Comment: re: the royal prerogative and the office of the Lieutenant Governor.

• Author: Smith, David E.

In an article (Vol 23, Spring 2000) by Professor Ronald Cheffins on "The Royal Prerogative and the Office of Lieutenant Governor" the author maintains that "the primary role of the Lieutenant Governor is to represent the Queen of Canada within the context of the provincial political system."

The significance of that assertion lies in the contrast drawn between the lieutenant governor's role currently and "in the early days of Confederation, [when he] was seen more as a federal officer helping to protect federal interests within the provincial context...."

Professor Cheffins concludes with the statement that "the issue [of roles] is now resolved, as the result of decisions by the courts and the flow of historical events."

These statements could leave readers with two erroneous impressions --(1) that there is both a federal Crown and provincial Crowns with nothing much to bind them together except the person of the absent monarch and (2) that the Lieutenant Governor no longer has a role as a federal officer.

In one respect there is nothing particularly new in what Professor Cheffins has written. Canada, he says, began as a highly centralized, hierarchical, quasi-federal arrangement of power which rapidly evolved in the last quarter of the nineteenth century into a more classically balanced system of coordinate and independent jurisdictions. Much of the credit if credit there be for this development-and that is an assumption whose validation depends upon the premise that the Fathers of Confederation got things inexcusably wrong at the outset-lies with the Crown. He cites the Liquidators of the Maritime Bank v. the Receiver General of New Brunswick (1892) and In Re Initiative and Referendum (1919) as proof that in the hands of the courts the prerogatives of the Crown were revealed and then woven into the fabric of federalism. In light of that depiction of events, it could hardly be maintained that lieutenant governors still function as federal officers. Nor does Professor Cheffins offer any surprises on this score. On the contrary, he says that "no one today" would make this argument. Although he does not cite the Labour Conventions Case (another venture into the realm of the prerogative), Professor Cheffins' conclusion evokes the nautical metaphor used in that opinion to describe Canadian federalism-a "ship of state [that] retains water-tight compartments."

The contention that there are two solitudes, federal and provincial, in the matter of...