Delegation. Delegation. Formal constitutional amendments is the most effective way to bring forth change in response to societal change; however, it is not the only means through which federal systems can adapt their distribution of powers and functions.
Delegation Formal constitutional amendments is the most effective way to bring forth change in response to societal change; however, it is not the only means through which federal systems can adapt their distribution of powers and functions. Some of the alternative devices that permit this distribution of powers are: Extensive concurrency Intergovernmental delegation Federal-provincial agreements or accords Optional occupation of Jurisdiction: “opting in” and “opting out” Interstate agreements
Intergovernmental delegation Delegation can be either from the federal government to the regional governments or vice versa. Most federal systems provide for the delegation of executive authority. Even though it is not explicitly mentioned in the Constitution, it is sanctioned by the courts. Provisions for delegation are not as widespread for legislative authority and usually occur only from the federal to state governments.
Delegation of Legislative Power Both the federal Parliament and provincial legislatures are free to delegate powers within their spheres to their respective GICs, municipalities and bodies of their own creation. However, the two levels of government cannot give up legislative jurisdiction to one another. Alternative mechanisms exist to achieve flexibility: Conditional legislation; Incorporation by reference (or adoption); and Conjoint schemes with administrative cooperation
Advantages of delegation Provides flexibility to federal systems Avoid the hindrances of a water tight division of legislative power Particularly relevant where constitutional amendments are difficult Makes legislative action easier where a single activity can be regulated in its entirety by different levels of government because the entire activity falls under many constitutional rubrics Avoids duplication of effort Prevents confusion that can result even when there is cooperation
Disadvantages of Delegation May lead to the abandonment of powers by the provincial legislatures in favour of an all-powerful federal Parliament On the flip side, over delegation by the federal Parliament could lead to a “loose confederacy” Once a particular power has been delegated, it is difficult to take back jurisdiction Increased pressures to transfer powers and increased friction in cases of refusal to share power Delegation disperses responsibility for particular tasks/powers (who will the electorate hold responsible?) Constitutional “hodgepodge” as a means to give special status to particular provinces, which undermines the influence of the province’s elected Parliamentary representatives
Davis: Administrative Law Treatise Five positions with respect to delegation of legislative power to an administrative agency: A doctrine that legislative power may not be delegated would invalidate almost the whole of the Code of Federal Regulations, and is therefore unthinkable and irresponsible. Delegation must be accompanied by meaningful standards. The Constitution [of the United States] requires that Congress make all major policy decisions. Major policymaking cannot be delegated to the courts. Legislative power may be delegated to agencies, including the power to make major policy.
AG NS v AG Can,  SCR 31 Background Federal parliament DID NOT and the provincial legislature DID have jurisdiction to legislate a system of old age pension. The Federal Parliament DID and the Provincial Legislatures DID NOT have the jurisdiction to impose sales tax. Proposed Solution? Federal Parliament gives provincial legislature the power to impose sales tax. Provincial legislature gives federal Parliament the power to enact old age pension. Issue Can the federal Parliament and provincial legislature delegate their powers to one another? Held This delegation of legislative power is NOT permissible under the Canadian Constitution.
AG NS v AG Can,  SCR 31 Rinfret CJ: “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.” Kerwin J: “The [BNA] divides legislative jurisdiction between the Parliament of Canada and the Legislatures of Provinces and there is no way in which these bodies may agree to a different division.” Taschereau J: “It is a well settled proposition of law that jurisdiction cannot be conferred by consent… If the proposed legislation were held to be valid, the whole scheme of the Canadian Constitution would be entirely defeated.”
AG NS v AG Can,  SCR 31 Rand J: “Dominion legislation in relation to employment in Nova Scotia enacted by the legislature may affect interests outside of Nova Scotia; by delegation Nova Scotia might impose an indirect tax upon citizens of Alberta in respect of matters arising in Nova Scotia; or it might place restrictions on foreign or interprovincial trade affecting Nova Scotia which impinge on interests in Ontario.” “Since neither [Parliament or provincial legislature] is a creature nor a subordinate body of the other, the question is not only or chiefly whether one can delegate, but whether the other can accept.”
R v Furtney,  3 SCR 89 Facts The appellants were charged with counselling bingo licensees to violate the terms and conditions of their licences, contrary to ss. 22 and 207(3) of the Criminal Code. The provincial terms and conditions for bingo lotteries are set out in provincial orders‑in‑council, regulations or directions. The Criminal Code provided the Lieutenant Governor-in-Council of each province to make gaming and betting lawful, whether it would not otherwise be. Issue Whether ss. 207(1)(b), 207(2) or 207(3) of the Code are ultra vires Parliament as improper delegation to a provincial body of a matter within the exclusive competence of the federal government?
R v Furtney,  3 SCR 89 Stevenson J: Reiterated that inter-delegation of legislative jurisdiction is constitutionally impermissible (Nova Scotia Inter-Delegation ) “The prohibition is against delegation to a legislature. There is no prohibition against delegating to any other body.” “In the exercise of its powers, Parliament is free to define the area in which it chooses to act and, in so doing, may leave other areas open to valid provincial legislation. If a province legislates in respect of an open area, it is not doing so as a delegate, but in the exercise of its powers under s. 92 of the Constitution Act, 1867.” “The Lieutenant Governor in Council has capacity or status to receive a delegated power. He is not subject to any constitutional prohibition against the acceptance of delegated authority.”
R v Furtney,  3 SCR 89 This is not delegation to provincial legislature, so it is permissible. This is incorporation by reference and, therefore, acceptable. In this case, the legislation did two things: It gave Cabinet the power to exempt charitable or religious organizations if proceeds were used for charitable or religious purposes; A licence so issued can be subject to terms and conditions, including those prescribed by provincial law
Three primary ways to overcome
1. Conditional legislation Statute whose operation is determined by a condition (i.e. the existence of a state of fact or the action of an individual or body). Parliament can limit the operation of its own Act to an event or condition; however, it cannot delegate to extend the jurisdiction of the provincial legislatures - Lord’s Day Alliance of Canada v Attorney General for British Columbia  SCR 497 In practice, some provinces have used this to opt out of federal social service schemes and in the alternative, accept tax credits for their own programs.
2. Administrative delegation Where an official is given power to enforce or administer both federal and provincial laws in respect to one subject matter Example: a provincial fishery officer is assigned powers by the federal government to enforce fishery laws Three levels of problems arising from parallel legislation: In securing initial federal-provincial cooperation; In drafting legislation that aligns together without overstepping the legislative bounds of either legislature; and In securing efficient and continuing cooperation of administrative officers
Hodge v R, (1883) 9 AC 117 (PC) Facts Hodge was charged pursuant to the Liquor Licence Act of Ontario (RSO 1877, c 181) for permitting billiards to be played in his tavern and operating a tavern without a licence. Hodge appealed on the ground that the provincial legislature has no authority to delegate its legislative power to regulate taverns to a Licence Commissioner Issue Can the provincial legislature delegate its authority to a Licence Commissioner? Held The provincial legislature has the power to delegate the authority to impose punishment to the Licence Commissioners it created
Hodge v R, (1883) 9 AC 117 (PC) Provincial legislatures are not delegates of, nor are they acting under any mandate from the Imperial Parliament. The British North America Act, in establishing a legislature for Ontario, conferred powers as “plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow.” When dealing with the areas under its jurisdiction, the provincial legislature is supreme, and has the same authority as Parliament would have on areas under its jurisdiction. When delegating its authority, a legislature still retains its powers, and has the power to dismantle the agency it creates, set up another, or take back full responsibility onto its own hands.
2. Administrative Delegation However, can the Federal Parliament delegate law making authority to provincial administrative entities?
PEI Potato Marketing Board v Willis,  2 SCR 392 Facts Federal government authorized PEI (provincial) marketing board to regulate international and interprovincial marketing of potatoes. The federal government had delegated to a provincial authority jurisdiction to market a federally regulated area. Held This is a valid delegation of jurisdiction as Parliament had “adopted as its own” the provincial agency.
PEI Potato Marketing Board v Willis,  2 SCR 392 Rinfret CJ: “Parliament has granted authority to the Governor-in-Council to employ as its own a board, or agency, for the purpose of carrying out its own legislation for the marketing of agricultural products outside the province in interprovincial and export trade, two subject-matters which are undoubtedly within its constitutional authority.”
3. Incorporation by reference Courts have upheld statutes incorporating existing legislation of another legislature However, it is a different case when legislatures adopt the laws of another legislature as it exists or is amended from time to time Discretion is exercised by the legislature whose legislation was adopted
AG for Ontario v Scott,  SCR 137 Facts Scott applied for an order prohibiting a judge of the family court from taking any further proceedings under the Reciprocal Enforcement of Maintenance Orders Act (R.S.O. 1950, c. 334) in connection with a provisional order made by a magistrate in London, England, against him for the maintenance of his wife and children. It was contended, that the Act was ultra vires because the legislature had, in effect, delegated its legislative authority and had exceeded its jurisdiction by allocating the issue to an inferior court. Held The legislation is a clear case of adoption and not of delegation.
AG for Ontario v Scott,  SCR 137 “The action of each legislature is distinct and independent of the other.” “From the standpoint of legislative competency, there is no difference between the adoption of procedure and that of substantive law.” “No challenge could be made to the complementary English enactment here, and the province should be able to exercise the same power in relation to a subject of such a local and civil rights nature.”
Coughlin v The Ontario Highway Transport Board,  SCR 569 Facts Extraprovincial carriers operating within a province must get a licence from provincial transport board. Provincial transportation board was to issue licenses “upon like terms and conditions and in the like manner as if the extra-provincial undertaking operated in the province were a local undertaking.” Held “… 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 …”
Coughlin v The Ontario Highway Transport Board,  SCR 569 Cartwright J: In this case, the Board does not get any power from the Legislature of Ontario to regulate or deal with the interprovincial carriage of goods. Instead, it’s wide powers are conferred upon it by Parliament. “Parliament can at any time terminate the powers of the Board in regard to inter-provincial carriage or alter the manner in which those powers are to be exercised.” The delegation was valid as: An administrative delegation to a provincial authority (PEI Potato); and An incorporation by reference (Scott)