A Law Can Be Repealed When Parliament Is Prorogued? Delegated Legislation and The Separation of Powers in Ontario


Introduction

For a brief few minutes on January 3rd, I thought that the Minister of Education of Ontario, Laurel Broten, had inadvertently revealed that Premier McGuinty would advise the Lieutenant Governor to recall the legislature by the end of January 2013 in order to secure the repeal of the Putting Students First Act. After all, the Premier would have to advise the Lieutenant Governor to summon the 2nd session of the 40th Legislature (thus terminating the intersession of this prorogation) in order to repeal the Act. And only Parliament itself can repeal a law (or so I thought).

CTV News quoted Minister Broten and added that the repeal would come before the end of this month:

Given that the Putting Students First Act was only ever intended as a one-time measure by this government, it is important as a sign of good faith and our commitment to future negations that the act be repealed.

Rather than stumbling upon the latest development in the McGuinty Prorogation of 2012, I had in fact discovered a peculiar (and perhaps unconstitutional) form of delegated legislation.

On January 2nd, the McGuinty Government made Ontario Regulation 2/13, which imposed a contract on the teachers’ unions under the authority of the Putting Students First Act and made it retroactive to September 1st, 2012. One January 3rd, Minister Brotel announced that the McGuinty Government intended to repeal the Act. On January 23rd, the McGuinty Government repealed the Putting Students First Act.

Under the principles of statute law, the repeal of an Act of Parliament automatically nullifies all the regulations, the “secondary legislation,” made pursuant to that Act, the “primary legislation.” Therefore, I can only presume that the principles of contract law ensure that the contract with the teachers’ unions itself still stands despite the repeal of the law, and that the law would treat the regulation promulgating the contract into force separate from the legal validity of the contract itself. In this entry, I will thus highlight two constitutional problems with the Putting Students First Act and its repeal by Cabinet.

Two Major Problems With the Putting Students First Act

The Putting Students First Act presents two problems, and is probably unconstitutional.

The Limits of Legislative Sovereignty within the Constitution of Canada

First, the Act surrenders an essential component of parliament’s law-making authority to the executive and thus probably violates the Supreme Court of Canada’s doctrine of the separation of powers across our “four branches” of government.

In other words, the Constitution of Canada can protect Parliament from itself in some cases. Unlike in the United Kingdom or New Zealand, the written constitutions in Canada and Australia ensure that their parliaments do not enjoy unfettered supremacy to legislate in all matters. In the United Kingdom and New Zealand, the constitution is, rather tautologically, what Parliament says it is. And Parliament can always repeal or amend previous statues, and thus change the uncodified constitution. But in Canada and Australia, all components of the system of government must obey the constitution.

In 1993, Chief Justice McLaughlin first articulated the Supreme Court’s new doctrine on the “four branches of government” under the Constitution of Canada: the Crown (Queen and Governors), the Cabinet, the legislature, and the courts.[1] McLaughlin added, “It is fundamental to the working of government as a whole that all these parts play their proper role.  It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.”

In principle, Parliament should not delegate to Cabinet the power to repeal legislation; in practice, it certainly cannot delegate such an inherent and fundamental legislative power through ambiguous and imprecise wording.

When Delegated Legislation Becomes Abdicating Legislation

Second, even if section 20 did conform to the Constitution of Canada, section 22 presents a significant problem of manner and form because it does not delegate parliament’s authority to Cabinet precisely. This ambiguous and imprecise wording caused the McGuinty government to exceed the confines of this section through the proclamation of 12 September 2012. The Supreme Court stated in 1918 that, “the Parliament of Canada can validly delegate but cannot abandon its Legislative powers.”[2] The Chief Justice of the era ruled in the same case:

Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament, and needless to say the acts of the executive, under its delegated authority, must fall within the ambit of the legislative pronouncement by which its authority is measured.[3]

Through delegated legislation, Parliament grants Cabinet (formally rendered as the Governor or Governor-in-Council in most Acts) the authority to pass statutory instruments pursuant to the Act. Cabinet passes such regulations by Order-in-Council or proclamation in order to enforce or clarify provisions of the Act. Many bills also contain a provision that allows the Governor-in-Council to promulgate an Act into force of law on some date after Royal Assent. (If the bill does not include such a provision, then it enters into force as soon as the Governor gives it Royal Assent). Occasionally, Parliament incorporates a “sun-set clause” into an Act, which specifies that certain provisions of the Act will automatically cease to exist on a given date, without any intervention on the part of the Governor-in-Council.

But the Putting Students First Act contains an innovation distinct from the above three. In this case, the legislature delegated the Governor-in-Council not only the routine authority to promulgate legislation into force upon a date of its choice, but also the extraordinary authority to repeal the entire Act itself! In other words, the legislature made this law, and has allowed Cabinet to unmake it at its discretion.

Section 20 of the Putting Students First Act declares, “This Act is repealed,” while section 22 states that “This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.” These two provisions contradict one another, but the proclamation published in the Ontario Gazette reveals how the McGuinty Government interpreted this extraordinary provision. On 12 September 2012, the Lieutenant Governor promulgated sections 1 to 19 and 21 into force but left section 20 inactive, on and in accordance with the advice of Cabinet. (The Lieutenant Governor had given the bill Royal Assent on 11 September 2012). As Minister Brotel indicated, Cabinet may now repeal the entirety of the Putting Students First Act by issuing a proclamation that promulgates section 20 into force.

However, section 22 means that the Lieutenant Governor can only promulgate the entire Act into force by proclamation; it does not give the Lieutenant Governor the authority to promulgate only specific sections of the Act into force through separate proclamations. The proper interpretation and implementation of section 22 would also include section 20, and thus promulgating the entire Act into force would simultaneously and paradoxically result in its repeal. This is what the McGuinty Government tried so assiduously to avoid.

The proclamation of 12 September 2012 thus exceeded the authority that Parliament delegated the Governor-in-Council through the Putting Students First Act, which did not allow the executive to promulgate only certain sections of the Act into force through separate proclamations on different dates. At the very least, section 22 should have delegated Cabinet the power to promulgate section 20 through a separate Order-in-Council.

Proper Format for Primary Legislation and Proclamations

The Parliament of Canada often passes acts that contain specific and precise provisions allowing the Governor-in-Council to promulgate identified sections through various separate proclamations. The Jobs, Growth and Prosperity Act of 2012 includes several sections on “coming into force.”

Section 115 of the Act says:

(1) Sections 68 to 85, 89, 90, 92 to 97 and 99 to 114 come into force on a day to be fixed by order of the Governor in Council.
(2) Sections 86 to 88, 91 and 98 come into force on a day or days to be fixed by order of the Governor in Council.

The Governor-in-Council may issue various proclamations that promulgate different sets of specific sections of the Act into force at separate times pursuant to Parliament’s clear intention to delegate these narrow functions to Cabinet. But the Parliament of Ontario delegated no such specific authority to Cabinet through the Putting Students First Act.

Conclusion

As regular readers of Parliamentum know, I vigorously defend the common-law prerogative powers inherent to the Crown; however, this statutory conferral of power onto the Crown presents a different matter. The idea that parliament can delegate its law-making power of repeal to Cabinet subverts the Constitution. When Parliament seeks to repeal a law, the repeal bill must follow the same standard legislative process as the original bill. In contrast, the delegation of the power of repeal to Cabinet allows the executive to extinguish laws arbitrarily at its own discretion.

According to the Legislative Research Service of Queen’s Park, the Putting Students First Act has followed a procedure not unknown to Ontario, though the procedure itself may still be unconstitutional.

There is no requirement that all sections of an Act be proclaimed in force at the same time. The Legislation Act, 2006 indeed says that if an Act provides that it is to come into force on a day to be named by proclamation, proclamations may be issued at different times for different parts, portions or sections of the Act.

Although an infrequent occurrence, a proclamation may not only bring an Act or part of an Act into force, but also be authorized to do the reverse. The Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999, for instance, came into force by proclamation and was repealed the same way. [4]

Curiously, the Legislation Act, 2006 has allowed for improper delegations of authority to Cabinet and probably thereby exceeds its constitutional bounds by attempting to authorize Parliament to abdicate its supreme law-making power to repeal laws through what one expert has called “Sleeper-Cell Clauses,” which lie in wait until Cabinet decides to push the detonator and proclaim the law destroyed!

Sections 20 and 22 do not meet the standard of a “valid delegation” set out the in the Grey decision. First, section 20 means that Parliament has indeed “abdicated its function” of repealing laws. Second, section 20 is not “subject to determination at any time by Parliament”; if the Cabinet invokes this section, then the Parliament can no longer amend the Putting Students First Act — because it would no longer exist! Third, the proclamation that the Lieutenant-Governor issued on and in accordance with the advice of Cabinet does not “fall within the ambit of the legislative pronouncement by which its authority is measured” because section 22 only makes provision that the entire Act enter into force as one unit; it does not delegate to Cabinet the authority to promulgate only certain sections through separate orders-in-council.

Through the Bill of Rights, 1689, the English Parliament abolished “the pretended prerogatives of dispensing with and suspending of laws.” These defunct prerogative powers of the Crown allowed the King to enforce laws only at his discretion and repeal laws altogether – and thus usurp Parliament’s supreme law-making authority to legislate in all matters.

The McGuinty Government’s Order-in-Council exceeded the authority that Parliament had delegated to Cabinet. At the very least, the relevant parliamentary committee should have clarified this ambiguous, imprecise wording because Parliament did not “validly delegate” the authority that the McGuinty Government assumed.  More fundamentally, however, the Parliament of Ontario has codified a variant of that defunct prerogative of “dispensing with laws” through the Putting Students First Act. In so doing, the Parliament of Ontario may have violated the separation of powers that the Supreme Court of Canada has assigned to the Constitution of Canada, as well as the principle that Parliament cannot surrender its law-making power.

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[1] New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319
[2]
In Re George Edwin Gray, [1918] S.C.R. 150
[3] Ibid.
[4] Ontario. Legislative Assembly of Ontario. When Do Ontario Acts and Regulations Come Into Force? Research Paper B31, by Philip Kaye. Toronto: Parliamentary Copyright, November 2011.

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17 Responses to A Law Can Be Repealed When Parliament Is Prorogued? Delegated Legislation and The Separation of Powers in Ontario

  1. Pingback: The Confidence Convention in Ontario: How the Standing Orders Kept the Wynne Government in Power | James W.J. Bowden's Blog

  2. Pingback: The McGuinty Government Repeals a Law While Parliament Is Prorogued | James W.J. Bowden's Blog

  3. Rand Dyck says:

     I guess you saw you were quoted

  4. Chris Miller says:

    I haven’t paid any close attention to the Ontario case, but here in Quebec, s.36 of Bill 78 authorised the government to bring the effect of the legislation to an end before the date of expiry specified in the law as follows:

    “36. The provisions of this Act cease to have effect on 1 July 2013 or on any earlier date or dates set by the Government.”

    I don’t know how the wording and its implications compare with the Ontario legislation, but it’s an interesting case for comparison. (The Parti Québécois government abrogated the legislation almost as soon as they were sworn in.)

    Here’s the URL for Bill 78:
    http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2012C12A.PDF

    • Chris,

      Thanks for sharing this information about this Act from Quebec. First, I noticed that laws in Quebec refer to “the government” rather than to the Governor-in-Council, which probably reflects a republican impulse (though it is still more accurate in the informal sense).

      S 9 unambiguously states that the Government may make regulations with respect to sections 2 and 4 to 8. But s.36 combines a standard sunset clause with what appears to be a repeal clause. And no other section of the act specifically authorizes the Government to promulgated only s.36 by proclamation, which is what the Marois government did, as you pointed out. In that case, I would say upon initial examination that clause 36 presents a similar problem to clause 20 of delegating parliament’s power to repeal to the executive.

      James

  5. To All,

    I will do some more research on this point, but I suspect that, ironically, the unwritten constitutional principle (UCP) of parliamentary sovereignty protects parliament from itself in this case and prevents it from delegating its law-making power of repeal to the executive. Only Parliament can repeal a law.

    Given that the Supreme Court of Canada (SCC) has in various rulings recognized “four branches” of the Constitution — The Crown, the Cabinet, Parliament, and the Judiciary –, section 20 would also violate the fundamental balance of the Constitution. (Frankly, I do have reservations on the SCC’s doctrine of independence of powers, but if we apply it to this case, s.20 clearly presents a problem).

    In Canada, we of course have never possessed an absolute parliamentary sovereignty (unlike in the UK and NZ, with their uncodified constitutions), because the Constitution of Canada is supreme law.

    James

    • Princeps Senatus says:

      I certainly was not aware that the Supreme Court of Canada had ruled that the Crown is a separate branch of government. I am fairly sure that Canada has inherited the British Commonwealth structure of the Crown-in-Council, the Crown-in-Parliament and the Crown-in-Banco.

      • I disagree with the SCC’s interpretation, but it would probably invalidate section 20.

        In reality, the Crown occupies a central place in the Constitution as Crown as head of state, Crown-in-Council, Crown-in-Parliament, Crown-in-Court.

  6. pp549 says:

    Well, they quite clearly weren’t too fussed about making the act coherent.

    Is it normal to be able to bring into force only certain provisions of an act on the blanket power given by section 22 (“This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.”). I’d always have assumed it means the entire act, but perhaps I’m wrong…

    • In Canada, Parliament can specify that the Governor-in-Council may promulgate certain sections of an act into force a different times. HOWEVER, such Acts of Parliaments adhere to a certain manner and form which the “Putting Students First Act” violated.

      Normally, each section or clause that the Governor-in-Council may promulgate into force separately clearly indicates this parliamentary intent by stating, “The Governor-in-Council may promulgate sections a-d into force by proclamation” and “The Governor-in-Council may promulgate sections e through g into force by proclamation.”

      The Act would clearly indicate Parliament’s intent that the executive may activate certain sections of the law piece-meal. But never have I seen this absurdity.

      • pp549 says:

        Ah, I see – the intent is there, even if the wording is obtuse and unclear.

        I agree that it’s a bad idea though. For the same reason I’m against so-called Henry VIII clauses that can repeal or amend primary legislation by delegated legislation.

        • The “Henry VIII Clause” is such an appropriate name for this device! Henry VIII truly has gained immorality in the collective memory of all English-speakers forever. The soundtrack in “The Tudors” should not be called “Henry Dreams of Death”

          Ruth Sullivan’s textbook, Statutory Interpretation, has become the established authority in Canada.

          Sullivan writes, “The legislature may sometimes enact a so-called ‘Henry VIII Clause’, which provides that delegated legislation may override the legislature’s own enactments.” She also says, “The enabling legislation is the dominant partner in this scheme and, unless the legislature expressly provides otherwise, inconsistencies between the two are resolved in favour of the enabling legislation.”

          That said, Sullivan’s explanation doesn’t provide clear guidance on this particular case.

          • pp549 says:

            To be fair, Henry VIII is going to be hard to beat on that front!

            And I remembered that Henry VIII clauses probably aren’t the best comparison here because, in the UK at least, it’s not common practice that they require the approval of parliament before they come into force. Not quite the situation here!

  7. Princeps Senatus says:

    I’m certainly surprised that nobody in the Ontario legislature noticed this peculiar clause. To my mind, it makes no sense to have a clause in a Bill going through the legislature stating that “This Act is repealed”.
    I am afraid that I’m not au fait with the text of the Canadian Constitution to comment on the constitutionality of the clause. However, I do not know of anything in common law that prevents Parliament (The Crown in Parliament) from delegating powers to the Cabinet (The Crown in Council). It may finally depend on whether the Bill of Rights was imported into Canada as a law (which can subsequently be implicitly repealed by another Act of Parliament) or as a part of the Constitution (which would have its own provisions about modifications). A possible question for the Supreme Court, then.
    This kind of trickery is certainly another argument for an appointment element to an Upper House, which would allow eminent lawyers and judges to spot these kind of issues. I doubt that such a clause would have made it past the scrutiny of the House of Lords (and I think of the former Law Lords, Baroness Deech and the Lords Pannick and Norton of Louth in particular). Politics is too important an issue to be left to the politicians.

  8. Rand Dyck says:

     Good o

  9. Alex S says:

    That’s absurd. Wow.

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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