A tradition of vigilance: the role of Lieutenant Governor in Alberta.

• Author: Neitsch, Alfred Thomas

A contemporary misconception exists in Canada that the Governor General and the Lieutenant Governors are politically impotent. In fact, they have considerable power both of a legal and political nature. Using the province of Alberta as an example, this article looks at the ways various Lieutenant Governors have exercised the powers given to them by law and convention.

**********

The Lieutenant Governor was envisioned to function in a dualist role, as a representative of the monarch, but more clearly as a Dominion officer doing the bidding of the Federal Cabinet. Peter J.T. O'Hearn recounts this office was by no means ceremonial,

In the early days, some governors, notably in the new provinces, actually conducted the administration. There were exciting clashes in Quebec and British Columbia between strong-minded governors and their ministries, leading to the dismissal of five Cabinets. In the first half-century of Confederation, governors refused assent to twenty-six bills and reserved sixty-four for action in Ottawa. (1) The frustrations felt by the provinces lead them to challenge assertions that Lieutenant Governors possessed limited powers. "From 1867 onwards, Oliver Mowat, the Premier of Ontario, attempted to change the notion of subordination of the Lieutenant Governor.

The fulcrum for Dominion interference was the Lieutenant Governor. Appointed and removed by the Dominion Government; considered by the Imperial Government as well as by the Dominion Government as merely a Dominion Officer mainly useful for bringing Provincial policies into harmony with those of the central Government; the Lieutenant Governor must have appeared to Mowat as likely to prove a "Trojan Horse' within the Provincial Citadel. (2) In Liquidators of Maritime Bank v. Receiver General (1892), the Judicial Committee of the Privy Council effectively reversed some twenty-five years of Constitutional law and practice. Until that point, the Lieutenant Governor was regarded primarily as a representative of the federal government. However, after the Maritime Bank went bankrupt, the New Brunswick government, eager to regain its funds, argued that the Lieutenant Governor was the representative of the monarch and possessed all of the prerogative powers of the Crown. This meant that the government of New Brunswick could use Crown prerogative as a basis for claiming priority over other creditors seeking to recover funds from the liquidators of the Maritime bank. The court agreed with this argument. The historical significance of this case lies in the fact that legally speaking the Lieutenant Governor would no longer be viewed as a Dominion Officer or in anyway subordinate to the central government.

The Lieutenant Governor in Alberta

Alberta has a long history of interventionist Lieutenant Governors going back to the years of Social Credit and William Aberhart. The Social Credit period in Alberta, especially between 1936 and 1938, witnessed considerable intervention by both the Lieutenant Governor and the Governor General. In this period, several precedents were established on the role and authority of the Governor General and the Lieutenant Governor.

Early into Aberhart's term, the Lieutenant Governor was already expressing concerns over some legislation. On March 31, 1936, in a letter to the Premier, Walsh noted, "I have a very great objection on principle to the enactment by Order-in-Council of legislation which should be enacted by statute." (3) Walsh continued to express his reservations noting "I think that such legislation should be enacted only after full discussion in the open forum of the legislature by those elected for that purposes rather than in the Executive Council chamber by a few of those so elected." (4) Lieutenant Governor Walsh issued Aberhart this ultimatum: change the provisions of the Act or provide legal opinion regarding whether the law was ultra vires.

Several months later Walsh once again threatened intervention. On August 31, 1936, he wrote to Aberhart deeply troubled over a proposed Act relating to the reduction and settlement of debts. In the letter, Walsh expressed sympathy for the difficulties besetting the Aberhart government, but clearly outlined his objections, "I cannot too strongly condemn the ruthless fashion in which the Act proposes to deal with the rights of creditors ... surely creditors have some rights in this country as well as debtors." (5) Walsh warned such legislation would further batter Alberta's damaged financial reputation and that the proposed Act might be ultra vires as it encroached upon the banking jurisdiction exclusive to the Dominion government. It was therefore possible that the Dominion government would disallow the legislation.

Therefore, Walsh provided Aberhart with three options. First, delay the passing of the bill until the conclusion of the next session. Second, send the legislation for review to the Supreme Court of Alberta. Third, do nothing. In this event Walsh casually mentioned, "I have the power under section 55 of the British North America Act to reserve this bill for the signification of the Governor General's pleasure." (6) Walsh noted that, "If however I find that I can constitutionally do so I will feel myself quite justified in reserving it." (7) In the end, Walsh elected not to withhold Royal Assent. The Supreme Court of Alberta did review this legislation, renamed the Reduction and Settlement of Debts Act. It is likely that Walsh--a former Alberta Chief Justice and earnest opponent of the Act--played a role in alerting the courts.

In February 1937, Mr. Justice A.F. Ewing of the Supreme Court of Alberta ruled the Reduction and Settlement of Debts Act unconstitutional. In June of that year, the provincial government was ultimately unsuccessful on appeal. On October 25, 1938, the appeal court refused to hear the Aberhart government's second appeal application. By 1937, the regularity of unconstitutional bills passed by the Alberta legislature made it necessary for a mode of intervention independent from time consuming judicial reviews: vice-regal intervention by both Alberta's Lieutenant Governor and Canada's Governor General.

Disallowance and Reservation

Alberta's longest serving Lieutenant Governor was John Campbell Bowen. His tenure illustrates that the Lieutenant Governor's efficacy in protecting of civil liberties and ensuring the constitutionality of provincial legislation. However, Bowen's insight and guardianship were not immediately apparent to his contemporaries. Bowen was roundly criticized during the Constitutional Crisis of 1937-38 for demonstrating weakness unbecoming of a Lieutenant Governor. Mackenzie King would note in his diary on February 1, 1938: "... had conservation with the Lieutenant Governor Bowen of Alberta who impressed me as a very delicate man, and not altogether suited for the post he occupies ..." Nonetheless, he was largely able to overcome this.

When William Aberhart assumed office of premier of Alberta in 1935, he asked for eighteen months to establish a new order, which would free Albertans from the economic evils of the Great Depression. By 1938, it was clear that Aberhart's measures had failed. In the meantime, Aberhart had raised serious alarm over his policies and legislation. On August 16, 1937, Arthur Meighen corresponded with Senator William Griesbach, foreshadowing the intervention of the Federal government and the Lieutenant Governor. "What cannot be forgotten" Meighen wrote, "is that the people of Alberta are still citizens of Canada and they are still entitled to the safeguards of our Constitution. If Provincial legislation is always to be allowed to go unless upset by the courts, then the very sheet anchor of Confederation is gone." (8)

In August 1937, Aberhart's government, eager to implement social credit economics passed the Credit of Alberta Regulation Act, the Bank Employees Civil Rights Act and the Judicature Act Amendment Act. In an early letter dated August 11, Prime Minister Mackenzie King had requested that William Aberhart first send the legislation for review to the Supreme Court of Canada to judge its constitutionality. Having already received Royal Assent of the Acts the previous day from the Lieutenant Governor, Aberhart refused.

Major constitutional concerns were raised over the legislation even to the extent that the Lieutenant Governor should not have granted Royal Assent. For instance, the Credit of Regulation Act Section 7 stated that any banker "... while unlicensed, be capable of commencing or maintaining any action ... in respect to any claim, in law or equity." (9) The Judicature Act Amendment Act absurdly proposed what was tantamount to an unilateral Constitutional amendment by stating that "No action or proceeding of any nature whatsoever concerning the Constitutional validity of any enactment of this Legislative Assembly of the Province shall be commenced, maintained, continued or defended, unless and until permission ... has first been given by the Lieutenant Governor in Council." The Bank Employees Civil Rights Act essentially denied any civil right of unlicensed employees of chartered banks. Bowen's decision not to reserve the Acts was called into question. Would, for example, William Walsh have granted Royal Assent to these three bills? Bowen's failure to intervene demonstrated some weakness, yet the subsequent federal disallowance certainly prompted an awakening of his guardianship of the Canadian Constitution. Following this incident, Bowen exhibited great care in granting Royal Assent and availed himself of independent legal advice.

This is not to say that Bowen remained unconcerned over the August 1937 legislation. In fact, on the last day of session, August 6, Bowen called on Premier William Aberhart and the Attorney General John Hugill to discuss the constitutionality of the proposed Acts. In a rather bizarre turn of events, Hugill advised against Royal Assent. Hugill...