The Canadian Nondelegation Doctrine: An Architectural Imperative
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Authors
Johnson, James M
Date
Type
thesis
Language
eng
Keyword
Constitution , Constitutional Architecture , Delegation , Democracy , Separation of Powers , Rule of Law , Secession Reference , Judges Reference , Judicial Review , Waldron , Constitutional Structure
Alternative Title
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.
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Queen's University's Thesis/Dissertation Non-Exclusive License for Deposit to QSpace and Library and Archives Canada
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Copying and Preserving Your Thesis
This publication is made available by the authority of the copyright owner solely for the purpose of private study and research and may not be copied or reproduced except as permitted by the copyright laws without written authority from the copyright owner.
ProQuest PhD and Master's Theses International Dissemination Agreement
Intellectual Property Guidelines at Queen's University
Copying and Preserving Your Thesis
This publication is made available by the authority of the copyright owner solely for the purpose of private study and research and may not be copied or reproduced except as permitted by the copyright laws without written authority from the copyright owner.