Wayward Governors General and the need for a Canadian Regency Act

Canada doesn’t have a regency act. Recent talk of the Queen’s power to dismiss Canadian Governors General highlights why this is may be a problem. Specifically, Canada’s current approach to a regency rests on the idea that the Governor General would exercise all of the Sovereign’s powers, including the prerogative to appoint their own successor. Were we faced with a Governor General who needed to be dismissed when the Sovereign was incapacitated or too young to assume the throne, we’d have to ask the vice-regal representative to fire themselves by naming their own replacement. That’s not a recipe for success.

The United Kingdom has a regency law, the Regency Act 1937, along with two amendments to that statute made in 1943 and 1953. Neither of these acts were extended to into Canadian law by the British Parliament. Accordingly, if we accept that the Queen of the United Kingdom and the Queen of Canada are separate and distinct offices (which not everybody in Canada does, but the English courts do), these British regency laws would not apply to the Sovereign in a Canadian capacity or the monarch acting for Canada on the advice of Canadian ministers. 

Why were the British regency acts not incorporated into Canadian law? The detailed explanation is provided by Twomey here. The short version is that these acts were passed by the British Parliament after the Statute of Westminster 1931. Section 4 of the Statute of Westminster 1931 provides that « No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof ». Since the Canadian government did not request and consent that the British regency acts be extended to Canada, they aren’t part of Canadian law. 

The Canadian government didn’t see this as a problem in 1937 for the same reason we don’t think about it today: Canada has a Governor General who can exercise the Sovereign’s powers. In 1947, moreover, new Letters Patent were issued that explicitly allow for the exercise of all the Sovereign’s powers and prerogatives by the Governor General. All powers except for maybe one, that is: the power to appoint and dismiss the Governor General. 

Today most authorities would probably agree that the Letters Patent allow the Governor General to appoint their own successor, though this could be considered bad constitutional form and an affront to the Queen unless she was consulted beforehand or was incapacitated. According to the prevailing view, the Queen continues to appoint the Governor General ‘by agreement’ and this prerogative should only be exercised by the Governor General if the Sovereign ‘agrees’ to give it up, or necessity demands that it be exercised by the vice-regal representative. 

As importantly, it’s not hard to see why the Canadian government wouldn’t have seen this, and still doesn’t see this, as a big issue. In the event that the Sovereign was incapacitated, the Governor General could simply stay in office until the monarch recovered, died, or a successor came of age. Unlike provincial Lieutenant-Governors, furthermore, the Chief Justice of the Supreme Court can exercise the Governor General’s powers under the Letters Patent 1947 if the Governor General dies in office. And if the Chief Justice also died, then the next Chief Justice could do the same. This is all laid out in the federal government internal 1968 procedure and practice manual. So, our system has built-in resiliency here, unlike the provinces who must wait for the federal Cabinet to appoint a new Lieutenant-Governor if their vice-regal representatives dies, preventing them from having orders-in-council signed and royal assent granted.  

There’s one problem here, though. With the power to appoint the Governor General comes the authority to dismiss the Governor General. They’re twined prerogatives. Our regency workaround is fine when it comes to waiting for a new Governor General to be appointed or making due for a while. But what if we need to get rid of a Governor General while the Sovereign can’t exercise their powers? Basically, we need to ask the Governor General to resign by appointing their own successor. 

Now, according to constitutional convention, if the Prime Minister advised the Governor General to appoint their own successor, they would have to do it, unless the Prime Minister was advising it because the vice-regal representative was blocking them for acting unconstitutionally. (Think of a Canadian version of the Saturday Night Massacre.) 

Yet, if the Prime Minister is trying to forcibly get rid of the Governor General, it’s probably because the vice-regal has refused to voluntarily resign. In that context, said Governor General might also refuse to effectively dismiss themselves. In the absence of an existing regency act, the Prime Minister would have two options. First, they could rush a regency bill, or a constitutionally-dubious bill dismissing the Governor General, through Parliament. Alternatively, they could refer the matter to the Supreme Court in hopes that the justices would pull a Miller II, circumventing constitutional convention to solve the problem. Given that the Governor General also has the power to dismiss the Prime Minister, though, this sounds like a game of constitutional chicken we’d want to avoid, even if it all worked out in the end. Seriously, who needs the stress and aggravation?

Since we are likely facing decades of geriatric monarchs, and given that talk of dismissing a Governor General doesn’t seem that outlandish these days, perhaps we could get ahead of the curve. Indeed, addressing this lacuna would also address another ‘what if’ scenario: appointing additional senators under section 26 of the Constitution Act 1867, as happened in 1990 to pass the GST. Section 26 requires the involvement of both the Governor General and the Queen. A plain reading of the section suggests that the Governor General shouldn’t be able to act for the Queen. Simply assuming that the Letters Patent 1947 allows the Governor General to act for the Queen under section 26 seems risky, to say the least. 

A regency act could be passed by Parliament as a regular statute or a section 44 constitutional amendment, if need be. It could be as basic as New Zealand’s regency provision, which says that the British regent is also the regent for the Crown of New Zealand. It would take a couple of lines. Let’s get on it.  

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