Academic journal article Canadian Parliamentary Review

Royal Prerogative and the Office of Lieutenant Governor

Academic journal article Canadian Parliamentary Review

Royal Prerogative and the Office of Lieutenant Governor

Article excerpt

The primary role of the Lieutenant Governor is to represent the Queen of Canada within the context of the provincial political system. In the early days of Confederation, the Lieutenant Governor was seen more as a federal officer helping to protect federal interests within the provincial context than as a representative of the monarchy. This issue is now resolved, as the result of decisions by the courts and the flow of historical events. This article looks at the relevance of the royal prerogative to the office of Lieutenant Governor.

The preamble to the British North America Act, 1867, since renamed the Constitution Act 1867 was remarkably brief. The essence of its philosophical and political thrust is contained in the first paragraph:

Whereas the provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the crown of the United Kingdom of Great Britain and Ireland with a constitution similar in principle to that of the United Kingdom ...

The three conceptual ideas advanced here were federalism, the monarchy, and a constitution similar to that of the United Kingdom which involves the whole concept of responsible government.

The other particularly significant legal provision with respect to the Crown is contained in section 9 of the Constitution Act 1867 which says "the executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen." This statute, however, goes on to make it quite clear that the monarchy's major functions are largely to be exercised at the federal level by the Governor General and at the provincial level by the Lieutenant Governors.

Office of Governor General

The office of Governor General is created not by statute but by virtue of the royal prerogative. In fact the powers of the office of Governor General derive from two sources: first, those powers defined in the Constitution Act 1867; and the prerogative powers of the Crown delegated to the Governor General by the monarch.

The classic definition of the royal prerogative was offered by one of Britain's greatest constitutional scholars, Professor A.V. Dicey, who defined it as "the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown."

In the Letters Patent of 1947, the then monarch King George VI, delegated to the Governor General the entire prerogative powers of the Crown at the federal level. These powers are of vital importance in the Canadian constitutional system, as they include such important matters as:

* the appointment of the prime minister and cabinet ministers;

* the appointment of ambassadors;

* the summoning, proroguing, and dissolution of parliament;

* the declaration of war; and

* the signing of treaties.

This gives some indication of the very significant legal powers still exercised within our constitutional system, which are based on the authority derived from the royal prerogative.

The remainder of the Governor General's powers come from the Constitution Act 1867 and these include the power to appoint senators (as provided for in s. 24); the Speaker of the Senate (s. 34); and Superior, District and County Court judges (s. 96). This list is not intended to be exhaustive, but is merely illustrative of some of the statutory powers vested in the office of Governor General.

The major source of authority for first ministers at both the federal and provincial level rests with their capacity to advise the Governor General and the Lieutenant Governors in the exercise of their legal authority. It was Professor Dicey who developed the concept of the "conventions" of the constitution; that is to say that legal power is exercised by one authority, but that authority only uses its powers on the advice of the appropriate First Minister. …

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