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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