Jan. 22, 2021

Governor-General history governments want to keep buried

1940 was a tumultuous year in Canada. We were at war.

On January 1, 1940, the Clerk of the Privy Council, Ernest Joseph Lemaire retired after 46 years of public service. He had been Privy Council Clerk reporting to the Governor General from 1923 to 1940.

On February 6, 1940, the Governor General,  John Buchan, Lord Tweedsmuir, suffered a severe head injury when he fell after suffering a stroke, and he died on February 11. Canada was left without a Privy Council Clerk or Governor General.

Prime Minister Mackenzie King was still smarting from the 1926 King-Byng affair. Prime Minister King asked Governor General Lord Julian Byng to dissolve Parliament and call fresh elections. Byng refused and offered opposition leader Arthur Meighen the opportunity to govern. It ended with King winning an eventual election, but King resented the GG for having exercised his powers.

Prime Minister King saw an opportunity and decided to create a new position of Secretary to the Cabinet and Clerk of the Privy Council wrapped into one. His excuse was that the Cabinet was overwhelmed and he needed the extra hands to deal with the war effort.

In an effort to give his move legitimacy, on March 23, 1940, King issued an Order in Council P.C. 1121 restructuring the governance of Canada in violation of the constitution.

To fully understand the ramifications of the change, one has to consult the Letters Patent issued by the Monarch, which set out the Governor General's duties and powers. They are too long to reproduce here, but you can access a copy here: https://www.solon.org/Constitutions/Canada/English/LettersPatent.html

In the 1940 Order in Council, Prime Minister King refers to himself as President of the Privy Council which is nonsense. The presiding officer of the Privy Council is the Governor General. Since the former Clerk had retired and the Governor General was dead, King had no one to argue the point.

All the on-line references to the Privy Council claim that appointment to the Privy Council is for life, which is also nonsense. The Letters Patent section V:

V. And We do further authorize and empower Our Governor General, so far as We lawfully may, upon sufficient cause to him appearing, to remove from his office, or to suspend from the exercise of the same, any person exercising any office within Canada, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us in Our name or under Our authority.

     Our Constitution, Section 11 states:

11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.
Appointments to the Privy Council are made by the Governor General, without the Prime Minister’s advice and can be removed or suspended by the Governor General. This is necessary to ensure that the Privy Council is politically balanced and that other members are politically neutral. The current Privy Council has more than 350 members which is ungovernable and useless. The Privy Council is considered a joke by current parliamentarians, which is a mistake. The necessity for the Governor General to intervene, offer advice and find a way out of a crisis depends on his having a balanced and knowledgeable council to rely on for advice. An active Privy Council made up of current cabinet ministers is biased, ineffective and not seeking solutions others may put forward.
The effort initiated by Prime Minister King and carried on by his successors is to transfer executive powers from the Governor General to the Prime Minister effectively giving the Prime Minister regal powers. The intent was to keep executive powers in the hands of the Governor General in order to be able to sort out a constitutional crisis if it should occur rather than actively participate in governance.

The Governor General is tasked with calling federal elections, and although he could do so at any time, does not act unless a government is defeated, he is asked by the Prime Minister to call an election or mandatory term limits are triggered.

 Replacing the Governor General is not enough. Unless that position is restructured in accordance with our constitution, we will continue to be governed rather than represented. The charade must end.