The Case for a Canadian Nondelegation Doctrine

Abstract

The outdated caselaw supporting the essentially unlimited power of legislatures to delegate legislative power is incompatible with the Canadian Constitution. 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 – all recognized as central to the architecture of the Constitution by the Supreme Court of Canada. 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. Legislative delegation is permissible only where it conforms 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.