Alberta City Charters: Extraordinary Powers Handed Out with the Daily Rations of Government

September 26, 2018

Are Alberta City Charters Necessary?

An often heard justification for “big city” charters in Alberta is the Municipal Government Act (“MGA”) is “one size fits all” legislation, for everything from a summer village of 20 residents, to a city of 1.2 million. As stated by former Municipal Affairs Minister Danielle Larivee, “In order to ensure cities like Edmonton and Calgary are able to become centres of excellence on the international stage, the legislation applicable to them must recognize their unique status and needs.”

But the MGA, which has just gone through a cover-to-cover amendment, is a complex and comprehensive act—740 sections and over 220 regulations. Arguably, a charter isn’t necessary to meet the unique needs of Alberta’s major cities. These could be accommodated in the MGA. In fact, if the Toronto experience is indicative, its enhanced powers of taxation under its charter have been used as an argument by the Province of Ontario to deflect funding requests—i.e. the City should use its own charter taxation powers and suffer the political risks that accompany increasing taxes, rather than look to the Province to assume that cost and risk.[1] More recently, the perceived autonomy that comes with a charter has not insulated the City of Toronto from the Province bringing forward legislation to significantly decrease the number of municipal councillors. Perhaps the summer villages should have been lobbying for simpler legislation rather than the big cities lobbying for charters.

City Charters in Other Canadian Jurisdictions

Canada already has several charter cities, with the City of Toronto being among the most recent (2006). Other charter cities include St. John’s, Halifax, Montreal, Hamilton, Winnipeg, and Vancouver. The charters of these cities are enacted by their respective legislatures, and amendments to these charters are brought before their respective legislatures. Not so for Alberta. Its charters were enacted by regulation, by the government cabinet—City of Calgary Charter, 2018 Regulation and City of Edmonton Charter, 2018 Regulation—and they may be amended by cabinet. While this process for enabling Alberta city charters is efficient, it is also less democratic as it avoids the scrutiny of the legislature, and it might even be an improper (i.e. unlawful) delegation of powers.

 An Improper Delegation of Powers?

Governments sometimes add a provision to a bill to enable the government (rather than parliament) to amend the act after it has become law. The provision enables primary legislation (i.e. an act) to be amended or repealed by subordinate legislation (i.e. a regulation) without further parliamentary scrutiny. Such provisions became known as Henry VIII clauses after the Statute of Proclamations, 1539, gave King Henry VIII power to legislate by proclamation, a power associated since the 16th century with executive autocracy.

Henry VIII clauses are not necessarily unlawful. However, Canadian courts and a parliamentary committee have cautioned against their use in all but the most exceptional circumstances. For example, the federal War Measures Act delegates broad powers to cabinet to conduct war and to amend the Act. This delegation of legislative authority was challenged unsuccessfully (in ReGray, 1918, 57 S.C.R. 150, 42 D.L.R. 1), the Supreme Court holding that the authority to conduct war was one of those exceptional circumstances.

The prevailing judicial view of Henry VIII clauses is that they are generally repugnant to principles of democracy and parliamentary sovereignty. This view was succinctly expressed in Ontario Public Schools Boards’ Assn v Ontario (AG), 1997, ON SC), wherein a number of Ontario school boards challenged the Fewer School Boards Act, 1997, S.O. 1997, c. 3., which, as Justice Campbell describes, contains “massive powers of delegation and subdelegation” and “breathtakingly arbitrary power to make government regulations which contravene the very statute under which the regulations are made.” [para. 22]. As Campbell J. stated:

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 daily rations of government power, unlimited as to any explicit legal purpose for which it may be exercised [para. 56].

This challenge to the Fewer School Boards Act was ultimately dismissed on the basis that:

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.
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. [paras. 60-61]

Nevertheless, its parallels to the current state of Alberta city charter legislation are remarkable. Part 4.1 of the MGA delegates broad powers to make city charters to cabinet regulations and city bylaws. The City Charter Regulations passed by Cabinet in April 2018 subdelegate these powers to the city councils of Edmonton and Calgary, which are now poised to pass numerous charter bylaws. The MGA and the City Charter Regulations enable charter cities to pass bylaws that amend not only the MGA but other provincial acts. A charter bylaw would also supersede the MGA or any other provincial enactment in the event of a conflict or inconsistency. However, as Campbell J. stated in Ontario Public Schools Boards’ Assn v Ontario (AG), “until there is an actual attempt to use these remarkable powers it is premature to adjudicate upon them.” We can, at this point, only urge the Alberta charter cities to proceed cautiously and the provincial government to be vigilant in its regulatory oversight of charter bylaws.

[1] “Is ‘Charter-City Status’ a Solution for Financing City Services in Canada – or is that a Myth?”, by Harry Kitchen, University of Calgary School of Public Policy Research Papers, Vol 9, Issue 2, Jan 2016.

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