Reassessing the Constitutional Foundation of Delegated Legislation in Canada

Abstract

This article assesses the constitutional foundation by which Parliament lends its lawmaking powers to the executive, which rests upon a century-old precedent established by the Supreme Court of Canada in a constitutional challenge to wartime legislation. While the case law demonstrates that courts have continued to follow this early precedent to allow the parliamentary delegation of sweeping lawmaking powers to the executive, it is time for courts to reassess the constitutionality of delegation in light of Canada’s status as a liberal democracy embedded within a system of constitutional supremacy. Under the Constitution of Canada, Parliament is placed firmly at the centre of public policymaking by being vested with exclusive legislative authority in certain subject matters. Parliament must therefore play the principal federal lawmaking role. The Supreme Court’s 1918 judgment should no longer be followed to the extent that it allows courts to accept near unlimited delegation of Parliament’s lawmaking powers to the executive. Instead, and to that extent, the judgment should be seen as an historical anachronism, a holding that was suitable for a young country in the context of the First World War but now out of step with the constitutional role of Parliament as seen through the contemporary approach to constitutional interpretation. Courts and Parliament must take delegation more seriously, and constitutional safeguards should be established to better protect the role of Parliament as lawmaker in chief and restore the proper constitutional balance. Achieving this goal would be a major advance toward the democratic, representative and accountable federal lawmaking process contemplated by the Constitution. It is possible through reforms to strengthen the judicial scrutiny of the vires of regulations and creating effective parliamentary mechanisms to scrutinize and supervise the exercise of delegated lawmaking powers.

Keywords: regulations, delegated legislation, secondary legislation, Parliament, constitution