Review of John Mark Keyes, Executive Legislation

This short review will appear in the next issue of the Canadian Journal of Administrative Law & Practice

John Mark Keyes, Executive Legislation, Third Edition, LexisNexis Canada, Markham, 2021, Hardcover $235.00, 726pp

ISBN: 9780433499275

Relatively authors succeed in making substantial conceptual and practical contributions to the legal literature. John Mark Keyes’s Executive Legislation, now in its third edition, is a notable exception. This book is a must have not just for practitioners, who will here find answers to every conceivable question about regulations, but also for academics interested in the nature of legislation.

Moreover, the most recent edition is especially timely as executive legislation featured prominently in governmental responses to the COVID-19 pandemic and the coming years are likely to see sustained reflection by the legal community on the use and abuse of executive legislation – Bill 1 in Alberta, which creates sweeping Henry VIII powers triggered by a cabinet determination that federal activity interferes with the interests of Albertans, may well be the focal point for critical analysis.

Let me explain why Executive Legislation is such a useful text, first by describing its conceptual strengths before, second, by detailing its practical utility.

In chapter 1, Keyes tackles the definition of executive legislation, a legislation-like phenomenon which is not actually legislation. In Westminster systems, the simplest answer to the question “What is ‘legislation’”, is: any text passed by all the chambers of a legislative assembly to which assent is given by the head of state or their delegate: legislation is any grouping of words which has the form of legislation. The reproduction of the official language of legislating, in the appropriate form, signifies that the words have been adopted pursuant to a set of parliamentary procedures designed to produce legislation, “intended as an act of norm creation on the part of the legislator” (John Gardner, “Some Types of Law” in Douglas Edlin ed., Common Law Theory (Cambridge: Cambridge University Press, 2007), at p. 56). This is a formal answer to the question: it obviously excludes “executive” legislation.

But legislation has substantive characteristics as well. Normally, legislation contains a general, impersonal set of norms, fixed in time but forward-looking, designed to change the existing legal position and subject to change only by a prescribed process. Some of the time, perhaps even most of the time, all of these substantive characteristics will be present. However, there are many examples of legislation which, in whole or in part, does not exhibit these characteristics: consider, for example, the exhortatory (and therefore judicially unenforceable) provisions relating to international agreements analyzed in Turp v. Canada (Justice), 2012 FC 893. Moreover, there are as many examples – perhaps even more examples – of carefully chosen groups words that do not have the formal characteristics of legislation but which yet have the substantive characteristics of legislation, such as regulations and rules made by governmental bodies. These typically contain a general, impersonal set of norms, fixed in time but forward-looking, designed to change the existing legal position and subject to change only by a prescribed process. They may also be subject to a process of parliamentary scrutiny (though the quality of this is dubious), but most are not, especially when they are made by regulatory bodies independent of the government of the day. It is this large category of “executive legislation” (sometimes called delegated or subordinate legislation) with which Keyes is concerned.

Conceptual confusion between form and substance is rife in this area. For example, the Alberta Court of Appeal recently held in Auer v. Auer, 2022 ABCA 375 that cabinet-level regulations bear the characteristics of legislation and so should not be subject to judicial review under the framework set out in Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65 but rather to “hyperdeferential” review (Portnov v. Canada (Attorney General), 2021 FCA 171, at para. 19). In justifying her conclusion on this point, Justice Dawn Pentelechuk relied heavily on decisions holding that legislation is not subject to judicial review. But, of course, “executive legislation” is not actually legislation in this sense. Rather, it is a type of administrative action – a measure taken pursuant to statutory authority which must conform to the common law principles of administrative law – which shares some of the substantive characteristics of primary legislation. For this reason, the Supreme Court of Canada has consistently applied the ordinary judicial review framework to similar types of administrative action, such as municipal by-laws, law society rules and administrative regulations (Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2; Green v. Law Society of Manitoba, 2017 SCC 20; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22). Keyes applies his conceptual analysis of “legislation” in chapter 4 to the question of the standard of review, reaches a conclusion irreconcilable with the Alberta Court of Appeal’s analysis, and develops a compelling case for executive legislation to be addressed under the Vavilov framework.

The practical utility of Executive Legislation lies in its comprehensive discussion of every conceivable aspect of regulations, from the procedural requirements which apply to regulation-making, to the substantive requirements for the interpretation of regulations and to the interaction of regulations with statutory provisions and other regulatory schemes. In this latter area, the text is particularly strong. Whenever I am tasked with a difficult question about a previously unforeseen issue arising in a legislative and regulatory scheme, Executive Legislation is the first text I reach for. The chapters are short, the analysis is clear, concise and cogent, and every conceivable question is covered somewhere. It is worth noting here that the text is eminently navigable: the table of contents gives excellent guidance to the reader, as does the expertly curated index. Finding relevant practical information is a matter of minutes, not hours of fruitless thumbing through dense text.

Let me conclude by returning to the pandemic. Keyes has an excellent discussion in chapter 2 of delegation in Canadian public law, which is as good a treatment of the subject as can be found in the literature. One strength of this book for those interested in critically considering executive power – as we really should in the coming years – is that it brings together not just the jurisprudence and literature on delegation but also weaves in the process (often defective: chapter 3) for making executive legislation and the judicial controls (often limited: chapter 4) on the implementation of executive legislation. Those who wish to learn more about executive power would benefit from a close read of several of the chapters in this timely, conceptually robust and extremely useful text.

This content has been updated on May 10, 2023 at 02:36.