[Recorded by Electronic Apparatus]
Tuesday, March 11, 1997
.0913 
[English]
The Chairman (Bill Graham (Rosedale, Lib.)): This meeting is called to order.
We are here this morning to discuss the issue of the compensation of the veterans of Canada who served in the Hong Kong theatre and were made prisoners of war by Japan. This is the second hearing we have had on this issue. Members will recall that we had members of the defence committee present at the last hearing. Certainly if any members of the defence committee wish to come and sit in on this hearing we'd be more than pleased to let them join our deliberations as well.
I think it would be important to recall to members and to the Canadian public who are watching this on television that we have had one hearing. We heard from the veterans themselves, and we saw a very moving video of the veterans.
If I may quickly summarize the position of the veterans themselves, it is that they are entitled to compensation over and above the normal compensation given to veterans, by virtue of the fact that they were employed as slave labourers by Japan during the Second World War. They have gone to an extraordinary effort to make this claim. They have been at the United Nations - some, over 20 times. They've attended before both the United Nations Human Rights Committee and the committee under the optional protocol and have expressed before this committee a disappointment that Canada did not support them. That was in the late 1980s, early 1990s, so prior to this government being in power, but they were disappointed that the Government of Canada failed to support them in their efforts before the United Nations.
.0915
Basically, their claim is that under the Geneva Convention they are entitled in international law to compensation. They challenged the position taken by the justice minister that the 1952 treaty with Japan constituted a complete release of those claims. They also state that Canada failed to take proper steps to protect them during the Second World War, either through Argentina or subsequently by exercising a claim under the optional protocol before the United Nations.
I would say that they are strongly of the view that if you look at the situation that is presently prevailing, the recognition by Japan that compensation is due, for example, to those who are referred to as comfort women, Korean women in Japan during the war - Japan has made special compensation in that respect - that should be considered and Canada should press the Japanese government in that respect.
Finally, perhaps there may even be a claim for an ex gratia payment by the Canadian government itself, which might then turn to the Japanese government for compensation along the lines of the payment that was made to the Japanese Canadians who were interned during the war or other such similar situations.
That is where we left it at the end of the last hearing.
[Translation]
So we're starting over again today with witnesses from the Canadian government. From Veterans Affairs, we have Dennis Wallace, Assistant-Deputy Minister; from Justice Canada,Mr. Bruce Mann who advises the minister; from Foreign Affairs and International Trade,Mr. Gilbert Laurin, Deputy Director, Legal Operations Division; and Mr. Raymond Roy, also from the Department of Veterans Affairs.
I believe all the witnesses will be presenting a brief overview of their views of the problem and we will then go to questioning.
Mr. Wallace, please.
Mr. Dennis Wallace (Assistant Deputy Minister, Veterans Services, Department of Veterans Affairs): Thank you, Mr. Chairman.
[English]
It's a pleasure to be here this morning on behalf of the Department of Veterans Affairs. I appreciate this opportunity to round out the information on veterans programs that was included in the published evidence from your hearing on November 19, 1996.
I'd like to give you a brief overview of the historical and present treatment of Hong Kong veterans under the veterans affairs legislation and to answer any questions committee members may have regarding that subject. I have also brought some statistics - which I believe are with the clerk - that the committee may wish to have as background information.
At the Department of Veterans Affairs, we appreciate the circumstances of the Hong Kong veterans, they being our clients at Veterans Affairs Canada. We do everything within our ability as public servants to make sure that these very special veterans receive every consideration possible under our legislation.
I am pleased to say that our efforts are recognized. Roger Cyr, who spoke to you so eloquently on November 19, kindly acknowledged those efforts in a note last December. And Cliff Chadderton, who also addressed the committee, paid us some very welcome compliments when he was interviewed by CJOB radio in Winnipeg last November. We are doing our very best for all of our veterans, and we are encouraged when our efforts in that respect are acknowledged by such distinguished advocates of veterans' interests.
Having said that, Mr. Chairman, I think it's only fair to acknowledge that there may have been times in past years when Hong Kong veterans may not have felt so positive about their treatment under the veterans affairs legislation. While they did, of course, become eligible on their release from captivity for the full range of benefits available to other veterans, Hong Kong veterans had to wait 26 years before the Pension Act was amended to give them the special consideration they deserved.
Last November 19, members of this committee received a submission, saw a videotape, and heard testimony that documented the cruel treatment and severe deprivation the Hong Kong veterans endured as prisoners of Japan. Our departmental medical guidelines now devote six pages to those conditions of captivity and to their long-term consequences with respect to pensionable disabilities.
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Japan's harsh treatment of prisoners became public knowledge in Allied countries shortly after the Second World War. However, the Canadians who had been prisoners of Japan struggled for26 years to obtain both medical and financial recognition that what they had endured put them in a special category.
In 1963 the Standing Committee on Veterans Affairs recommended a special study of the problems and disabilities of Hong Kong veterans. By 1965 the recommended study had been completed by Dr. H.J. Richardson, medical adviser to the Canadian Pension Commission, who, among other things, compared the health of former prisoners of war with the health of brothers who had served during the war but had not been prisoners of war.
In 1968, after considering the evidence, the Woods committee recommended that all former prisoners of the Hong Kong force who had been interned as prisoners of war by the Japanese be eligible on application for a basic minimum pension of 50%, provided that the former member had an assessable degree of disability.
Finally, in 1971 the Pension Act was amended to award a minimum disability pension of 50% to every former prisoner of Japan who had any assessed disability and had been imprisoned for more than one year. The veterans of Hong Kong had been imprisoned for almost four years. Those who had been receiving a disability pension of less than 50% benefited by the new policy.
In 1976 that minimum 50% pension was replaced by an equivalent payment under Canada's new Compensation for Former Prisoners of War Act. Canada's POW Compensation Act established a new benefit, which remains unique among the veterans benefits provided by the Allied powers. Qualified former prisoners of war are eligible for a monthly compensation payment, whether or not they have any pensioned disability arising from wartime service. Qualification for the benefit and the amount of the payment depends on the enemy power involved and the time the veteran spent in captivity or as an evader.
In 1976, because they had been prisoners of Japan for more than one year, indeed almost four years, Hong Kong veterans became entitled to the maximum prisoner of war compensation payment, which was equivalent to a 50% war disability pension. The maximum prisoner of war compensation for prisoners of powers other than Japan was equivalent to a 20% war disability pension. The difference reflected the exceptionally harsh treatment suffered by the Hong Kong veterans.
Veterans who qualified for prisoner of war compensation in 1976 also continued to receive disability pensions for assessed disabilities. However, the veterans legislation of the day contained its own, if I can use the phrase, catch-22, which penalized the most severely disabled veterans. The penalty was especially heavy for veterans of Hong Kong.
Under the legislation, the total amount combined that a veteran could receive in disability pension and prisoner of war compensation was capped at the equivalent of a 100% disability pension. Because all Hong Kong veterans received prisoner of war compensation equivalent to a 50% disability pension, this meant that Hong Kong veterans whose war disabilities had been assessed at more than 50%, for example at 75% or 100%, received only the equivalent of a 100% disability pension, no more than other Hong Kong veterans whose assessed disability was 50%.
It was another 10 years, or 36 years after the end of their captivity, before that 100% cap was removed, making it possible for Hong Kong veterans whose disability was assessed at more than 50% to receive all the disability pension to which they were entitled. Since 1986 the most severely disabled Hong Kong veterans, those with a disability assessed at 100%, have been entitled to a combined prisoner of war compensation and disability pension payment that is equivalent to a disability pension of 150%. At 1997 rates, that amounts to approximately $30,316 for a single veteran and approximately $37,895 for a married veteran with no dependent children.
.0925
The most recent step in the improvement of benefits for Hong Kong veterans was the establishment in 1991 of a minimum disability assessment of 50% for avitaminosis. Since that date, every Hong Kong veteran has received, as a minimum, a combined prisoner of war compensation and disability pension payment that is equivalent to a disability pension of 100%. At 1997 rates, that minimum pension amounts to $20,210 per annum for a single veteran and $25,263 per annum for a married veteran with no dependent children. Most of our Hong Kong veterans receive more than those minimum amounts.
With a view to a balanced picture of how Hong Kong veterans are now being treated by the veterans benefits programs in Veterans Affairs, departmental staff have prepared some statistics I referred to earlier and which were distributed. These statistics show that on December 31, 1996, Veterans Affairs was paying benefits to 448 surviving Hong Kong veterans and to 299 widows of Hong Kong veterans. Many of our Hong Kong veterans qualify for other benefits in addition to prison of war compensation and disability pensions. Examples of such benefits are allowances for exceptional incapacity or for an attendant.
Veterans Affairs also pays for health care and veterans independence program services that are necessary because of pension disabilities.
The figures I am now going to quote from the statistical tables include all of Veterans Affairs direct payments to the veteran and also take into account payments for goods and services provided to the veteran. The cost of institutional care, which some Hong Kong veterans receive, is not included in these amounts.
Fifteen of our 448 Hong Kong veterans receive net benefits that are between $23,988 per annum and the minimum $20,210; 213 of the veterans, or almost half of a total 448, receive between $24,000 and $35,999 per annum; 141, or about one-third of the total 448, receive between $36,000 and $47,999 per annum; 63, or about one-tenth of the total of 448, receive between $48,000 and $59,999 per annum. Finally, there are 16 Hong Kong veterans who receive more than $60,000 per annum.
I should also mention, in case anyone may not be aware of this fact, that the veterans benefit payments are not counted as taxable income.
As stated earlier, I should be pleased to leave a copy of the statistical tables. Those, as I say, are available to you for comment.
I'd like to conclude with an observation, if I might. While the payments that our Hong Kong veterans now receive from Veterans Affairs are not insubstantial, you will note that I have not categorized those payments as generous. No amount of money could compensate our Hong Kong veterans for their lost years, their suffering at the hands of their captors, and the lifelong consequences of what they have endured in the service of Canada. Our Hong Kong veterans have earned special consideration and have struggled up a difficult path to reach their current levels of compensation. We at Veterans Affairs are honoured to be entrusted with the delivery of that compensation.
Our Hong Kong veterans did not win special consideration overnight or without a struggle. Their battle did not end with the fall of Hong Kong or even with their liberation. It took a long time for other Canadians to recognize at what price they won their lasting honour.
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We at Veterans Affairs Canada have a profound respect for our Hong Kong veterans, for what they achieved in the field against overwhelming odds, for their courage as prisoners, and for their tenacity in pursuing appropriate treatment in the matter of veterans benefits. It is a sign of that tenacity that now, some 55 years after the first shots were fired, our Hong Kong veterans continue to campaign for what they believe they deserve, whether that is additional consideration under the veterans affairs legislation, or something which, like the claim they have brought to your committee, lies entirely outside of the veterans affairs area of responsibility.
Thank you, Mr. Chairman.
The Chairman: Thank you very much, Mr. Wallace.
For the information of members, the figures Mr. Wallace referred to are being copied by the clerk, and as soon as they are available, they will be distributed to the members. They will be available before the end of this morning's discussions.
Mr. Mann.
Mr. Bruce Mann (Counsel, Department of Justice Canada): Thank you, Mr. Chairman. As you have indicated, I am here as a representative of the Department of Justice. My role with the Department of Justice is senior counsel for the Department of Veterans Affairs, but I'm not speaking on behalf of Veterans Affairs at this hearing. Mr. Wallace is here for that.
Canada's position in the communications made to the human rights committee that you have all heard about in respect of the issues raised before this committee about the legality of our 1951 peace treaty with Japan are the domain of the Department of Foreign Affairs and International Trade and the Department of Justice.
If I may take a few minutes, I would like to address some domestic law points that are pertinent to the letter from my minister, the Honourable Allan Rock in his March 16, 1996 response toMr. Chadderton of The War Amputations of Canada. This letter was tabled before this committee in the brief presented by the War Amps at the last hearing on November 19, 1996.
It's necessary to address the domestic law because it would be unfair to leave you with the impression that, as a legal matter, compensation paid to former prisoners of war related only to accessible disabilities or even hidden disabilities.
If I may go over the history of the prisoner of war compensation legislation, in 1971 Parliament first enacted special provisions respecting former prisoners of war of Japan in the form of - and I'm quoting from the legislation - ``a pension in an amount equal to the pension payable for a disability assessed at 50%.'' But this pension was really an enhanced disability pension. It brought a pension of less than 50% disability up to the 50% level.
In 1976 prisoner of war compensation came into its own by virtue of a dedicated statute, the Compensation for Former Prisoners of War Act, which by its wording made it clear that this was not a disability pension but prisoner of war compensation in an amount dependant on the length of time that a veteran was a prisoner of war. However, this compensation was still linked to disability compensation by virtue of a rule that the aggregate amount of POW compensation and a disability pension could not exceed the 100% disability pension rate.
Finally, in 1988 this linkage was broken completely, and Parliament enacted the provision that stands today. Prisoner of war compensation is payable based solely on the imprisoning power and the duration of imprisonment. The extent of pensionable disability is another matter, which does not affect the entitlement or the amount of prisoner of war compensation.
The concept of compensation for hidden disability pension was restored or brought out with the establishment of medical guidelines under section 35 of the Pension Act in 1991. These guidelines recommend an assessment of 50% disability for all former prisoners of war of Japan on account of avitaminosis. This guideline now applies to the Department of Veterans Affairs. It was initially made to apply to the Canadian Pension Commission.
.0935
The point to be made is that despite the unfair origin in 1971, prisoner of war compensation is not to be regarded as disability compensation. This is why Mr. Rock observed in his March 26, 1996 letter that for the last 20 years prisoners of war have received additional benefits that, as a matter of law, are attributable solely, and without further description or breakdown, to their having been prisoners of war. Mr. Rock also stated that the benefits are not compensation for violations of domestic and international obligations - the point being that Canada is not and has not been in breach of any such obligations.
At this juncture, I will leave it to Mr. Laurin to deal with the question of the 1951 peace treaty with Japan, and Canada's respect for international law. If I can help with domestic law matters, I'll be pleased to do so.
The Chairman: Thank you very much, sir.
[Translation]
Mr. Laurin.
Mr. Gilbert Laurin (Deputy Director, Legal Operations Division, Department of Foreign Affairs and International Trade): Mr. Chairman, members of the committee, I'd like to thank you for having given the Department of Foreign Affairs and International Trade this opportunity for clarifying the matter of compensation for Canadian soldiers imprisoned by the Japanese in Hong Kong during the Second World War.
I would like to preface my remarks by saying that there's no doubt that the Hong Kong veterans bravely fought for Canada when Hong Kong fell. It is also undeniable that these soldiers were captured and interned in war prisoner camps where they had to live under repugnant conditions. These are real Canadian military heroes.
The veterans affairs committee should understand that when we try to explain the government of Canada's legal position vis-à-vis the government of Japan concerning the matter of additional claims, we're not trying to diminish the important role these soldiers played nor minimize their sufferings.
[English]
Mr. Chairman, the state of war between the Allied powers and Japan was terminated by the peace treaty of 1952. Canada ratified that treaty on April 17, 1952. It is the same treaty that was ratified by the United Kingdom, the United States, France, Australia, New Zealand, and the other Allied powers. It is the position of the Government of Canada that the treaty fully resolved all claims of the Allied powers, including Canada, and of their nationals, arising out of any action taken by Japan and its nationals in the course of the prosecution of the war. This is precisely what article 14(b) of that treaty states.
The preamble to the treaty makes much the same point when it says that the Allied powers and Japan ``are desirous of concluding a treaty of peace which will settle questions still outstanding as a result of the existence of a state of war between them''.
It is this treaty that governs the legal relationship between Canada and Japan with respect to events arising out of the Second World War.
Mr. Chairman, it is important to note that in article 16 of the treaty, compensation was specifically provided for those ``members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war of Japan''. Pursuant to that article, Canada was authorized to liquidate Japanese assets in Canada at the end of the war for the benefit of former prisoners of war and their families. The rights of the Hong Kong veterans were not waived in the treaty. Indeed the treaty, in article 16, specifically addressed those rights, provided for reparations, however limited, and thereby settled those claims against Japan.
.0940
It is the position of the Government of Canada that the peace treaty of 1952 constitutes a complete and final settlement of all claims against Japan arising out of the prosecution of World War Two.
Mr. Chairman, should you or any members of the committee wish me to address any other points raised in the evidence you heard on November 19, I would be most happy to do so. Thank you.
The Chairman: Perhaps, Monsieur Laurin, I might, just before I turn it over generally to questions, pick up on a couple of the legal points that were raised by Mr. Forbes at the last hearing.
May I say that I understand so far the position of the Department of Veterans Affairs. I think you're saying very clearly that it has taken a long time, but finally, from within Canadian law and the Canadian framework, everything has been done that's possible to compensate people for the horrible suffering they incurred during the war.
Our understanding of the evidence, however, was that this is a claim for slave labour that is totally outside the normal claim. I'll try to put it as forcefully as I and the members understood it at the last hearing, which is that the Geneva Convention was violated by the Japanese. Monsieur Laurin, using legal terms, this is jus cogens.
This would therefore give a claim to people for slave labour that was totally outside the normal course. Article 131 of the treaty, to which Mr. Forbes referred, specifically says that neither Canada nor Japan
- ...shall be allowed to absolve itself or any other High Contracting Party of any liability incurred
by itself or by another High Contracting Party in respect of breaches referred to in the preceding
Article.
So I think before we go to general questions, perhaps you would be good enough to address yourself specifically to that. Mr. Forbes is telling us that your statement, which says that this was a final settlement, is trumped, if I may put it that way, by article 131.
It would be also helpful if you, from the perspective of the Department of Foreign Affairs, would tell us - this is because we were not able to get a witness who would come before us to put, if I may say it, the Japanese position - where this fits in respect of other claims that have been made against Japan. Specifically, this would be in the nature of the claim the Koreans have made, which if I may say it, sort of falls outside the normal course of the law. It's a special claim in law for grave violations of the articles of war or the Geneva Conventions.
Mr. Laurin: If I may, I'll first make a distinction or a point of reference that I think is important. As for the evidence given by Mr. Chadderton and Mr. Forbes with respect to the Geneva Convention of 1929 with respect to slave labour, one must be careful to note that articles 130 and 131, which were also referred to, do not refer to the same Geneva Convention, but to the Geneva Convention of 1949.
I'll deal with that point first, if I may. The Geneva Convention of 1949, and needless to say this was not in effect at the time of the Second World War, prohibits governments from entering into any agreement that - these are the important words - waives the liability of any government for grave breaches of the Geneva Convention.
I should point out that there is no parallel provision in the 1929 convention. Nevertheless, even if one were to assume that customary international law contained a similar provision on waivers to that found in the 1949 convention, the point is that the 1952 peace treaty did not waive Japan's liability. On the contrary, the 1952 peace treaty specifically recognizes Japan's liability for the undue hardships suffered by Allied prisoners of war.
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I have read to you parts of article 16, and it provides for the payment of a lump sum compensation from the liquidation of Japanese assets. It is not a question of waiving liability, but of addressing precisely that liability and the fact that the liability was recognized in the 1952 peace treaty.
If I may turn to the 1929 convention to which you've just referred, the first point that must be made is that Japan had not ratified that convention; therefore, it could not be held liable under that convention. However, the question of whether or not what the convention embodied represented norms of customary international law is another matter.
The first point I would like to make is that the convention does not deal with slave labour. On the contrary, it contains very detailed regulations governing the terms and conditions of the legitimate use of prisoners of war as workers.
Without coming to any conclusion as to whether or not the specific details of the 1929 convention represented the norms of customary international law at the time, I think one must focus on the fact that in 1952, when the peace treaty was signed, all of the parties to that treaty were aware of the existence of the 1929 Geneva Convention. And in the 1952 treaty they did address the question of undue hardships suffered by the Japanese. I've referred you to article 16, which deals with that.
The position of the government is that the peace treaty of 1952 resolved all claims of the Allied powers and their nationals arising out of any actions taken by Japan and their nationals during that war, and that the 1929 convention does not form the basis for a claim against Japan.
The Chairman: That's helpful.
Mr. Laurin: Do you wish me to address the question you raised of the Korean comfort women?
The Chairman: Yes, this seemed to be an event that occurred subsequently. It's another source of a claim about which other members may want to ask questions. There's that, and there's one other technical issue that I thought we could also get out.
Mr. Chadderton stated in his evidence that when this matter was raised before the human rights committee in Geneva, one of the reasons the veterans failed there was because of the principle of the failure to exhaust all local remedies, non épuisement des recours internes.
If you have a legal position on that, I think it would be helpful if I could ask that now and get it out of the way. Members could perhaps explore that more directly with you.
Mr. Laurin: I could then turn to answer the question of Korea and the comfort women.
The first thing I should say is that I'm not going to pretend for one moment that I am in a position to tell you what the legal relationship is between Korea and Japan. I would just like to bring a few facts to your attention.
Korea, like a number of states that were occupied by the Japanese during the Second World War, did not sign the 1952 peace treaty. Indeed, it was not until 1965 that Korea settled its post-war relationship with Japan.
I think it's worth noting that the treaty that settled that relationship was not called a treaty of peace. The name of the treaty was ``Agreement on the Settlement of Problems Concerning Property and Claims and on the Economic Co-operation between Japan and the Republic of Korea''. I will just read you one line from its preamble:
- Japan and the Republic of Korea, desiring to settle problems concerning property of the two
countries and their nationals and claims between the two countries and their nationals; and
desiring to promote the economic co-operation between the countries; have agreed as follows...
That is not the same as the clause or the article that one finds in article 14 of the 1952 treaty. It was of a much more sweeping nature.
It may be that Korea is in a position to advance a legal claim against Japan with respect to comfort women. I am not in a position, nor would it be appropriate for me, to comment on the nature of that legal relationship.
But what is clear is that it is different from the legal relationship that governs the conclusion of the war between Canada; that is, Korea settled the war with Japan on different terms and did so thirteen years later than Canada did. I don't believe a parallel can be drawn between the actions the Korean government may feel free to take and the actions that are available to Canada.
What is clear is that peace treaty of 1952 precludes Canada from making any legal claims against Japan, either on its own behalf or on behalf of its nationals.
Mr. Chairman, to go to your last point, which had to do with the human rights committee, I believe you will recall from Mr. Chadderton's testimony that the Hong Kong veterans went before the UN on two occasions, once in 1988 before the Subcommission on Prevention of Discrimination and Protection of Minorities, and once again in 1993 I think.
It is worth noting here that in its decision the human rights committee made three points. It said, first of all - and I'm quoting from the committee's decision - that ``the alleged failure by Canada to protect the Hong Kong veterans' right to compensation from Japan cannot by itself form the basis for a claim.''
The committee found there must first be a violation of a substantive right under the International Covenant on Civil and Political Rights, to which Canada is a party. That is to say, you have to be able to allege that Canada has violated your right to freedom of expression or your right to freedom of religion or some other substantive right in order to be able to complain afterwards that Canada has not given you an avenue to remedy the violation of that right.
So, first, there has to be first a violation of the substantive right.
The second point is that the committee said it was precluded from examining a complaint where the alleged violation occurred before the entry into force of the covenant.
Finally, this is really the point I believe you were referring to when the committee said that the three Hong Kong veterans who made their presentation before the committee had failed to exhaust domestic remedy, which is a basic principle that you can't go to an international tribunal until you've exhausted your domestic remedies.
But the committee said this with respect to only one aspect of the Hong Kong veterans' complaint, not with respect to the first two things I mentioned. They made that point only with respect to the claim they were victims of discrimination because the prisoner of war pension was not counted as a disability pension and did not entitle them to supplementary allowances available only to persons receiving 100% disability pension. And it was only with respect to that point that the committee said, ``You haven't exhausted domestic remedies and you must do so before you can present that argument before us.''
I hope that sheds some light on this.
.0955
The Chairman: It does. And I take it from the testimony from the Department of Veterans Affairs that in fact this issue has now been rectified, because now total compensation is being paid. Is that correct?
Mr. Wallace: That's correct, Mr. Chairman. Under the prisoner of war compensation as it is now worded in the Pension Act it refers - and I do use the word simply with intent - to ``compensation payable under this act on account of time spent by a former prisoner of war in enemy captivity or in evading or escaping from enemy captivity''.
The Chairman: Fine. Thank you very much.
[Translation]
Mr. Bergeron.
Mr. Stéphane Bergeron (Verchères, BQ): I would first like to thank our witnesses. I must say that their presentations were quite enlightening, at least as far as I'm concerned. We've had the opportunity to hear the views of the veterans and this morning we have the opportunity to hear the Canadian government's views. Each one of these presentations has thrown different, new and relevant light on the problem that has been raised.
We had expressed the wish to also hear the views of the Japanese government on the same matter. I believe that on the recommendation of the Department of Foreign Affairs and International Trade, the committee did not approach the Japanese authorities.
This morning, I have questions on the relevancy of this recommendation coming from the Department of Foreign Affairs and International Trade. Maybe the suggestion was not made at arms length as it came from someone who's both judge and party. In the event of not being able to hear from Japanese government officials, I would have liked to have an expert witness here to give us the views of the Japanese authorities. However, I'm disappointed to see that such an expert could not be found which means that we will not be made recognizant of those views.
The chairman put a question to you. I know all the limits this question imposes upon you because, as I pointed out, you are probably both judge and party in this matter. However, would it be possible for you to tell us what you think the Japanese government's position is on this matter?
Mr. Laurin: For reasons of both practicality and principle, it's impossible for me to try to present the Japanese government's position on this matter. It's quite outside my terms of reference and I would ask you to please excuse me for not being able to answer your question and clarify the matter.
Mr. Stéphane Bergeron: Mr. Chairman, I submit it would most likely be very important for us to be apprised of such a position or point of view to be able to have at hand all elements needed to make an adequate recommendation to the Canadian government.
The Chairman: I don't mind asking Mr. Lee. We certainly tried to find an expert, but we couldn't find any. Mr. Lee informed me this morning of the many efforts made to find one. So it's not for lack of trying.
Mr. Stéphane Bergeron: Then maybe the committee should show initiative and forget about the Department of Foreign Affairs recommendation and contact the Japanese Embassy directly.
The Chairman: We could think about that at the end of the meeting.
Mr. Stéphane Bergeron: I'd like to switch to another matter, the substance of Mr. Wallace and Mr. Mann's presentation concerned the evaluation of the compensation to which are not entitled those Canadian prisoners of war who fought at Hong Kong.
Mr. Wallace did emphasize that he did not consider this compensation as being generous or too generous but the fact remains that as the substance of those presentations dealt with the compensation might lead one to believe that the government considers it has done - pardon the expression - its very utmost as to whatever compensation these veterans might be entitled to.
.1000
I'd like now to come back to Mr. Laurin's presentation which I found very interesting and very relevant but still leaves me a little perplex.
He raised the matter of clause 16 of the 1952 peace treaty signed between the Allies and Japan to say that the Hong Kong prisoners of war claim was basically without merit, in view of the provision in clause 16 providing that the treaty settles any claim relative to undue hardships suffered by the prisoners.
But as the chairman so justly pointed out, this is a problem that goes way beyond undue hardships suffered by the prisoners. Of course, there were some and I think that, in that sense, clause 16 is fully operational.
But it goes much further than that. We're talking about unpaid work; manpower was used without being paid. The chairman put it bluntly as ``slavery''. In turn Canadian soldiers were used as slaves. Thus, under the provision of the Geneva Convention, there should be a claim.
A lot was said earlier about the compensation to which Hong Kong Canadian ex-prisoners of war are entitled. I think that what these people are trying to have recognized firstly and above all is the principle that the Canadian government did not defend their rights to being compensated by the Japanese government when the peace treaty was signed. That's what they are asking for today, calling upon a clause of the convention that prohibits the Canadian government from absolving Japan for this inequitable treatment they were submitted to but also for the state of slavery to which they were reduced.
Can we sweep away with the back of a hand the claims of these veterans on the pretext that clause 16 settles all claims?
Mr. Laurin: First of all, I'd like to say that it's not simply clause 16 that settles the question, but also clause 14, which I have read. The peace treaty signed in 1952 had, as its objective, to put an end to the state of war between Japan and Canada and to prevent any further claims by Canada and its citizens against Japan and its citizens.
I can only tell you what the government's position is, what the objective of the treaty was and what the result of the treaty was.
Mr. Stéphane Bergeron: The veterans are invoking a clause of the Geneva Convention which, so it would seem, prohibits the Canadian government from settling any claim of this nature with Japan through the 1952 treaty. In your opinion, is the argument made by these veterans legally valid or is it absolutely groundless?
Mr. Laurin: Allow me to remind you that we're talking about the 1949 Convention, in other words the clause prohibiting the government to sign an agreement ignoring the matter of Japan's responsibility. As I said a while ago, this 1949 Convention was in force in 1952 when the peace treaty was signed.
.1005
The government of Canada did not ignore the responsibility. It did not tell Japan that is wasn't responsible for what happened during World War II, but rather just the opposite. This can be seen in many instances in the 1952 treaty, where Japan recognized its responsibility for the events of the Second World War.
The government never failed to comply with the 1949 Convention. I'm not talking about the issue of determining whether or not the Convention took effect regarding what happened during World War II.
Mr. Stéphane Bergeron: That is of critical importance, as I'm sure you will agree. The Convention was signed in 1949, a few years before the peace treaty itself. Japan was therefore acknowledging the legal principles on which that Convention was based. In your opinion, an international law, were the provisions of the Convention in effect at the time of the signature of the peace treaty in 1952, yes or no?
Mr. Laurin: I prefer to answer your question by saying that the 1949 Convention, with regard to the points that have been mentioned, was complied with in the 1952 treaty.
Mr. Stéphane Bergeron: Please explain to me how the convention was complied with. You began your argument by stating that the Convention on which the veterans' claim was based was the 1929 Convention, whereas we should be talking about the 1929 Convention, and now you're telling us that the 1949 Convention was observed in the treaty signed in 1952. Tell me how the 1952 treaty adhered to the 1949 Convention in terms of the Canadian prisoners that were used as slaves, without pay, by the Japanese government during World War II.
Mr. Laurin: The 1949 Convention does not refer to slavery. The relevant parts, which have been cited, speak to a country's obligation not to sign an agreement with another country so as to not force the other country to recognize its responsibility. In fact, the treaty does that. As I said, the 1952 treaty forces Japan to recognize its responsibility in several instances. I don't know how else I can answer your question.
[English]
The Chairman: Mr. Mills.
Mr. Bob Mills (Red Deer, Ref.): I have really three questions. First of all, when you say there was a liquidation of Japanese assets after this agreement, were all of those funds then distributed to the veterans? Is that how that worked? Or were they put in a pot to pay out the pensions? Could you explain that in a little more detail?
Mr. Laurin: I'm not aware of the details of exactly what mechanism was used to distribute the funds that were generated by the sale of Japanese assets. I know it was done in the 1950s. I believe it was the war claims commission that dealt with that. Perhaps Mr. Mann or Mr. Wallace can shed more light on that. It was really a domestic question at that point.
Mr. Wallace: In preparing for the meeting this morning, Mr. Mills, we did not find any evidence of Veterans Affairs having made that type of payment. I cannot say that was not the case, but there was no indication of that fact in the work we did preparatory to this meeting.
Mr. Bob Mills: How many other claims are there out there? Is this just a really unusual one? Are there any others from other wars, from other conflicts, out there somewhere?
Mr. Wallace: That exist at present? To the best of my knowledge the Hong Kong veterans' claim is the only claim we are aware of as being before the Government of Canada.
.1010
Mr. Bob Mills: It seems to me it's more a matter of principle than it is really a matter of money. Maybe there are two reasons why this money could be legitimately paid out to these veterans. Particularly if the Canadian government were to approach the Japanese government for this extra money, I suppose it would in some way say that yes, we were responsible for these cruel and unusual acts and there would be some solace in that for those veterans who are left. That might be the motivating fact.
I suppose the other one would be this. As much as you say that agreement of 1952 was signed by a number of other countries, because of the unusual treatment of Japan maybe it shouldn't have been signed so readily without making special claims on Japan for that slave labour.
It would seem to me by making that payment you could solve those two problems for those veterans who are left and their families. First, you would say to Japan, let's not let this ever again happen to the world. Second, you would say the Canadian government maybe was a little too quick to sign that and didn't take those extra precautions.
Your comments on that?
Mr. Laurin: The decision on what measures the Canadian government wishes to take on the claims and presentations made by Mr. Chadderton on behalf of the Hong Kong veterans is a political question, and it's not one I'm qualified to answer. The only point I would make on claiming against Japan, as I've indicated, is that because of the nature of the 1952 treaty Canada would not be in a position at international law to make a claim against Japan. Japan would have an answer to that claim.
Mr. Bob Mills: But there may be some reason why Japan would want to for other reasons, maybe political; other than simply by the word of the law. It seems to me we get hung up on the word of the law and all the clauses and subsections, but that isn't really the issue. The issue is a human issue, one that goes right to the heart of the people, not the letter of the law. I would think a pretty strong case could be made for Japan to want to make it right, even though legally they may not have to.
Mr. Laurin: I believe, Mr. Mills, that's a political decision the government would have to take, whether or not it wishes to approach the Government of Japan. It certainly isn't a question on which I'm in a position to comment.
The Chairman: Mr. Morrison.
Mr. Lee Morrison (Swift Current - Maple Creek - Assiniboia, Ref.): Thank you,Mr. Chairman.
I would like to continue on the same path my colleague Mr. Mills has followed. It seems to me what the veterans really want is more a recognition of culpability. The amount of money involved here is really trivial compared with the suffering these men endured.
In this 1952 treaty, which I am unfortunately not familiar with, did we waive not only the rights of the veterans to compensation but also our rights as a country to prosecute individual war criminals? If we could find some of these guards, could we still go after them? Or was that waived as well? I never heard of a Japanese war criminal being prosecuted in modern times, whereas European war criminals are being pursued all the time.
Mr. Laurin: I'm sorry that I don't know whether the treaty itself deals with that particular issue. I simply don't recall. The point I would like to make is that of course at the end of the Second World War there were the Tokyo war trials, at which Japanese war criminals were prosecuted in parallel with the Nuremberg trials in Germany.
Mr. Lee Morrison: Again, I don't want to be perceived as attacking you, Mr. Laurin, but are there no other countries, no other groups of veterans, who are actively pursuing extraordinary compensation from the Japanese? Is Canada the only country involved?
.1015
Japanese brutality certainly was not exclusively perpetrated on the veterans of Hong Kong. I know a lot of people who were in their hands, but those people were not Hong Kong veterans. For example, we've spoken of the comfort women. Maybe I'm misinformed here, but I thought these offers of compensation, minimal though they may be, were not directed only towards Korean women, but to other women who were kidnapped and carried off by the Japanese army. Am I wrong on that?
Mr. Laurin: I can't say with any great certainty, but I believe you are right that the Japanese government offered to make some payment in respect of comfort women from other countries as well.
Mr. Lee Morrison: What about the rest of my question, then? To your knowledge, are there other nationals, other groups of ex-servicemen, or anybody else who was interned by the Japanese, who are looking for compensation and/or an admission of culpability, or are we out here all by ourselves on this one?
Mr. Laurin: I don't have any personal knowledge of that, though I believe that in his evidence before this committee Mr. Chadderton did make reference to other groups of veterans. I might also point out that with the 1988 application to the UN Human Rights Commission, veterans from six different countries got together to bring that particular application. I don't know if they're still in touch or if they're pursuing anything like that, though.
Mr. Lee Morrison: Thank you.
The Chairman: Mr. Morrison, on page 52:17 of the proceedings from when Mr. Chadderton was here, it sets out the countries that were involved. It also actually points out that some of those veterans have decided to pursue matters in the Japanese courts themselves. The Canadians -
Mr. Lee Morrison: As individuals?
The Chairman: No, probably as groups, and I imagine they are suing the corporations that were the slave labour employers, rather than suing the government itself and trying to deal with it. They were advised legally that it would be expensive and fruitless, so they didn't pursue it.
[Translation]
Mr. Stéphane Bergeron: I have a question about that, Mr. Chairman. Are there women from countries other than Korea, particularly women from countries that signed the 1952 treaty, who would be entitled to make claims?
The Chairman: There are none. Mr. Chadderton made no reference to that. PerhapsMr. Laurin would know.
Mr. Laurin: Not to my knowledge, but I'm not really familiar with the extent of the claims that were made against Japan in that context.
Mr. Stéphane Bergeron: In answer to one of this questions, Mr. Morrison was told that Japan was prepared to compensate women who were forced into prostitution by the Japanese imperial army, including women from countries that signed the 1952 treaty.
Mr. Laurin: I'm sorry, I didn't say that these women were from countries that signed the 1952 treaty.
Mr. Stéphane Bergeron: No, but that could be the case.
Mr. Laurin: It could be the case, but to my mind, it's simply a question of remembering that it's countries like Korea that signed the peace treaties much later. If I'm not mistaken, I think that the Philippines was one country where certain women received... Japan was prepared to recognize it. I couldn't tell you whether or not some countries that signed the 1952 treaty received this acknowledgment from the Japanese government.
[English]
The Chairman: Mr. English, sir.
Mr. John English (Kitchener, Lib.): Thank you, Mr. Chairman.
Thank you for your presentations. They were very good and very helpful, although I remain confused, but at a higher level. And the questions have also identified some of the difficulties we're having with this topic.
We've talked about the 1952 treaty or agreement, and we also heard about the investigation, the Woods report, on the condition of the veterans. In 1952, were we at all aware of the impact of the prisoner-of-war period upon the Hong Kong prisoners? Was it an issue at that time? Had Hong Kong veterans organized in the late 1940s and early 1950s to present specific cases?
.1020
Mr. Laurin: I'm not aware that they did.
Mr. Wallace: Equally, the Department of Veterans Affairs has not had time to do research that goes back that far. Obviously, it was recognized in news reports and investigations by the military that there were severe privations suffered by the Canadian veterans of Hong Kong. As for exact documentation, however, we do not have that with us.
Mr. John English: But the fact that this investigation was carried out in the 1960s indicates that at that point we were uncertain of the impact of this long incarceration upon these Canadian prisoners. Is that correct?
Mr. Wallace: As early as 1963, we did have studies or work undertaken to try to get a sense of the degree of injury or damage to personal well-being that was suffered by those who were prisoners in Hong Kong or those who were Hong Kong veterans. In fact, it's interesting to note that problems such as avitaminosis were only identified at about that time. When they were comparing those soldiers who were prisoners to those who weren't, they discovered again that there were significant differences in health. That was in the 1960s.
Mr. John English: So it does seem clear that in 1952 we weren't at all aware of the long-term effects of this particular period of imprisonment. This is a question that refers to some current discussion. I note that in the United States, President Clinton just extended the period being taken to look at Gulf War syndrome. What is the attitude of the Canadian government towards these particular kinds of cases? There were some Canadians involved in the Gulf War, but not as directly as the Americans.
If it is discovered after the event that some kind of imprisonment, some kind of activity in wartime, has led to a long-term disability, is there a period of limitations? Will the Canadian government open up the consideration of these questions?
Let me just extend this a little further: How does that affect something like the 1952 treaty, which was signed in the absence of knowledge of the condition of our own veterans?
Mr. Wallace: I think there are two aspects to your question, Mr. English. The first is whether or not veterans or members of the regular forces, men who served in a capacity in which they were injured, are able to bring forward their claims at any point in the future. The answer is that they may. There is no statute of limitations in that respect.
The second aspect of your question pertains to the treaty of 1952. In that situation, that case has no bearing on the benefits the Department of Veterans Affairs provides to veterans.
Mr. John English: To follow up somewhat on Mr. Morrison's question, in terms of the other people who were at Hong Kong - the Australians, the British, etc. - have we consulted at all with other governments about approaches to Japan in terms of these kinds of questions, or have we just treated this particular case in isolation?
Mr. Laurin: I don't know what approaches have been made to other governments in the past twenty or thirty years in terms of exploring what positions they were taking with respect to their veterans who had been in Hong Kong.
Mr. John English: Again speaking about a current item in the news, in the case of the Swiss banks and the Holocaust victims - this being a case that comes fifty years after the point - other governments have said to the Swiss government that it should give compensation to these veterans. Have the Canadian government and other governments not discussed this in the case of Japan?
Mr. Laurin: I'm sorry, I didn't understand your question.
Mr. John English: In the case of the Swiss banks and the holdings - whichever side they might have been from - other governments have said to the Swiss that the Swiss government should consider creating a fund, should consider compensating these victims of the Holocaust, because of the responsibility of the Swiss banks for not maintaining these funds properly, and for not responding properly to requests made subsequent to the war.
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In the case of Japan, has Canada spoken with other governments about Japanese compensation to victims of Japanese aggression in the period, to be blunt, between 1931 and 1945?
Mr. Laurin: I'm sorry, I don't know the history of the relationship between Canada and other countries in terms of how or whether they dealt in a cooperative way to approach Japan. If they did, as I indicated earlier, it would not have been on a basis that there was any legal responsibility. In our opinion, the treaty of 1952 settled the legal responsibility, so it would have to be on some other basis.
Mr. John English: Let me pursue this a bit further. Mr. Morrison alluded to the fact that German war criminals or war criminals from other areas of eastern Europe are indeed being sought and prosecuted in Canadian courts at the present moment. In the case of Japan, this has been a much rarer occurrence vis-à-vis China, vis-à-vis Korea, until very recently. Is the Canadian government giving any consideration to the fact that in the case of the European war criminals, we are outspoken in demanding that these people be brought to justice? Is there consideration of taking the same approach with the Government of Japan, urging that government to take responsibility for the actions of its soldiers in the Pacific theatre during the war years?
Mr. Laurin: I believe the treaty itself brought Japanese recognition of its role in the Second World War. However, if you're asking me whether or not the Canadian government has a position on possible Japanese war criminals, I don't think I'm in a position to answer that. It's a question that would be better answered by the Minister of Justice or the Solicitor General, who is responsible for prosecutions in Canada.
Mr. Mann: I'm not aware of any cases being brought against war criminals in Japan at the present moment, Mr. English, but that's something I could stand to be corrected on.
Mr. John English: Thank you very much.
[Translation]
The Chairman: Mr. Paré.
Mr. Philippe Paré (Louis-Hébert, BQ): My question is also for Mr. Laurin and will revolve, of course around this umbrella treaty of 1952, which seems to have solved all the problems that Japan may have had with veterans from any country.
When Mr. Laurin made his presentation, he told us that the 1952 peace treaty settled all claims and added that paragraph 14(b) stipulated this. I'm not denying that the treaty was signed and that it is valid.
However, we have the right to wonder whether this was a good treaty. The proof that it was not a good treaty and that it did not settle all claims is that the Canadian government intervened three times through legislation, in 1971, 1976 and 1988 to remedy the injustices suffered by Canadian veterans in Japan. Therefore, it is not the case that the 1952 treaty settled all these claims.
One must therefore conclude that because this was a bad treaty Canadian taxpayers have had to assume the cost of compensation that was awarded in 1971, 1976 and 1988 and paid to the victims of Japan in the last world war.
Mr. Laurin was insistent. He continues to say that this is a peace treaty, but a peace treaty that dealt with claims.
.1030
In speaking of Korean women, he tells us that the same situation could not apply because the treaty between Japan and Korea was not a peace treaty, whereas the one between Canada and Japan was. How are they different if, in any event, they both dealt with claims?
My last question is with regard to the 1929 Convention. In answer to Mr. Graham, Mr. Laurin responded that the 1929 convention did not deal with forced labour, but on the work of prisoners of war. Isn't this kind of terminology a little offensive? Isn't this playing with semantics?
The Chairman: To understand and explain words, perhaps we could play...
Mr. Laurin.
Mr. Laurin: I would like to clarify something. The 1952 peace treaty did not settle all claims; it settled the issue of claims against Japan. That's an important point. As. Mr. Wallace has explained, the government of Canada decided to pass a law about that. The treaty put an end to our claims against Japan.
With regard to the treaty between Korea and Japan, I wouldn't want to have to explain it to you. I simply read to you the wording of the treaty so that you can see that it's more of an economic nature rather than a global peace treaty, like the 1952 treaty.
Mr. Philippe Paré: What's the difference between forced labour and the work of prisoners?
Mr. Laurin: Perhaps it's a question of definition. When you talk about slavery, it's certainly forced labour, but it is not... I simply wanted to point out that the treaty itself did not deal with the issue of slavery, because it would have been somewhat disturbing for Canada to sign a treaty regulating the issue of slavery. That was the only point I was basing my argument on.
Mr. Philippe Paré: If I have a little bit of time left, I will give it to my colleague,Mr. Sauvageau.
Mr. Benoît Sauvageau (Terrebonne, BQ): Mr. Laurin, you gave a very quick answer to a question by Mr. Bergeron concerning countries that signed the 1952 peace treaty and who could get token compensation because women from those countries may have been forced into prostitution. Would it be possible that countries that signed the peace treaty claim amounts of money because of the fact that women were used as prostitutes within those countries?
Mr. Laurin: I really cannot tell you about the situation of all the countries who signed the peace treaty in 1952. I can only tell you about the Canadian government's position regarding its ability to make claims against Japan. As I explained, the position is that we could not make any such claims. I cannot tell you about all the countries that signed the 1952 peace treaty.
Mr. Benoît Sauvageau: If you are working from the premise that because of the 1952 peace treaty, Canada no longer has any rights whatsoever with respect to Japan, may I ask you whether you have done any research with a view to making claims under the 1952 peace treaty, or whether you are simply using this peace treaty as a pretext to say that you can do nothing at all? What have the legal sections at the Department of Foreign Affairs and International Trade and the Department of Veterans Affairs or other departments done? You keep on repeating to the Liberals, the Reform Party members and ourselves that you cannot do anything. What can we expect from you?
Mr. Laurin: I'm sorry, but I did not understand your question.
.1035
The Chairman: If I understood correctly, the question was whether you have done any legal research to support the opinion you advanced this morning and the letter sent by the Minister of Justice to veterans on this matter. I imagine the department did some legal research before providing a legal opinion.
Mr. Laurin: Yes, Mr. Chairman, definitely. The opinion I presented this morning is one held by successive Canadian governments for a very long time. It is based on legal research into the interpretation and effects of the 1952 treaty.
The Chairman: Thank you.
Mr. Dupuy.
Mr. Michel Dupuy (Laval West, Lib.): Mr. Mills raised an important question about the liquidation of Japanese assets. My question is to Mr. Laurin. Did the 1952 treaty provide that the liquidation of Japanese assets in Canada was the total compensation that Japan had to pay to Canada to settle its war debts?
Mr. Laurin: It's the treaty as a whole that rules out any claims by the Canadian government and Canadian nationals against Japan. I could not tell you whether this one provision alone was supposed to rule out any claims, but the treaty as a whole had this effect.
Mr. Michel Dupuy: Were the provisions regarding the liquidation of Japanese assets contained in the 1952 treaty?
Mr. Laurin: Yes. I believe they are, in article 16 of the treaty, where it states that Japan agrees that the Allies should have access to Japanese assets in their country and that these can be used to compensate veterans who were imprisoned by Japan.
Mr. Michel Dupuy: Mr. Paré was saying that the compensation had been paid by the Canadian taxpayers. That is not exactly correct, given that the compensation could have been paid for through the liquidation of Japanese assets.
Mr. Laurin: Yes, that what the first step in this direction.
Mr. Michel Dupuy: I think there's an important piece of the puzzle missing: how was the liquidation done, how much does it represent, and how were the proceeds distributed? Was the money simply put into the Consolidated Revenue Fund, or was it distributed to those entitled to it?
Clearly, our witnesses today cannot answer these questions, but I think that in order to have an overall view of the situation, it is important that we find out how this money was used, and whether it was enough to cover the needs of those entitled to it.
The Chairman: Personally, I have no idea. Can anyone here answer this question?
Would there be someone in the Department of Foreign Affairs who...
Mr. Laurin: I don't know which department was responsible for that after the 1952 treaty. That would have been an internal matter, and not one of international relations.
Mr. Stéphane Bergeron: Could we get this information?
The Chairman: I know that you are answering our questions as well as a lawyer. Of course, you have legal training so you can therefore answer legal questions. However, the question that has been raised is both moral and legal. I think Mr. Dupuy's question was whether the Japanese assets in Canada at the time amounted to a huge sum that was not distributed to the people who should have received it. That would have an impact on us politically. I'm not asking you to answer political questions.
You are here as a legal expert, but if someone could at least tell us about the situation at the time, that would help us to draw a political conclusion, but would not provide us with a legal answer, if I have understood the thrust of your question correctly, Mr. Dupuy.
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Mr. Michel Dupuy: Exactly. You understood the question very well.
[English]
The Chairman: Perhaps Veterans Affairs could....
Mr. Wallace: I think there are two aspects to the questions, one that refers to the treaty and another that refers to compensation in Canada. I think it's important to point out that Canada is unique amongst the Allied powers in having passed legislation to compensate for former prisoners of war. Again, in 1971 the Pension Act was amended to award a minimum disability pension of 50% to every former prisoner of Japan who had any assessed disability. Then in 1976 that minimum 50% pension was replaced by an equivalent payment under the Compensation for Former Prisoners of War Act. Now, that's domestic and it's unique, because Canada felt it was very important to compensate veterans who had suffered hardships. I think there are two issues here, but in Canada we have done something unique amongst the Allied powers.
[Translation]
The Chairman: Mr. Bergeron.
Mr. Stéphane Bergeron: I think the question just raised by Mr. Dupuy is absolutely fundamental. The Canadian government must find a way of providing these answers, because, as the chairman pointed out, beyond the legal questions, there are a host of moral and political questions that are just as important.
I have only one legal question. I will follow the approach adopted by my colleague, John English. Does the 1952 treaty absolve Japan for the crimes against humanity that its citizens or soldiers may have committed during the Second World War against the Allied countries that signed the 1952 treaty?
Mr. Laurin: Unfortunately, I am not in a position to answer this question.
Mr. Stéphane Bergeron: If we consider the abuse suffered by Canadians prisoners of war in Hong Kong to have been crimes against humanity, then the argument is valid. If you cannot say that the 1952 treaty settled the matter, we can assume that a claim could be presented to the Japanese government, if we consider the issue to be one of crimes against humanity.
Mr. Laurin: I am not in a position to give you a legal opinion as to the ability of a country or its citizens to make a claim against a third country based on allegations of crimes against humanity. I have no position on that matter. I am here to present the position of the government of Canada and I am not at all familiar with its position on this point, if in fact it has a position.
[English]
The Chairman: Mr. Morrison, sir.
Mr. Lee Morrison: I still have a bit of a problem with these ephemeral assets and what they may or may not have been - whether the treaty referred only to the property of the Japanese government or whether these also included the assets of Japanese nationals. If it included the assets of Japanese nationals, that stuff was all confiscated in 1942, ten years before the treaty, and there couldn't have been anything there. So what on earth was being agreed to?
The Chairman: Maybe I could just add to Mr. Morrison's question.
.1045
You will recall that under the act.... I forget the act. It's not the War Measures Act; that's an unfortunate allusion. In any event, there was an act in force during the war under which all enemy aliens.... The Enemy Alien Property Seizure Act was the act that prevailed, and our understanding would be then all Japanese property in Canada would have been seized by it, and any German property, and so on. The Barcelona Traction case touched on that because it involved that issue as well.
What we're really trying to get here is to know what was the amount of the Japanese assets seized under that and how they were dealt with, again coming back to Mr. Dupuy's question.
Mr. Lee Morrison: What were they? What kinds of assets are we talking about?
The Chairman: If anybody can give us an answer to that, please do. If not, tell us and perhaps that's something we'll have to decide ourselves whether we wish to pursue or not.
So we need an historian or somebody who has an archivist's knowledge of what things were to be able to do that. Would it be within the capacity of the department to inform us as to that? Do you know, Mr. Laurin? Is that even a fair question?
Mr. Laurin: Mr. Chairman, what I could attempt to do is, first, to learn of which department would have the responsibility for this. As I said, I suspect it's a domestic question at that point, the sale of the assets and the distribution of those assets to Canadian war veterans, but I will attempt to find out whose responsibility it is and to obtain the information for you and this committee.
The Chairman: Thank you.
[Translation]
Mr. Stéphane Bergeron: Could we also ask our witnesses to send us a legal opinion about the question I asked regarding crimes against humanity?
I understand from Mr. Laurin's reluctance to answer the question, that Japan may have committed some crimes that go beyond the matters settled in the 1952 treaty. It is important that we get an answer from the department on its legal interpretation of the question I asked, so that we know how to approach this issue.
The Chairman: The specific question is: If Japan committed crimes against humanity in imposing forced labour on Canadian prisoners during the war, would this not be a basis for an action against Japan, apart from the obligations of the 1952 treaty?
It is not the whole question of crimes against humanity, because there could be criminal consequences as well. The matter of compensation is more of a civil matter. Could you provide us with an opinion on this?
Mr. Stéphane Bergeron: I think that compensation is the consequence of what was done. As Mr. Morrison pointed out as well, the veterans want recognition for a crime that was committed against them. Recognition of the crime may lead to compensation. First and foremost, there must be recognition of the hardship suffered by these veterans, which goes beyond torture and other such things. We're talking about slavery.
The Chairman: Do you understand the question, Mr. Laurin?
Mr. Laurin: If I understood correctly, you are asking for a legal opinion as to whether or not Japan committed crimes against humanity and whether it went beyond the scope of the 1952 treaty, which would make legal action against Japan possible today.
I would like to ask you for some advice, Mr. Chairman. As it was explained to me, during our appearance here this morning, we were not to give the committee any legal opinions, because there would be a conflict of interest. If I'm mistaken, I would like you to clarify things for me. I was told that because of the conflict of interest, the department or myself, as a representative of the department, could not give the committee a legal opinion.
.1050
The Chairman: Would you like to consult your legal advisor to find out whether you are entitled to answer legal questions?
Mr. Laurin: I would appreciate that very much, Mr. Chairman.
The Chairman: In any case, as chairman, I could certainly write to the minister to request a legal opinion. Since the Minister of Justice gave the veterans a legal opinion, we could use the same approach. In any case, we will try to find a solution to this.
[English]
Because we're running out of time, I think we should get on one item within Mr. Chadderton's evidence while we have Mr. Wallace. When he came before us, Mr. Chadderton said Mr. Nicholson, who is the deputy minister ``left me with the understanding that there's much in this claim that he fully supports'', and he was content to have Mr. Chadderton make that statement. Specifically, that's at page 52:12 of the transcript of the hearings the last time. Can you shed any further light on what, from the department's point of view, Mr. Chadderton might have been alluding to in terms of the position of the department or Mr. Nicholson?
Mr. Wallace: Mr. Chairman, I think you appreciate from the general context of my testimony that the plight of veterans has been very difficult over the last fifty years to get the benefits they so justly deserve, but we are unable to give an express opinion on Mr. Chadderton's view in one way or another. It's that we do understand the circumstances before veterans and that they are pressing for beliefs they hold to be true.
The Chairman: Thank you.
Mr. Bob Speller (Haldimand - Norfolk, Lib.): I have just a quick question. I'm looking at this graph, which I suppose you provided us with this morning. Of the compensation these veterans get, what percentage of their compensation is for the fact that they were POWs? Do they get more because they were POWs in Hong Kong or Japan than, let's say, a POW in Germany?
Mr. Raymond Roy (Executive Project Officer, Department of Veterans Affairs Canada): Automatically, with the new legislation that was passed in 1976, anybody who was a prisoner of war of the Japanese was given 50% because they were a prisoner of war over one year, and up to four years, as a matter of fact. So the 50% was given to all those who qualified under that regulation.
Mr. Bob Speller: Have we not recognized at all, then...compensating them at all for the slave labour aspect of it? Do they get any compensation for that?
Mr. Wallace: That question goes back to my earlier commentary, where the legislation we have is general. It states that compensation is payable under the act on account of time spent by a former prisoner of war in enemy captivity or in evading or escaping from enemy captivity.
Mr. Bob Speller: Do we not have any moral obligation to do this? I would suggest we do.
Mr. Wallace: It's a question I can't answer.
The Chairman: Mr. Wallace, about the morality in the politics, I think it would be fair to say your frank response to my question about what Mr. Nicholson's view was.... It's fair enough to say the department recognizes that the Hong Kong veterans, by being treated for the slave labour component of their claim, which is different and apart from compensation for war injuries or other injuries...because all veterans suffered injuries and there's a struggle in the system to compensate properly for that. It's never adequate, as you properly pointed out. It never could be adequate. So one seeks to achieve a form of financial compensation. But we're now reaching into an issue of political morality, which recognizes that....
.1055
You saw those films about the way people were treated for the purpose of earning money from them during the war and exploiting them as labourers during the war. I think it's fair to say that your answer was that the department recognizes that extra dimension in the nature of the claim at least that far. With respect to what the nature of the compensation should be, I'm not challenging you on that, but the nature of the claim you recognize, would that be a fair way of putting it?
Mr. Wallace: We recognize the privations that are faced. We've dealt particularly with the Hong Kong veterans, understanding the particular hardships of veterans who suffered under the Japanese. As I mentioned, we have legislation to compensate, but it is of a general nature. I think the nature of the discussion this morning is perhaps outside of our ambit and is a separate issue.
The Chairman: I understand that. We understand that.
I want to thank all the witnesses who came before us this morning. You've been very helpful.
Members, I think we're left in a position where it would be difficult for us to deal with this specific issue this morning, given the unanswered questions that have been raised.
Specifically, I have trouble with the legal issue raised so ably by Mr. Bergeron, who is becoming what the navy calls a ``quarterdeck lawyer'' or a ``barracks lawyer''. I don't think we can deal with this because we're not judges. It seems to me that we're being asked to decide on two competing versions of what the treaty of 1952 stands for.
Mr. Laurin, you were very clear in saying that the parties understood that this had occurred and that by signing the treaty Canada was saying it wanted to put an end to the war. After all, you pointed out, Canada was saying that is what agreements are for, to put ends to situations, Canada wanted a conclusive end to this matter and wanted to bring Japan into the family of nations, and in order to achieve that Canada said ``We have to put this behind us.'' You were saying that we knowingly signed the treaty, knowing that all these issues were there, so we can't say this was some unknown issue.
Mr. English's questions, however, and those of Mr. Bergeron, along with the evidence, clearly show that there are considerations of public international law that might say that some acts of Japan went outside of and well beyond what normally would have been capable of being released, and that even if the Canadian government wanted to release that in the treaty of 1952, it didn't have the capacity to do that, as I understand from the lawyer acting for the veterans.
So we're now in a position where we have two conflicting legal opinions. We're not a court of law. We'll have to decide how we're going to deal with that. Maybe we should do a reference to the court. I don't know. We'll have to discuss that in committee.
The second thing is Mr. Dupuy's issue about the matter respecting Japanese assets and the Enemy Alien Property Act and how it was dealt with.
Thirdly, there is the moral issue raised by Mr. Speller, Mr. Mills and Mr. Morrison.
Those are three big questions. It seems to me that we're not going to be able to get a motion around that until we get further advice. And we have to deal with the question of the legal opinionMr. Bergeron raised.
I understand your position, Mr. Laurin, but I think the committee will be instructing me to write the minister to request an opinion from the department. If it doesn't come we'll have to ask Parliament's legal counsel as to where we would be, because it seems to us as a committee that if we ask government officials for their legal opinion and they refuse to give it to us, we're not in a position to do our jobs as parliamentarians. We must have that opinion. And, if necessary, we can retain outside counsel to get it.
Do you have another question, Mr. Speller?
Mr. Bob Speller: Can we wrap up further questions at our next meeting?
The Chairman: Yes. We will have to, because it is now exactly 11 o'clock and we have to adjourn from this room.
Thank you very much for coming. We appreciate your help.
We're adjourned and we're going to have to go next door.