Passing now to Proposition 6, it may be said to Prop. 5-6 illustrate Proposition 5, by reference to the Crown's prerogative as the fountain of honour in Canada. Prop. 6. Its words are from the judgment of Taschereau, Crown as And he also observes in of honour 66 the fountain in Canada. I need hardly prerogative of Per over the whole j. Taschereau, to appoint J., in Lenoir v. Ritchie.1 the same case in like manner :add that the Sovereign has this conferring honours and dignities British Empire, and that, by the British North America Act, the Crown has not renounced or abdicated this prerogative over the Dominion of Canada, or any part thereof." And so Sir John Sir John Macdonald, as Minister of Justice, reported to the Macdonald. Governor-General on January 3rd, 1872,3 as to the question which had been raised by the government of Nova Scotia as to their power to appoint Queen's Counsel, that "as a matter of course Her Majesty as to right has directly, as well as through her representative, Queen's the Governor-General, the power of selecting from the Bars of the several provinces her own Counsel, and as fons honoris of giving them such precedence and pre-audience in her Courts as she thinks proper." And while he there expresses the view No. 14 of that under No. 14 of section 92, relating to the B.N.A. Act. administration of justice, including the constitution, maintenance, and organization of provincial Courts, the provincial legislature may make such provisions. with respect to the Bar, the management of crim- The Royal inal prosecutions by counsel, the selection of those paramount counsel, and the right of pre-audience as it sees fit, provincial legislative he adds:-"Such enactment must, however, in the power. 13 S.C. R. at pp. 628-9, 1 Cart. at p. 535, (1879). 23 S.C.R. at p. 619, 1 Cart. at p. 525. 3Hodgins' Provincial Legislation, Vol. 1, pp. 26-7; see, also, ibid., Vol. 2, at pp. 25, 56, 57. Counsel. sect. 92, prerogative Over Prop. 5-6 opinion of the undersigned, be subject to the exercise of the royal prerogative, which is paramount, and in no way diminished by the terms of the Act of Confederation." of executive legislative power. Davey's But as to this, as pointed out in the notes to Sed quære. Propositions 8 and 9, there would seem to be a correlation of executive and legislative power under the Correlation British North America Act even where such execuand tive power is of a prerogative character, and, therefore, it would appear that either under No. 4 or No. 14 of section 92, or both, provincial legislatures must have the power to regulate the exercise of the prerogative of appointing Queen's Counsel so far as provincial Courts are concerned. And in an Sir Horace Opinion dated December 9th, 1887,1 Sir Horace Davey and Mr. Haldane, to whom the matter had been submitted on behalf of the Ontario government, arrived at the conclusion that the appointment of Queen's Counsel is not a mere dignity or honour, but is the appointment to an office, and an appoint that therefore a provincial legislature has power to authorize the Lieutenant-Governor to make appointments of Queen's Counsel for the purposes of the provincial Courts, relying mainly on No. 4 of sect. 92, section 92, whereby provincial legislatures may make laws in relation to the appointment of provincial officers.2 opinion on Queen's Counsel question. Appoint- ment to an office. No. 4 of B.N.A. Act. 1Ont. Sess. Papers, 1888, No. 37. 2Those who desire to pursue the subject of the power to appoint Queen's Counsel may be referred, besides the above case of Lenoir v. Authorities Ritchie, 3 S.C.R. 575, I Cart. 488, (1879), to an interesting opinion of on question the Attorney-General of South Australia, published in the Canadian of appoint- Law Times, vol. 12, p. 259, seq.; and also to some articles in that ment of Queen's periodical, vol. 10, at pp. 23, 25, and 58, and vol. 13, p. 1; to Mr. Counsel. Todd's Parl. Gov. in Brit. Col., 2nd ed., at p. 330, where he refers to a despatch from Sir J. S. Pakington, in 1852, to the Governor of Nova Scotia, in relation to the appointment of Queen's Counsel; also on the of honour. Mr. Clement, in his work on the Law of the Prop. 5-6 Canadian Constitution, observes (p. 143) that :- Mr. "The prerogatives vested in the Crown as the Clement fountain of honour are looked upon as (so to speak) prerogative prerogatives at large, and not connected with any particular department of executive government; and (at p. 318) that these prerogatives (sc., those vested in the Crown as the fountain of honour) are treated as "prerogatives pertaining to matters of Prerogatives imperial concern." He does not, however, give his authorities for this. at large. General Crown no as delegated At all events, it is submitted, the GovernorGeneral cannot exercise the prerogative of the GovernorCrown as fons honoris except so far as it may have represents been delegated to him by his commission or instruc- further than tions; and it must further be noted that, as pointed to him. out in connection with Proposition 7, in the recent case of The Maritime Bank of Canada v. The Receiver-General of New Brunswick,1 the Judicial Committee has decided that a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty, for all purposes of provincial government, as the Governor-General himself is for all purposes of Dominion government. ibid., at p. 333, seq.; and to 9 C.L.J.N.S. 178, seq., where correspondence between the Dominion and Ontario_governments is given. Also to Ont. Sess. Pap., 1888, No. 37; and Can. Sess. Pap., 1873, No. 50. 1[1892] A.C. 437. 2On the whole subject of imperial dominion exercisible over selfgoverning colonies by the grant of honours and titular distinctions, see Todd's Parl. Gov. in Brit. Col., 2nd ed., chap. 10, p. 313, seq. The Reserved provincial Act. PROPOSITION 7. 7. The Lieutenant-Governors of provinces, when appointed, are as much the representatives of Her Majesty for all purposes of Provincial government, as the Governor-General himself is for all purposes of Dominion government. As regards the Governor-General, it is only necessary to mention one or two cases in which his position as the representative of the Queen has been specially referred to in connection with the question of the constitutional validity of statutes. In Ex parte Williamson, the Supreme Court of New Brunswick held that the Act of the local legislature, 32 Vict., chap. 92, relating to the appointment of justices of the peace in the province was intra vires upon the ground thus stated by Allen, C.J., in delivering the judgment of the Court :"The Act 32 Vict., chap. 92, was apparently passed with a suspending clause, or reserved for the consideration of the Governor-General under the 90th section of the British North America Act. It received the Governor-General's assent on August 20th, 1869, and was proclaimed to be in force here on September 22nd, following. It may therefore be said that Her Majesty, through her justices of representative, has expressly recognized, the right of the local government to appoint justices of the peace. See per Ritchie, C.J., in Valin v. Langlois, Appoint ment of the peace. 124 N.B. at p. 64, (1884). 3 S.C.R. at p. 34. We therefore think the power Prop. 7 of the local government to make such appointments has not been open to question."1 General's Dominion ed Elections Was the the Crown The passage from the judgment of Ritchie, C.J., Governorin Valin v. Langlois here referred to relates to the assent to assent given to Dominion Acts, and is that in which, Controvertspeaking of the Dominion Controverted Elections Act. Act, 1874, 37 Vict., chap. 10, which confers upon the provincial Courts jurisdiction with respect to elections to the Dominion House of Commons, he says:" It is said that if this," (sc., the Court thus appointed for the trial of election petitions), " is a Court distinct from the Courts of which the judges are primarily members, the judges have never been assent of appointed thereto by the Crown, nor sworn as judges thereof, and therefore they are not judges of this new tribunal if, as such, it exists. But, in my humble opinion, there is no force in this objection. The judges require no new appointment from the Crown, they are statutory judges in controverted election matters by virtue of an express enactment by competent legislative authority. The statute makes the judges for the time being of the provincial appointment Courts judges of these peculiar and special Courts. judges The Crown has assented to that statute, and made? therefore they are judges by virtue of the law of the Dominion, and with the royal sanction and approval." To the of election thereby Seal Case. In like manner, the judges of the Supreme Court The Great in Nova Scotia, in the Great Seal Case, in 1877, pointed out that Her Majesty, in assenting (through 1On the general subject of the appointment of justices of the peace, see the notes to Propositions 8 and 9. 23 S.C. R. at p. 34, I Cart. at p. 187, (1879). Referred to also in the recent British Columbia case of Piel-ke-ark-an v. Reg., 2 B.C. (Hunter) at pp. 68, 70, (1891). |
