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office of Lieu
59. A Lieutenant-Governor shall hold office during the tenant-Gover- pleasure of the Governor-General; but any Lieutenant-Governor appointed after the commencement of the first session
"It would require very express language, such as is not to be found in the Act of 1867, to warrant the inference that the Imperial legislature meant to vest in the provinces of Canada the right of exercising supreme legislative powers in which the British Sovereign was to have no share. In asking their Lordships to draw that inference from the terms of the statute, the appellants mainly, if not wholly, 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 Act had 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." 5
As to the view taken of the scope of this judgment on the question of executive power, see the notes to s. 9, ante, p. 91, et seq.
of the Parliament of Canada shall not be removable within five years from his appointment, except for cause assigned (v), 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.
60. The salaries of the Lieutenant-Governors shall be Salaries of fixed and provided by the Parliament of Canada.
61. Every Lieutenant-Governor shall, before assuming Oaths, etc., of the duties of his office, make and subscribe before the Gover- Governor. nor-General or some person authorized by him, oaths of allegiance and office similar to those taken by the GovernorGeneral.
(v) In two instances only has the power of removal been exercised, viz.: in the case of Lieutenant-Governor Letellier, of Quebec (1879), and of Lieutenant-Governor McInnes, of British Columbia (1899). In the earlier case the GovernorGeneral was instructed by the Imperial authorities to act, in cases under this section, upon the advice of his Canadian ministers.
• See Todd, "Parl. Gov. in Brit. Col.," 405, et seq. The cause assigned in the order for the removal of Lieutenant-Governor Letellier was that, after the vote of the houses of the Dominion parliament censuring him for the dismissal of his ministers, his usefulness as a Lieutenant-Governor was gone. Is the vote of the houses of the Dominion parliament an element of "cause"? If so, a LieutenantGovernor 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, if the Governor-General is to act upon the advice of his ministers, they must tender such advice under full responsibility to parliament, and, through parliament, to the Canadian electorate. They seem to be in the same position in reference to the disallowance of provincial statutes; executive power in these matters is divorced from legislative jurisdiction. And so as to the power to appoint certain of the judges: see notes to s. 92, No. 14, post.
Application of provisions referring to LieutenantGovernor.
62. The provisions of this Act referring 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 of the Province, by whatever title he is designated.
63. The Executive Council (w) of Ontario and of Quebec shall be composed of such persons as the Lieutenant-Governor from time to time thinks fit, and in the first instance of the following officers, namely:-the Attorney-General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with, in Quebec, the Speaker of the Legislative Council and the SolicitorGeneral.
64. The constitution of the Executive Authority in each of Nova Scotia of the Provinces of Nova Scotia and New Brunswick shall, subject to the provisions of this Act, (x) continue as it exists at the Union until altered under the authority of this Act.
(w) Members of the Executive Council are not answerable to courts of law for acts done by them in the performance of their official duties."
(x) "Subject to the provisions of this Act."-That is to say, subject to the change in the mode of appointment of the executive head of the province, and subject also to those provisions of the B. N. A. Act which limit the provincial
'Molson v. Chapleau, 3 Cart. 360. This 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, Constitutional Law," 521, et seq.; Forsyth's Opinions on Constitutional Law, 85; Lefroy, 97; and see also 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 O. A. R. 446; and Re Bell Telephone Co., 9 O. R. 339.
65. All powers, authorities, and functions which under Powers to be any Act of the Parliament of Great Britain, or of the Par- Lieutenantliament of the United Kingdom of Great Britain and Ireland, Ontario or or of the Legislature of Upper Canada, Lower Canada, or advice or Canada, were or are before or 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 or Lieutenant-Governors individually, shall as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant-Governor of Ontario and Quebec respectively with the advice or with the advice and consent of or in conjunction with the respective Executive Councils or any members thereof, or by the Lieutenant-Governor 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), to be abolished or altered by the respective Legislatures of Ontario and Quebec (y).
sphere of authority. These are the only provisions of the Act which in any way limit the full operation of this section.
(y) No such provision is made in reference to Nova Scotia and New Brunswick, nor in the Orders in Council admitting Prince Edward Island and British Columbia to the Domin
Unless perhaps the group of clauses which deal with the division of assets may be said to be provisions relating to the provincial constitutions. See particularly the cases as to the meaning of the word "royalties," in s. 109. As to the early constitutions of the Maritime Provinces, see ante, p. 2 et seq.
provisions referring to LieutenantGovernor in Council.
66. The provisions of this Act referring to the Lieutenant-Governor in Council shall be construed as referring to the Lieutenant-Governor of the Province acting by and with the advice of the Executive Council thereof (z).
ion. Owing to the division of (old) Canada into Ontario and Quebec it was necessary to provide for the exercise of the powers, etc., which had theretofore been conferred by statute upon the Governor or Lieutenant-Governor of the old provinces. By section 12, all such powers are vested in the Governor-General so far as the same are capable of being exercised in relation to the government of Canada; by this section, the very same powers, in their entirety, are vested in the Lieutenant-Governors of Ontario and Quebec respectively. The two sections, taken together, effect no division of power, but provide simply for the exercise of the same powers in the different spheres of authority created by the B. N. A. Act.10
(z) The only powers which a Lieutenant-Governor may exercise otherwise than by Order in Council, are those confer
See notes to s. 58, ante, p. 136.
10 In Gibson v. McDonald, (7 O. R. 401; 3 Cart. 319), Mr. Justice O'Connor referred to a slight difference in the wording of this section as compared with section 12-the words as far as the same continue in existence," which appear in the 12th section, being omitted from this 65th section-indicating, in his opinion, that some powers continued to exist in relation to the Dominion, and were vested therein, which did not continue to exist in relation to the provinces. Sed quære. The fact that the B. N. A. Act does effect a clear division of the sphere of authority seems not to have been appreciated in Regina v. Amer, (42 U. C. Q. B. 391; 1 Cart. 722), where Mr. Justice Wilson treats these two sections as vesting the same power in the Governor-General and a Lieutenant-Governor in reference to the same subject matter. In view of the subsequent discussions which have taken place in reference to the scheme of the P. N. A. Act, the words italicized would seem to be an incorrect construction of these two sections. For other cases in which this section is referred to: see Atty.-Gen. (Que.) v. Reed, 10 App. Cas. 141; 54 L. J. P. C. 12; 3 Cart. 190; Lenoir v. Ritchie, 3 S. C. R. 575; 1 Cart. 488; Pardoning Power Case, 23 S. C. R. 458; 5 Cart. 517; Q. C. Case, (1898), A. C. 247; 67 L. J. P. C. 17; 23 0. A. R. 792. See also the notes to s. 9, ante, p. 89, as to the exercise of powers other than statutory.