CONSTITUTIONAL LAW 18 DELEGATION

1. CONSTITUTIONAL LAW18 DELEGATION Shigenori Matsui

2. Introduction • To what extent can the Parliament and provincial legislature delegate its authority to other branch? • What kind of mechanism does exist to facilitate the cooperation between the federal government and provincial government?

3. I THE PERMISSIBILITY AND LIMITS OF DELEGATION • Hodge v. The Queen (1883)

4. “Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.”

5. A. Limits of delegation of legislative power (Interdelegation) • Could the Parliament delegate its legislative power to the provincial legislature? Could the provincial legislature delegate its legislative power to the Parliament?

6. A.G. of Nova Scotia v. A.G. of Canada, [1951] S.C.R. 31

7. “The country is entitled to insist that legislation adopted under section 91 should be passed exclusively by the Parliament of Canada in the same way as the people of each Province are entitled to insist that legislation concerning the matters enumerated in section 92 should come exclusively from their respective Legislatures.”

8. “No power of delegation is expressed either in section 91 or in section 92, nor, indeed, is there to be found the power of accepting delegation from one body to the other; and I have no doubt that if it had been the intention to give such powers it would have been expressed in clear and unequivocal language… • Neither legislative bodies, federal or provincial, possess any portion of the powers respectively vested in the other and they cannot receive it by delegation...”

9. Should the interdelegation be allowed? • For example, how about the securities regulation or food safety regulation?

10. Alternatives to interdelegation • 1)administrative delegation • 2)incorporation by reference • 3)conditional legislation

11. II ALTERNATIVES TO INTERDELEGATION • A. Administrative delegation • Prince Edward Island Potato Marketing Board v. H.B.Willis, [1952] 2 S.C.R. 392

12. “The effect of that enactment is for the Governor-in-Council to adopt as its own a board, or agency already authorized under the law of a province, to exercise powers of regulation outside the province in interprovincial and export trade, and for such purposes to exercise all or any powers exercisable by such board, or agency, in relation to the marketing of such agricultural products locally within the province. I cannot see any objection to federal legislation of this nature.”

13. What is the difference between legislative delegation and administrative delegation?

14. B. Incorporation by Reference • A.G. for Ontario v. Scott, [1956] S.C.R. 137

15. In carrying this out, the province has adopted provisions which the law of England prescribes for the relief of a deserted wife. The effect is to vest in the wife a right to enforce the duty in Ontario in accordance with the provisions adopted. • The action of each legislature is wholly discrete and independent of the other, a relation incompatible with delegation; and that it is a case of adoption is equally clear. But it is a circumscribed adoption…There is no attempt to permit another legislature to enact general, or generally, laws for a province: that would obviously be an abdication.

16. Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569

17. “It is well settled that Parliament may confer upon a provincially constituted board power to regulate a matter within the exclusive jurisdiction of Parliament. • In the case before us the respondent Board derives no power from the Legislature of Ontario to regulate or deal with the inter-provincial carriage of goods. Its wide powers in that regard are conferred upon it by Parliament. Parliament has seen fit to enact that in the exercise of those powers the Board shall proceed in the same manner as that prescribed from time to time by the Legislature for its dealings with intra-provincial carriage…”

18. “In my opinion there is here no delegation of law-making power, but rather the adoption by Parliament, in the exercise of its exclusive power, of the legislation of another body as it may from time to time exist, a course which has been held constitutionally valid by this Court in Attorney General for Ontario v. Scott.”

19. What is the difference between delegation and incorporation by reference?

20. C. Conditional legislation • Lord’s Day Alliance v. A.G. of British Columbia, [1959] S.C.R. 497

21. “The Act is laying down for the whole of Canada regulations for the observance of Sunday. Some things on that day are everywhere prohibited; others are everywhere allowed. But there is an intermediate class of activities -- Sunday excursions are amongst them -- with reference to which the Act recognizes that differing views may prevail in the respective Provinces of the Dominion, so varying in these Provinces are the circumstances, usages and predominant religious beliefs of the people. The Act proceeds to provide accordingly, putting it generally, that with reference to these matters, Provincial views shall within a Province prevail.”

22. “It is not a case of delegation where the Dominion Parliament attempts to authorize a provincial legislature to do something beyond the latter's power, but within the competence of Parliament…” • “Section 6 of the Lord's Day Act merely provides that if a provincial legislature chooses to permit a certain occurrence, then that section does not apply to the particular province.”

23. What is the difference between interdelegation and conditional legislation?

24. III COOPERATION ATTEMPTS AND SPENDING POWER • Cooperation attempts between the federal government and provincial government • Direct payments to individual citizens • Shared-cost program • Equalization payment

25. What is the source of spending power? • There is no explicit textual provision for government spending • S. 91(3)? • S. 106?

26. Limits of spending power • Unemployment Insurance Reference [1937]

27. “That the Dominion may impose taxation for the purpose of creating a fund for special purposes, and may apply that fund for making contributions in the public interest to individuals, corporations or public authorities, could not as a general proposition be denied. ... But assuming that the Dominion has collected by means of taxation a fund, it by no means follows that any legislation which disposes of it is necessarily within Dominion competence.”

28. “It may still be legislation affecting the classes of subjects enumerated in s. 92, and, if so, would be ultra vires. In other words, Dominion legislation, even though it deals with Dominion property, may yet be so framed as to invade civil rights within the Province, or encroach upon the classes of subjects which are reserved to Provincial competence. … If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the Province, or in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation will be invalid.”

29. Reference re Canada Assistance Plan [1991]

30. “The simple withholding of federal money which had previously been granted to fund a matter within provincial jurisdiction does not amount to the regulation of that matter. Still less is this so where, as in this case, the new legislation simply limits the growth of federal contributions. In oral argument, counsel said that the Government Expenditures Restraint Act "impacts upon [a] constitutional interest" outside the jurisdiction of Parliament. That is no doubt true, but it does not make the Act ultra vires. "Impact" with nothing more is clearly not enough to find that a statute encroaches upon the jurisdiction of the other level of government.”

31. IV INTERGOVERNMENTAL AGREEMENT • Agreement between the federal government and provincial governments • Is it legally binding? • Is it judicially enforceable?

32. Reference re Canada Assisted Plan [1991]

33. “It is conceded that the government could not bind Parliament from exercising its powers to legislate amendments to the Plan. To assert the contrary would be to negate the sovereignty of Parliament. … In these circumstances the natural meaning to be given to the words "authorized to pay ... under the Act" in clause 3(1)(a) is that the obligation is to pay what is authorized from time to time. The government was, therefore, not precluded from exercising its powers to introduce legislation in Parliament amending the Plan…”

34. “The result of this is that the Government of Canada, in presenting Bill C-69 to Parliament, acted in accordance with the Agreement and otherwise with the law which empowers the Government of Canada to introduce a money bill in Parliament.”

35. What is the holding of the Supreme Court? • It is binding but there is no violation of the agreement since the federal government was allowed to submit the bill to the Parliament to amend the plan? • Is CAP legally not binding? • Is it not judicially enforceable?