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and it may be said, therefore, that the power of appointing members of the Privy Council, simply as such, is fettered by no statutory limitations.
2. Senators.-B. N. A. Act, s. 24.
3. Speaker of the Senate.-B. N. A. Act, s. 34.
4. Judges. As enumerated in B. N. A. Act, s. 96. 5. Deputy Governor-General.-B. N. A. Act, s. 14, and Letters Patent, clause VI.
B. The summoning of parliament.
Reference has already (k) been made to the clause in the Letters Patent constituting the office of GovernorGeneral of Canada, by which the person filling that office is empowered to exercise the prerogatives of the Crown in reference to the summoning, proroguing, and dissolving of parliament; and it has been pointed out that the only statutory regulation as to the exercise of this prerogative is in reference to the summoning of parliament. Treating the parliament of Canada as one body, the B. N. A. Act provides (1):
There shall be a session of the parliament of Canada once at least in every year, so that twelve months shall not intervene between the last sitting of the parliament in one session, and its first sitting in the next session."
and there can be no doubt that a Governor-General who should disregard this imperative provision, even upon the advice of her Majesty's Privy Council for Canada-i.e., his Ministers would be guilty of a plain violation of his duty; and if it can be imagined that legal damage could be suffered by any individual by reason of such violation of duty, such individual would have a right of action in respect of such damage, in accordance with the principles heretofore laid down (m). The similar provision (n) necessitating annual sessions of the legislative assemblies. (1) Sec. 20.
(k) Ante, p. 165.
(m) Ante, p. 158, et seq.
(n) B. N. A. Act, sec. 83.
of the provinces of Ontario and Quebec, has, as we write, been disregarded by the Lieutenant-Governor of the latter province, but the bitterness there of contending factions is such that it is hardly possible to discuss this matter further now, without appearing to advocate a party's
Treating now the parliament of Canada as composed of three branches-the Crown, the Senate, and the House of Commons (0)-attention must be drawn to the difference. in the duration of the life of the respective branches. The Crown and the Senate are immortal branches, while the House of Commons might be more aptly termed the foliage of parliament, appearing and disappearing, sometimes in quick revolving seasons (as in the Antipodean Colonies), but, at the longest, in quinquennial recurrences (p). The analogy holds even more fully, for as a tree grows and does effective work only when clothed with foliage, so parliament requires for the effective exercise of its functions the magic call of gubernatorial spring, summoning the murmuring leaves of the Commons into legislative being.
Analogies aside, the result of this marked distinction in the constitution of the various branches of parliament is apparent in the B. N. A. Act, in the absence of any provision for the calling together of the members of the Senate, while it is expressly enacted :
"38.--The Governor-General shall from time to time in the Queen's name, by instrument under the Great Seal of Canada, summon and call together the House of Commons."
This section however would seem to carry the governor's powers no further than the Letters Patent alone would have carried them, and therefore, as said by Dr. Bourinot : "The summoning, prorogation, and dissolution of parliament in Canada, are governed by English constitutional usage. Parliament can only be legally summoned by
(0) B. N. A. Act, sec. 17.
(p) B. N. A. Act sec. 50.
authority of the Crown." After the expiry of the House of Commons by lapse of time or dissolution, there must be a new House elected by the people according to law, before there can be an effective exercise of the prerogative right to summon parliament; and we may here note that in connection with such election certain powers are vested in the Governor-General and certain duties imposed upon him by Canadian legislation, in the exercise of which he, in contemplation of law, acts personally. Upon him devolves. the duty of fixing the date for the holding of such election -the rule is the same as to bye-elections—and by him the returning officer for each electoral district is appointed (q). This however by the way. The House of Commons being so elected, parliament can meet together for the despatch of business only upon the summons of the Governor-General. It is worthy of note that this word, "summon," is used in the B. N. A. Act, in reference to the appointment of senators (r), and that, as has been said, there is no legislative regulation of the method by which the Senate is called together for the despatch of business; while in relation to the House of Commons the word is used to indicate the annual calling together of the elected members of the House for the exercise of their functions. As a matter of usage (in conformity with the English practice) the instrument by which the Governor-General summons the House of Commons, viz., a proclamation under the Great Seal, is addressed to both senators, and members of the House of Commons.
C.-The exercise of the prerogative rights of the Crown as a constituent branch of the Parliament of Canada.
This matter has been fully dealt with in the last chapter, and we need not therefore dwell further upon it here.
D.-The disallowance of Provincial Acts.
No prerogative right of the Crown is more firmly established than the right to supervise the legislative enactments of all minor legislative bodies-the right is indeed but the logical result of the rule that the Crown is a constituent part of every legislative body throughout the Empire ($). Even should a Governor "thereunto lawfully authorized" assent in the Queen's name to an Act of a colonial legislature, there is by the common law of England a reserved power in the Crown to repudiate the action of the Crown's officer in the colony and to disallow such Act. In the case of Canada, the exercise of this prerogative must, to be legally effective, take place within two years after the receipt of the Act by the Secretary of State for the colonies (f); but the right once exercised in the method pointed out by the statute, and such exercise being duly "signified" here, the Act, so disallowed, is absolutely annulled "from and after the day of such signification." It is to be noticed, however, that this power of disallowance cannot be legally exercised by the Queen personally, but only by and with the advice of her Privy Council.
With regard, however, to Acts of the legislative assemblies of the different provinces of the Dominion, the right to exercise this prerogative has been taken away from the Queen in Council, and is by the B. N. A. Act (u) conferred on the Governor in Council-a matter frequently adverted to, as indicating the very extended rights of self-government accorded to Canada. Much must be said hereafter with reference to this power, and the and the proper "conventional” limits within which it should be exercised; but viewing it from the standpoint of the legal efficacy of its exercise, it would appear clear that, the Governor-General and the
(8) Chitty, p. 25; see. Chap. VI. ante, p. 138; Théberge v. Landry, 2 App. Cas. 102; see notes to s. 69 B. N. A. Act, post.
(t) B. N. A. Act, s. 55.
(u) Sec. 90, read in connection with ss. 55, 56, and 57.
Privy Council concurring in such disallowance and exercising their power in the manner and within the time indicated in the statute, no provincial Act is legally exempt from the operation of this prerogative of disallowance.
This is, perhaps, the proper place to advert to a glaring error glaring to us in Canada at least-into which ProfDicey has fallen in the work to which we have frequently referred (v)—a work which, in its elucidation of the principle of the supremacy of law, as the fundamental principle of Anglo-Saxon government the world over, stands to-day facile princeps; but which, in its references to the colonies generally and to Canada in particular, displays a strange lack of appreciation of the true position of affairs (w). To confine our attention, however, to this particular error Prof. Dicey is completely astray in laying it down, that the lodging of this veto power in the hands of the GovernorGeneral in Council-i.e., with the Dominion Government,— was intended to obviate the necessity for resort to the courts, for the decision of "constitutional" cases involving the determination of the line of division between the sphere of authority of the Dominion parliament and that of a provincial assembly.
"The futility of a hope grounded on a misconception of the nature of federalism," is a pretty strong expression, and contains a very direct charge that the Fathers of Confederation did not know what they were about in this matter. One who, like Prof. Dicey, speaks with authority, should not have penned such a grave charge without first consulting the debates which took place in the various legislatures upon the "Confederation Resolutions." Had he done so, he would have found that a very sharp line of distinction was drawn between the exercise by the Dominion government, as a matter of political expediency, of the power of disallowance of provincial Acts, and the exercise by the courts
(v) The Law of the Constitution."
(c) See note at end of this chapter. And see Chap. I. ante.