Orders In Council and their Constitutional validity, and the question of Locus Standi before the Courts

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British Columbia Civil Liberties Association has been involved in a lawsuit that was initiated as a result of Order in Council of the British Columbia legislature number 3560, which states: “That it is declared a public policy that no person teaching or instructing our youth in educational institutions receiving government support shall continue in the employment of the Educational Institution if they advocate the policies of Le Front de Liberation de Quebec, or the overthrow of democratically elected governments by violent means”. The new NDP government has revoked this order.

The suit was initiated by the B.C. Civil Liberties Association, who received support in this endeavour from a group of teachers interested in civil liberties. They found the Order in Council repugnant to their ideals of academic freedom in particular, and freedom of speech in general. They allowed the suit to be filed in their names. However, they were frustrated in their attempts to have the merits of the case heard because Mr. Justice Aikins found that they had no standing to appear before the Court. The case is reported in (1971) 5 W.W.R. 600. On the merits of the case, it appears probable that if the issue had been tried, the Order in Council would have been declared invalid. There are two reasons:

  1. The Order in Council was not made pursuant to any specific direction of the legislature. Nowhere can a justification be found for this action and it appears that, in the circumstances, this executive action was highly unwarranted.
  2. Even if the Executive were properly authorized to act, the Order in Council followed the federal government’ that the War Measures Act was in effect. The situation was a national emergency. Therefore the federal legislation under the War Measures Act would have excluded any provincial government acting. This was so, particularly since the federal government had made it a criminal offence to advocate the policies of the FLQ, or other “subversive” organizations.

We hope that future governments will not, as a matter of policy, rely upon the Order in Council to enact legislation of dubious constitutional validity. The obvious problem is that most citizens do not wish to disobey a law which is on the books and prima facie valid, even if they are advised by legal counsel that in all likelihood, the law is not valid.

Unfortunately, in the teachers’ case, the issue that should have been determined was never in fact adjudicated by the Court. The parties had applied to the court under Order 25, Rule 5, which reads as follows:

No action or proceedings shall be opened to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right, whether any consequential relief is or could be claimed or not.

The teachers found that the case law surrounding that particular rule, which on the surface of it appears to give them an automatic right to have a hearing has, in fact, limited the use to which this particular rule can be used in the Courts. Basically, the Court said that a litigant must have a “special interest”. This has been taken to mean, in general terms, that the person needs a monetary or pecuniary interest in the subject matter of the declaration. An individual must show that he or she has a special right, over and above everyone else in the community, or over and above everyone else in his or her particular group affected. The same rationale applies to particular groups of individuals within a larger group. They must show that there is some special interest at stake that distinguishes them from the rest of the group at large. So, in this particular case, these five teachers had to show that they were in some way different from the other teachers in the Province of British Columbia or that they had a monetary interest in the outcome of the case.

The question of whether this infringed the professors’ right of academic freedom was not, for Mr. Justice Aikins, sufficient cause, or enough of a special interest to differentiate these five teachers from all other teachers in the province.

His Lordship did, however, state that he could have considered the case if, in fact, the plaintiffs were in jeopardy of losing their jobs, or were advocating the policies of the FLQ and/or the violent overthrow of a democratically elected government. The obvious problem with this sort of reasoning is that one must break the law, before one is entitled to challenge it in Court. The B.C. Civil Liberties Association does not look with favour upon a situation where a citizen must play Russian roulette, as it were, with his or her job or reputation order to determine whether or not a law is valid.

Courts have always been regarded as the protectors of minority and individual rights in the face of government legislation, which is passed for society as a whole. Of course, with governments as large as they are today it would be impossible to avoid all conflicts between governments and citizens. But the Courts are often the only tool available for citizens to seek redress from inappropriate government legislation. For example, the Courts, generally speaking, have not hesitated to control those administrative tribunals that exceeded their jurisdiction. This Association is of the opinion that it is also the Courts’ duty to ensure that legislative enactments are within the constitutional boundaries of that particular governmental body. It becomes particularly important if one has a Bill of Rights guaranteeing liberty that must be considered in reference to any piece of legislation.

The Court, in effect, said that such non-monetary liberties as freedom of speech and freedom of association do not merit protection.

The B. C. Civil Liberties Association is therefore of the opinion that citizens ought to have free access to the Courts for the purpose or obtaining a declaratory judgment, regardless of whether they have a special or pecuniary interest or are in some sort of immediate jeopardy as defined at present by the Courts.

The argument most often advanced against such free access to the Courts is that it would “open the floodgates of litigation”. The Courts of Canada have, since the 1920s, adopted this point of view, and have been very reluctant to allow plaintiffs to seek binding declarations or rights. If this is in fact a real danger (which we do not believe), then this Association takes the position that the extra cost to be paid by society to have these matters determined far outweighs the cost of having bad legislation on the books.

It would be far better to know the weaknesses of a piece of legislation at an early stage so that it will not have to be revoked and re-enacted many years later at a much higher social cost, e.g. the demerit point system used by driving authorities.

Also, in a practical sense, it is extremely expensive and time consuming to be involved in a lawsuit. Solicitors are under an obligation to advise clients on the strength of their case and not to advise a client to start a lawsuit if it looks as if it cannot be won. However, as an added measure of protection for the public against the “hordes” of litigants, we suggest that Judges be granted the power to award costs on a higher scale if, in the opinion of the Court, the suit clearly did not have merit from the beginning.

In conclusion, the social cost of allowing free access to the Courts for declaratory relief is minimal in comparison with the social advantages to be gained by oppressed minorities and individuals who have real, though non-pecuniary, interests to protect especially those fundamental liberties which can never be measured in dollars and cents.

Unfortunately, in an era of big government, minority rights are often overlooked when there is concern for the protection of society as a whole. Hence, this Association has always attempted to protect minority rights in these circumstances. In the present situation, we ask that the government seriously consider abolishing the restraints upon the individual’s right to test the validity of any legislative enactment without placing him or herself in jeopardy and without having to show special or pecuniary interests.

We therefore respectfully suggest that Order 25, Rule 5, of the Supreme Court Rules be amended to make the issue of status before the Courts mandatory.