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The Non-Abdication Rule in Canadian Constitutional Law Mark Mancini I

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The Non-Abdication Rule in Canadian Constitutional Law Mark Mancini I The Non-Abdication Rule in Canadian Constitutional Law Mark Mancini* I. INTRODUCTION Delegation of legislative power from Parliament to other actors in the federal government, what scholars refer to as lateral delegation, runs rampant in Canada.1 Independent agencies2 wield 2020 CanLIIDocs 693 * BA, JD, LLM; National Director, Runnymede Society. 1 See generally Lorne Neudorf, “Reassessing the Constitutional Foundation of Delegated Legislation in Canada” (2018) 41:2 Dal LJ 519. I critically reference Neudorf’s piece throughout the paper as I am offering a distinct account of delegation limits. See also John Mark Keyes, Executive Legislation, 2nd ed (Toronto: LexisNexis, 2010) at 103– 147. Keyes’ book in particular is a magnum opus of delegated legislation, speaking to various facets of the problem of delegated legislation in Canada, including its technical aspects. 2 I use this term loosely because there is no widely adopted definition of an independent agency. More accurately, there is a spectrum of independence in which some agencies have more independence from the executive branch and legislatures than others. Generally, at the federal level, I am speaking of agencies like the Canadian Transportation Agency, the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, the Canadian Energy Regulator, the Immigration and Refugee Board of Canada, and the Canadian Radio-television and Telecommunications Commission. See Matthew Flinders, Delegated Governance and the British State: Walking without Order legislative power3 and are insulated to a certain degree from political influence. While functional concerns often motivate delegation of this sort,4 that does not mean that it is formally consistent with the organizing principles of the British Westminster parliamentary tradition, of which Canada is a part. This question of consistency is not of purely academic or hypothetical interest. Important regulatory legislation is made primarily at the Cabinet and agency level, with five 2020 CanLIIDocs 693 (Oxford: Oxford University Press, 2008) at 5 for the idea of independent agencies on a spectrum of independence; Lorne Sossin, “The Puzzle of Independence for Administrative Bodies” (2008) 26:1 NJCL 1 for general discussion and definitional terminological considerations. 3 In defining legislative power for the purposes of this paper, I adopt the Supreme Court of Canada’s approach to defining legislation under its “prescribed by law” jurisprudence. See Greater Vancouver Transportation Authority v Canadian Federation of Students— British Columbia Component, 2009 SCC 31 at para 64, [2009] 2 SCR 295 [GVTA]: So long as the enabling legislation allows the entity to adopt binding rules, and so long as the rules establish rights and obligations of general rather than specific application and are sufficiently accessible and precise, they will qualify as ‘law’ which prescribes a limit on a Charter right. 4 These reasons include a desire for efficiency, expertise, and independence. See generally Frans F Slatter, Parliament and Administrative Agencies (Ottawa: The Law Reform Commission of Canada, 1982) at 8–19. 2 times more delegated legislation than primary legislation.5 At the federal level, there are 201 departments and agencies listed by the Government of Canada,6 many of which have the power to issue delegated legislation. However, volume is not the only measure of the significance of delegated legislation.7 Important issues of political significance affecting individual rights and interests are also decided by administrative agencies. Indeed, the Supreme Court of Canada has remarked that regulations are the “life blood” of the administrative state.8 One could say there is no legal impediment, such as a doctrine of non-delegation, to stop 2020 CanLIIDocs 693 this mass transfer of legislative power away from Parliament.9 Parliament is sovereign10 and can 5 Neudorf, supra note 1 at 521. 6 Government of Canada, “Departments and Agencies” (last modified 24 January 2020), online: <www.canada.ca/en/government/dept.html>, archived: <perma.cc/RV3F-JUP8>. 7 See generally Neudorf, supra note 1. 8 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 40, [2009] 2 SCR 37. 9 But see (Alyn) James Johnson, “The Case for a Canadian Nondelegation Doctrine” (2019) 52:3 UBC L Rev 817; Neudorf, supra note 1. 10 Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution (Markham: LexisNexis, 2013) at 70: “Due to the constitutional limits imposed on the principle, it would be in error to confuse the principle of Parliamentary sovereignty with that of Parliamentary supremacy…[I]n Canada, the division of powers and the Charter make it preferable to use the term ‘Parliamentary sovereignty.’” 3 thus “make or unmake any law whatever.”11 Subject to any regent constitutional limitations, the upshot for delegation of law-making power is clear, at least in theory. There is no general, ex ante restriction on the scope of law-making powers that Parliament can laterally delegate to the executive or other law-making bodies.12 Yet, oddly, the Supreme Court of Canada has adverted to other limits on delegated power. Notably, it has said that Parliament cannot “abdicate” its law-making powers through delegation by giving powers to those ineligible to receive them.13 Canadian case law seems to 2020 CanLIIDocs 693 equate abdication with the withdrawal of “control” over the recipient of delegated power, which 11 AV Dicey, Introduction to the Study of the Law of the Constitution, 3rd ed (London: MacMillan & Co, 1889) at 38. 12 Bogdan Iancu, Legislative Delegation: The Erosion of Normative Limits in Modern Constitutionalism (Heidelberg: Springer, 2012) at 1: “[T]he English constitution…resists normative limitations on the legislature.” 13 See In Re George Edwin Gray, (1918) 57 SCR 150, 1918 CanLII 533 [Gray cited to SCR]; Attorney General of Nova Scotia v Attorney General of Canada, [1951] SCR 31 at 44, 1950 CanLII 26 [NS Interdelegation]. As noted in NS Interdelegation, a provincial legislature cannot “create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence” (ibid at 38, quoting In the matter of The Initiative and Referendum Act being Chapter 59 of the Acts of Legislative Assembly of Manitoba 6 George V. v Manitoba, [1919] UKPC 60, 48 DLR 18 [Re Initiative and Referendum Act cited to DLR]). 4 is usually the executive.14 Coupled with this is an implicit recognition that the mere possibility of the revocation of the delegated power is not enough to render a delegation constitutional.15 While some scholars have addressed the issue of delegation, none have addressed what “abdication,” in particular, might mean in its legal and institutional forms.16 Some have even discarded the 14 See the Reference as to the Validity of Regulations in relation to Chemicals enacted by Order in Council and of an Order of the Controller of Chemicals made pursuant thereto, 2020 CanLIIDocs 693 [1943] SCR 1 at 18, 943 CanLII 1 [Chemicals Reference]; Gray, supra note 13 at 176; Powell v Apollo Candle Co. Ltd. (New South Wales), [1885] UKPC 5, 10 App Cas 282 at 291. In the Westminster tradition, the “executive” largely refers to the Cabinet and individual ministers. These people are also members of Parliament, drawing a clear distinction between the American separation of powers where the executive does not sit in the legislative chambers. In turn, the executive is responsible to Parliament, and Parliament controls the executive. 15 NS Interdelegation, supra note 13 at 50: “The power of revocation might in fact become no more feasible, practically, than amendment of the Act of 1867 of its own volition by the British Parliament.” 16 The leading article to explore this issue is John Willis, “Administrative Law and the British North America Act” (1939) 53:2 Harv L Rev 251. For rare exceptions of scholars wrestling with issues of delegation particularly as they pertain to regulatory policy, see Harry W Arthurs, “Regulation-Making: The Creative Opportunities of the Inevitable” (1970) 8:3 Alta L Rev 315; Alice Woolley, “Legitimating Public Policy” (2008) 58:2 UTLJ 153; Roderick A Macdonald, “Understanding Regulation by Regulations” in Ivan 5 normative importance of non-abdication as a restriction on delegation in certain circumstances.17 This is particularly so with the rise of independent agencies that are insulated to varying degrees from parliamentary control—“structural heretics” in the constitutional structure.18 Accordingly, this paper analyzes what it could mean for Parliament to “abdicate” its legislative power. Specifically, I offer an argument distinct from the existing literature: the Canadian non-abdication rule puts restrictions on who may receive delegated power, rather than on the scope of delegated power, as in the American non-delegation doctrine. This means that 2020 CanLIIDocs 693 Parliament can delegate power as it sees fit. The relevance lies in who receives this broad power. When Parliament delegates to an independent agency, it must exercise control over the delegated law-making by that agency in order to ensure that it does not abdicate its legislative power. I locate this ex post control in the idea, fundamental to the Westminster tradition,19 that Parliament Bernier & Andrée Lajoie, eds, Regulations, Crown Corporations and Administrative Tribunals (Toronto: University of Toronto Press, 1985) 81 at 119. 17 None other than Bora Laskin called the non-abdication constraint “at most something to
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