A Canadian Constitution: Part 4 A six-part interview with R. Rogers Smith examining the formation of Canada

The following is an excerpt from an interview by George Barr, KING’S Council, with R. Rogers Smith sometime in the mid 1940’s and on “Ligue pour l’Union Federale”, 822 Sherbrooke Est, Mtl. (Acquired from the Ka-NeeKa-Neet collection) Question s by G. H. Barr, King’s Council Answers by R. Rogers Smith

Mr. Barr: Just how is the Prime Minister of Canada appointed?

Mr. Smith: The present incumbent is elected from prince Albert and receives an indemnity of $4,000.00 per year. After being called upon to form a government by the Governor General, he receives $15,000.00 per year as being the member of the King’s Privy Council for Canada, holding the recognized position of First Minister.

Q: Who pays the $15,000.00?

A: Canada pays that on the orders of the Governor General. (Salaries Act-cap. 186 Revised Statutes of Canada).

Q: How are Provincial Legislature they constituted?

A: The Legislature of the Province is composed of the Lieutenant Governor and Elected members.

Q: How is the Lieutenant Governor appointed?

A: The Lieutenant governor appointed solely by the Governor General.

Q: Is he obliged to comply with any request or submit his suggestions or receive advice from elected representatives?

A: No! As the Governor General was a “corporation sole” for the Central Legislature of Canada, the Lieutenant governor is equally a “corporation sole” in the legislature of each Province. His powers are to act as the representative of the Governor General and he has all powers necessary to carry on the government of the Province. There is, of course, no such thing as second Chamber or Senate in the Provinces except in the Province of Quebec where they have in addition to the Legislative Assembly a Legislative Council appointed by the Lieutenant Governor.

Q: Consisting of how many members?

A: I think it is 24. I would not be sure.

Q: What functions do they exercise in Quebec?

A: Much the same functions as the Senate exercises in Ottawa.


Q: How is Provincial Cabinet constituted?

A: The Cabinet of the Province is constituted in much the same manner as is the Cabinet at Ottawa.

Q: The Premier of the Province-he is appointed by whom?

A: He is appointed to his position by the Lieutenant Governor and exercises the same functions within his jurisdiction as the Dominion Prime Minister within his. He must subscribe to an oath of office to the Lieutenant Governor before assuming such office.

Q: Jurisdiction of the various Provinces-groups-committees-jurisdiction of the Governor General?

A: We find these powers and authorities set forth in Letters Patent, the last of which were granted, as I have said before, to Earl Bessborough March 23rd., 1931. Canada Gazette, Oct. 12th., or 19th., of 1935. You will find there a proclamation issued by Sir Lyman P. Duff which tells you that he is acting as the Governor General of Canada and that he is to swear in the Governor General under letters Patent of June 15th., 1905. These had been revoked in 1931 by the Crown in Chancery under Letters Patent dated March 23rd., 1931. He can “do and execute, in due manner, all things that shall belong to his said office, and to the Trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of “the British North America Act, 1867” and of these present Letters Patent and of such Commission as may be issued to him under Our Sign Manual and Signet, and according to such instructions and may from time to time be given to him under Our Sign manual and Signet and to such Laws as are or shall hereafter be in force in Our said Dominion”. He is authorized to use the Great Seal for sealing all things whatsoever that shall pass the said Great Seal. He has the appointment of all judges and justices of the peace. He can suspend or remove from office any person exercising any office within our said Dominion, under or by virtue of and Commission or Warrant which may be granted by Us in Our name or under Our authority. He can summon and dissolve the Dominion Parliament. He can appoint deputies of himself to exercise or administer any powers which he may have-or less powers if the Governor General so desires. He appoints all officers of the Army, Navy, Air Force, Harbour Commissioners, and any office in Our said Dominion. All these officers are required and commanded, both civil and military, and all of the inhabitants of Our said Dominion to be obedient, to aid and assist Our said Governor General, or in the event of his death, incapacity or absence to obey such person or persons as may from time to time under the provisions of these Our Letters Patent administer the government of our said Dominion. (See Statutes of Canada (second session) 21-22 Geo. V Parts I-II, p. xix. Summing up—it will doubtless be conceded that it was not logical for the British to grant General James Murray less than a dictatorship if they held him responsible for the retention of the Colony of Canada as a possession. No dictatorship could be granted more inclusive of power than the constitution of the Colony of Quebec granted by the Board of Trade. Today, if we add the letters Patent granted to Earl Bessborough March 23rd., 1931; the Instructions issued by his Majesty; the Colonial Laws Validity Act of 1865, and the British North America Act 1867- 1930 together and divide by commonsense, we get exactly the same mathematical quotient as we find in the constitution granted to Murray November 21st., 1763, published in Sessional Papers 18. DOMINION HOUSE OF COMMONS-CONSTITUTION AND JURISDICTION The Constitution is settled by sections 37 to 57 of the British North America Act, 1867. These provide, in brief, the constitution of a House of 181 Members to be summoned, called together and prorogued from time to time by the Governor General.

Q: What would you say, Mr. Smith, is the jurisdiction or authority of the House of Commons?

A. Before answering your Question, I would like it to be understood that the House of Commons is constituted of a Speaker and a body of elected Members. The Speaker is appointed by the governor General and is one of the Presidents of the Parliament of Canada, the other being the Speaker of the Senate. The Rt. Hon. W. L. MacKenzie King is a Vice-President of the Parliament of Canada and the Leader of the Opposition also a Vice-President. There is no office of Prime Minister. Once only has the term “Prime Minister” been used in the statute. (See Debates in the House April 10th., 1935, Hansard. P. 2509). It may be said here that the House of Commons, together with the Senate and the King’s Privy Council for Canada, are an ancillary body to aid and advise the governor General in the governmentof Canada.

Q. This hardly coincides, Mr. Smith, with the conception of the average citizen of Canada. What comment have you to make in that regard?

A. It is only in the popular sense of the term that the present incumbent, Rt. Hon. MacKenzie King is given the courtesy title of “Prime Minister” (At the time this was written –Ed). Naturally, if Canada were a democracy, we would have a Prime Minister and a House which would make the laws of Canada and whose enactments could not be disallowed by the British Government, or any department of that Government. The popular conception of the Government of Canada is a variance with the facts. The situation was brought to the attention of the House by W. F. Kuhl, the Member for Jasper-Edson, Alberta, and has from time to time been brought to the attention of the public, but to this date no remedy has been offered for this anomalous situation. Based upon the British North America Act of 1867, the House of Commons has been given jurisdiction over certain matters as set forth in section 91, and subject to the approval of the Senate and the assent of the governor General, the Bills passed by the house form the statute law of Canada. It will be noted, in passing, that no Bill involving the expenditure of public money may be introduced or initiated except by the Governor General in Council.

Q: The Senate, Constitution and Jurisdiction?

A: I would say it’s probable the Senate is constituted as a brake on the enactments of the house of Commons to revise and correct any mistakes that may be made. Sometimes their efforts have been conducive to uniformity, but it is a moot question as to whether the Senate itself serves any useful purpose. It is entirely an appointment by the governor General and the qualifications of the person to be appointed to the Senate appear to be more of a property qualification than of his personal ability. The Speaker of the Senate is the President of the Parliament of Canada and that he is entirely under the influence of the Governor General may be realized by reading section 34 of the British North America Act, as follows; “The Governor General may from time to time, by instrument under the Great Seal of Canada, appoint a senator to be Speaker of the Senate, and may remove him and appoint another in his stead”.

Next week in part five, Mr. Barr explores the Imperial Privy Council’s limits of jurisdiction, functions and authority as it pertains to Canada

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