Delegated Legislation and the Charter

Abstract

The Oakes framework clearly applies to reviewing primary legislation for Charter compliance and the Doré framework clearly applies to reviewing adjudicative/discretionary decisions for Charter compliance. However, it is an open question what framework applies to reviewing delegated legislation for Charter compliance. Given the hybrid nature of delegated legislation, and the competing rationales for each of the Oakes and Doré frameworks, I argue that a hybrid framework applies to reviewing delegated legislation for Charter compliance. This hybrid framework strikes the appropriate balance between requisite deference to administrative bodies and rigorous Charter review.

Keywords: oakes, doré, administrative law, delegated legislation, secondary legislation, charter review, judicial review