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without repeal of the B. N. A. Act, she could not legally
All the powers, authorities and functions necessary to “carrying on the government” of the Dominion and of the respective provinces are, by the express terms of the B. N. A. Act, vested in the Governor-General, or the Lieutenant-Governor, as the case may require (i); and by no Act of Imperial executive authority could these express provisions of this Imperial statute be overridden. In the absence, therefore, of further Imperial · legislation, we must put up with Her Majesty's representatives.
The power (1) to disallow colonial legislation; (2) to appoint the Governor-General; (3) to appoint a Commander over the military and naval forces of Canada ; (4) to make international arrangements which will bind Canada; and (5) to hear appeals from Canadian courts in her Privy Council (j); would seem to be about all the common law prerogatives of the Crown in connection with colonial affairs, over which colonial legislatures have no legislative power. As a matter of fact, some of these powers can hardly be designated prerogatives of the Crown, as their exercise is entirely controlled by Imperial statutes. As one example, we may note the power to disallow Dominion legislation, which under section 56 of the B. N. A. Act, can only be exercised within two years from the receipt of the Act by the secretary of state, and by order in council.
10. The provisions of this Act referring Application of to the Governor-General (i) extend and Governorapply to the Governor-General for the time being of Canada, or other the chief executive Officer or Administrator, for the time being carrying on the govern
(i) See notes to ss. 10 and 62, post.
(j) Cushing v. Dupuy, 5, App. Cas. 409, and cases there cited; and see Théberge v. Landry, 2 App. Cas. 102 (as to appeals in election cases under the Quebec Acts of 1872 and 1875), noted post, under s. 41.
ment (ii) of Canada on behalf and in the name of the Queen (iii) by whatever title
he is designated. (i) “The Governor-General.”—We have already devoted one chapter of this book to a consideration of the position of the Governor-General, and need not therefore make further reference to that office here. As was pointed out, the B. N. A. Act contains no express provision for his appointment. By R. S. C. c. 3, he is a “corporation sole.”
(ii) “Carrying on the government.”-Compare with this section, the language of section 62 in reference to the carrying on of the government of the respective provinces by the Lieutenant-Governors. The use of this phrase in reference alike to the Dominion and the Provincial governments, has been much utilized in argument in support of the contention that the Lieutenant-Governor is within his sphere, an officer clothed with authority as complete as that of the Governor-General; but as we shall have to deal with this matter more at length when we come to deal with the office of Lieutenant-Governor, we need not stay to consider it at length here. See notes to section 58, post.
(iii) “On behalf and in the name of the Queen.”—The absence of this phrase from section 62, has been utilized in the opposite direction in Regina v. Amer (k), and other subsequent cases. It was laid down by Harrison, C.J., that the Governor-General is the only executive officer provided for by the B. N. A. Act, who answers the description of "representative of the Queen," but it is submitted that the difference in the wording of this section and of section 62, does not warrant any such distinction. Any person carrying on government within the British Empire must do so on behalf of, and in the name of, the executive head of the British Empire, as all other executive magistrates act under commission from, and in due subordination to, that executive head. If reliance is placed upon the fact that
(k) 42 U. C. Q. B. 391.
the Lieutenant-Governor is described as an "officer," it will be seen that this section uses the very same word in describing the position of the Governor-General, and a reference to chapter VIII. and the cases there collected, will show that the Governor-General occupies, in this respect, a position in no way different from, or superior to, that of the Lieutenant-Governor of a province. Very opportunely, there comes to hand the report of the judgment of the Judicial Committee of the Privy Council in Liquidators of the Maritime Bank v. Receiver General of New Brunswick (Times L. R., Vol. VIII. p. 677), which authoritatively establishes the doctrine that the position of the GovernorGeneral and the various Lieutenant-Governors is, in principle, precisely analogous. “A Lieutenant-Governor when appointed is as much the representative of her Majesty for all purposes of provincial government as the GovernorGeneral himself is for all purposes of Dominion government." See further on this subject, section 58, et seq. and notes.
11. There shall be a Council (i) to Constitution aid and advise in the Government of Canada. Canada, to be styled the Queen's Privy Council for Canada (ii); and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and members thereof may be from time to time removed by the Governor-General.
(i) “ There shall be a council.”—Compare with this, the language of section 63. This latter section seems to "take it for granted” that an executive council would be called into existence in Ontario and Quebec, while as to the Dominion it was necessary to make express provision therefor. See ante, p. 50-1.
All powers under acts to be exercised
General with advice of Privy Council or alone.
(ii) “ The Queen's Privy Council for Canada.”—Following the English practice, members of the Canadian Privy Council, are not removed from their position upon the resignation of the “ministry" of which they may happen to be members; but, of course, those members only who are of the cabinet are summoned to meetings of the Privy Council. See Bourinot, “Parl. Proc. and Pract.," 2nd ed. P. 54 and Todd, “Parl. Gov. Brit. Col., p. 42.
12. (i) All powers, authorities, and by Governor functions (ii) which under any Act (iii) of
the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors
Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor-General, with the advice or with the advice and consent of or in conjunction with the Queen's Privy Council for Canada, or any members thereof, or by the Governor-General individually, as the case requires, subject nevertheless
(except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) (iv) to be abolished or altered by the Parliament of Canada (v).
(i) We have already had occasion to treat with some fullness of this section and its companion section (65); see chapter III., pp. 48, et seq.
(ii) “All powers, etc."-Compare the language of section 65, which vests these same “powers, etc.," so far as they are capable of being exercised in relation to the government of Ontario and Quebec, in the Lieutenant-Governors of those provinces respectively. The B. N. A. Act affects no division of these powers, but of the field for their exercise merely.
(iii) “ Under any Act.”—This section 12, refers only to statutory powers and does not touch the common law “prerogatives of the crown.” The vast majority of the powers exerciseable by the Governor-General are statutory powers, that is to say, are vested in him under Canadian legislation. See chapter VIII. ante, p. 16:3, et seq., where this question is fully discussed.
(iv) “ E.ccept with respect, etc.”—There are no Imperial Acts conferring powers, authorities, and functions on colonial governors generally: as to Canada, see the Constitutional Act, 1791, and the Union Act, 1840. All the powers, etc.,conferred by those Acts-and more--are included in the B. N. A. Act, which at the present time is the only Imperial statute which in any way defines the duties of the Governor-General or of the Lieutenant-Governors of the various provinces.
(v) “ To be abolished or alterel by the parliament of Canada.”—This of course is limited to the abolition or alteration of these powers, etc., so far as they are exerciseable in