Canada - Governor-general And The High Commissioner
( Originally Published Early 1900's )
IN Canada the Crown is represented by a Governor-General who holds office during the pleasure of the Sovereign of Great Britain. An administrator or other officer may be appointed by the Dominion Government on behalf of the Crown, and all provisions made in the Act of Confederation in reference to the Governor-General, apply to him. The Governor-General chooses and summons his Privy Councillors, and should the Government of Canada require it, removes them.
At the time of Confederation, Lord Monck, then Governor-General, inserted the names of the Senators in the Queen's proclamation of the Union. Any additional Senators were thereafter to be summoned by the Governor-General, and, whenever there is a vacancy in the Senate, the Governor-General appoints a qualified person. He appoints the Speaker of the Senate, and can remove him. He also summons and calls together the Parliament of Canada in His Majesty's name, and may dissolve it within a period of five years from its opening. He is empowered to assent, in the King's name, to Bills passed in both Houses ; or he may refuse the assent of the King, and even reserve bills for the expression of His Majesty's pleasure. The Governor-General, also, with certain exceptions, appoints Judges for the various Courts, and may remove Judges of the Superior Courts on an address of the Senate and House of Commons.
An appeal will lie to the Governor-General in Council from any Act or decision of any provincial authority in regard to separate or dissentient schools in respect to Education, affecting the rights and privileges of supporters of such schools, and in case the law of the particular province seems to him requisite for this purpose ; or in case the provincial authorities do not duly execute the directions of the Governor-General in Council in any such appeal, the Parliament of Canada may legislate thereon.
The Lieutenant-Governor of the provinces holds office during the pleasure of the Governor-General ; but no Lieutenant-Governor can be removed within five years from his appointment except for cause assigned. It is lawful for the King, if His Majesty think fit, to authorise the Governor-General to appoint any person or persons to be his deputies within any part or parts of Canada, and, as such, to exercise during his pleasure such powers as he may assign to him or them. He must recommend to the House all Money Bills, but he originates no measures, and by himself has no legislative powers.
The powers of the Governor-General in respect of the disallowance of Provincial Acts are as great as those of the King in respect of Dominion Acts,. He is, however, expected to exercise sound discretion, and for the exercise of this discretion the Executive Council for the time being is responsible. This power of veto is given to the Governor-General in Council, and not to the Governor-General, and, as to the significance of this fact, it may be interesting to quote the words of Sir John Macdonald.
Whether " in any case power is given to the Governor-General to act individually or with the aid of his Council, the Act, as one within the Canadian constitution, must be on the advice of a responsible Minister. The distinction drawn in the Statute between an Act of the Governor and an Act of the Governor-General in Council is a technical one, and arose from the fact that, in Canada, for a long period before Confederation, certain acts of ad-ministration were required by law to be done under the sanction of an Order in Council while others did not require that formality. In both cases, however, since responsible government has been conceded, such acts have always been performed under the advice of a responsible ministry or minister."
In 1875 a resolution was moved in the House of Commons by the Hon. Edward Blake, then Minister of Justice of Canada. The resolution affirmed that, in the opinion of the House, the power of disallowance of Acts of a Local Legislature conferred by the British North America Act was vested in the Governor-General in Council, and that His Excellency's ministers were responsible to Parliament for the action of the Governor-General in exercising or abstaining from the exercise of this power.
The matter arose in connection with certain New Brunswick Acts, which His Excellency's ministers advised him it was his duty to disallow. The Governor-General then stated that he was not prepared to comply with the terms of the resolution, and that he would submit the case to Her Majesty's Government for consideration. This was done, and an answer was received from the then Colonial Secretary, to the effect that the Acts of the New Brunswick Legislature were within the powers of that Legislature, and that the Canadian House of Commons could not constitutionally interfere with their operation. It was added that this was a matter on which the Governor-General must act on his own individual discretion, and could not be guided by the advice of his responsible ministers if the Dominion disallow.
Mr. Blake observed that the doctrine that the Governor-General should act on his own individual discretion in cases of disallowance was one that could not be maintained consistent with the letter and spirit of the Constitution. Under the powers of the B. N. A. Act, Mr. Blake maintained that that power was vested in the Governor-General in Council, and that he could not disallow except upon the advice of his ministers. He admitted that the Governor-General could say that he could not follow the advice of his ministers, but that, in that case, it was for the ministry to withdraw that advice or withdraw from his service, leaving the issue, which was right. But the gravest point was that there was an assertion that the power of disallowing local Acts was vested in the Governor-General individually, and in which he could not be guided by the advice of his responsible ministers. Mr. Blake maintained that there was no such power, and that the language which was contained in the instruction was such that, if it were acceded to by the Canadian Parliament, it would be destructive of the principle of responsible government. Sir John Macdonald spoke very much to the same effect, and said that the right of disallowance of any Act of a Colonial Legislature by the Queen herself, in her personal capacity and by virtue of her royal prerogative, separate from the advice of her advisers, had long since passed away ; that the American revolution had pretty well settled that question.
The Premier informed Mr. Blake that the Executive had taken action, and the latter gentleman withdrew his motion, remarking that he had no doubt what the action of the Executive would be, yet, if it should be unsatisfactory the matter could be raised again. The principle laid down by Mr. Blake, has, however, been accepted ever since.
The general powers of the Governor-General are defined by the British North America Act as follows All Powers, Authorities and Functions which under any Act 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 exercisable 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 continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exercised 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) to be abolished or altered by the Parliament of Canada.
So much for the nominal position, but there is much truth in what the late Mr. Goldwin Smith remarked, namely, that " The practical aim of a Governor-General is social popularity combined with political peace."