[Vol. 18
Constitutional Validity of Sections 3 and 4
of the Public Order Regulations, 1970
On October 16, 1970, the Governor-General, acting on the advice
of the federal cabinet, signed a proclamation declaring the existence
of an apprehended insurrection in Canada. This had the effect of
activating the powers delegated by Parliament to the federal ex-
ecutive, through section 3(1) of the War Measures Act,’ to
… do and authorize such acts and things, and make from time to time
such orders and regulations, as he may by reason of the existence of…
apprehended … insurrection deem necessary or advisable for the security,
defence, peace, order and welfare of Canada…
The Federal cabinet immediately enacted the Public Order Reg-
ulations, 1970 pursuant to this delegated power.
There has been much discussion of the decision to invoke the
War Measures Act. The purpose of this note is to assess the manner
in which the emergency powers were exercised in terms of con-
stitutional principles, in particular the rule of law. That is, did the
Public Order Regulations, 1970 in any important way violate the
Canadian constitution?
Parliament itself has affirmed in the preamble to the Canadian
Bill of Rights2 that men and institutions remain free only when
freedom is founded upon respect for moral and spiritual values
and the rule of law. The interruption by section 6 of the War
Measures Act of the specific legal protections conferred by the
Bill of Rights, in the face of a perceived threat to public order,
neither alters our national commitment to the truth of the propo-
sition so affirmed by the Canadian people through Parliament nor
totally disarms the judiciary from responding to that commitment.
If we are committed by our constitution to the rule of law,
then Parliament and the Federal executive are under the law, and
the important question we now face is the extent to which the
courts have a constitutional responsibility to police legislative and
executive violations of the rule of law.
It has long been established that courts of law have the duty
and the authority to give the final interpretation of the British
North America Act. While this exclusive judicial function is especially
1 R.S.C. 1970, c. W-2.
2 S.C. 1960, c. 44.
No. 1]
NOTES
clear in relation to the federal distribution of legislative powers,.
there are strong indications in our jurisprudence that when the
political checks on arbitrary power break down in areas of decision
for which the British North America Act makes provision, the
judiciary stands as the last line of defence of the essential con-
ditions of parliamentary democracy under the rule of law.
Perhaps the best-known example of this is the powerful dictum
of Duff, C.S., in Reference re Alberta Statutes4 describing the
right of free public discussion of public affairs as the breath of
life for parliamentary institutions and stating that any attempt
to abrogate this right would be incompetent the provincial legis-
latures as repugnant to the provisions of the British North America
Act, which established a federal system of parliamentary institutions.
This dictum was concurred in by Davis, J., and Cannon, J. expressed
a similar opinion in a separate judgment. This notion of a judicial
duty to protect the basic institutional framework created by the
British North America Act against legislative or executive erosion
was picked up in a number of subsequent cases, the most im-
portant being Saumur v. City of Quebec,5 R. v. Hess (No. 2)6 and
Switzman v. Elbling 7 where Abbott, J., expressed the view, obiter,
that the British North America Act had secured the right of
discussion and debate against encroachments by the Parliament of
Canada, as well as against those of provincial legislatures.
Finally, and most relevant to the Public Order Regulations,
1970, sections 96, 99 and 100 of the British North America Act
were described by the Privy Council in Toronto v. York 8 as “three
principal pillars of the temple of justice” and Part VII “Judicature”,
of which they are part, has been judicially interpreted as reserving
to those courts which are manned by a highly independent judiciary
certain exclusive functions that are important to the rights of
citizens and to the institutional integrity of the Canadian consti-
tution. While the principal application of Part VII of the British
North America Act has been to prevent provincial legislatures
from substituting administrative tribunals for courts of law in
relation to matters that are inherently the responsibility of the
3 Ottawa Valley Power Co. v. H.E.P.C., [1936] 4 D.L.R. 594; Beauharnois Light,
Heat & Power Co. v. H.E.P.C., [1937] 3 D.L.R. 458; B.C. Power Corporation v.
Royal Trust Company, [1962] S.C.R. 642.
4 [1938] S.C.R. 100.
5 [1953] 2 S.C.R. 299 (e.g., Rand, J., at pp. 330-333).
o (1949), 4 D.L.R. 199 (B.C. C.A., O’Halloran, J.A., at p. 208).
7 [1957] S.C.R. 285.
8 [1938] A.C. 415.
McGILL LAW JOURNAL
(Vol. 18
judicial institutions contemplated by Part VII, a broader inter-
pretation of Part VII and the cases on it as entrusting certain kinds
of questions to courts of law, manned by an independent judiciary,
is found in Professor Lederman’s historical analysis of the inde-
pendence of the judiciary in Canada. It is submitted that the
various judicial decisions made in relation to Part VII of the
British North America Act, over the years, on the “section 96
question”, are explainable only in terms of Professor Lederman’s
analysis.
Part VII provides for a judicature in Canada, and under the
system of parliamentary democracy, which it was the clear intention
of the British North America Act to establish, a judicial system
comes within the term “judicature” only if it is free from legislative
and executive interference in performing the vital functions that
only judges can be trusted to perform if the rule of law is to be
maintained. Therefore, neither Parliament nor the provincial legis-
latures can, as long as Part VII remains in force, abolish the
judicial system nor corrupt it by substituting its own judgment
for that of independent judges learned in the law.
It is submitted that the Public Order Regulations, 1970 sub-
stituted executive judgment for judicial decision in areas so basic
to judicial duty as to threaten the integrity of our constitution.
Sections 3 and 4 of the Public Order Regulations, 1970 provided
as follows:
3. The group of persons or association known as Le Front de Libdration
du Quebec and any scucessor group or successor association of the
said Le Front de Liberation du Quebec or any group of persons or
association that advocates the use of force or the commission of
crime as a means of or as an aid in accomplishing governmental
change within Canada is declared to be an unlawful association.
4. A person who
(a) is or professes to be a member of the unlawful association,
(b) acts or professes to act as an officer of the unlawful association,
(c) communicates statements on behalf of or as a representative
or professed representative of the unlawful association,
(d) advocates or promotes the unlawful acts, aims, principles or
policies of the unlawful association,
(e) contributes anything as dues or otherwise to the unlawful asso-
ciation or to anyone for the benefit of the unlawful association,
(f) solicits subscriptions or contributions for the unlawful associa-
tion, or
9 W. R. Lederman, The Independence of the Judiciary, (1956) 34 Can. Bar
Rev., at p. 769 and p. 1139.
No. 1]
NOTES
(g) advocates, promotes or engages in the use of force or the com-
mission of criminal offences as a means of accomplishing a
governmental change within Canada
is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.
In order to understand what these two sections seek to ac-
complish, one must lay them alongside sections 60 and 62 of the
Criminal Code, an Act of the Parliament of Canada:
60. (1) Seditious words are words that express a seditious intention.
(2) A seditious libel is a libel that expresses a seditious intention.
(3) A seditious conspiracy is an agreement between two or more
persons to carry out a seditious intention.
(4) Without limiting the generality of the meaning of the expression
“seditious intention”, every one shall be presumed to have a
seditious intention who
(a) teaches or advocates, or
(b) publishes or circulates any writing that advocates, the use,
without the authority of law, of force as a means of accom-
plishing a governmental change within Canada.
62. Every one who
(a) speaks seditious words,
(b) publishes a seditious libel, or
(c) is a party to a seditious conspiracy is guilty of an indictable
offence and is liable to imprisonment for fourteen years.
Parliament has thus made it a crime for two or more persons
to agree to teach or advocate the use, without the authority of law,
of force as a means of accomplishing a governmental change
within Canada. Enforcement of this prohibition is carried out
through criminal prosecutions in courts of law, subject to all the
procedural safeguards that have been evolved over several centuries.
This is part of the administration of justice, a function performed
or supervised by the independent judges ensured by the British
North America Act in sections 96 to 100.
Moreover, Parliament has provided generally for situations where
responsibility for a criminal act may be diffuse by enacting a
concept of parties to an offence. Section 21 of the Criminal Code
provides that
21. (1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any
person to commit it, or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to
carry out an unlawful purpose and to assist each other therein
McGILL LAW JOURNAL
[Vol. 18
and any one of them, in carrying out the common purpose, com-
mits an offence, each of them who knew or ought to have known
that the commission of the offence would be a probable conse-
quence of carrying out the common purpose is a party to that
offence.
Let us return to the Public Order Regulations, 1970. Section 3
enacted, in effect, that the F.L.Q. was an association that advocated
the use of force or the commission of crime as a means of or as
an aid in accomplishing government change within Canada. This
was a judgment that the F.L.Q. was guilty of seditious conspiracy,
made not by a judge or a jury in a court of law but made by the
Federal executive. Section 4 then made it an indictable offence
to be a member of the F.L.Q. or to assist it in any way in carrying
out its seditious conspiracy. What this really meant was that any
person who belonged to or assisted the F.L.Q. was judged, by
executive decree, to be a party to the seditious conspiracy the federal
executive had found to exist, and the Crown was enabled to secure
convictions by proving that a person attended a meeting of the
F.L.Q., advocated the F.L.Q. in public, or communicated statements
for it, for section 8 provided that:
8. In any prosecution for an offence under these Regulations, evidence
that any person
(a) attended any meeting of the unlawful association,
(b) spoke publicly in advocacy for the unlawful association,
or
(c) communicated statements of the unlawful association as a repre-
sentative or professed representative of the unlawful association
is, in the absence of evidence to the contrary, proof that he is a
member of the unlawful association.
This was nothing more than a criminal class action, decreeing
that any person who did any of the acts described in section 8,
none of which is criminal per se, was a party to a seditious con-
spiracy and liable to five years’ imprisonment. The judiciary was
reduced to the role of timekeeper, keeping track of who attended
what meetings and spoke or communicated what statements on
behalf of an association. Criminal guilt was determined by executive
decree.
In November 1970, Parliament enacted the Public Order (Tem-
porary Measures) Act, 1970 10 to replace the Public Order Regulations,
1970. The successor Act gave Parliamentary approval to what had
already been done, and continued sections 3, 4 and 8 of the Regu-
10 Bill C-181, 19 Eliz. II, third sess., 28th Parl. (1 Dec. 1970).
No. 1]
NOTES
lations, with minor alterations that do not affect the constitutional
objections here being made to them.
Thus, we have in the enactments in question, first, an executive
exercise of a judicial function in sections 3 and 4 of the Regulations,
and, second, a legislative adoption by Parliament, in the equivalent
sections of the Act, of the judgment of the executive. Two questions
arise:
1. is this repugnant to the fundamental principles of our con-
stitution?
2. if so, do courts of law have authority to judge these acts
ultra vires and void?
A clear affirmative answer to both of these questions comes
from the recent decision of the Privy Council in Liyanage v. The
Queen.” The facts of the case are remarkably similar to those
surrounding the enactment of the provisions here in question, but
two important differences should be noted. First, the Liyanage
case arose from an actual attempt at a coup d’dtat in Ceylon in
1962. Second, the Parliament of Ceylon did not try to enact a
judgment of criminal guilt through legislation, as did the Canadian
executive and Parliament in 1970, but merely amended the criminal
law and procedure to legalize ex post facto the detention of 60
suspected persons and to facilitate their conviction in a court of
law. The Privy Council rejected the argument that the legislative
amendments were contrary to the principles of fundamental justice,
but then found that the enactment of specially tailored provisions
directed at particular persons involved a usurpation and infrin-
gement by the legislature of judicial powers, inconsistent with the
written Constitution of Ceylon, which is contained in a British
Order in Council of 1946.12
In deciding that the courts of Ceylon have an exclusive function
that is constitutionally defined, the Privy Council relied on Part
VI of the Constitution of Ceylon entitled “The Judicature”, which
provides for appointment of Supreme Court judges by the Governor-
General and of judicial officers by a Judicial Service Commission
free from political interference, and secures Supreme Court judges’
independence by making them removable only by the Governor
General on an address of both Houses.
While Part VI of the Constitution of Ceylon, like Part VII of
the British North America Act, does not say in so many many
11 [1967] 1 A.C. 259.
12The Ceylon (Constitution) Order in Council, 1946.
McGILL LAW JOURNAL
[Vol. 18
words that judicial power shall be vested exclusively in these inde-
pendent judges, the Privy Council inferred that such was the fun-
damental purpose of the document. Lord Pearce, speaking for
the Committee, stated:
These provisions manifest an intention to secure in the judiciary a
freedom from political, legislative and executive control. They are wholly
appropriate in a Constitution which intends that judicial power shall be
vested only in the judicature. They would be inappropriate in a Constitu-
tion by which it was intended that judicial power should be shared by
the executive or the legislature. The Constitution’s silence as to the vesting
of judicial power is consistent with its remaining where it had lain for
more than a century, in the hands of the judicature. It is not consistent
with any intention that henceforth it should pass to or be shared by
the executive or the legislature.
During the argument analogies were naturally sought to be drawn from
the British Constitution. But any analogy must be very indirect, and
provides no helpful guidance. The British Constitution is unwritten where-
as in the case of Ceylon their Lordships have to interpret a written
document from which alone the legislature derives its legislative power.’3
Thus the Privy Council inferred from Part VI of the Ceylon
Constitution an established constitutional value in having the rights
and obligations of citizens, including criminal guilt, determined
according to established procedures in courts of law by judges
secured from political pressure.
To assess the relevance of Liyanage to Canadian law, one must
the two constitutions in relation
compare the relevant provisions of
to the judicature.
Part VI Ceylon (Constitution)
Order in Council, 1946
Part Vii, British North America
Act, 1867
52. (1) The Chief Justice and Puisne
Judges of the Supreme Court
and Commissioners of Assize
shall be appointed by the
Governor-General.
(2) Every Judge of the Supreme
Court shall hold office dur-
ing good behaviour and shall
not be removable except by
the Governor-General on an
address of the Senate and the
House of Representatives.
13 [1967] 1 A.C. 259, at p. 287.
96. The Governor-General shall ap-
point the Judges of the Superior,
District, and County Courts
in
each Province, except those of
the Courts of Probate in Nova
Scotia and New Brunswick.
99. (1) Subject to subsection two of
this section, the Judges of the
Superior Courts shall hold
office during good behaviour,
but shall be removable by
the Governor-General on Ad-
dress of
the Senate and
House of Commons.
No. 1]
NOTES
(2) A Judge of a Superior Court,
whether appointed before or
after the coming into force
of this section, shall cease to
hold office upon attaining
the age of seventy-five years,
or upon
into
force of this section if at
that time he has already at-
tained that age.
the coming
100. The Salaries, Allowances, and
Pensions of the Judges of the
Superior, District, and County
Courts (except the Courts of Pro-
bate in Nova Scotia and New
Brunswick), and of the Admiral-
ty Courts in Cases where the
Judges thereof are for the Time
being paid by Salary, shall be
fixed and provided by the Par-
liament of Canada.
(3) The age for the retirement of
judges of the Supreme Court
shall be sixty-two years:
Provided that the Gover-
nor-General may permit a
Judge of the Supreme Court
the age
who has reached
of sixty-two years
to con-
tinue in office for a period
not exceeding twelve months.
(4) The salaries of the Judges
of the Supreme Court shall
be determined by Parliament
and shall be charged on the
Consolidated Fund.
(5) Every Judge of the Supreme
Court appointed before the
date on which this Part of
this Order comes into opera-
tion and in office on that
date shall continue in office
as if he had been appointed
under this Part of this Order.
(6) The salary payable to any
such Judge shall not be di-
minished during his term of
office.
While Part VII of the British North America Act is not identical
to Part VI of the Constitution of Ceylon, the same fundamental
rule-of-law value is to be inferred from section 99, which makes
Canadian judges also removable only by the Governor-General on
address of both Houses. For, what point is there in securing judges
from political interference if they can be by-passed by executive
decree or legislative judgment whenever a government finds the
criminal law process inexpedient for its purposes?
It follows that sections 3 and 4 of both the Public Order Regu-
lations, 1970 and the Public Order (Temporary Measures) Act, 1970,
were attempts to exercise judicial power which the British North
America Act reserves exclusively to the judicature, and are there-
fore ultra vires the Parliament of Canada and, a priori, ultra vires
the Federal executive acting pursuant to powers delegated by Par-
liament.
There is no doubt that the existence of an emergency creates
a need for broader powers in the Federal executive and also en-
larges the potential scope of the legislative power of Parliament.
McGILL LAW JOURNAL
[Vol. 18
This has been made clear in numerous wartime decisions in relation
to the War Measures Act and federal regulations enacted pursuant
to that Act. But it does not follow that judicial powers are curtailed.
Indeed, it is in times of crisis when judicial checks on excesses
and abuses of power become most important, for the temptations
to excess and abuse are greatly increased among officials who are
pressed by an anxious public to deal with the crisis.
It is no doubt appropriate for the judiciary to defer to the
executive and legislative branches of government on questions of
policy and to do so increasingly in times of crisis. However, it is
quite another matter for judges to identify themselves with govern-
ment policy on questions of legality, and increasingly dangerous
for them to do so in times of crisis when governments are tempted
to ignore legality. It is submitted that under the British North
America Act the choice of process for determining criminal re-
sponsibility is not a policy matter to be decided in relation to the
crisis but is a matter of legality to be decided by judicial inter-
pretation of that legal document, which establishes the various
institutions of government and allocates functions and powers to
them.
It
is submitted that the principles applied in Liyanage are
equally applicable to sections 3 and 4 of the Public Order Regu-
lations, 1970, and point to the conclusion that those sections are
beyond the powers conferred on the Parliament of Canada by the
British North America Act.
J. N. Lyon
* Faculty of Law, McGill University.
