemn engagements with a
foreign power.
I should, perhaps, add that I express no opinion as to the effect, each upon the other, of
the Japanese Treaty Act and the Dominion Immigration Act.
I would dismiss the appeal with costs.
Appeal dismissed.
victoria, B.C.
Printed by Richard Wolfenden, I.S.O., V.D., Printer to the King's Most Excellent Majesty.
1909. 

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