The refusal of the courts to protect the civil rights of Japanese Canadians represents a major failure of justice in Canadian history. In 1946, in Reference Re Persons of Japanese Race, the Privy Council – then Canada’s highest court – ruled that the government could expel Japanese Canadians from Canada and exile them to Japan. In 1947, in Nakashima v R, President Thorson of the Exchequer Court dismissed a legal challenge to the forced sale of Japanese Canadians’ property.
These two cases make for disturbing reading. They are poorly reasoned and show disconcerting deference towards the government’s arguments. Their outcomes jar with our basic notions of justice: that we have certain fundamental rights, that our Constitution protects these rights, and that the courts will recognise this and rule accordingly. Especially now, as legal challenges are brought against racist and transphobic policies in the United States, these two cases are an important and sobering reminder of how constitutions and legal systems can falter and fail in the face of discriminatory policies and abuses of power.
This August, I met with Eric Adams of the Faculty of Law, University of Alberta, to talk about his scholarship and about the role of constitutional and legal history in today’s turbulent political and legal climate. Eric is a constitutional historian who specialises in the history of rights. As chair of the legal history cluster of the Landscapes of Injustice project, he studies the legal context of the dispossession and exile of Japanese Canadians in the 1940s. Eric has published in leading Canadian law journals and received awards for teaching and legal scholarship, and his work has been cited in decisions of the Supreme Court of Canada and the House of Commons.
In our conversation, Eric and I discussed his work with Landscapes of Injustice, what to make of the rulings in Reference Re Persons of Japanese Race and Nakashima v R, and how lawyers and legal scholars can be guided by history. As a law student, I was particularly interested by Eric’s assessment of law’s possibilities – and limits – as a means of seeking justice.
Rachel Weary: By way of introduction, could you give an overview of your research work and interests, both in connection with Landscapes of Injustice and more generally?
Eric Adams: For me, Landscapes of Injustice generates a number of questions about the ways our constitution has historically functioned, including the ways in which it’s failed different people and groups of people at different moments in time. For me, the incarceration and internment, the dispossession, and the exile are all examples of significant, troubling, and tragic constitutional failure that Canada needs to continue to grapple with. This is not only because the stories of these events and the experiences of people who lived through them are important, but also because of the capacity of our legal system – of any legal system – to develop, change, and reach for different outcomes in the future. One of the essentially hopeful ideas that resides at the heart of any legal order is that the law is aspirational. This necessarily involves critical reflection on the past as a way of trying to guide the future.
In an interesting way, legal systems are very conservative, in the sense that they look to the past to be bound by precedent. You might think, and you’d be partially right, that that has a conservative influence on the structure of law. But the law is also open to critique – to a sense of how the law was in error, or misapplied, or was itself unlawful according to larger constitutional norms. And that process of reflection, of critique, of looking to the past to make an active decision about whether or not society chooses to be bound by what came before, is at the heart of constitutionalism.
That excites me. It’s a productive way to incorporate my interests in constitutional law and in Canadian constitutional justice, along with legal history and finding the moments in our past that we can continue to learn from.
RW: Moving to the current political situation – you’ve looked at historical government policies that involved deliberate and open racism against Japanese Canadians. Now in the United States, we’ve seen deliberately discriminatory policies enacted – the most obvious parallel is probably the “travel ban.” We’ve also heard openly xenophobic rhetoric from the US Government. How do you relate your work, or do you relate your work, to these events?
EA: I have complicated feelings about that. There are obviously deep resonances with the present climate, and there’s a reason to be attentive to the history of the twentieth century – and the failures and tragedies that occurred during that century – and to the present constitutional moment or international moment. It’s critical that we be alive to the parallels that exist, that we be prepared to be warned by what has transpired, and that we look at the present with clear eyes about where certain courses of action can and do lead.
At the same time, you always need to be cautious about a purely instrumental view of history that tries to shoehorn it into a present moment into which it awkwardly fits. Good historians are contextualists. The 1930s and 1940s and 1950s are simply not the twenty-first century. That period existed on its own terms, and its dynamics were singular in many ways. I’m cautious about “blunt-force history,” because I think it does a disservice to the sophisticated lessons of history, which can be lost through a blunting of the actual context.
Looking to the past in order to be mindful of how power operates and how power can oppress is critical –and so is a healthy dose of reality about the number of variables that are in play at any particular moment in time, be it past or present.
RW: A legal challenge to the travel ban is ongoing in the US. Historically, in Canada, Japanese Canadians challenged discriminatory wartime policies in Nakashima v R and in Reference Re Persons of Japanese Race. In both cases, those legal challenges failed. What do you, as a legal scholar, make of decisions like these, which seem morally unjust if not legally dubious?
EA: There are many insights to be drawn. One of them is absolutely critical: to recognise and have regard for the ways that oppressed individuals resist oppression. There are many avenues and vehicles of that resistance. Sometimes I think law, because it’s a very powerful form of discourse, takes an undue amount of focus as an avenue of resistance. Small personal acts of resistance can be as powerful and potentially as influential.
But it’s clear that the law is one powerful avenue of resistance. Going back to the notion that at the heart of law beats the hope for justice, it’s inspiring to me to think that, despite the obstacles they faced, despite the fact that they lost their cases, members of the Japanese Canadian community placed their faith in a legal system that disappointed them – because they, better than the system itself, understood the rights they had and the failures of the law to protect them.
For me, this can be a productive decentring of our notions of who gets to generate authoritative meanings of the law. As lawyers, we’re trained to think that judicial decisions and statutes are where the law is generated and that they have power and authority. Sometimes we begin to equate that power and authority with a moral power and authority – to think that those judges and parliamentarians must be right, because they’re backed by the power of formal law. But when we look at cases like Nakashima v R or Reference Re Persons of Japanese Race, we see that in many respects the judges were wrong: that the correct legal interpretations, as well as the moral justice of the claims being made, belonged to the losing litigants. That’s a helpful reminder for all of us – and maybe a source of humility for all of us – about who has power in a legal system and where the correct answers and interpretations may lie.
That’s one thing I think is important about legal resistance and legal challenges to discrimination. The other is the actual mechanics of constitutional failure. Why were those cases lost? What were the variables that led to those losses? Those variables can be intellectual and ideological in nature: the ideas that are in play. They can be structural. They can be contextual: the moment in time that these events occurred. They can even be personal: the particular judge who decided particular cases, the particular lawyers who argued well or poorly on behalf of their clients.
And these are in addition to the law itself. At any moment in time, the constitutional law of a country isn’t static, but it has certain presumptions and ideological suppositions that will influence the outcome of a particular case. Those presumptions and suppositions may be challenged, and they may be found ultimately to be unconstitutional. There’s no still point in Canadian constitutional law and thought.
RW: Even where legal action fails, do you see any special role for lawyers and legal scholars in raising public awareness of unjust policies and seeking to challenge them? Lately, law professors in Canada have taken actions such as signing an open letter to repeal the “Safe Third Country Agreement.” Have you seen any successful examples of that kind of engagement in the past?
EA: I think a general appreciation of our constitutional history and of moments of legalised racism and discrimination are critical to functioning as a lawyer in today’s society. Whether that changes the way you approach a case about racial profiling in police stops, whether it changes your approach to defending the rights of transgender people, whether it’s about advocacy for immigrants and refugees – I think these can be informed by the deeper sense of justice that is generated by historical sensitivity. That can and should inform the way that present rights cases are conceived, argued, and ultimately decided. Thinking about our history is critical to understanding justice in the present.
RW: Do you anticipate the direction of your scholarship changing at all in response to the present moment – not only the events in the US, but everything else you’ve talked about?
EA: I’ve always been interested in the way that Canadian constitutional law has structured its power relations and its impacts on different groups of people. That’s a thread that runs through lots of my work, and it will continue to do so. But my experience studying and writing about Japanese Canadians has deepened my appreciation. As with any kind of work that I’ve done, the work that comes after it will be enriched by the things I’ve learnt. I will always carry the deep imprint of this history of injustice.
Many thanks to Eric Adams for taking the time to talk with me and to Kaitlin Findlay for working with me to prepare questions for this interview.
  AC 87,  1 DLR 577 (PC).
  Ex CR 486,  4 DLR 487.