Appointment of Judges. Removal of Judges. Exercises right of Pardon. right or privilege of a minority, whether Protestant or Roman Catholic, of the Queen's subjects in relation to education1. The Governor-General has, however, important duties to discharge in appointing or removing judges and in exercising the prerogative of mercy. The Judges of the Supreme, District and County Courts are appointed by the Governor-General, except in the case of the Courts of Probate in Nova Scotia and New Brunswick. In the province of Quebec the Judges are to be taken from the bar of that province; and in Ontario, Nova Scotia, and New Brunswick they are to be selected from the respective bars of those provinces until the laws relating to property and to civil rights and to the procedure of the Courts are made uniform in those provinces*. The Letters Patent contain a clause authorizing the Governor-General to appoint all such Judges, Commissioners and Justices of the Peace as might be lawfully appointed by the Crown. The Judges of the Superior Courts hold office during good behaviour, but are removable by the Governor-General on address from the Senate and House of Commons". The power of pardoning offences is regulated by the Instructions. "We do further authorize and empower our said GovernorGeneral as he shall see occasion, in our name and on our behalf, when any crime has been committed for which the offender may be tried within our Dominion, to grant a pardon to any accomplice not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender. "And further to grant to any offender convicted of any crime in any Court or before any Judge, Justice or Magistrate within our said Dominion, a pardon, either free or 1 B. N. A. Act, s. 93. 2 Ib. s. 96. 3 Ib. s. 98. 4 Ib. s. 97. 5 Ib. s. 99. R. S. C. c. 138. subject to lawful conditions, or any respite of the execution. of the sentence of any such offender for such period as to our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures which may become due and payable to us. ditions. "Provided always, that our said Governor-General shall not Conin any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence, that the offender shall be banished from or shall absent himself from our said Dominion. Privy "And we do hereby direct and enjoin that our said Governor-General shall not pardon or reprieve any such offender without first receiving in capital cases the advice of Advice of the Privy Council for our said Dominion, and in other cases Council. the advice of one at least of his ministers; and in any case in which such pardon or reprieve might directly affect the interests of the Empire or of any country or place beyond the jurisdiction of the Government of our said Dominion, our said Governor-General shall before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid." It will be observed that a distinction is drawn in these Instructions between three classes of cases, (1) Capital offences, (2) Non-capital offences, (3) Offences capital or non-capital affecting either Imperial interests or those of any country outside the Dominion. In cases of the first class the Governor- Capital Offences. General is not to act without receiving the advice of his ministry; in cases of the second class he must consult one Nonminister, who will usually be the Minister of Justice; whilst Offences. in the third class, in addition to consulting his ministry or Offences affecting one minister as the case may be, he is required to take Imperial the interests of the Empire or foreign country specially into account. The Instructions do not in express terms require the capital Interests. Appointment of Queen's Governor-General to act on the advice of his ministers. The duty of finally deciding rests on him alone, but in actual practice there is no doubt that it would be only under very exceptional circumstances that such advice would be disregarded; and in the correspondence between Canada and the Imperial Government prior to the issue of the above Instructions, it was understood that in all cases of a merely local nature the Governor-General should act on the advice of his ministers1. Previous to the issue of the new Instructions, the Governor-General had felt himself at liberty to disregard the advice of his ministers, and that with the approval of the Home Government. In a despatch of Earl Carnarvon to the Governors of the Australian Colonies' he said, "it is true that a Governor may (and indeed must if in his judgment it seems right) decide in opposition to the advice tendered to him." In accordance with this principle, in 1861 Sir Edmund Head, Governor-General of Canada, granted a reprieve in a case of murder contrary to the advice of several ministers3; and in 1875 Earl Dufferin commuted a capital sentence on his own responsibility". 5. PREROGATIVE POWERS. As Her Majesty's representative the Governor-General may appoint Queen's Counsel. In Lenoir v. Ritchie a majority of Counsel. the Court expressed the opinion, that the sole right of conferring the rank of Queen's Counsel belonged to the Queen or her representative the Governor-General, and that a Province could not by a statute confer this right on a LieutenantGovernor, inasmuch as the Crown was not a part of a provincial Legislature and therefore no provincial statute could affect its prerogatives. 1 Can. Sess. Pap. 1879, No. 181. 2 May 4th, 1875. Lepine's Case, ib. p. 269. ment of nant-Go 6. POWERS AS REGARDS THE PROVINCES. Lieutenant-Governors of the Provinces are appointed by Appointthe Governor-General in Council by Commission under the LieuteGreat Seal of Canada. In case of the absence, illness or other inability of the Lieutenant-Governor, the Governor-General may appoint an administrator to execute the duties of the office1. vernors. of Lieute. Case. By section 59 of the British North America Act a Removal Lieutenant-Governor is not "removable within five years from nant-Gohis appointment except for cause assigned, which shall be vernors. communicated to him in writing within one month after the order for 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." The section is silent as to the circumstances under which the removal of a LieutenantGovernor would be justifiable, but the Letellier case may be Letellier taken to have established the rule that the Governor-General ought to act by and with the advice of his ministers. The facts of the case were shortly these:-In 1878 the LieutenantGovernor of Quebec, M. Letellier, dismissed his ministers on the ground that they had acted contrary to his representations, were encouraging a lavish expenditure in regard to railways, and had promoted a bill which he deemed to be an arbitrary and illegal infringement of vested rights. The subject was brought before the Governor-General by both sides, and a petition praying for the Lieutenant-Governor's dismissal was addressed to the Governor-General in Council by certain members of the dismissed ministry. The GovernorGeneral communicated the petition and the statement of the Lieutenant-Governor to the Senate and the House of Commons. 1 For form of Commission, see Can. Sess. Journ. 1878, p. 175. 2 See Todd, p. 405, for a more detailed account. Disallowance of Bills. Debates ensued in both Houses. A motion declaring the dismissal of the ministry to be at variance with Constitutional government was carried in the Senate but lost in the House of Commons. In the following year a new Parliament assembled and both Houses agreed in censuring the dismissal of the Quebec Ministry. The Cabinet thereupon advised the Governor-General to remove the Lieutenant-Governor from his office. The Governor-General stated reasons for not adopting such a course, and the ministers then advised a reference to the Home Government. Sir M. Hicks-Beach, the Colonial Secretary, in a despatch dated the 3rd of July, 1879, informed the Governor-General that, in the removal of a Lieutenant-Governor from office, he ought to act by and with the advice of his ministers, who were responsible for the peace and good government of the Dominion to Parliament, to which the cause of removal had to be communicated. At the same time the Governor-General was requested to ask his ministry to review the case, as the spirit and intention of the B. N. A. Act 1867 required that tenure of office should as a rule endure for five years, and that the power of removal should only be exercised for grave cause. The despatch was communicated to the ministry, who adhered to their previous decision, and by an order in Council, dated July 25, the Lieutenant-Governor was removed from office. By the British North America Act 1867' any Act passed Provincial by a provincial Legislature may be disallowed by the GovernorGeneral within one year after its enactment. This power of disallowance is only exercised by the Governor on the advice of his ministers'. The course pursued in regard to all provincial Acts is governed by the principles laid down in a memorandum 1 ss. 56, 90. 2 Can. Sess. Pap. 1877, No. 89. See also Ib. 1876, No. 116 and Ib. 1877, No. 89. |