Statutory Instruments, Royal Prerogative, and Delegated Legislation

AuthorSusan Barker, Erica Anderson
chapter ten
Statutory Instruments, Royal Prerogative, and
Delegated Legislation
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
“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
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:
8 “e Governor General and the Lieutenant Governors,” online: e Royal Family:
9 Hogg, Constitutional, above note 6 (loose-leaf updated 2013, release 1) ch 1 at

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT