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The view expressed in the italicized portion of the above extract affirms what we had ventured to lay down (ante, p. 304), that a Lieutenant-Governor, once appointed, is subject to “instructions” from the Governor-General only upon those matters connected with the exercise, by the executive of the Dominion, of supervision over provincial legislation. See section 90, post.
59. A Lieutenant - Governor shall hold office during the pleasure of the Governor-General; but any LieutenantGovernor appointed after the commencement of the first Session of the Parliament of Canada shall not be removable (i) within five year3 from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not then within one week after the commencement of the next Session of the Parliament.
(i) “Shall not be removable
except for cause.”—The position of the Governor-General in reference to the removal of a Lieutenant-Governor has been already referred to—see notes to section 9, ante, p. 251. The only instance of such removal which has so far occurred under the B. N. A. Act, is that of Lieutenant-Governor Letellier, and it was in connection with his removal that the Imperial authorities laid down the “conventional” rule that the Governor-General should act, under this section 59, by and with the advice of the Queen's Privy Council for
Canada. But, as has been already pointed out, the power of removal (subject to the observance of the formalities prescribed by the section) is, legally, with the GovernorGeneral alone. The cause assigned in the Order for the removal of Lieutenant-Governor Letellier was that, after the vote of the two Houses of the Dominion parliament censuring him for the dismissal of his ministers, his usefulness as a Lieutenant-Governor was gone. Had LieutenantGovernor Letellier declined to recognize the validity of the Order in Council, a very nice question would have been raised as to the meaning of the phrase “for cause assigned,” for it is very doubtful if the facts alleged constituted “cause" within the meaning of this section. Is the Dominion government-for, under the terms of the despatch to the Governor-General in this case, it is left with that government—the sole judge of what constitutes “cause"? If so, a Lieutenant-Governor holds his office subject possibly to partisan caprice, not to law. Is the vote of the Houses of the Dominion parliament an element of “cause"? If so, a Lieutenant-Governor is subject to the vote of a parliament which cannot enact a single law to govern his conduct in the administration of the affairs of the province over which he presides. On the other hand, it may be argued that as the Lieutenant-Governor is a link in the chain of federal government (now practically operative throughout the Empire), appointed by the executive of the Dominion, who are responsible to the electorate of Canada through the Dominion parliament, the decision of that parliament, expressive of the will of the people of Canada as a whole, should govern in regard to all matters entrusted to the executive of the Dominion. The difficulty is that the executive power, in this regard, of the Dominion government is entirely divorced from all legislative power. That government “has no powers and no functions except as representatives of the Crown” in this matter of the removal of a Lieutenant-Governor (see ante, p. 307.
It strikes one
that it may perhaps be advisable for the Imperial authorities to reconsider the "instructions" above referred to.
60. The salaries of the LieutenantGovernors shall be fixed and provided by the Parliament of Canada.
Application of provisions
61. Every Lieutenant - Governor, shall, before assuming the duties of his office, make and subscribe before the Governor-General or some person authorized by him, oaths of allegiance and office similar to those taken by the GovernorGeneral.
62. The provisions of this Act referLieutenant. ring to the Lieutenant-Governor extend
and apply to the Lieutenant-Governor for the time being of each Province or other the chief executive officer or administrator for the time being carrying on the government (i) of the Province, by whatever
title he is designated. (i) “Carrying on the government of the prorince.”See notes to section 10, ante, p. 254, and to section 58, conte, p. 303. The word “government," in its widest sense, comprises the exercise of both the law-making and the lawexecuting power, but here it has more particular reference to the exercise of the executive powers of governnent, the legislative powers of a Lieutenant-Governor being exercisable only in connection with the legislative assembly. See section 69, post.
63. The Executive Council (i) of OnOntario and tario and of Quebec shall be composed of
such persons as the Lieutenant-Governor
Appointment of executive officers for
from time to time thinks fit, and in the first instance of the following officers, namely :-the Attorney-General (ii), the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Cominissioner of Agriculture and Public Works, with, in Quebec, the Speaker of the Legislative Council and the SolicitorGeneral.
(i) “ Erecutive Council.”—Compare section 11, and see notes thereto, ante, p. 255. Since 1867, the Executive Council of Ontario has been increased by the addition of a Minister of Education and a Minister of Agriculture. See section 92, sub-section 1, and notes thereto.
(ii) “ The Attorney-General.”—The position of a provincial Attorney-General will be found discussed in Attorney-General v. Niagara Falls International Bridge Co., 20 Grant, 34; Attorney-General v. International Bridge Co., 28 Grant, 65, 6 0. A. R. 537; and in Mousseau v. Bate, 27 L. C. Jurist, 153. In the first case, it was held by Mr. Justice Strong, that the Attorney-General of a province is the officer of the Crown who is considered as present in the courts of the province to assert the rights of the Crown, and of those who are under its protection, and that the provincial Attorney-General, and not the AttorneyGeneral for the Dominion, is the proper party to file an information when the complaint is, not of an injury to property vested in the Crown as representing the government of the Dominion, but of a violation of the rights of the public of a province. The information, in that case, was in respect of a nuisance caused by the defendant company's interference with a railway incorporated prior to 1867. In the second case it was held by the Court of Appeal, reversing the judgment of Spragge, C., that the
non-compliance by a company, incorporated by an Act of the Dominion parliament, with the terms of such Act, such non-compliance operating, as was alleged, to the detriment of the locality in which the work was being carried on, could not be the subject matter of an information at the instance of the provincial Attorney-General In Mousseau v. Bate, decided in Quebec (1883), it was held that proceedings in the nature of a sci. fu, to set aside letters patent of invention, issued under the Dominion Patent Act, cannot be instituted in the name of the Provincial AttorneyGeneral, but can only be legally taken by the AttorneyGeneral for the Dominion. See further, upon this last subject, the notes to sub-section 22 of section 91, post. It has been practically conceded by the Dominion government that a provincial Attorney-General properly represents the Crown in criminal prosecutions before provincial courts, but so far as we are aware there has been no judicial determination of the point. It seems difficult to appreciate the distinction between proceedings in respect of a breach of criminal law, and proceedings founded upon a breach of "patent" law. Dominion statutes, however, expressly recognize the intervention of a provincial Attorney-General in the former class of cases. See Abraham v. The Queen, 6 S. C. R. 10.
As to the liability of members of the Executive Council for acts done by them in the performance of their duties as such, see Molson v. Chapleau (3 Cart. 360), where their non-liability is distinctly affirmed. This latter subject is, however, while no doubt a question of constitutional law, so fully treated of by other writers, that it is not deemed advisable to enter upon it here.
See Broom's Constitutional Law, p. 521, et seq.; Forsyth's Opinions on Constitutional Law, p. 85; and see also the Muskoka Mill Co. v. The Queen, 28 Grant, 563; O'Brien v. The Queen, 4 S. C. R. 529; re The Massey Manufacturing Co., 13 0. A. R. 446; and re Bell Telephone Co., 9 O. R. 339.