The Canadian Nondelegation Doctrine: An Architectural Imperative

Abstract

Delegation of legislative authority to the executive branch is a dominant practice in the modern Canadian administrative state. This dissertation argues that such delegation is unconstitutional. The unwritten principles of democracy, the separation of powers, and the rule of law – all defining features of the Constitution pursuant to leading Supreme Court of Canada decisions – demand that legislative decision-making be performed in legislatures. Only the legislative branch has the mandate and the legitimacy to make substantive choices about the content of the law. The dissertation draws on the architecture of the Constitution to posit a theory of democracy as an institutionally specific form of conflict resolution. This theory provides that legislators abdicate their responsibilities when they delegate substantive legislative power, and courts abdicate their responsibilities when they permit such a fundamental distortion of constitutional structure to proceed. A judicially enforced nondelegation doctrine is a corollary of the way the Constitution is built. The project makes the case for the existence of a Canadian nondelegation doctrine, outlines its meaning and content, and illustrates its application in specific legislative contexts.