More on the Non-Delegation Doctrine

The non-delegation issues in the Carbon Pricing References have garnered significant attention in recent weeks.

I discussed Côté J’s partial dissent as a guest on Breakfast with Appeal, an outstanding series run by the appellate group at Torys LLP. You can see a brief clip here (the format is breakfast TV, hence my choice of jacket).

In a historical analysis on Advocates for the Rule of Law, Stephen Armstrong strongly supports Côté J’s sceptical approach to delegation of authority:

Thus, the Constitution Act, 1867 created a constitution of modern liberty for Canada. Under such a scheme, as I explained above, Parliament is sovereign because it is based on an internal division of power between disparate elements, which combined represent the varied interests of the entire nation. And, what is more, the sovereignty of such a Parliament is not unbridled or unrestrained, because it has for its foundation a conception of liberty which is diametrically opposed to the Rousseauian notion that the General Will of the People knows no restraints on its authority. Thus, the power “to make Laws for the Peace, Order, and good Government of Canada” in s. 91 confers upon the Parliament of Canada the power “only to make laws, and not to make legislators”.[19] The power given to Parliament by s. 91 does not confer a power to unmake the scheme of mixed government created in s. 17.

In other words, just as Parliament cannot transfer law-making authority from one order of government to another so as to alter the scheme of the division of powers in ss. 91-95,[20] neither can it transfer its law-making authority to the executive branch so as to alter the scheme of mixed government enacted in the Constitution Act, 1867.

And, on The Court, James Johnson — who has done as much as any other scholar to highlight the difficulties with delegations of authority, if not more — finds support in Chief Justice Wagner’s majority opinion for a more muscular approach to policing the boundaries of delegation:

In the GHG Reference, Chief Justice Wagner observes near the beginning of his delegation analysis that “[e]ven broad or important powers may be delegated to the executive, so long as the legislature does not abdicate its legislative role” (GHG Reference, para 85).  This observation is certainly consistent with Hodge and Gray and the other authorities cited, depending on how one interprets the “legislative role.” It is precisely in this latter regard that the Chief Justice offers a potential game changer, for he concludes his discussion of the delegation issue by stating that “[i]n the case at bar, Parliament, far from abdicating its legislative role, has in the GGPPA instituted a policy for combatting climate change by establishing minimum national standards of GHG price stringency” (GHG Reference, para 88). 

By associating the “legislative role” with “institut[ing] a policy,” the Chief Justice injects a novel, concrete, and genuinely limited standard into the otherwise very expansive concept of abdication. I have argued elsewhere in detail that making policy choices is the quintessential legislative role in a democratic society, and further that this understanding of the legislative role should inform judicial interpretations of the constitutionality of delegations of legislative power (“The Case for a Canadian Nondelegation Doctrine” (2019) 52:3 UBC L Rev 817).   

Based on the concrete standard of making policy choices, it may be possible for a reviewing court to assess in detail whether the essentials of democratic governance are intact. In the GHG Reference at any rate, the Supreme Court of Canada appears to use this standard to conclude that the impugned provisions of the GGPPA are constitutional on the basis that they “simply delegate to the executive a power to implement this policy” (GHG Reference, para 88).

The GHG Reference at the very least opens up the opportunity for a new approach to the issue of delegation—an approach that makes use of the lens afforded by the existence of legislated policy choices. Needless to say, mapping out the resulting spectrum of possibilities that such a lens can offer (ranging from detailed legislated policy choices to the total absence of any policy choices whatsoever) and crafting a workable legal test would require considerable judicial work in future decisions. Such a task, however, may be worth exploring. The early decisions such as Hodge and Gray that introduced the effacement/abdication standard dealt with legislative and executive spheres of activity prior to the advent of the modern administrative state, the modern security state, and the new and very uncharted territory of the 21st century pandemic state.

I remain sceptical of judicially enforceable limits on delegation but there is no doubt that the debate is going to rumble on.

This content has been updated on May 26, 2021 at 12:34.