Page - 217 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

217Governmental Power and COVID-19: The Limits of Judicial Review subsists in modified form. Nonetheless, subject to the limits imposed by the Charter, Parliament and the provincial legislatures have ple- nary authority “within their respective spheres of jurisdiction.”19 The scope for legal challenges to emergency legislation is, accord- ingly, limited. Reasonableness and procedural fairness do not come into it.20 Even broad delegations of authority to ministers are constitu- tionally valid,21 as long as a legislature does not abdicate its powers22 or breach a distinct constitutional provision.23 Such delegations may be “constitutionally suspect” when they vest plenary powers in min- isters, but Canadian courts have no authority to invalidate legislative delegations of power.24 Powerful arguments have been mounted for a more forceful judicial role in policing delegations of authority,25 but these are likely to fall on deaf ears in the context of an ongoing pan- demic—indeed, the most prominent Canadian statements in relation to a legislature’s ability to delegate power to ministers in the most sweeping terms have been made in times of crisis.26 Courts can certainly police the boundaries of delegated power; however, ensuring that authority is exercised reasonably and proce- durally fairly is an uncontroversial part of the judicial function. Judges might even narrow broad delegations of authority to bring these delegations into line with fundamental constitutional principles; for example, Quebec’s emergency legislation might be held not to autho- rize interference with extant judicial orders.27 Charter concerns might 19. Reference  re  PanCanadian  Securities  Regulation, 2018 SCC 48 at para 56. 20. See especially Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525, [1991] 6 WWR 1. 21. See Chemicals Reference, [1943] SCR 1, [1943] 1 DLR 248 [Chemicals Reference]. 22. See Re  Grey, (1918) 57 SCR 150 at 158, [1918] 3 WWR 111 [Re  Grey]. 23. For example, the taxation provisions of the Constitution  Act,  1867: see Paul Daly, “Emergency Taxation Legislation: The Constitutional Framework” (24 March 2020), online (blog): Administrative  Law  Matters  <www.administrativelawmatters.com/ blog/2020/03/24/emergency-taxation-legislation-the-constitutional-framework>. 24. Ontario  Public  School  Boards’  Association  v  Ontario  (Attorney  General) (1997), 151 DLR (4th) 346 at para 51, 45 CRR (2d) 341. 25. See James Johnson, “The Case for a Canadian Nondelegation Doctrine” (2019) 53:3 UBC L Rev 817. 26. Re  Grey, supra note 22; Chemicals Reference, supra note 21. Moreover, it is not at all clear that the solution to the accountability problems caused by broad delega- tions of authority, which reduce the ability of legislatures to hold ministers to account, is to increase the powers of the judiciary. 27. See Martine Valois, “Droit et urgence ne font pas bien ménage”, La Presse (14 April 2020), online: <www.lapresse.ca/debats/opinions/202004/13/01-5269169-droit-et- urgence-ne-font-pas-bon-menage.php>.