Inter vira enim loquuntur leges

The pandemic and delegation of power to the executive

Writing in La Presse earlier this week, Martine Valois raises some pointed questions about the extent of the powers the Québec government is exercising by various forms of delegated legislation, without control or even clear authorization by the National Assembly. Professor Valois’s op-ed is worth reading in full, but I would like to focus on one specific point she makes, about a decree that

allows [the government] to suspend orders given by the Superior Court in relation to supervised visits between a child and a parent. In our legal system, which is based on the Rule of Law and separation of powers, a minister cannot suspend a judicial decision. (Translation mine)

Maxime St-Hilaire has a response to Professor Valois over at À qui de droit, which is also worth reading. He is sympathetic on the whole, but on the specific point I am highlighting here, he disagrees. Professor St-Hilaire points out that “incompatible legislation can modify, suspend, or annul the effects of a judgment”, (translation mine here and below) and it is far from certain that this power cannot be delegated to the executive. Professor St-Hilaire points to cases such as In Re Gray, (1918) 57 SCR 150 and the Chemicals Reference, [1943] SCR 1, which accept “imprecise delegation of extremely broad powers ‘of a legislative nature’ to the executive, provided that such legislation can be revoked, and all the more so in an emergency situation”. This power is subject to constitutional limits, arising notably out of the federal division of powers, the protected jurisdiction of superior courts, and the constitutional amendment formula, but none are relevant here.

My own, tentative, view is somewhere in between those of Professors Valois and St-Hilaire. I’m not convinced that the principles of the Rule of Law, let alone separation of powers, can be applied to as to generate a legal prohibition on the delegation of a power to suspend or override court orders. At the same time, however, I think there is a strong case to be made for the proposition that such delegations should not easily be read into general legislative provisions, and that the specific provision invoked by the Québec government does not in fact authorize it to suspend court orders.

I think it is reasonably clear that, in application of the principle of Parliamentary sovereignty, legal rights determined by the judgment of a court can be modified by statute. And it is also clear that, subject to exceptional limitations (notably those in relation to taxation which I recently discussed here), legislatures can delegate their power to change the law to the executive. Is the power to modify rights fixed by court order an exception to this general rule? As readers will recall, I am more open to the possibility of constitutional principles producing specific legal effects, including invalidating some legislative provisions, than many other scholars. But I am not convinced that such an exception can be derived from the principles Professor Valois invokes. No doubt the Rule of Law counsels against upending court orders, but like the more general requirement of legal stability, this is probably not an absolute rule. And no doubt separation of powers says that the executive should not adjudicate disputes, but this is not what is going on here: court orders are suspended, in blanket fashion rather than case-by-case, and will, presumably, then be reinstate, in blanket fashion too.

But while this disposes of the suggestion that there is an absolute, constitutional prohibition on delegating a power to interfere with court orders, the question of whether a given delegation actually accomplishes this is a separate one. The Québec government’s authority to suspend the effect of court judgments is aid to rest on the residual clause in section 123 of the Public Health Act. Section 123 provides that “while the public health emergency is in effect, the Government … may, without delay and without further formality” take a certain number of measures “to protect the health of the population”. Seven types of measures are enumerated, from compulsory vaccination, to closures, quarantines, and evacuations, to building works and expenditures. The residual clause, section 123(8), follows this enumeration, empowering the government to “order any other measure necessary to protect the health of the population”. The question, then, is whether this broadly-worded, but residual, provision, authorizes the government to suspend court orders.

It is true, as Professor St-Hilaire says, that “imprecise delegation of extremely broad powers” is possible under the Supreme Court’s decisions in Gray and Chemicals. But these cases do not stand for the proposition that imprecise delegation must always be taken to enable the government to do whatever it wants. In both, the Court was at least prepared to entertain the possibility that the powers claimed by the executive had not been validly delegated. Both cases concerned the interpretation of a provision of the War Measures Act which granted vast powers to the executive to:

do and authorize such acts and things, and make from time to time such orders and regulations, as [the Governor in Council] may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated… 

In Gray, the issues were, first, whether this was a “Henry VIII clause”, empowering the executive to make regulations that override statutes and, second, whether the subjects of the regulations made under this provision had to be of a similar nature to those enumerated. The majority of the Supreme Court held that the opening part of this provision was broad enough to serve a Henry VIII clause, while the proviso in the second part ousted the application of the ejusdem generis presumption. In Chemicals, the main issue was whether the power delegated by Parliament to the Governor in Council could further be delegated to officials. The Court held that it could, because the power was so sweeping that it was a necessary implication that it would, in part, by exercised by others.

Section 123 of Québec’s Public Health Act is not an exact equivalent to the provision of the War Measures Act interpreted in Gray and Chemicals. Indeed, its structure is almost the opposite. The War Measures Act provided a broad initial delegation to do anything the executive “may … deem necessary or advisable for the security, defence, peace, order and welfare of Canada”, followed by a set of examples said, in Gray, to be not so much illustrative as “marginal” cases for which Parliament thought it expedient to dispel possible doubt. Section 123, by contrast, starts by enumerating a series of specific measures the government is authorized to take, followed by the residual clause in section 123(8). The enumerated measures are the obvious, central examples of a government might need to do in a public health emergency, and there is no language ousting the application of the ejusdem generis presumption. If anything, given this difference in statutory language, Gray arguably provides support for an argument a contrario for the proposition that the residual clause is not to be read as broadly as the War Measures Act delegation. If the Québec legislature really wanted to delegate “extremely broad powers” to the executive, it would have done so differently.

But there is more. Gray and Chemicals are good law so far as they explain the general ability of Parliament to delegate broad powers (including Henry VIII powers and the ability to subdelegate) to the executive. But in another respect, there is a strong argument to be made for the proposition that the law has moved on. In Gray, only Chief Justice Fitzpatrick referred to the argument that “the powers conferred by” the War Measures Act “were not intended to authorize the Governor-in-council to legislate … so as to take away a right … acquired under a statute”, but he easily rejected it. The issue did not arise in Chemicals. But the idea that authority to interfere with existing legal rights must be granted clearly if not expressly, that it will not be readily inferred from open-ended provisions delegating power to the executive, known as the principle of legality, has been much developed in the last few decades. The development has gone further in the United Kingdom than in Canada, but Justice Cromwell’s concurring reasons in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, unchallenged by any of his colleagues, provide at least some support for the proposition that it is in fact part of Canadian law.

There is, therefore, a serious argument to be made for the proposition that while interference with court orders may be authorized, it needs to be authorized clearly. An “imprecise and broad” delegation, let alone a residual clause following an enumeration of subjects that have nothing to do with court orders, is not enough. There is, of course, no precedent directly on point, and the argument I am advancing here is just that. However, as for example Lord Sumption explained in his Reith Lectures (which I summarized here), it is quite proper for courts, even on a limited view of their power that disclaims substantive review of public policy, to ensure that the legislature has squarely confronted the implications of exorbitant powers it grants the executive (or indeed other unusual consequences that may result from its enactments).

As both Professors Valois and St-Hilaire note, the Rule of Law tends not to fare well in real and perceived emergencies. The Rule of Law is, above all, an ideal, and in such times ideals to be disregarded. Its protection as a matter of positive constitutional law is limited. As a result, contrary to what Professor Valois suggests, I do not think the principle can serve as a categorical bar to legislatively authorized interference with court orders.

At the same time, however, the Rule of Law should not be sold short. At a minimum, it requires courts to read legislation ― even emergency legislation ― carefully, and not to find in it powers beyond those actually given by legislatures. But, more than that, the principle of legality suggests that when a legislature wants to interfere with the ideal of the Rule of Law, it must at least understand what it is doing and even, perhaps, be prepared to pay the political price for it.

Unconstitutional and Unconstitutional

Why delegating plenary taxing powers to the executive is wrong as a matter of constitutional principle and constitutional law

The government’s fortunately short-lived proposal to arrogate to itself the power to make regulations “that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax” generated a flurry of discussion about aspects of the constitution that are both fundamental and obscure. The most impressive contribution to this conversation is that of co-blogger Mark Mancini. Mark argues that, while a sweeping delegation of the power to tax to the executive is bad policy, it is not unconstitutional. Specifically, he addresses two arguments about it constitutionality: one based on section 53 of the Constitution Act, 1867, and one based on the unwritten principle of democracy.

For my part, I am not convinced by what Mark says about section 53, and I think that the principle of democracy is not the most important one to think about here. In my view, the Supreme Court’s interpretation of section 53 does not support ― and indeed give reason to challenge ― a delegation as sweeping as that which was apparently contemplated. The principle of responsible government ― not just democracy writ large ― also calls it into question. Before getting to these arguments about constitutional law, though, I think it’s important to emphasize that a plenary delegation of taxing powers is unconstitutional in a somewhat different sense.

Government action can be meaningfully said to be unconstitutional even if it contradicts no rule of binding constitutional law that could be enforced by the courts. This is most obviously so in the case of a breach of constitutional convention (assuming, that is, that the orthodox distinction between convention and law still holds), but arguably even in the absence of a violation of a precise rule, if government acts contrary to fundamental principle. It is in this sense that the governments (and Parliaments) of the United Kingdom and of New Zealand can be said to act unconstitutionally. The constitutions of these polities are not entrenched and judicially enforceable, but they are no less real, and susceptible of being contravened in a way that calls for denunciation in constitutional terms.

One of the fundamental principles of the Westminster constitutions since at least 1688 is that of Parliamentary control over taxation. Mark refers to the post-Glorious Revolution constitutional settlement by saying that “if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body” ― but that’s not quite right. The references to Parliamentary control of the executive in the Bill of Rights are more precise than a general assertion of sovereignty. They do not focus on Parliament’s power to make laws ― that was a given, and the Crown’s inability to make new law was recognized in the Case of Proclamations 80 years earlier. Nor do they involve a general control of the executive ― that would only come with responsible government, which developed over a long period of time starting decades after the Glorious Revolution and not taking a final form until the 1830s.

What the Bill of Rights 1688 did do was to impose firm prohibitions on the Crown “suspending laws”, “dispensing with laws”, and “levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted”. Now, “consent of Parliament” overrides these restrictions, as it obviously does that on the Crown’s law-making power. Acting “by and with the advice and consent” of Parliament, the Crown can make and change law, and it can impose and abolish taxes. The question, though, is whether this consent can be given prospectively, in advance, and in the form in effect of a blank cheque. After all, granting the Crown, acting on the advice of its Privy Council (and, in practice, of the cabinet) rather than of Parliament, the power of “repealing or imposing a tax, decreasing or increasing a rate or an amount of tax” amounts to nothing else.

In my view, the principle behind article 4 of the Bill of Rights ― the one dealing with “levying money without grant of Parliament” ― requires specific authorization on an ongoing basis. Parliament sought, and succeeded in gaining the ability, to actually keep tabs on the executive’s finances. It did not do so to simply let the executive run itself as if 1688 hadn’t happened. “The Crown can imposes whatever taxes and imposts it pleaseth, for ever and ever” would not be consistent with the purpose of article 4, and the contrary idea wouldn’t have occurred to anyone until the development of responsible government, and indeed well after. But even now, it is not a sound idea. Parliamentary scrutiny of taxation must be constant to be effective. It cannot just happen once in a blue moon, and the vagaries of question time are not a sufficient substitute for accountability mechanisms focused on taxation and spending.

The proposed delegation of taxing power to the executive was not, of course, for ever and ever. But it would have lasted almost half the duration of a normal Parliament, and longer than hung Parliaments typically survive in Canada. And it was, of course, quite uncabined ― the executive really would have been able to do anything it pleased. In my view, it is absolutely contrary to the principle and spirit of article 4 of the Bill of rights 1688, and so not merely stupid, but actually unconstitutional, at least in the sense of being inconsistent with the constitution’s underlying commitments. Whether the courts would have been able to do anything about this is a separate question, and a moot one at this point.

Despite its mootness, I turn now to the question of the constitutional legality of the government’s proposal. As noted above, the key constitutional provision here is section 53 of the Constitution Act, 1867, which provides that “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons”. The question is whether taxes imposed pursuant to delegation, and one as broad as the one described above, meet this requirement.

It may be worth pointing out that the exact status of section 53 is somewhat mysterious. The Supreme Court has long held, as Justice Iacobucci put it in Ontario English Catholic Teachers’ Assn v Ontario (Attorney General), 2001 SCC 15, [2001] 1 SCR 470, that “[s]ections 53 and 54″ ― of which more shortly ― can be amended by Parliament”. [68] Yet Justice Iacobucci went on to say that “there is a constitutional guarantee of ‘no taxation without representation'” ― for which section 53 is (rightly) taken to stand ― “in Canada”. [70] I’m not sure how these two statements are to be reconciled. In any event, the position seems to be that, at least so long as section 53 has not in fact been amended, failure to comply with it will result in the invalidity of non-compliant legislation, rather than being taken as (pro tanto) implied repeal. 

So would the proposed delegation comport with section 53? In OECTA, Justice Iacobucci offered the following general principle for assessing delegations of the power to tax:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. [74]

Justice Iacobucci then went on to explain why the delegation at issue ― a grant of power to a Minister to set the rates of a school tax ― was acceptable:

The [impugned statute] … expressly authorizes the Minister of Finance to prescribe the tax rates for school purposes.  When the Minister sets the applicable rates, a tax is not imposed ab initio, but is imposed pursuant to a specific legislative grant of authority.  Furthermore, the delegation of the setting of the rate takes place within a detailed statutory framework, setting out the structure of the tax, the tax base, and the principles for its imposition. [75]

There is, then, a crucial distinction between the imposition of taxes ab initio and the imposition of “a tax that has been approved by the legislature”. Justice Iacobucci’s discussion of the case before him at least strongly suggests that, to count as “approved by the legislature”, the tax ― at least its purpose, but probably also (some of?) its “structure”, “tax base”, and “principles for its imposition” ― has to be described with some specificity.

The proposed delegation of a blanket authority to impose new taxes and to “chang[e] the incidence of tax” is too vague to meet these requirements. It contemplates that taxes might be created, but does not explain to what end they must be levied or on what principles. It amounts to an authorization for the executive to create taxes ab initio ― but OECTA suggests that such an authorization cannot be given, at least, without repealing section 53 of the Constitution Act 1867, and perhaps at all.

Mark writes that, historically, the Supreme Court “has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers”. He recognizes that the leading cases on this, In re Gray, (1918) 57 SCR 150, and Re: Chemicals, [1943] SCR 1 were not decided in the context of taxation, but argues that the principle they stand for, which is that (to quote Mark) “so long as Parliament retains control over the delegated power—so long as it does not ‘abdicate’ its power (Gray, at 157) there is no legal concern”, is applicable.

I’m not so sure. Taxation really is different from other types of legislation. This is where section 54 of the Constitution Act, 1867 comes in. It provides that

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

I feel on shaky ground here, and would welcome correction, but I wonder if the consequence of this provision is not that unlike with normal legislation, where ― in theory, since in practice the executive is actually driving the legislative agenda ― Parliament is indeed free to resume control, when it comes to tax matters, delegation to the executive is a one way street. Once the executive gets its hands on a broad delegated authority to tax, it need not to “recommend” any legislation undercutting this authority by levying taxes not created by regulation to the House of Commons, and Parliament is then handcuffed for as long as the delegation runs. (This also makes delegation of taxing authority to the executive very different from delegation to, municipalities ― municipalities aren’t able to control the enactment of new tax laws by provincial legislatures.)

Let me finally address the other point Mark makes, about unwritten constitutional principles. As explained here not long ago, I am much less skeptical about the use of such principles in judicial decisions than many of my fellow scholars, including Mark. That said, I agree that the principle of democracy is vague ― democracy can take any number of different forms, and we must be careful to implement the specific form of democracy provided for by the Canadian constitution, and not some idealized version of what that principle might mean.

Yet here the relevant principle is not democracy generally, but the particular form of democracy that is at the heart of the Canadian constitutional order: responsible government. In turn, money votes, of which votes on tax bills are one (but not the only) sort are at the heart of responsible government. Winning such votes is how a ministry demonstrates the continued confidence of the House of Commons. Delegation of taxation powers to the executive allows it to avoid these votes, and so arguably undermines, although admittedly it does not completely subvert, this fundamental principle.

What, if anything, the courts might do about this is not an easy question. Courts are sometimes ― although not always, as I have argued in the post linked to above ― reluctant to enforce constitutional principles against legislation. But two precedents are worth thinking about. First, there is Justice Beetz’s warning, in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, that there may be limits to a provincial legislature’s ― or Parliament’s ― ability to “do anything it pleases with the principle of responsible government itself”. (46) Justice Beetz is evasive as to the extent and source of these limits, but he does suggest that the legislatures (and Parliament) may lack “power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”. (47) And second, there is the much more recent Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, where the Supreme Court found that an entrenched “constitutional architecture” limited the ability of Parliament to bring about constitutional change by ordinary legislation. If I am right that this architecture consists of constitutional conventions, it may well protect the principle of responsible government against fundamental interference, as Justice Beetz suggested.

In short, the delegation of plenary taxing authority to the executive is doubly unconstitutional. It is unconstitutional, first, in the British sense of the word ― as contrary to the constitution’s logic and fundamental commitments. It is unconstitutional, second, in the Canadian sense of the word, as contrary to an express provision of the constitution, and arguably also to its legal underlying principles.

It was not merely stupid, or a bad policy. It was an attempt at a serious breach of the basic rules of our political order. As Keith Whittington has recently written over at the Volokh conspiracy, “[t]he normal logic of political rent-seeking and incompetence does not magically disappear in a crisis, though we might have to be more tolerant of such political failings in order to deal with a fast-moving situation”. The now-defunct proposal was not merely rent-seeking, but a power-grab, perhaps an unprecedented one. The present moment may mean that punishment for it must be delayed, but it ought to count against its perpetrators.

Stupid. But Constitutional.

The Globe and Mail reports that the government is seeking to introduce wideranging methods to permit the Cabinet to raise revenue. However, this report has now evolved, and the proposed measures have been walked back. But the original Globe article said:

One section of the bill grants cabinet the power to change taxation levels through regulation, rather than through legislation approved by Parliament. It states that cabinet will have this power during the period “before 2022.”

“For greater certainty, a regulation made under this section may contain provisions that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax,” the bill would have stated.

Let’s assume that this reporting was accurate. Let’s also assume that there are more provisions in the bill that set out some more detail on the tax (based on the words “[f]or greater certainty”). In my view, and despite opposing arguments from unwritten principles, I think this Bill would have likely been constitutional. I first address my argument that s.53 of the Constitution Act, 1867 would likely not have been abridged; and second, that the presence of unwritten principles does not change this conclusion.


While this Bill has now been walked back (and probably for very good reason), the old proposal would have been constitutional, because (at least at face value) it clearly delegated taxing power.

Let’s start with the basic point. Section 53, as noted in the seminal Eurig Estate case, encodes the principle of “no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature” (Eurig, at para 30). The restriction here is simple: s.53 prohibits the executive from imposing new taxes ab initio “without the authorization of the legislature” (Eurig, at para 31).

Notably, however, this does not mean that the executive cannot raise taxes. Merely, the executive’s ability to do so is parasitic on clearly-delegated legislative authority. As John Mark Keyes notes in his work Executive Legislation, “[s]ection 53 does not set up an absolute bar to the delegation of taxation powers” (at 122). If it is clear that Parliament has delegated taxing authority to some executive actor, there is no reason to impugn the delegation, constitutionally. This means that executive legislation raising revenue will be constitutionally proper if it does two things: (1) the legislation is enacted pursuant to a delegated power; (2) it is clear that the delegation is a delegation of taxing authority.

Most of the conceptual work is done at the stage of determining whether the delegation is clear. And on that note, the Supreme Court has spoken: consider its opinion in the Ontario English Catholic Teachers Assn case, at para 74:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. The democratic principle is thereby preserved in two ways. First, the legislation expressly delegating the imposition of a tax must be approved by the legislature. Second, the government enacting the delegating legislation remains ultimately accountable to the electorate at the next general election.

The point of the clarity principle, then, is to ensure that the executive is actually acting pursuant to lawfully delegated authority. So long as the delegating provision is clear, there is no constitutional basis to assail it.

Additionally, and as noted above, I am making an assumption that this is not the only operative delegating provision. In other words, it may be a requirement that a bare delegation of taxing authority must be couched in language that sets out the tax’s “structure, base and principles of imposition” (see Keyes, at 124; see also Ontario English Teachers Association, at para 75). I am assuming that this is the case here. But if my assumption is wrong, this becomes a closer case. If the delegation says it is delegating a tax, is that enough on the Supreme Court’s terms? Or is a framework a requirement?

If only the word “tax” is required, or if the taxing power is cabined by other provisions (as it appears to be in this case), then the case for constitutionality is strong. As such, this statute seems to clearly delegate power to the executive to take any number of actions with respect to taxes. Since that authority is lawfully delegated, it likely cannot be impeached in a constitutional sense. And so long as the executive remains responsible for these powers, there is no sense in which it could be said that the executive is evading parliamentary scrutiny.


More broadly, the Supreme Court’s comments on delegation also support the constitutionality of this measure. Though these comments do not relate to taxation, they do underscore the broader context of how the Court has historically viewed delegated power. In short, the Court has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers. The same goes in this situation.

I highlight two cases to this end. In Re Gray, the context was WWI. Under the War Measures Act, Parliament granted power to the executive under a so-called Henry VIII clause; the power to amend or repeal laws, delegated to the executive. The Court upheld this delegation. It said, even though the delegation was extensive, Parliament has not abandoned control over the executive carrying out these powers, and the Ministry remained “responsible directly to Parliament and dependent upon the will of Parliament for the continuance of its official existence” (Gray, at 171). Therefore, so long as Parliament retains control over the delegated power—so long as it does not “abdicate” its power (Gray, at 157) there is no legal concern.

Similarly, in the Chemicals Reference, another broad delegation was at issue. The delegated power permitted the Ministry, in service of WWII efforts, to make rules allowing censorship, control of transportation, forfeiture and disposition of property, and arrest and detention. Again, the Court upheld the delegation :

Parliament retains its power intact and can, whenever it pleases, take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies and how long it shall continue them in existence, are matters for. Parliament and not for courts of law to decide. Parliament has not abdicated its general legislative powers. It has not effaced itself, as has been suggested. It has indicated no intention of abandoning control and has made no abandonment of control, in fact. The subordinate instrumentality, which it has created for exercising the powers, remains responsible directly to Parliament and depends upon the will of Parliament for the continuance of its official exist­ence (Chemicals Reference, at 18).

While these cases might not be directly applicable in the taxation context, they do shed light on the underlying theory that was also present in the Ontario English Catholic Assn case. That is, so long as Parliament controls the delegation and the executive is responsible for the exercise of delegated powers, there is no way to impeach the delegation of power.


I do want to address one potential argument, that is primarily made by Alyn (James) Johnson, in his delegation piece in the UBC L Rev. That argument is based on unwritten constitutional principles (and perhaps constitutional architecture) set out in cases like the Secession Reference and the Senate Reference. One might make the argument that constitutional architecture—the structure and separation of the legislature and the executive—should serve here to prohibit the legislature from delegating its power away in this fashion to the executive. Additionally, Johnson makes the argument primarily based on the principle of democracy: he contends that a “marginalized legislature delegating un-cabined power to willing executive instrumentalities is incoherent and unprincipled.” (Johnson, at 823). More specifically, legislatures are a place for discussion and deliberation; they are fora for democratic contention; but if delegation is widespread, the political/democratic process is lost, and people lose “authorship” over laws (Johnson, at 879-880). Moreover, one could make an argument from the separation of powers: it fundamentally transforms the functions of each of the branches for widespread delegation of this sort to be permitted.

My initial impetus is to be skeptical of unwritten principles and arguments from constitutional structure. For one, the role of unwritten principles is somewhat limited: they may have “normative force” (Quebec Secession Reference, at para 54) they also cannot be used to attack the content of legislation (or so the Court held with respect to the Rule of Law: see Imperial Tobacco, at para 59). In whole, while it could be true that unwritten principles could strike the content of statutes, their role appears to be limited; they cannot, for example, “dispense with the written text of the Constitution” (see Quebec Secesstion Reference at para 53; see also literature questioning the extent of use of unwritten principles: Jean Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” 2002 27 Queen’s LJ 389 at 400).

Moreover, unwritten principles arguments lack the coherence and structure of traditional doctrinal arguments, and in my view, can be used to support whatever outcome a person wishes. For example, in my view, the principle of “democracy” for example, endorsed by the Supreme Court, might just as well support a Parliament taking an expansive view of its ability to delegate, and delegating widespread authority to the executive. After all, the Court has said that “regulations are the lifeblood of the administrative state” (see Hutterian Brethren, at para 40), and if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body: “each successive delegation of legislative power has been a fresh recognition of that sovereignty” each delegation “a victory at the expense of the Crown” in which the Crown gives up pretensions to legislate by itself (see C.T. Carr, “Delegated Legislation: Three Lectures” at 48-52; see also A.V. Dicey, at Introduction to the Study of the Law of the Constitution, at 6 ). What we are talking about is a sovereign Parliament, and as the Supreme Court has recognized, “parliamentary sovereignty remains foundational to the structure of the Canadian state: aside from constitutional limits, the legislative branch of government remains supreme over the judiciary and the executive” (Pan-Canadian Securities Reference, at para 49). If that is the case, Parliament can just as well delegate its power away if it is sovereign.


In conclusion, I am not trying to say that this law is a good idea. Indeed, there are abstract worries we might think about: what about the separation of powers? What about the institutional functions of each of the branches of government? There are also significant policy reasons to dislike the old proposal. Are these powers proportionate and strictly tailored to their purpose, for example?

Nonetheless, I believe the legal case for a statute of this sort was at least facially strong.

All or Nothing At All?: Restricting the Growth of the Administrative State

Non-delegation limits do not spell the end of administrative government.

The Supreme Court of United States (SCOTUS), in the recent Gundy decision, once again rejected a challenge to a delegation of legislative power based on the so-called non-delegation doctrine. The non-delegation doctrine, in theory, holds that all legislative power rests in Congress, and so by necessary implication, Congress cannot delegate that power away to agencies without an “intelligible principle” to guide the delegation. In practice, the SCOTUS has only ever sustained a non-delegation challenge in a handful of cases in the New Deal era, instead endorsing wide delegations of authority to any number of administrative bodies for over 70 years. One might say that the Court’s reluctance to invoke the non-delegation doctrine is due to the important fuel that delegation provides to the administrative state. Indeed, one might argue that such widespread delegation is necessary for the project of “modern governance.”

But this is not necessarily true. Much of the discussion of limitations on the administrative state speaks in large generalities, and Gundy is no exception. The spectre of the destruction of the modern government that Americans (and Canadians) have come to know is always invoked by those who seek to preserve its power. But, if the non-delegation doctrine is constitutionally justifiable, its invocation in any of its instantiations will not end up destroying modern government. This is because non-delegation limits do not speak in absolute prohibitions, but rather limits in degree and emphasis; shifting the onus back to Congress to legislate within the confines of the Constitution. Canadians should take note and remain wary of arguments advanced by those who reject constitutional limits on administrative power based on functional scares.


Gundy involved a delegation of power from Congress to the Attorney General, under the Sex Offender Registration and Notification Act (SORNA). Under SORNA, it is up to the Attorney General to decide whether the statute’s requirements for registration of sex offenders convicted before the enactment of the statute apply.

Nonetheless, based on existing doctrine, Kagan J for the plurality said that the delegation in SORNA “easily passed constitutional muster.” This is because, to Kagan J, the SCOTUS in a previous case had already cabined the Attorney General’s discretion in this regard by requiring that SORNA apply to all pre-Act offenders “as soon as feasible.” Taken in light of the context, text, and purpose of the statute, the Court found that the delegating language was sufficiently cabined in order to provide an intelligible principle, because the Attorney General’s discretion is limited to deciding when it is feasible to apply the statute. The Court, then, interpreted the statute to avoid the non-delegation problem, as it had done years previously in the Benzene Case.

This conclusion appeared driven not only by the law, but by the consequences of permitting a non-delegation challenge to succeed. Kagan J frighteningly noted that “…if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Alito J concurred in the result, but noted that should a majority of the Court wish to revisit the non-delegation doctrine, he would.

Justice Gorsuch penned an important dissent. In it, he criticized the plurality’s apparent waving-away of the delegation problem. In the litigation, the Department of Justice did not concede that the Attorney General was required to apply the statute to pre-Act offenders “as soon as feasible.” More to the point, the Attorney General has wide discretion to select the offenders, if any, that should be subject to the statute. For Gorsuch J, “[t]hese unbounded policy choices have profound consequences for the people they affect,” including criminal defendants. In light of Gorsuch J’s problem with the SORNA delegation, he proposed a new test. That test would permit Congress to delegate the power to “fill up the details” of a statute—so delegation would not be prohibited outright. And, the delegation of power may make the “application of that rule depend on executive fact-finding.” But for Gorsuch J, the intelligible principle doctrine “has no basis in the original meaning of the Constitution, [or] in history” and should be replaced by a basic requirement that Congress make the necessary policy judgments.

In response to the problem that some have raised that Gorsuch J’s test would spell doom for the administrative state, he responded as such:

The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions….Congress is hardly bereft of options to accomplish all it might wish to achieve.


I think Gundy contains within it a number of important implications for the delegation of legislative power that apply in both Canada and the United States. The first question is whether it is really true, as Kagan J notes, that non-delegation would render most of government unconstitutional; the second is the sort of limits that one could envision applying to delegations of power.

The Kagan J criticism is a classic functionalist proposition. So the argument goes, if the Court enforces a non-delegation norm of any sort, it would interfere with the practical ability of agencies to implement their enabling statutes, hobbling modern government. And to some observers, it wouldn’t take a full-fledged non-delegation doctrine: even some limitations on administrative government could have “pernicious consequences.” But this strikes me as a vast overstatement, and a self-defeating one at that. First, if Kagan J is right that most of government constitutes a delegation problem as the Constitution is interpreted, what does that say about modern government? It says that government as constituted is a sprawling beast that has far outpaced the Constitution. Some might respond: who cares? But for anyone who cares about the Rule of Law, and government by law, the Constitution reigns supreme over the fiat of administrators. And if one is a legal formalist—as I am—then the arrangement of an extra- constitutional government is itself a problem for both intrinsic and instrumental reasons.

But I do not think what Kagan J says is true, on the facts of Gundy or generally. First, Gundy involved a very particular type of delegation: the power to essentially decide how a statute applies, if at all. Some might say that these sorts of delegations exist all over the map, and they may be right. But one can draw a meaningful distinction between delegations that are meant to “fill in the details” of a statute, even in a legislative sense, and delegations designed to give power to an administrator to decide how, when, and to whom a statute applies, as in SORNA. Gymnastics around “feasibility” aside, SORNA delegates wide power for the Attorney General to decide the scope of application of a statute. This allows him to make law outside of the requirements of bicameralism and presentment. And for instrumentalist reasons, this is a problem: the Rule of Law requires predictability, and why should those deserving the presumption of innocence be subject to the whims of a chief prosecutor as to whether their conduct violates the law?

Now consider the consequences if a non-delegation limit is imposed on Congress. This would not render most of government unconstitutional, nor would it have “pernicious consequences.” Such arguments mistake the mere existence of a limitation for its extent. No one—not even Gorsuch J—is suggesting that delegation itself is unconstitutional. Such a finding would, indeed, render unconstitutional administrative government. But limiting delegation to simply require Congress to speak in more detail would only minimally increase the transaction costs of legislating while paying much more ex post in terms of predictability and consistency with the Constitution. It is unclear to me why the proponents of the administrative state fight even this requirement.

And this flows into the second question. Assuming the non-delegation doctrine is constitutionally justifiable, there are any number of limits that could be imposed on delegations, each of which would not hobble the ability of government to delegate. Courts could require Congress to speak using a clear-statement rule when it chooses to delegate legislative power. This would be on the theory that the delegation of power has the risk to be extra-constitutional, and should be treated with caution from a Rule of Law perspective. The SCOTUS already accepted this sort of requirement in the Benzene Case, when it interpreted the statute at issue to avoid the delegation problem in absence of any clear statement in the legislation. While clear statement rules of this sort could be attacked from the perspective that they allow courts to put their fingers on the scale in favour of certain interpretive outcomes, one might respond that the preferred outcome in this case is one protected by the Constitution in the form of a limit or restriction on delegation. It is apparent that requiring Congress to use a clear statement would likely do nothing to stop modern government.

Courts could also simply enforce the intelligible principle doctrine on its own terms. That is, courts should simply ask whether there is a “principle” that is “intelligible.” Intelligibility would impose some requirement on courts to actually interrogate the policy aims of a delegation to determine its internal consistency, and perhaps question whether it actually provides guidance to executive officials. A principle that is unintelligible will not provide guidance. One could meaningfully question whether courts have actually applied the existing doctrinal instantiation of the non-delegation doctrine on its own terms.

Finally, non-delegation limits might be imposed by the elected branches: this was the approach that was seemingly advocated by then Professor Antonin Scalia in a paper he wrote after the Benzene Case: (the questions raised by delegation “…are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers”). Congress could simply start to speak clearly. The incentive for Congress to do this might be political. As I have noted elsewhere, the delegation of power can be wielded in either direction. Gundy provides a great example. The delegation of power to the Attorney General to decide when, how, and to whom a law applies is a great deal of power. Right-wing legislators might predict that, when they are not in power, such a power might be used against political causes they support. In the US, Democrats are already seeing how powers can be abused by the Attorney General. Of course, the power of the executive can filter through executive agencies, as well. If Congress itself recognizes the ability for delegated power to be used for ends with which it may not be sympathetic, it may have an incentive to limit and control delegation within constitutional limits.

None of these limitations spell the end of administrative governance. Far from it. I fear that the death knell of administrative government is a rhetorical tool used by administrative law functionalists who wish to preserve the power of the administrative state. But as Gundy shows, the powers conferred on executives by Congress can be vast—and the delegation of vast power can be abused, contrary to constitutional limits. All actors in the system have the ability and the responsibility to prevent that abuse, as a corollary to the Rule of Law.

The upshot of all of this is that the administrative state is likely here to stay, but it does not have to remain in its current form to be successful or useful. It can move towards consistency with the Constitution at a small marginal cost to its supposed efficiency and effectiveness.

Our Government

Some implications from Jody Wilson-Raybould’s testimony


I hesitated to write a post on the bombshell testimony of former Attorney General Jody Wilson-Raybould. The facts are constantly evolving, much of it involves politics rather than law, and though we have benefitted from cogent legal commentary on the relevant legal principles, I should let that commentary stand rather than contribute my (underdeveloped) two cents on it. That said, I want to highlight an obvious but important institutional fact that arises out of this imbroglio, but that is somewhat orthogonal to the context of the Attorney General’s control over prosecutions. Madison might have been right to say that if men were angels, no government would be necessary; but it appears that governments can’t save us from the devil, either.

Much of the story of the 20th century was a victory of progressivism—by which I mean the school of thought that emphasizes “civil service” values, and technocratic government—over legalism. Roughly speaking, it was this underlying philosophy that occasioned a mass transfer of power from legislatures to the executive in Canada and the United States. Then, a further subdelegation occurred from the executive to experts, policy-makers, and tribunals within the executive branch. In theory, the incentive structure this set up was a trade-off of control for lower-cost, expert decision-making. Legislatures could not attend to the small, minute details of “post-roads,” for example, so they delegated that power to the executive and its agents to solve. The legislature lost control over the issue, but in return received better public policy decision-making, with a dash of independence to boot. The whole idea was to enable non-partisan decision-making at a lower cost that permitted better public policy.

While some still champion this rather mythical description of how politics and government work, a more hard-nosed reality emerges from the Jody Wilson-Raybould affair, putting aside the important principle of prosecutorial independence. We see a cabal of people in Ottawa—unelected, unaccountable—carrying the balance of power. These people, ostensibly surrogates of the Prime Minister, say that they do not want to talk about legalities. They want to line up op-eds in newspapers to provide cover fire for their humdrum attitude toward law. They don’t like certain laws if they were not adopted by a Parliament in which their party controlled the majority of the seats.  They do all of this, apparently, to save their electoral prospects. In other words, it appears that some of the most powerful people in the country, in the Prime Minister’s office, are driven by the incentive of electioneering rather than the law.

This might be like calling the sky blue. Obviously politicians want to be elected. But so much of our system—and the philosophy of progressivism that informs attitudes of deference towards legislatures and administrative actors—runs on the idea that there are these islands of expertise and independence in a system otherwise tainted by politics. But with the rise of the PMO, the mass delegation of legislative power to Ministers, and the concomitant rise of influence of those like Michael Wernick in the Privy Council Office, experts are always subordinate to politics.

What’s more we have to be realistic about who we empower when we delegate power. Formally, of course, it’s the executive: but underneath the veil, it’s Gerry Butts, or whoever is next in line. The whole project of independent decision-making, even parts of the project that are protected by constitutional principles, is always up for grabs in a system in which the primary incentive is electoral success driven by apparatchiks.

Some might draw the opposite inference from the whole affair. After all, Jody Wilson-Raybould emerges as a champion of the Rule of Law. She successfully stood up to pressure from the Prime Minister and his subordinates. But one person is a thin reed on which to rest our hopes for good institutions. The regularity of scandals in Canadian politics is just a symptom of the broader reality that the incentives structure of the system—perhaps of every political system—is towards a greater concentration of power at the expense of other ideas: independent decision-making, expert decision-making, even the Constitution or the laws. If Jody Wilson-Raybould was a victim of those incentives here, perhaps we should rethink the mass delegation of powers to those—like members of the Ontario Human Rights Tribunal—who have no constitutional principles to protect them.

There is a lot of nuance to the entire affair because of the role of the Attorney General in the Westminster parliamentary system. I cannot speak to the doctrine governing that issue. But it is enough for me to say that there are no angels, not even in government. The SNC-Lavalin affair might make us rethink the extent to which we entrust governmental actors with power, even with the best intentions.

Dealing with Delegation

Thoughts on a proposal for a judicial crackdown on the delegation of law-making powers to the executive

The explosive growth of legislation made by various government departments, boards, and other entities ― rather than enacted by Parliament, as legislation ought to be on the orthodox understanding of separation of powers ― is quite likely the most understudied aspect of contemporary constitutions, in Canada and elsewhere. In “Reassessing the Constitutional Foundation of Delegated Legislation in Canada“, an article that will be published in the Dalhousie Law Journal and is now available on SSRN, Lorne Neudorf sets out to shed light on and proposes means of reining in delegated legislation ― that is, rules made by the executive branch of government pursuant to a legislative authorization, often a very vague one. It is a worthwhile endeavour from which we have much to learn, even though Professor Neudorf’s arguments, and some of his recommendations, strike me as just as problematic, in their own way, as the phenomenon he criticizes.

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This phenomenon’s importance is out of all proportion to the attention it receives. Professor Neudorf notes that “[b]y volume, delegated legislation is made at a rate of nearly 5-to-1 as compared to primary legislation”. (3) Yet the text of the constitution seems to say nothing at all about the executive being able to make law. On the contrary, the Constitution Act, 1867, endows Parliament and provincial legislatures with “exclusive” law-making powers. Still, the courts have recognized that the legislative bodies are able to mandate the executive to make rules having the force of law, and indeed even rules that override the provisions of laws enacted by legislatures. This, Professor Neudorf argues, is a mistake that needs to be reversed.

Professor Neudorf traces the mistake to a misguided introduction into Canadian constitutional law of orthodox, Diceyan, notions of Parliamentary sovereignty. The notion that “Parliament can make or unmake any law whatever” has always been out of place in a federation, where the Dominion Parliament and provincial legislatures were always subject to limits on their powers. In any event, the enactment of “[t]he Charter” in 1982 “cemented the location of Canadian sovereignty in the Constitution as opposed to a single lawmaking institution”. (9) Judicial decisions emphasizing the plenitude of legislative powers (subject to the constraints imposed by the Constitution Act, 1867)

should be understood as less about transplanting a robust vision of parliamentary sovereignty into Canada and more about the courts prodding along and encouraging the development of new country with a distinct identity. (9)

Yet the leading precedents on the scope of Canadian legislatures’ ability to delegate its legislative powers to the executive, notably In Re Gray, (1918) 57 SCR 150, recognize no obvious limits on delegation. In Gray, Chief Justice Fitzpatrick held that, since no limitation on delegation was expressed in the Constitution Act, 1867, “within reasonable limits at any rate [Parliament] can delegate its powers to the executive government” (157) ― provided that it be able to terminate and resume the powers it temporarily cedes. Professor Neudorf argues that sweeping delegation of the kind at issue in Gray “might not be viewed as reasonable outside the context of an exceptional national security threat”, (16) but the subsequent cases did not elaborate on the constraints that this reasonableness requirement might impose.

Professor Neudorf insists that Gray rests on a “narrow and technical interpretation of the Constitution”, an “outmoded interpretive approach”, (18) long superseded by “living tree” constitutional interpretation. Applying this approach, the courts ought to

engage with how the Constitution sees Parliament: as a key part of the basic constitutional architecture: possessing democratic, representative and accountable qualities, and the key player in bringing together different constituencies to formulate national policy and resolve pressing questions facing the country as a whole. (23)

Delegation imperils Parliament’s position, envisioned by John A. Macdonald, as the constitutional cornerstone. It hands law-making over to persons and bodies that are not representative and often operate behind the thick veil of cabinet secrecy. Delegation also undermines the Rule of Law (which provides additional reasons to favour transparent lawmaking) and the separation of powers.

Therefore, Professor Neudorf proposes a number of ways of curtailing the use of delegation. To begin with,

courts should adopt a stricter interpretation of statutory provisions that delegate lawmaking power and strengthen the rigour of the vires review of regulations to overcome the current weaknesses that allow for the delegation of broad powers through generic words and exceptionally wide latitude for the exercise of delegated power. (30)

If Parliament wants to delegate broad legislative powers, courts ought to make it say so very clearly ― especially if these powers are meant to be exercised retroactively, punitively, or in a manner that is at odds with the Charter. Courts should also drop their deference to the executive’s interpretation of its authority to enact delegated legislation. Nothing less than constitutional principle compels this change of approach, which “will better safeguard Parliament’s constitutional role and give effect to the principle of legality and the rule of law”. (32) But sometimes, the courts should go further still:

when generic words are used in enabling legislation, which are incapable of intelligent qualification by the text, context or purpose of the statute, the court should hold the grant of authority invalid on the basis that it is impermissibly vague. (33)

Indeed, the grant of authority ought to be “narrower than the general purposes of the legislation, with some specificity for the kinds of regulations contemplated”. (33)

Professor Neudorf’s other set of proposals concerns the process by which regulations are reviewed in Parliament. He calls on Parliament to take its inspiration from the review systems that exist in the United Kingdom (which Professor Neudorf describes in some detail), and look into both the delegation provisions of bills as they are enacted, and the already existing regulations that may be flawed or ineffective. But here too, Professor Neudorf envisions a role for the judiciary:

If needed, a court may issue a declaration of the constitutional obligation as the impetus for Parliament to take the necessary action. In an extreme case where the scrutiny system is totally ineffective, the court may seek to enforce this constitutional obligation by holding inadequately scrutinized regulations as legally ineffective. (40)

Professor Neudorf concludes that, while the delegation of some legislative powers is desirable and necessary, and particular bodies (such as the legislatures of territories) can be quite different from the ordinary executive delegates, reform ― and judicial intervention to implement it ― is constitutionally justified and necessary.

* * *

I have mixed feelings about Professor Neudorf’s article. It addresses a real problem that deserves much more attention than it usually receives. I agree to a large extent both with the values underlying Professor Neudorf argument (notably, the empowerment of legislative institutions and the limitation of the power of the unaccountable executive) and with his specific proposals, as I shall explain. But, as noted at the outset, I think that the way in which Professor Neudorf makes his case, and indeed some aspects of his proposals, which follow from his approach to constitutional law, are deeply problematic.

Let me begin with the bad, to finish on a more positive note. Professor Neudorf’s general approach is an excellent illustration of what I recently described as “constitutionalism from the cave“:

On this view, the Canadian constitution … is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts; it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution.

Professor Neudorf refuses to attach any real consequence to the constitutional text’s apparent silence on the question of delegation; on the contrary, he chides the Gray court for having done so, declaring this an “outmoded” way of doing constitutional law. Professor Neudorf argues that, regardless of what the text says or doesn’t say, the courts should implement the ideal conception of Parliament and of its place in a democratically accountable system of government. As I explained, this amounts to a license for the courts to re-write the constitution, in defiance of its own provisions, which quite clearly do not contemplate its amendment by the judiciary.

The fact that I am sympathetic to the policy objectives that this re-writing would be designed to achieve is irrelevant; it’s illegitimate all the same. Professor Neudorf’s appeal to the so-called “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), to prove otherwise ― to show that good courts re-write constitutions to suit their policy preferences ― fails resoundingly. He faults the Supreme Court in that case for having been uninterested “in the question of the desirability of women Senators” (18) and believing that “giving meaning to the Constitution was a simple and neutral exercise in statutory interpretation”. (19) Yet Lord Sankey, whose opinion for the Judicial Committee of the Privy Council Professor Neudorf extols, similarly insisted the case did not involve “any question as to the rights of women”. (DLR 107) Lord Sankey’s opinion, as, for example, I have argued here, is a master class in statutory interpretation techniques ― not a policy judgment about the desirability of women Senators. And Professor Neudorf’s invocation of the wishes of John A. Macdonald ― odd in an article otherwise extolling living constitutionalism, but of a piece with the strategic (mis)use of original intent originalism by Canadian legal academics that co-blogger Mark Mancini described here ― is no more convincing. Macdonald was interested in the federal division of powers, not the question of delegation.

In short, I don’t think that Professor Neudorf succeeds in justifying the role he sees for the judiciary in implementing his more far-reaching proposals. A more robust judicial review of the vires of delegated legislation, including by the application of the principle of legality (which prevents the executive from trespassing on constitutional and common law rights without clear authorization by the legislature) only requires the courts to abandon their absurdly deferential, pro-regulatory posture. But it is much more difficult to make the case for the courts’ power to nullify vague delegations. (I don’t know whether this is impossible, but that’s a discussion for another time.) Professor Neudorf appeals to the doctrine developed under the Charter for determining whether a limitation of a constitutional right is “prescribed by law”. This is not satisfactory, because the courts have tended to treat even vague laws as sufficiently clear, and even more so because the Charter‘s requirements simply do not apply unless one of the rights it protects is at stake. And as for the idea that courts can order Parliament how to structure its review of regulations ― suffice it to say that it creates much greater separation of powers problems than it is likely to solve, and undermines the very autonomy and authority of Parliament as a democratic decision-making body that Professor Neudorf seeks to restore.

Behind the embrace of constitutionalism from the cave is a belief, which I think is not only misguided but also counterproductive, that supreme constitutional law must have an answer to any and all constitutional concerns. Professor Neudorf is quite right to characterize the rise of delegated legislation as a constitutional issue. But it simply does not follow that it is an issue that the courts must be able to fully address. As the experience of polities such as the United Kingdom (which Professor Neudorf cites as a model!) and New Zealand reminds us, it is possible to think intelligently about the constitution that is not supreme law at all. Indeed, these polities often pay much closer attention to the governance aspects of their constitutions than does Canada. Instead of calling on the courts to twist and stretch our supreme constitutional law, undermining their own commitment to the Rule of Law and indeed their credibility as impartial constitutional arbiters in the process, we should emulate these polities’ commitment to getting the constitution right as a matter of ordinary law and political process.

Professor Neudorf’s recommendations will, mostly, be very helpful in this regard. Greater judicial vigilance in reviewing the legality of the executive’s exercise of its delegated legislative powers is essential ― and it need not rest on dubious appeals to living tree interpretation. The principle of the Rule of Law, as developed by Canadian courts at least as far back as in Roncarelli v Duplessis, [1959] SCR 121, means that the executive’s authority, even if delegated by the legislature in ostensibly, indeed ostentatiously, broad terms, cannot be unlimited, and that the courts are not only authorized, but required to ensure that the executive doesn’t overstep the bounds of this delegation. Professor Neudorf is right to be concerned that Canadian courts are in serious danger of abdicating this responsibility. Recent decisions which he does not mention, notably West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, provide further demonstration of this point, as I argued here and here. The Supreme Court appears to see no issue what it described in West Fraser as “broad and unrestricted delegation of power”. This needs to change.

Professor Neudorf is also right to call for the development of Parliamentary procedures for the review of regulations. I wonder if the smaller number of parliamentarians in Canada in comparison with the UK might be an obstacle to copying the British system of three Select Committees devoted to the study of subordinate legislation (and the problem would, of course, be even more pressing in much smaller and unicameral provincial legislatures), but even if the UK system cannot be perfectly emulated in Canada, it seems to offer a source of inspiration if not a model for imitation.

* * *

To repeat, it is a mistake to think that judicially enforceable supreme  law must have a solution to every constitutional problem. Yet the problem Professor Neudorf identifies is real. Precisely because supreme law may be unable to help us, it is important to get ordinary law and legislative process right. Judicial review and parliamentary procedure might be less glamorous than what Canadians usually think of as constitutional law. Yet Professor Neudorf’s article should be taken as a reminder that these are properly constitutional preoccupations, and that Canadian constitutional lawyers ought to devote more of their energies to them than to the development of exotic theories about what the ideal Canadian constitution would look like.

It’s a Dog!

The majority’s pro-regulatory beliefs help make West Fraser a dog of a decision

In previous posts, I have summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, upholding the validity of a regulation of the British Columbia Workers’ Compensation Board imposing safety-related obligations on owners of forestry workplaces, and the legality of a penalty imposed on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations, and discussed some of the administrative law issues to which this decision gives rise. As previously noted, however, West Fraser is interesting not just for what it can tell us about the finer points of judicial review, but also for what it implicitly says about the Supreme Court’s relationship to the administrative state.

In its overall orientation as well as in some details, the majority opinion, written by Chief Justice McLachlin with the agreement of five colleagues, is reminiscent of R v Comeau, 2018 SCC 15 (further confirmation, perhaps, of the Chief Justice’s likely authorship of that ostensibly per curiam decision). It’s not just that the deferential approach to judicial review is, in practice, in Canada, almost necessarily a pro-regulatory position, though that’s part of the story. It’s also that, on the Chief Justice’s view of statutory interpretation, a statute’s pro-regulatory purpose is to be amplified, while whatever constraints on its pro-regulatory orientation the statute might contain are to be played down. And, most fundamentally, the Chief Justice tells us that regulation is good, and the more of it there is, the better.

As discussed in more detail in my previous posts, the Chief Justice’s approach to both issues in West Fraser is deferential ― or so the Chief Justice says. In reality, I have argued, she engages in disguised correctness review and agrees with the administrative decision-maker. But, in principle at least, it’s the deferential approach that’s binding on future courts. Conceptually, deference might be neutral as between pro- and anti-regulatory outlooks. In the United States, famously, Chevron USA v Natural Resources Defense Council, 467 US 837 (1984), which required a deferential approach to administrative interpretations of legislation, arose out of efforts at deregulation by the Reagan administration. Even so, it seems likely that administrative decisions that reduce the scope or onerousness of regulation are less likely to be challenged, so that in practice a deferential court will be a pro-regulatory court even if it has no particular desire to be one. And, of course, the prospects of serious regulatory roll-back in Canada seem rather remote.

But there is more. Whatever abstract theory might suggest, Canadian deference theorists are unabashedly in the pro-regulatory camp. David Dyzenhaus’s famous chapter on “The Politics of Deference: Judicial Review and Democracy”, from which the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, plucked the phrase “deference as respect”, [48] urged the courts to defer to administrative decision ― because its author thought that administrative regulation was normatively desirable, notably in that it advances the cause of equality. (Professor Dyzenhaus went so far as to argue that non-deferential review of the decisions of human rights tribunals by independent courts was a “setback[] to the constitutional commitment to equality between Canadians”, (297) as if the courts were not ultimately responsible for upholding this constitutional commitment.) But for Professor Dyzenhaus, deference was a one-way ratchet: if, peradventure, “judges find themselves confronted with administrative determinations of law that flow from” deregulatory impulses, “they should not be embarrassed to ask how those determinations advance the cause of equality” (306) ― and  so to intervene if they do not. Much more recently, in her contribution to the “Dunsmuir Decade” symposium, Kate Glover proposed a novel theory according to which judicial deference to administrative decision-makers is now a constitutional requirement. Professor Glover did so in an attempt to prepare the administrative state’s defences against a (purely hypothetical, as she rightly notes) siege by deregulating anti-administrativists. This should, I think, be a warning to anyone who hopes that deferential courts would in fact be neutral as between more regulation or less.

Statutory interpretation, no less than (rhetorical) deference, is marshalled in support of regulatory expansion by the Chief Justice. She stresses that the Workers Compensation Act, the statute at issue, “is meant to promote workplace safety in the broadest sense”, [18] and discounts the more specific purpose statements that seem to suggest that this purpose is not to be pursued by whatever means necessary. Focusing on them is “formalistic” and “inconsistent with a purposive interpretation of the scheme”. [18] (To be honest, I don’t know what “formalistic” is supposed to mean here. But it’s bad, bad, bad.) When it comes to the issue of whether the statute authorized the imposition of penalties seemingly reserved for “employers” on firms that were, in the context of the events in relation to which the penalty was being imposed, “owners” but not “employers”, the Chief Justice once again favours an interpretation “more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] This interpretation, as I argued in my last post, is strained to the point of rendering the statutory language meaningless. However, what mattered to the Chief Justice is that reading the statute to mean what it said “would undermine [its] goals”, while the strained interpretation “would further the goals of the statute and the scheme built upon it”. [40] In short the statutory purpose, understood in the most pro-regulatory way possible, must be given effect ― other purposes and text itself be damned.

Now, in fairness, to the Chief Justice, she arguably is dealing with a real interpretive difficulty. Probably all, certainly most statutes involve compromises between a number of values or purposes. The Workers Compensation Act promotes workplace safety, of course, but it also accommodates a measure of free enterprise. It could, after all, have imposed  even more invasive regulation that might have done even more for workplace safety ― but the legislature chose to only go so far towards that purpose, because going further might have undermined other purposes that it also valued. Or, to take another example, human rights legislation doubtless aims at achieving equality in society ― but the limits on its scope, for example the fact that it is typically not applicable to personal, non-economic relationships, suggests that it respects a measure of personal liberty ― implicitly anyway. The problem, though, is that if the legislature enacts a provision that specifies the purpose of a statute, it is likely to present  some, perhaps just one, of the values that the statute actually accommodates, as the purpose it seeks to realize, and omit the others. This might be done for political reasons ― it might not look good to tell workers, or voters, “we’re protecting you, but only some, since protecting you more would actually put a bunch of you out of work”. Perhaps more forgivably, this might also be because, relatively to the previous state of the law, the statute does move things in the direction of more protection, so characterizing that as its main purpose is not unfair. But, either way, the legislature is misleading those who read and try to understand the statute ― above all the courts ― by giving them a distorted view of its objectives.

What are the courts to do when the legislature does this? I think they should do what Justice Côté did in West Fraser ― read the whole statute and give effect to its terms, not letting the (one-sided) purpose section override the substantive provisions. By choosing to focus on the purpose indication (and to read it selectively to emphasize its pro-regulatory aspects), the Chief Justice once again implicitly privileges regulation. For the same political reasons I refer to above, it seems likely that the legislatures will systematically overstate the significance of their regulatory purposes, and understate whatever countervailing values might also be animating them. So, a judge who overvalues statutory statements of purpose at the expense  of the text will tend to produce pro-regulatory outcomes even  without setting out to do so. But I doubt that the Chief Justice is such a judge.

In fact, her reasons in West Fraser suggest that the Chief Justice’s basic disposition is in favour of regulation ― the more of it the better. She is comfortable with a legislative mandate to an administrative agency “to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”, [10] going so far as to characterize this as an “unrestricted delegation of power”. [11] Though admittedly it is unlikely that the Chief Justice means this adjective literally, it is remarkable that she appears untroubled by the idea of an unrestricted regulatory mission. Later, when discussing the issue of the penalty, the Chief Justice writes that “[t]he general scheme of the [Workers Compensation Act] is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety” [43] by way of justifying holding the ones responsible for violations of obligations the statute only seems to impose on the others. As in the area of what used to be known as division of powers, “cooperation” comes to mean the accumulation of regulatory mandates ― and is seen as a good thing. The Chief Justice’s shows her attitude towards such mandates most clearly when she makes a point of observing that the regulation challenged in West Fraser was adopted

in response to a concern in the province about the growing rate of workplace fatalities in the forestry sector … provid[ing] a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently. [20]

It is important that something be done about social problems, and whatever is done about them by regulators ― presumed,  conclusively, to be experts ― must therefore be good. There is only a step, if that, from here to what Sir Humphrey Appleby described as “the politician’s logic”, and what later became known as “the politician’s syllogism“. Something must be done; this is something; therefore this must be done. The Chief Justice has, on the occasion of her already-happened-but-still-impending retirement, and indeed before, been much praised for her statecraft. In West Fraser, she reminds one of The Right Honourable Jim Hacker, MP.

Of course, by criticizing the Chief Justice’s pro-regulatory views ― and those of the other judges in the West Fraser majority ― I do not mean that judges ought to become the flag-carriers of deregulation. They should be neutral and, within constitutional bounds, give effect to the legislation that Mr. Hacker’s colleagues, in their wisdom, enact. Much of this legislation will delegate considerable regulatory powers to administrative agencies. That’s too bad, so far as I am concerned, but this a policy view, not a constitutional argument. However, judges should not, in the name of doing something, be trying to give the regulators freer rein than legislators intended. In Yes, Prime Minister, just before Sir Humphrey formulates the politician’s syllogism, his mentor, the wily Sir Arnold Robinson, exposes its logic by proposing a different one with the same logical structure: “all cats have four legs; my dog has four legs…” “Therefore,” concludes Sir Humphrey, “my dog is a cat.” Well no. And so West Fraser is a dog of a decision.


Jousting over Jurisdiction

A summary of the Supreme Court judges’ competing views on how to assess the validity of delegated legisation

The Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, is, as Robert Leckey observed on Twitter, “[o]ne for the judicial-review nerds or junkies”. But it is also much more than that, because it a chilling reminder of what I recently called the Supreme Court’s “pro-regulatory bias“, and its resulting complacency in the face of administrative lawlessness. As I will explain shortly, there are four different opinions in the case, dealing with two different issues. In this post, I mostly review these opinions, quoting from them at some length. This will be quite long, I am afraid, due to the amount of ground to cover and to the importance of getting a sense of the judges’ thinking. I will offer my own comments separately.

The case arose out of a tragic accident. On land owned by West Fraser, a worker employed by an independent contractor “was fatally struck by a rotting tree”. [1] The provincial Workers’ Compensation Board fined West Fraser, for failing to comply with a regulation (that it had itself made in purported exercise of its authority under s 225(1) of the British Columbia Workers Compensation Act to “make regulations [it] considers necessary or advisable in relation to occupational health and safety and occupational environment”) requiring “[t]he owner of a forestry operation” to “ensure that all activities of the forestry operation are both planned and conducted in a manner consistent with this Regulation and with safe work practices acceptable to the Board.” As basis for its power to impose the fine, the Board relied on s 196(1) of the Workers Compensation Act, which authorized it to “impose on an employer an administrative penalty” for, among other things, failure to comply with the relevant regulations.

West Fraser challenged the legality of this fine on two grounds. First, it argued that the regulation with which it was said not to have complied was ultra vires the Board ― that was not authorized by the Workers Compensation Act. On this issue, the Supreme Court split 8-1: the majority upholds the regulation, though Justice Brown takes a very different approach from the majority judgment authored by Chief Justice McLachlin, and Justice Rowe is at best ambivalent; Justice Côté dissents. Second, West Fraser argued that, even if the regulation was valid, it could not be fined for breaching it, since within the meaning of the Workers Compensation Act it was, in relation to the victim, an “owner” (of the workplace), and not an “employer”. On this point (and, therefore, in the result), Justices Brown and Rowe agree with Justice Côté’s dissent.

* * *

For the Chief Justice, the approach to the question whether a regulation was authorized by the statute pursuant to which it was purportedly made is identical to that followed on any other “judicial review of the exercise of delegated administrative powers”, [8] and set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Given the Board’s regulatory expertise, the issue is whether the impugned regulation “represents a reasonable exercise of the Board’s delegated regulatory authority”. [10] While “some” ― that would be the Chief Justice’s colleagues who disagree with this approach ― argue that the issue if one of jurisdiction, and thus under Dunsmuir the correctness standard applies, the Chief Justice takes the position that

Where the statute confers a broad power on a board to determine what regulations are necessary or advisable to accomplish the statute’s goals, the question the court must answer is not one of vires in the traditional sense, but whether the regulation at issue represents a reasonable exercise of the delegated power, having regard to those goals. [23]

In this case, the “delegated regulatory authority” is vast: “the Legislature indicated it wanted the Board to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”. [10] This “delegation of power to the Board could not be broader” [10] ― indeed, it is “unrestricted” [11] or, at least, it authorizes “any regulation that may reasonably be construed to be related to workplace health and safety”. [11]

This might be enough to uphold the regulation on the Chief Justice’s approach ― but Justice Côté, as we shall see, forces her to elaborate. The Chief Justice insists that the regulation at issue is both consistent with the purpose and “fits with other provisions of” [14] the Workers Compensation Act. And the Chief Justice invokes “two additional external contextual factors” . [19] For one thing, the impugned regulation was a “response to a concern in the province about the growing rate of workplace fatalities in the forestry sector”, and thus “a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently”. [20] For another, the Regulation is a logical extension of the owners’ existing duties. In short, even on a correctness standard, “the Regulation plainly falls within the broad authority granted” to the Board. [23]

The dissenting judges disagree with the Chief Justice’s approach. Justice Côté delivers the most sustained rejoinder. She insists that the question “whether the Board has the authority to adopt a regulation of this nature at all” “is jurisdictional in nature” [56] and so must be reviewed on a correctness standard: “[t]he Board … possesses only the authority that is delegated to it by statute”, [56] and this authority either extends to the making of the Regulation, or it doesn’t. Indeed, since it “is an unelected institution”, it is important to “ensure[] that the Board … does not aggrandize its regulation-making power against the wishes of the province’s elected representatives”. [66] Besides, unlike when it is adjudicating a dispute, an administrative decision-maker determining the scope of its regulatory authority neither possesses expertise superior to that of the judiciary, nor brings to bear policy considerations or factual understanding unavailable to the courts. And anyway, reasonableness review, which is supposed by focused on the administrative decision-maker’s reasons, can hardly be applied to rule-making decisions which the regulators need not explain: “[i]f a court does not know the reasons justifying a decision or an exercise of jurisdiction, how can it afford any deference?” [69] Justice Côté adds that the Chief Justice’s “rationale largely escapes [her]”, and her “basis for applying the reasonableness standard remains largely unexplained”. [70] The Chief Justice, she says, “has offered almost no analysis on a question that will prove to be important in subsequent cases”. [74] These are fighting words by the usually demure standards of the Supreme Court of Canada.

Justice Côté also disagrees with the Chief Justice on the merits. In her view, the impugned Regulation “impermissibly conflates the duties of owners and employers in the context of a statutory scheme that sets out separate and defined obligations for” each. [75] Consistently with the statutory purpose, set out in s 107(2)(e) of the Workers Compensation Act, to share out responsibility for workplace safety “to the extent of each party’s authority and ability”, the employers’ duties have to do with their relationship with the workers; the owners’, with the employers. They are “separate silos of responsibility”, each actor being assigned that part of the overall task of protecting workplace safety that it is “in the best position to assume”. [83] The impugned Regulation forces owners to micro-manage workers, taking up a role which the Workers Compensation Act instead assigns to employers, and is thus inconsistent with the statutory scheme and purpose. Although its powers are broad, the Board cannot do such a thing: “[o]therwise, there would be no functional limit on the Board’s ability to enact regulations … in some way connected to some abstract vision of occupational health and safety”. [87] Regardless of what might have prompted the Board to regulate in the way it did, it lacked the authority to do it.

Justice Brown also insists on correctness review for the validity of the Regulation. The matter, in his view too, is one of jurisdiction, and Dunsmuir requires the courts to provide their own answers to truly jurisdictional questions. Like Justice Côté, Justice Brown faults the Chief Justice for her “inadequate” response that “elide[s]” the issue. [113] For Justice Brown,

a central judicial function is to ensure that statutory delegates such as the Board act only within the bounds of authority granted to them by the legislature. … Public power must always be authorized by law. It follows that no statutory delegate, in enacting subordinate legislation (that is, in making law), may ever exceed its authority. The rule of law can tolerate no departure from this principle. [116; emphasis in the original]

The substantive reasonableness of a regulation, by contrast, is not a matter for the courts. Provided that the regulation was authorized by statute and not made oppressively or in bad faith, the courts should not interfere. All that said, on the merits, Justice Brown concurs with the Chief Justice. In a single sentence, he concludes that the grant of regulatory authority in the Workers Compensation Act “is sufficiently broad to support” [121] the impugned Regulation.

For his part Justice Rowe professes to “concur with [the Chief Justice’s] analysis”, [128] but only with the proviso that it be split into two parts: first a jurisdictional analysis (which presumably is to be approached on a correctness standard, following Dunsmuir); and then “a substantive inquiry into the exercise of the grant of authority” [127] and its consistency with the purpose of the statute. While Justice Rowe is of the view that the Chief Justice undertakes both of these steps, the second, as I indicated above, is largely if not entirely a response to Justice Côté. Justice Rowe’s agreement with the Chief Justice is thus more apparent than real. He also makes a point of hitting out at “one of the myths of expertise that now exist in administrative law”, [129] arguing that “‘working day to day'” to apply a statutory regime “does not” “give [administrative decision-makers] greater insight into statutory interpretation, including the scope of jurisdiction, which is a matter of legal analysis”. [129]

* * *

The second issue, recall, is whether the Board was entitled to fine West Fraser under a statutory provision that authorizes the imposition of penalties on “employers” who do not comply with regulations. Here, there is no overt dispute about the standard of review: the Chief Justice finds, and Justice Côté (with whom Justices Brown and Rowe agree) “assume[s]”, [95] that provincial legislation imposes patent unreasonableness as the applicable standard.

The Chief Justice finds that to read “employer” as extending to an owner is not patently unreasonable. To be sure, the alternative opinion is “plausible”, [37] but there are also arguments in support of the “broader” view, “one more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] Since West Fraser “employed persons to carry out the duties imposed by” the Regulation, [38] ― and indeed it had, to being a corporation ― it was an “employer” as well as an “owner”. Moreover, “[t]he general scheme of the [Workers Compensation] Act is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety”. [43] Since West Fraser “had sufficient knowledge and control over the worksite in question to render it responsible for the safety of the worksite”, [47] penalizing for the safety shortcomings was reasonable.

Justice Côté sees things differently. Patent unreasonableness is a deferential standard of review, “but there are some interpretations of law that are so far beyond the pale that they cannot be permitted to stand”. [107] The statute carefully distinguishes the roles of owners and employers, and it is impossible to read a provision that only applies to one of these roles as applying to the other too. Although the same entity may play both roles in a given situation, the penalty applicable to the breach of obligations associated with one is not applicable to the breach of those associate with the other. When the legislature wanted to speak more broadly, it used the word “person” rather than the specific terms “owner” or “employer”; the Chief Justice’s “reasoning in this case effectively rewrites” [102] the Workers Compensation Act, undoing legislative choices to uphold “an unbounded interpretation” [104] by the administrative decision-maker. It is not enough, Justice Côté adds, to point to the general purpose of the statute to uphold this interpretation:

The legislature may have intended to pursue that purpose, but it did so through limited means … To hold that any interpretation that the Tribunal views as advancing the goal of health and safety can survive patent unreasonableness scrutiny would render judicial review meaningless. [107]

* * *

There is a lot to chew on here, and I will mostly do so in two upcoming posts. In the first one, I will focus on the substance of the case ― the various views on the proper approach to determining the validity of a regulation, the validity of the Regulation in this case, and the reasonableness or otherwise of the fine imposed by the regulator. (Spoiler alert: to, I suspect, nobody’s surprise, I mostly agree with Justice Côté.) In the second post, I will take a step back, and discuss the broader issues having to do with the relationship between the Supreme Court and the administrative state.

Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

Precedent and Democracy

“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized or was laid down no longer hold true. In the extreme case, we are left with the situation that Oliver Wendell Holmes famously decried in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897):

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

So which sort of precedent deserves greater deference ― old or new? One consideration that tends to be missing from the debates about the authoritativeness of precedent ― even though it is a popular argument in the broader debate about the authoritativeness and legitimacy of “judge-made” (or, to borrow a less loaded term from Lon Fuller, “adjudicative”) law ― is legislative acquiescence.

It is often said that adjudicative law is democratically legitimate because, even though the courts in whose decisions it is set out are not in a meaningful sense democratic, legislatures could change the rules of adjudicative law that they do not like. Their failure to act is regarded as a sign of consent to the rules set out by courts, a democratic confirmation, albeit a tacit one, of the suitability of these rules for the community. Now, the acquiescence thesis does not strike me as entirely plausible, because the mass of case law is such that legislatures seem to me not very likely to be aware of all of its developments, still less to have the opportunity to respond to them in a timely fashion. But there is at least some truth to it, even if not enough to make it the conclusive argument for the legitimacy of adjudicative law its many proponents think it.

If we accept the acquiescence thesis, it would seem that long-standing precedents do have more authority than recent ones. The older a precedent, the more plausible the claim that the legislature has acquiesced to it.  The longer a precedent has been around, and especially the more subsequent judicial decisions have relied on it (admittedly, not necessarily a perfectly correlated fact), the more likely it seems that the legislature will become aware of it. People who stand to be affected by it and who are unhappy about the situation will, presumably, at least try to interest the legislature in their plight. And, given enough time, the legislature might respond.

But now, consider a somewhat stronger version of the acquiescence thesis. This stronger version holds that legislatures do not merely acquiesce to the rules of adjudicative law, but actually, albeit again implicitly, delegate rule-making responsibilities to courts, in more or less the same way  as they delegate such responsibilities to the executive branch of government. Again, I do not find this an entirely persuasive claim; I’m not sure that legislative silence on a certain point can really be taken as an invitation for the courts to deal with it rather than a merely lack of attention or even a deliberate decision not to regulate. Still, again, the delegation thesis is at least sometimes true. Legislatures do enact very general, even vague, statutes which they expect the courts to elaborate into more detailed regulatory schemes. And perhaps legislatures have in fact a more general expectation that if a problem arises with the law, the courts will deal with it ― it is hard to tell.

But if, or to the extent, that the delegation thesis is true, the courts should be quite proactive in responding to changing social conditions. They should then also be more suspicious of, rather than more deferential to, older precedents. The reasons that justified the precedent may have disappeared with the changes in society, the growth of our knowledge (scientific, economic, etc.), or even the development of other areas of the law.

Note, by the way, that the acquiescence and the delegation thesis are actually very close. The latter is only a mildly stronger version of the former. Indeed the delegation thesis depends on the acquiescence thesis for whatever normative validity it might have. If the legislature is not actually in a position to review and either consent to or revise adjudicative law, then it seems quite wrong for it to delegate legislative power to courts. (Though it might still be wrong for it do it even if the acquiescence thesis holds ― a point for a separate post, perhaps.) The difference between acquiescence and delegation seems to be only a matter of perspective: does the legislature consider the work of courts beforehand or retrospectively? In fact, to the extent the legislature does consider adjudicative law at all, it seems plausible that it does both, looking at what courts have done on an issue in the past and at what they might do in the future.

And yet, when it comes to the effect of time on authority of a precedent, the acquiescence and the delegation thesis seem to suggest opposite conclusions. I am not sure what to make of all this.