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56 Sask. L. Rev. 167 (1992)
Rules and Discretion in the Governance of Canada

handle is hein.journals/sasklr56 and id is 173 raw text is: RULES AND DISCRETION IN THE GOVERNANCE OF CANADA* THE HONOURABLE MADAME JUSTICE BEVERLEY MCLACHLIN The interaction between rules and discretion is at the heart of the way we govern in this country. On the one hand, we pride ourselves on being a country governed by the rule of law. The state cannot arbitrarily touch our persons or property; it must act in accordance with laws, which are established by published legislation or by the courts. On the other hand, the efficient governance of our highly-regulated state necessitates thousands of decisions daily about how this law or that regulation affects this person or that corporation. Often the fact situations vary so much that it would be impossible to govern them entirely by general rules promulgated in advance. Increasingly, Parliament and the legislatures confer discretion on people and groups of people within the public service who then make the necessary decisions. In recent years, the growth of administrative agencies has far outstripped the growth of the decision-making body charged with enforcing the law-the courts. The result is that our governments-be they federal, provincial or municipal-are deeply pervaded by discretionary powers at all levels. As of 1970, P. Anisman identified 14,885 discretionary powers within the 1970 Revised Statutes of Canada alone.' A discretion has been defined simply as the power to choose between alternate courses of action.' In the hands of government officials, it has often been associated with arbitrary might and coercion. Viewed thus, it stands in contrast Revised version of the Heald Lecture, College of Law, University of Saskatchewan, 23 September 1991. A Catalogue of Discretionary Powers in the Revised Statutes of Canada 1970 (Ottawa: Law Reform Commission of Canada, 1975). The author characterized the 14,885 discretionary powers as follows: 5,938-judicial; 3,467-rulemaking; 2,933-administrative; 1,298--investigative. 2 See H. Janisch, Discretionary Decision-Making: Possibilities for Review, a paper presented to L.S.U.C. Conference, Challenging the Administrative Decision, Toronto, 1987.

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