The GHG Reference and the Delegation of Legislative Power: A New Direction?
Embedded deep within the Supreme Court of Canada’s landmark Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [GHG Reference] is an interesting and possibly very significant development in the law governing legislative delegation in Canada.
The GHG Reference, which ends the uncertainty over the constitutionality of the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 [GGPPA], is primarily a federalism case. The majority judgement of the Court, written by Chief Justice Wagner for himself and five of his colleagues, provides a compelling clarification of the national concern branch of the “Peace, Order, and good Government” clause of s. 91 of the Constitution Act, 1867.
However, the GGPPA also raises a second constitutional issue of importance because the statute employs numerous very broad delegations of legislative power to Cabinet. Justice Côté argues, in her lucid and detailed partially dissenting reasons, that these delegations are unconstitutional on two grounds. First, she contends that the extent of the delegations in the statute is so broad that Chief Justice Wagner’s national concern framework (a framework that Justice Côté otherwise accepts) cannot apply (GHG Reference, paras 222, 236-240). Second, she argues that certain provisions in the GGPPA that authorize the executive amendment of primary legislation (the “Henry VIII” clauses) are a violation of both the structure and the text of the Constitution (GHG Reference, paras 222, 241-294).
The majority of the Court rejects Justice Côté’s delegation concerns in five paragraphs. Chief Justice Wagner relies in part on case law stretching from the early leading decisions of Hodge v. The Queen, (1883) 9 AC 117 (PC) [Hodge], and Re George Edwin Gray, (1918) 57 SCR 150 [Gray], through to the very recent Reference re Pan-Canadian Securities Regulation, 2018 SCC 48. This case law affirms the power of legislatures to make broad delegations of law-making power to executive bodies and officials. Perhaps the most interesting aspect of the Court’s handling of the delegation issue comes through the Chief Justice’s deployment of the concept of “abdication,” for here we see a novel approach that could potentially lay the groundwork for future developments in this area of constitutional law.
Abdication figures prominently in the judicial doctrine governing the delegation of law-making power, and basically provides that a delegating legislature is limited only by the rule that it cannot alienate the fundamental power to alter, correct, or cancel a delegation. In Hodge, for example, the Privy Council rejects the appellant’s contention that a delegating legislature “effaces itself,” and states that the legislature “retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into his own hands” (Hodge, 132). In the Supreme Court of Canada judgment of Gray, Justice Duff (as he then was) observes that the “powers granted could at any time be revoked and anything done under them nullified by parliament, which parliament did not, and for that matter could not, abandon any of its own legislative jurisdiction” (Gray, 170). In the same decision, Chief Justice Fitzpatrick states that “Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government,” (Gray, 157), and Justice Anglin (as he then was) and Justice Davies similarly conclude that a “limited delegation” is constitutional provided that it falls short of a “complete abdication by Parliament of its legislative functions” (Gray, 176).
From a democratic perspective, one could question whether a legislature—the primary representative political institution—satisfies its basic function when it can simply choose others to make the law in its stead. From the same democratic perspective, one could also question whether the broad ambit of the concept of abdication established in the authorities offers “reasonable limits” or a truly “limited delegation.” This latter question is particularly pressing in Gray, as it involved a Henry VIII clause that Chief Justice Fitzpatrick acknowledged conferred “unlimited powers” (Gray, 158-159).
In the GHG Reference, Chief Justice Wagner observes near the beginning of his delegation analysis that “[e]ven broad or important powers may be delegated to the executive, so long as the legislature does not abdicate its legislative role” (GHG Reference, para 85). This observation is certainly consistent with Hodge and Gray and the other authorities cited, depending on how one interprets the “legislative role.” It is precisely in this latter regard that the Chief Justice offers a potential game changer, for he concludes his discussion of the delegation issue by stating that “[i]n the case at bar, Parliament, far from abdicating its legislative role, has in the GGPPA instituted a policy for combatting climate change by establishing minimum national standards of GHG price stringency” (GHG Reference, para 88).
By associating the “legislative role” with “institut[ing] a policy,” the Chief Justice injects a novel, concrete, and genuinely limited standard into the otherwise very expansive concept of abdication. I have argued elsewhere in detail that making policy choices is the quintessential legislative role in a democratic society, and further that this understanding of the legislative role should inform judicial interpretations of the constitutionality of delegations of legislative power (“The Case for a Canadian Nondelegation Doctrine” (2019) 52:3 UBC L Rev 817).
Based on the concrete standard of making policy choices, it may be possible for a reviewing court to assess in detail whether the essentials of democratic governance are intact. In the GHG Reference at any rate, the Supreme Court of Canada appears to use this standard to conclude that the impugned provisions of the GGPPA are constitutional on the basis that they “simply delegate to the executive a power to implement this policy” (GHG Reference, para 88).
The GHG Reference at the very least opens up the opportunity for a new approach to the issue of delegation—an approach that makes use of the lens afforded by the existence of legislated policy choices. Needless to say, mapping out the resulting spectrum of possibilities that such a lens can offer (ranging from detailed legislated policy choices to the total absence of any policy choices whatsoever) and crafting a workable legal test would require considerable judicial work in future decisions. Such a task, however, may be worth exploring. The early decisions such as Hodge and Gray that introduced the effacement/abdication standard dealt with legislative and executive spheres of activity prior to the advent of the modern administrative state, the modern security state, and the new and very uncharted territory of the 21st century pandemic state.
The early delegation decisions also arose in a period in which democracy was considerably less developed, both as a central concept in political, legal, and constitutional theory, and, even more importantly, as a vehicle for the realization of “substantive goals” such as
the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society (Reference re Secession of Quebec,  2 SCR 217 at para 64; R v Oakes,  1 SCR 103 at 136).
A tightened approach to the delegation of legislative power could play an important role in furthering the emancipatory projects of Reconciliation and addressing systemic racism that are integral to the development of Canadian society. Structures of inequality and intolerance are often perpetuated through diverse regimes of administrative power, such as prisons and other areas of administrative justice, that operate without any meaningful connection with or guidance from democratic policy-making choices in legislatures. Through an inquiry into legislated policy choices, the GHG Reference introduces a basis for judicial oversight of the decision to delegate that has greater clarity and greater democratic potential than has been afforded by past precedents.
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