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Delegated Legislation - Henry VIII Clauses (1)

. Ontario Public School Boards' Assn. v. Ontario (Attorney General)

In Ontario Public School Boards' Assn. v. Ontario (Attorney General) (Supreme Court, 1997) the Supreme Court Divisional Court considered a Mike Harris PC statute, the 'Fewer School Boards Act', which contained in Henry VIII clauses:

The King Henry VIII clause

[48] Section 349(2) of the Act gives the government the power, except in situations dealing with trustees’ terms of office, to make regulations that override the Act itself. It provides that except in matters dealing with trustees’ terms of office:

…in the event of a conflict between a regulation made under this Part and a provision of this Act or of any other Act or regulation, the regulation made under this Part prevails.

[49] This is the opposite of the usual rule, that if there is any conflict between the statute and the regulation which relies for its authority on the statute, the statute enacted by the Legislative Assembly prevails over the regulation made by the government. The usual rule is that legislative power is vested in the democratically elected Legislative Assembly to make laws after full public debate. This provision reverses that usual rule.

[50] This breathtaking power, to amend by regulation the very statute which authorizes the regulation, is known to legal historians as a “King Henry VIII” clause because that monarch gave himself power to legislate by proclamation, a power associated since the 16th century with executive autocracy: see, generally, Waddell v. Canada (Governor in Council) (1984), 1983 CanLII 189 (BC SC), 49 B.C.L.R. 305, [1984] 1 W.W.R. 307 at pp. 322-26 (S.C.),per Lysyk J.; O. Hood Phillips’s Constitutional and Administrative Law, 7th ed. (1987) p. 626, footnote 29 and the cases and authorities there cited.

[51] This power is constitutionally suspect because it confers upon the government the unprotected authority to pull itself up by its own legal bootstraps and override arbitrarily, with no further advice from the Legislative Assembly, and no right to be heard by those who may be adversely affected by the change, the very legislative instrument from which the government derives its original authority.

[52] Counsel advise the court that they have been able to find a handful of examples of the exercise of this power in Ontario including the County of Simcoe Act, 1993, S.O. 1993, c. 33; the Planning Act, R.S.O. 1990, c. P.13; the Regional Municipality of Ottawa-Carleton Act, R.S.O. 1990, c. R.14; the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, and an earlier education regulation, under the Education Act, referred to below, which was used to support the creation by O. Reg. 479/91 of the Prescott and Russell County Roman Catholic French-Language School Board.

[53] Until recent years this arbitrary government power, to override by regulation the very statute which authorized the regulation, was foreign to Ontario. The power was considered by many governments and successive generations of Crown law officers to be repugnant to our basic legal traditions of public accountability. Chief Justice McRuer in his 1968 Civil Rights Commission pointed out that this power although technically within the authority of every sovereign Legislature, had never been used by any Ontario government. He cautioned against its use in Ontario because:

Such exercise of power to alter the scope or operation of an Act may vitally affect rights of individuals or classes of individuals coming within its purview.

The rule should be that the normal constitutional process of amending the parent Act should be followed so that the amendment may be publicly debated in the Legislature.

[54] However offensive this kind of power may be to our traditional sense of legality and public accountability, the constitutional capacity of legislative bodies to confer it has been upheld by the Supreme Court of Canada in the case of Re Gray (1918), 1918 CanLII 533 (SCC), 57 S.C.R. 150, 42 D.L.R. 1. That precedent upheld the war measures powers of the Dominion government to levy war during World War I.

[55] This war measures precedent is the only basis on which the government can defend the power it gave itself in this case. On the basis of this precedent, technically and legalistically, the government has not exceeded its constitutional powers. While it may appear startling that an Ontario government in peacetime is driven to rely on a constitutional precedent associated with the power to levy war, the precedent does support the power of the government to do what it has done.

[56] It is one thing to confer this extraordinary power if it is actually needed for some urgent and immediate action to protect an explicitly identified public interest. It is quite another thing to hand it out with the daily rations of government power, unlimited as to any explicit legal purpose for which it may be exercised.

[57] Mr. Rouleau makes a persuasive argument that this power might be needed for the purpose of giving effect to the extension of French language schools throughout the province and therefore necessary for the purpose of securing the rights guaranteed to his clients by s. 23 of the Charter.

[58] I understand him to suggest that this may be the justification for this provision and may be what the government had in mind in enacting these remarkable powers. It is interesting to note that in the small handful of examples which counsel have been able to find of the conferral of this power in Ontario, one of them was the power under ss. 11(13) and 11(15) of the Education Act to make regulations, for the purpose of establishing French language school boards, which modified or excluded the application of any provision of the Act itself. It was under the authority of these powers that the Prescott and Russell County Roman Catholic French-Language School Board was established in 1991 by O. Reg. 479/91.

[59] If this indeed is what the government has in mind, it has kept that fact to itself and I cannot therefore find any basis in the evidentiary record to read the power down by limiting it to regulations considered necessary for the purpose of securing French language education rights guaranteed by s. 23 of the Charter.

[60] It remains to be seen whether these arbitrary powers are actually necessary to achieve any valid legislative purpose. However legally offensive may be the existence of these powers, there has not yet been any attempt to use them. No regulations have been challenged which purport to rely upon these powers.

[61] Until there is an actual attempt to use these remarkable powers it is premature to adjudicate upon them in the absence of any concrete facts or actual violation of anyone’s rights.