McGill Law Journal ~ Revue de droit de McGill
Book Review
John Mark Keyes, Executive Legislation, 2d ed (Markham: LexisNexis, 2010), pp 611.
ISBN 978-0-43-346025-1.
Roderick A. Macdonald *
Arthur Allen Leff once said that there can be a real joy in doing some-
thing very well which is very hard to do at all.1 As I put down this book, I
could not help but feel that John Mark Keyes must be a very happy au-
thor. The second edition of Executive Legislation is a real triumph. Sever-
al features, both substantive and technical, stand out: the comprehen-
siveness of the coverage, the quality of the analysis, the rigour of the or-
ganizing framework, the care with which the subject of the book is deline-
ated, the detailed and well-organized index, and the extraordinary biblio-
graphical apparatus (legislation considered, cases cited, textbooks and
treatises referenced, articles discussed).2 Together these characteristics
guarantee that this monograph will be an outstanding resource for judges,
lawyers, public servants, agency administrators, legal academics, and law
students.
The foreword by Professor Ruth Sullivan, herself the reigning doyenne
of Canadian scholars of statutory interpretation, notes the experience and
insight that John Mark Keyes brings to this endeavour. Following years
of service as a legislative drafter and later director of professional devel-
opment in the Department of Justice, he has for some time now been chief
legislative counsel of Canada. His erudition, good judgment, on-the-
ground experience, policy wisdom, and theoretical insight into what might
be called the law and practice of law-making are evident on every page.
Before I turn to some brief comments about the monograph itself, I should
* F. R. Scott Professor of Constitutional and Public Law, McGill University. I am grateful
to my colleague Hoi Kong for his comments on an earlier version of this review.
Roderick A. Macdonald 2011
Citation: (2011) 57:2 McGill LJ 377 ~ Rfrence : (2011) 57 : 2 RD McGill 377
1 Arthur A Leff, Afterword (1981) 90:5 Yale LJ 1296 at 1296.
2 I have only one small critical point to note in this respect. In addition to extensive foot-
notes, which are sometimes helpfully discursive as well, Keyes provides a table of legis-
lation and a table of cases cited. However, for a scholar seeking to trace the pedigree of
an idea, although perhaps not for an advocate seeking primary material for a memo-
randum of law or a factum, the absence of a table of authors referenced is regrettable.
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like to insert an aside. It is worth noting with pride, and feeling gratitude
about the fact that the cause of law and justice in Canada is so well-
served by public servants like John Mark Keyes.
Let me now discuss several commendable characteristics of Executive
Legislation. First, the author deserves compliments on the structure of
the work. The sophisticated division of the narrative into five general
parts, fifteen chapters, and eighty-seven sections comprising twice that
number of highly detailed subsections, is a model of how a complex sub-
ject can be made accessible and comprehensible through a well-conceived,
rigorously elaborated organization. This conceptual structure, when com-
bined with a carefully constructed ten-page analytical index that crosscuts
the subject matter headings of the table of contents, enables the reader to
quickly locate where a given topic is discussed, even when the specific lo-
cation of the theme one seeks to explore does not figure nominately in the
traditional doctrinal vocabulary of delegated legislation. Here is an exam-
ple. Some years ago I had the occasion to submit a brief to a parliamen-
tary committee examining proposed revisions to the Statutory Instru-
ments Act3 that would have permitted the executive to circumvent the
constitutional requirement of bilingualism in delegated legislation by in-
corporating unilingual instruments by reference. I scanned the index of
Executive Legislation to see whether there had been further developments
in this field and was pleased to discover a specific notation under the
heading incorporation by referenceprocess requirements to the topic
unilingual incorporation by reference (pages 466-69). Due to the care
with which the index was assembled, it was possible to quickly find a sub-
stantial discussion of an arcane but constitutionally important question
that does not figure in any orthodox conceptual organization of the sub-
ject.
Moreover, this monograph is no mere users manual about an ex-
tremely technical area of the law. Technical matters are, of course, dealt
with thoroughly, but always within an overall theoretical, policy, and le-
gal-constitutional context. Keyes begins with basic constitutional princi-
ples, exploring both the how and why of delegated rule making, and the
manner in which the deployment of delegated legislation has evolved over
the years. In part 1, the meaning of the expression executive legislation
is carefully analyzed and placed within a general theory of legislation in
the Canadian constitutional tradition. Thoughtful reference to practices in
the United States, the United Kingdom, Australia, and New Zealand help
to situate the legal framework of current Canadian approaches to the use
and interpretation of executive legislation.
3 RSC 1985, c S-22.
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Third, parts 2 through 4, comprising just over half the work (some 320
of 600 pages of the text), give a step-by-step detailed accounting of the
nuts and bolts by which executive legislation is made and brought into
force. An enlightening chapter on participation requirements prerequisite
to the final drafting of executive legislation (chapter 4) is followed by a de-
tailed review of process requirements relating to filing and publication of
instruments (chapter 5). This second topic contains a revealing examina-
tion of implicit publication requirements, as well as judicial notice. Of par-
ticular note in Keyes review of the cuisine of executive legislation is his
detailed discussion of what he calls required rule making (chapter 9).
Four different hypotheses are analyzed: (i) whether government authori-
ties can ever have a legal obligation to make executive legislation; (ii)
whether there can be an obligation to bring legislation into force (not,
strictly speaking, an occasion where executive legislation is in issue); (iii)
whether a statutory definition or, as is more often the case, exemption,
can be operative when the necessary regulations defining the exemption
have never been enacted; and (iv) whether an administrative scheme
managed by an agency can operate even when regulations envisioned by
the enabling statute have never been promulgated. For the scholar seek-
ing insight into how courts balance the desirability of the executive speci-
fying by regulation the conditions under which a discretionary power is to
be exercised, with their suspicion of agencies fettering their discretion by
self-created policy rules, Keyes discussion of the cases (pages 384-93) is a
real eye-opener. Indeed, these ten pages are one of the best examples of
how Keyes brings together disparate themes in a subtle assessment of
competing policy objectives being pursued through the use (and non-use)
of executive legislation.
The above, I trust, indicates clearly my great admiration for Executive
Legislation. Yet I would be remiss if I did not signal a couple of areas
where, at least from the perspective of a law teacher, I would have liked to
see additional development. To begin, the theoretical bases of executive
legislation could be further elaborated. There is a rich literature on the
general theory of legislative bargaining, notably by American scholars like
William Eskridge, Philip Frickey and Elizabeth Garrett,4 Richard Posner,5
George Stigler,6 Richard Stewart,7 and Evan Criddle.8 Yet to my
4 William N Eskridge Jr, Philip P Frickey & Elizabeth Garrett, Legislation and Statutory
Interpretation, 2d ed (New York: Foundation Press, 2006).
5 Richard A Posner, Theories of Economic Regulation (1974) 5:2 Bell Journal of Eco-
nomics and Management Science 335.
6 George J Stigler, The Theory of Economic Regulation (1971) 2:1 Bell Journal of Eco-
nomics and Management Science 3.
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knowledge there has been little effort to apply (or to demonstrate the in-
applicability of) these analyses to executive legislation in Canada.9 Ques-
tions that might be asked include, for example, whether there are particu-
lar constraints that apply to executive legislation that do not apply to
primary legislation made by democratically elected legislatures.
A further point is this. Theorists like Jeremy Waldron10 have devoted
considerable energy to exploring the special character of legislation as a
form of law with its own framework of justification. Here again, however,
no effort has been made to apply these approaches to the specific case of
executive legislation, although the more general question has attracted
scholarly commentary in Canada.11 It bears notice that in distinguishing
executive legislation as a form of delegated legislation, Keyes rightly dif-
ferentiates between delegated legislation made by subordinate legislative
bodies like municipalities and school boards. What impact, if any, should
this have on assessments of the appropriateness of using delegated rule
making as a policy instrument and the extent of deference that courts
should afford to municipal bylaws?12
Finally, although Keyes provides an introduction to some of the litera-
ture on instrument choice in chapter 2, this could have been developed
further, especially as concerns the occasions for rule making as opposed to
fiat, contract, and case-by-case adjudication as a means of developing ad-
ministrative policy. Given that scholars like Fuller,13 and Hart and
7 Richard B Stewart, The Reformation of American Administrative Law (1975) 88:8
Harv L Rev 1667 (critiquing the conveyor belt theory of regulation as the simple prod-
uct of interest-group pressures).
8 Evan J Criddle, Fiduciary Administration: Rethinking Popular Representation in
Agency Rulemaking (2010) 88:3 Tex L Rev 441 (critiquing the view that the executive
can automatically dictate regulation-making outputs of regulatory agencies).
9 For rare exceptions, see Alice Woolley, Legitimating Public Policy” (2008) 58:2 UTLJ
153; Hoi Kong, Towards a Civic Republican Theory of Canadian Constitutional Law
(2011) 15 Rev Const Stud 249; Hoi Kong, Something to Talk About: Regulation and
Justification in Canadian Municipal Law (2010) 48:3&4 Osgoode Hall LJ 499.
10 Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press,
1999).
11 The Law Commission of Canada sponsored a Symposium on the topic in 2000. See
Nathalie DesRosiers et al, Legislation: Challenges and Potentials (2001) 47:1 McGill
LJ 1.
12 For a recent discussion of why delegated decision making by elected bodies may be de-
serving of greater deference see Richard C Schragger, Mobile Capital, Local Economic
Regulation, and the Democratic City (2009) 123:2 Harv L Rev 482.
13 Kenneth I Winston, ed, The Principles of Social Order: Selected Essays of Lon L Fuller,
revised ed (Oxford: Hart, 2001).
BOOK REVIEW ~ RECENSION COMPARATIVE
381
Sacks14 have provided baseline understandings of the forms and limits of
each of these processes of social ordering, is the time not now ripe for de-
veloping such insights in assessing the conditions under which legisla-
tures might optimally choose executive legislation as a governing instru-
ment?15
The above three points, of course, constitute observations about the
book that Keyes did not write. I raise them not as a critique of the book he
did write, which is a superlative contribution to our doctrinal understand-
ing of this field. Rather I offer them as an invitation to Keyes to consider
these themes either in a separate policy-oriented monograph or in an ex-
panded next edition of Executive Legislation. After all, as this second edi-
tion shows, Keyes is committed to constant improvement and develop-
ment of the treatise. More particularly, by the quality of this work, he
shows that he is probably the best-placed author in Canada to undertake
the kind of theoretical investigation that is now our greatest scholarly
need. Be that as it may, the current edition of Executive Legislation is a
triumph, and all jurists should be grateful to John Mark Keyes for the
care and attention he has devoted to this excellent work.
14 Henry M Hart Jr & Albert M Sacks, The Legal Process: Basic Problems in the Making
and Application of Law, ed by William N Eskridge Jr & Philip P Frickey (Westbury:
Foundation Press, 1994).
15 To my knowledge there has been little Canadian follow-up in respect of delegated legis-
lation to lines of inquiry pursued by, among others, Cass R Sunstein & Adrian Ver-
meule, Interpretation and Institutions (2003) 101:4 Mich L Rev 885.
