The Non-Abdication Rule in Canadian Constitutional Law
Saskatchewan Law Review, forthcoming
40 Pages Posted: 29 May 2020
Date Written: May 1, 2020
Delegation to administrative actors runs rampant in Canada, but courts have generally not accepted a doctrine of non-delegation, like in the American context, to stop this delegation. The most courts have done, over time, is refer to an abstract principle of "non-abdication." Put differently, while Parliament and the legislatures can delegate their power, they cannot "abdicate" it. This paper attempts to shed light on this non-abdication requirement in comparison to the non-delegation doctrine in the United States. Specifically, the paper argues that the non-abdication doctrine in Canada attaches to the recipient of the delegation, rather than the scope of the delegation, as in the American context. This is because of the regent constitutional arrangements in each country. In Canada, because of the continued relevance of parliamentary sovereignty, courts cannot pass over the scope of a delegation. However, in the non-abdication cases, courts have concerned themselves with who receives the delegation: the delegate must be, in some way, politically connected to the delegating power. This doctrine has the most relevance, then, to so-called "independent agencies" that may lack the connection to the delegating body. The paper examines the conditions for the doctrine's operation and its complications.
Keywords: administrative law, constitutional law
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