Re-examining the law-making power in the Canadian Constitution: A case for a non-delegation doctrine.

Abstract

This thesis argues that there is a limited separation of powers in the Canadian Constitution between the executive and legislative branches. The fundamental nature of the Constitution Act, 1867 which commits the law-making power to elected legislatures demands that those bodies be prohibited from delegating their primary legislative powers to the executive. Judicial tolerance of such delegation flows from the unexamined assumption that as with the British constitution, the pivotal principle of our Constitution is parliamentary supremacy. It is not. Furthermore, such tolerance is troublesome in view of the fact that in constitutional practice today, cabinet controls Parliament. Canadian courts have the tools to develop a non-delegation doctrine that would insist that only legislatures could enact new laws or change existing ones. Such a doctrine would uphold the Constitution and ensure that all primary legislation be subject to the democratic safeguards provided by the rules of parliamentary procedure.