Statutory Instruments, Royal Prerogative, and Delegated Legislation

• Author: Susan Barker, Erica Anderson
• Pages: 197-228

197



chapter ten

Statutory Instruments, Royal Prerogative, and

Delegated Legislation

A. WHAT ARE STATUTORY INSTRUMENTS?

e federal Statutory Instruments Act denes statutory instruments

generay as:

“statutory instrument”

(a) means any rule, order, regulation, ordinance, direction, form,

tari of costs or fees, leers patent, commission, warrant, proc-

lamation, by-law, resolution or other instrument issued, made

or established

(i) in the execution of a power conferred by or under an Act of

Parliament, by or under which that instrument is expressly

authorized to be issued, made or established otherwise

than by the conferring on any person or body of powers or

functions in relation to a maer to which that instrument

relates, or

(ii) by or under the authority of the Governor in Council, other-

wise than in the execution of a power conferred by or under

an Act of Parliament.1

1 Statutory Instruments Act, RSC 1985, c S22, s 2(i).

198  Researching Legislative Intent

Regulations, which wi be the main focus of this chapter, are

included in the above denition but also have a further, more specic

denition:

“regulation” means a statutory instrument

(a) made in the exercise of a legislative power conferred by or under

an Act of Parliament, or

(b) for the contravention of which a penalty, ne or imprisonment

is prescribed by or under an Act of Parliament,

and includes a rule, order or regulation governing the practice or

procedure in any proceedings before a judicial or quasi-judicial

body established by or under an Act of Parliament, and any instru-

ment described as a regulation in any other Act of Parliament.2

Each province has legislation that covers statutory instruments,

most oen caed regulations Acts. Unlike the federal Statutory Instru-

ments Act, most of these provincial statutes do not dene statutory

instruments and regulations separately as the federal statute does.

e denition of statutory instruments can be complex, but it can

be summed up as foows:

Statutory instruments are documents issued under the authority of

a statutory provision that mentions the instrument by name, as a

noun, as we as instruments issued under royal prerogative.3

B. ROYAL OR CROWN PREROGATIVE

is text wi not be focusing on interpreting the intention of Crown

or royal prerogative, but it is sti important to understand what royal

prerogative is and how it works. Some statutory instruments, in the

form of orders or orders in council, are produced as a result of execu-

tive action and may be subject to judicial interpretation.4

2 Ibid.

3 Paul Salembier, Regulatory Law and Practice in Canada (Markham, ON: Lexis-

Nexis, 2004) at 35–36 [Salembier].

4 See, for example, Canada (Prime Minister)v Khadr, 2010 SCC 3 [Khadr].

Chapter Ten: Statutory Instruments, Royal Prerogative, and Delegated Legislation  199

In Canada, royal or Crown prerogative is an executive rather than

a legislative power. It is exercised by custom and does not depend

on legislation for its authority. e commonly accepted denition of

royal prerogative is that it is “the residue of discretionary or arbitrary

authority, which at any given time is le in the hands of the Crown”5

or as Peter Hogg says, “the powers and privileges accorded by the

common law to the Crown.”6 e een delegates these powers to the

Governor General and the provincial Lieutenant Governors as we as

to the prime minister, provincial premiers, and Cabinet ministers in

both the federal and provincial governments:7

In representing the Sovereign in Canada, the Governor General

and Lieutenant Governors have duties that cover a broad range of

responsibility; among them are: the summoning and dissolution of

Parliament/Legislature, the swearing in of the Ministry, the reading

of the Speech from the rone, the granting of Royal Assent and the

use of reserve powers.8

Part III of the Constitution outlines the executive power of the

Crown in Canada. Some examples of federal royal prerogative are

the conduct of foreign affairs, including the making of treaties

and the declaration of war . . . the appointment of the Prime Minis-

ter (by the Governor General) and other ministers (by the Governor

General on the advice of the Prime Minister), the issue of passports,

the creation of Indian Reserves and the conferring of honours.9

5 AV Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (London:

Macmian, 1959) at 424.

6 PW Hogg,Constitutional Law of Canada(Scarborough, ON: Carswe, 2007)

(loose-leaf updated 2011, release 1) ch 1 at 1-18 [Hogg, Constitutional].

7 Ronald I Chens, “e Royal Prerogative and the Oce of Lieutenant Governor”

(2000) 23:1 Canadian Parliamentary Review, online: www.revparl.ca/english/

issue.asp?param=74&art=163.

8 “e Governor General and the Lieutenant Governors,” online: e Royal Family:

Canada www.royal.uk/canada.

9 Hogg, Constitutional, above note 6 (loose-leaf updated 2013, release 1) ch 1 at

1-20–1-21.