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ante, and see notes thereto. See also chapter III., ante, p. 48, and notes to section 59, post.
(iv) “ The Lieutenant-Governor.”—The LieutenantGovernor of a province is the chief executive officer “carrying on the government of the province ”—see section 62, post. In some of the cases will be found discussed the question whether or not a Lieutenant-Governor is to be considered a representative of the Queen. In Regina v. Amer (y), Harrison, C.J., laid it down that the GovernorGeneral is the only officer named in the B. N. A. Act who answers that description-see notes to section 10, ante; and in Regina v. Bank of Nova Scotia, in our Supreme Court, Mr. Justice Taschereau says (): "The Lieutenant-Governors, no doubt, in the performance of certain of their «uties as such, under the B. N. A. Act, may be said to represent Her Majesty in the same sense, and as fully, perhaps, as Her Majesty is represented, for instance, by justices of the peace, constables, and bailitfs, in the execution of their duties." A reference to chapter VIII., cente, and to the cases which detine the position of the Governor of a colony, will show that this description of a Lieutenant-Governor is equally applicable to the Governor-General. Both are “officers," with powers, authorities, and functions distinctly limitel, and they can be said to represent Her Majesty, not in the sense of being Viceroys, but only to the extent to which powers are delegated to them, by virtue of their commissions, or under the B. N. A. Act. In the very case
which we have last referred–The Queen v. Bank of Nova ScotiaMr. Justice Strong points out that the Queen is at the head of the government of Canada—see section 9 and notes thereto. This section, as was pointed out, is declaratory, and, so considered, it entirely agrees with what is laiil down by the older writers as to the necessary unity of executive government throughout the Empire. "The King of England is therefore not only the chief, but properly
(y) 42 U. C. Q. B. 391.
(z) 11 S. C. R. at p. 24.
the sole magistrate of the nation; all others acting by commission from, and in due subordination to him” (a). Anything therefore which may be said in the way of belittling the office of Lieutenant-Governor, is equally applicable to the position of the Governor-General—with this difference, of course, that the territorial sphere of authority of the latter is larger, and the range of matters in connection with which his powers may be exercised quite different from that of a Lieutenant-Governor. But each of these officers is characterized by the B. N. A. Act—see sections 10 and 62—as the chief executive officer “ carrying on the government” of the Dominion and the provinces respectively. Any officer, exercising executive functions anywhere in the British Empire, must act under commission from the Queen, and, to the extent indicated by his commission and any Imperial statute in that behalf, does represent, and act on behalf of and in the name of, the executive head of the Empire. We pointed out in the notes to section 9, ante, that the Governor-General of Canada occupies a dual position, and the same may be said of the Lieutenant-Governor of a province. In a sense, he is a member of the executive staff of the Dominion government, as well as executive head of the province. But there is this difference to be noted between his position, and that of the Governor-General, namely, that while, on the one hand, the Imperial parliament has legally unlimited power over the Dominion in respect of every conceivable subject matter, and may therefore increase or diminish the power of a Governor-General, the parliament of Canada, on the other hand, cannot invade the legislative sphere of a provincial assembly, or interfere in relation to its executive head. This practical result therefore ensues that a Lieutenant-Governor, once appointed, is subject to the “instructions” of the Governor-General only upon, at most, those matters in respect to which the executive of the Dominion
(a) Chitty, p. 4.
is entitled to exercise supervision over provincial legislation. As executive head of a province, the LieutenantGovernor is commissioned, by the B. N. A. Act, to “ carry on the government of the province"; and any attempt to instruct him as to how he should exercise the powers, authorities, and functions of his office in relation to matters within the sphere of provincial authority, would be in direct subversion of the principle of provincial autonomy as now authoritatively declared.
The division of subject matters affected by that Act being exhaustive (i.e., exhaustive of all matters over which colonial legislatures have power) and exclusive as well (6), the same principle must be acknowledged in reference to the division of those matters for executive action. Most of the cases which have arisen under the B. N. A. Act have involved enquiry as to the position of the dividing line, for legislative purposes, between Dominion and Provincial jurisdiction; but, as we have always insisted, the ascertainment of such line is at the same time the ascertainment of the line of division for executive action. In more recent times the question has arisen directly in reference to the exercise of executive power, and the courts of Ontario have distinctly recognized the principle for which we have been contending Reference has been made to the limitation of sections 12 and 65 to statutory “ powers,” etc.; and as to these, the provisions of the B. N. A. Act seem to be perfectly clear. See chapter III., ante, p. 50. The dispute has been in reference to what may be called prerogatives proper, viz., those powers connected with executive government which depend for their efficacy upon the common law.
In 1887, the Legislative Assembly of Ontario passed "an Act respecting the executive administration of the laws of this province,” making provision as to the exercise of executive authority in connection with these common law prerogatives. The question of the validity of this Act was (6) See Chapter X.
submitted to the Divisional Court of the Chancery Division, which decided in favor of its validity, and an appeal to the Court of Appeal for Ontario was dismissed. The Act was distinctly limited to executive action in connection with those subject matters over which the provincial legislative assembly has jurisdiction, and (construing the Act as so limited) the courts decided that, although possibly the Act was unnecessary, it could not be said to be ultra vires. The position may be summed up in the language of Mr. Justice Burton (c):
"I have always been of opinion that the legislative and executive powers granted to the province were intended to be co-extensive, and that the Lieutenant-Governor became entitled, rirtute officii, and without express statutory enactment, to exercise all prerogatives incident to executive authority in matters in which provincial legislatures have jurisdiction ; that he had in fact delegated to him the administration of the royal prerogatives as far as they are capable of being exercised in relation to the government of the provinces, as fully as the Governor-General has the administration of them in relation to the government of the Dominion.
In my view, no legislation was necessary, but, to remove sloubts, such an Act seems desirable and free from objection."
Reference should no x be ruled to the passage from the judgment of the Privy Council quoteil in note (i), rute, p. 302, and to the further passage quoted in the next note. See, also, notes to section 69, post, its to the position of the Lieutenant-Governor in relation to the provincial assenblies, where we have enilvavored to make clear that the Queen is a constituent branch of such assemblies, beiny represented therein by the Lieutenant-Governor, just as she is represented in the Dominion parliament by the GovernorGeneral
(v) “Appointed by the Governor-General, etc."— Much stress has been laid upon this clause in support of the con
(c) Atty.-Gen), for Canada v. Atty.-Genl. of Ont., 19 0. A. R. at
tention that a Lieutenant-Governor is not a representative of the Crown, but of the Governor-General. The following extract from the judgment of the Judicial Committee of the Privy Council in Liquidators, &c. v. Receiver-General of New Brunswick, will show how the question has been finally disposed of: • The appellants
relied upon the fact that, whereas the Governor-General of Canada is directly appointed by the Queen, the Lieutenant-Governor of a Province is appointed, not by Her Majesty, but by the Governor-General, who has also the power of dismissal. If the Actuhad not committed to the Governor-General the power of appointing and removing Lieutenant-Governors, there would have been no room for the argument, which, if pushed to its logical conclusion, would prove that the Governor-General, and not the Queen, whose viceroy he is, became the sovereign authority of the province whenever the Act of 1867 came into operation. But the argument ignores the fact that by section 58 the appointment of a provincial Governor is made by the Governor-General in Council, by instrument under the Great Seal of Canada,' or, in other words, by the executive government of the Dominion which is by section 9 expressly declared to continue and be vested in the Queen.' There is no constitutional anomaly in an executive officer of the Crown receiving his appointment at the hands of a governing body who have no power and no functions except as representatives of the Crown. The Act of the Governor-General and his council in making the appointment was, within the statute, the Act of the Crown ; and a Lieutenant-Governor, when appointed, was as much the representative of Her Majesty for all purposes of provincial government, as the Governor-General himself was for all purposes of Dominion government and the decisions in Mercer v. Attorney-General of Ontario (8 App. Cas. 767), St. Catherines Milling Co. v. The Queen (14 App. Cas. 46), and Attorney-General of British Columbia v. Attorney-General for Canada (14 App. Cas. 29.5), are referred to by the Committee as “ baxed upon the general recognition of Her Majesty's continued sovereignty under the Act of 1867."