In 2009, the Supreme Court of Canada stated that" [r]egulations, passed by Order in Council and applied in accordance with the principles of administrative law and subject to challenge for constitutionality, are the life blood of the administrative state and do not imperil the rule of law." (1) The notion that regulations are the life blood of the administrative state is not controversial. Canadian statutes are very often completed by lengthy and detailed subordinate enactments, (2) and numerous commentators have observed the centrality of the delegation of legislative power to the rise of the administrative state. (3) But the notion that regulations do not imperil the rule of law may require some further explanation. While the Supreme Court also observed that "hostility to the regulation-making process is out of step with this Court's jurisprudence", (4) the constitutionality of delegated legislation has not received detailed treatment since the middle of the 20th century. In the wake of landmark decisions such as Reference re Secession of Quebec, (5) in which unwritten principles are held to be the "lifeblood" of the Canadian Constitution, (6) a reappraisal of the legality of regulations--the "life blood of the administrative state" (7)--is needed.
The leading decisions of Hodge v The Queen, (8) Re George Edwin Gray, (9) and Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order in Council and of an Order of the Controller of Chemicals Made Pursuant Thereto (10) provide the legal basis for the exercise of "sweeping" law and policy-making powers by the executive branch of government, (11) and establish the cardinal proposition that the courts are not competent to interrogate the scope of legislative decisions to delegate. These dated authorities, however, decided between 1883 and 1943, cannot pass muster under the Supreme Court's more recent unwritten principles jurisprudence. The Secession Reference, and other decisions such as Reference re Manitoba Language Rights, (12) New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), (13) Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (14) and Reference re Senate Reform, (15) provide that unwritten principles are definitional to the Constitution and a mandatory part of constitutional analysis. (16)
While courts may not be able to review the merits and the specific content of legislative initiatives (absent an alleged violation of written constitutional texts), a legislative decision to transfer law and policy-making power to the executive implicates constitutional structure and engages judicial oversight to ensure that the delegation in question has an adequate level of content. This conclusion flows from the foundational principles of democracy, the rule of law, and the separation of powers. Democratic society is defined by the peaceful resolution of often bitter political conflicts, and the primary institutional mechanism that allows this resolution to occur is the legislature. An excessively broad delegation of power removes conflict-resolution from this legitimizing forum and thereby leaves citizens potentially at the mercy of arbitrary executive enactments that lack an adequate democratic pedigree.
In this paper, I consider the constitutional requirements of the principles of democracy, the rule of law, and the separation of powers in the context of Hodge, Gray, and the Chemicals Reference, and I make a case for a Canadian nondelegation doctrine. My argument is not that legislative delegation is absolutely impermissible, but rather that it must be subject to judicial control pursuant to legal standards derived from the governing unwritten principles. These standards prohibit normless transfers of law-making power, but leave room for legislatures to respond to the pressures of administrative governance. Enabling clauses must contain sufficient content such that citizens can recognize themselves to be the implied authors of any resulting subordinate legislation.
I have organized my discussion as follows. In Part I, I use several Ontario judgments decided under a prominent federal statute between 2000 and 2003 to illustrate the fundamental challenge to democratic legitimacy posed by un-cabined delegations of legislative power. In Part II, I consider the three leading delegation authorities mentioned above and I interweave the relevant unwritten principles jurisprudence into this analysis. In my Conclusion, I outline the shape of a workable Canadian nondelegation doctrine.
Before proceeding with my analysis, I make two brief comments. First, I should note that I will not be addressing the controversial United States nondelegation doctrine. (17) The available judicial and scholarly materials from that jurisdiction are largely overdetermined by the formal separation of legislative and executive powers and personnel under Article I and Article II of the US Constitution. By focusing so heavily on its textual grounding (or lack thereof), defenders and opponents of the US doctrine have often ignored or downplayed the stronger rationale that comes from unwritten principles. Because Canada has a sophisticated unwritten principles jurisprudence, a Canadian nondelegation doctrine can be supported without a foray into the complex and conflicting body of American legal materials. (18) The existence of a parliamentary system in Canada, I should stress, does not obviate the need for judicial controls on delegation. I clarify this statement in my discussion of the democratic principle in Hodge.
My second prefatory comment addresses the question of ideology. There is a tendency on the part of some observers to associate critiques of delegation with a reactionary or conservative agenda that is inherently hostile to the modern welfare state. Such an ideology likely fueled opposition to delegation and government regulation in the era of the Great Depression in Canada, (19) the UK, (20) and the US. (21) This ideology may also be a factor in some present-day critiques of delegation. (22) There is, however, no basis on which to assume that an argument against broad delegations of legislative authority must service a conservative or reactionary ideology. Advocating a judicial mechanism to control delegations can be based on a range of motivations and may even be politically neutral. Indeed, William Scheuerman observes, in his comprehensive (and hardly anti-welfare state) discussion of the rule of law and the legal theorists of the post-Marxist Frankfurt School, that "[t]here is nothing intrinsically conservative about accepting the value of basic legal and constitutional constraints on state authority." (23) It is also important to recognize that delegation itself can service a range of political agendas and can easily frustrate the progressive goals that are sometimes associated with the welfare state. In support of this claim, one need only consider the "massive powers of delegation and subdelegation" employed by Ontario Premier Mike Harris as part of his conservative program to roll back public services and reduce the size of government in the 1990s. (24)
The nondelegation analysis in this paper does not pursue a specific political agenda and instead proceeds on the basis that one of the dominant practices of modern government (its lifeblood) is inconsistent with foundational constitutional principles. I submit that this practice urgently needs to be re-evaluated. Across Western democratic societies, the growth of the administrative state has resulted in "marginalized" legislatures, (25) with power increasingly and even dangerously centralized in executive bodies. (26) The courts in this country have the authority to remedy this imbalance, for as the Supreme Court of Canada has stressed, the Constitution mandates a coherent and principled form of government. (27) A marginalized legislature delegating un-cabined power to willing executive instrumentalities is incoherent and unprincipled.
AN ILLUSTRATION OF THE PROBLEM: THE PARKER-JP NEXUS AND THE CONTROLLED SUBSTANCES ACT
In 2001, the Canadian government enacted the Marihuana Medical Access Regulations., (28) This initiative was considered necessary as a result of the 2000 decision of R v Parker, (29) in which the Ontario Court of Appeal struck down the prohibition on the possession of marijuana in section 4 of the Controlled Drugs and Substances Act. (30) Justice Rosenberg, writing for the unanimous Court, determined that the prohibition violated section 7 of the Canadian Charter of Rights and Freedoms (31) due to the lack of an exemption for medical necessity. (32) The effect of the Court's declaration of invalidity was stayed for 12 months.
It may seem somewhat odd that a Charter-deficient statute could be effectively remedied through regulations. One would think that an unconstitutional statute would have to be rethought by the enacting legislature, not a subordinate body. The Ontario Court of Justice took this view in the 2003 decision of R v P(J), (33) and dismissed marijuana possession charges against a defendant on the basis that there was no valid prohibition in effect in the province:
This is simply not the sort of matter that Parliament can legitimately delegate to the federal cabinet, a Crown minister or administrative agency. Regulations, crafted to provide the solution (even were these fashioned to create sufficient standards governing exemptions) cannot be found to remedy the defects determined by the Parker dicta. Therefore, since a statutory framework with guiding principles was not enacted within the period of the suspension of the declaration of invalidity, it follows in my view that the declaration is now effectively in place. (34) The Ontario Court of Appeal, in R v P(J), (35) agreed that the charges against the defendant had to be dismissed, but reached this result on the basis that the...