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Recent legislative action by Alberta’s provincial government has raised a number of controversies.[1] Questions of constitutionality, respect for the democratic process, and the rule of law have arisen following the tabling of several bills in the legislature.[2] In an effort to stop passage of these bills into law, critics suggest that the Lieutenant Governor should withhold giving them royal assent. Critics also argue that the Lieutenant Governor should use her authority to warn and encourage the government to make a different decision, and if that encouragement fails, that she should then refuse to sign the bills into law.[3]

To clarify and understand the role of the Lieutenant Governor in the law-making process, this article will explain that role, and what might lead a Lieutenant Governor to block a bill from becoming law.

The Lieutenant Governor’s role in the law-making process is to sign bills into law

Lieutenant Governors are the representatives of the Queen (or “Crown”) in each province. Canada’s Governor General is the representative of the Queen (or “Crown”) at the federal level and appoints each province’s Lieutenant Governor on the advice of the Prime Minister.[4] One of the roles of a Lieutenant Governor is to sign a bill that has been approved by a majority of the legislative assembly into law. This signing into law is called giving a bill “royal assent”. Similarly, at the federal level, royal assent for bills is given by the Governor General.[5] Lieutenant Governors have the power under Canada’s Constitution to refuse to give a bill royal assent, or to reserve the bill for review by the Queen.[6] Reserving a bill for review by the Queen means it is reviewed by the Governor General, who has largely been delegated the Queen’s powers.[7] The Governor General has the ability to provide royal assent to the bill, or to disallow (or nullify) it.[8]

The powers to withhold assent, reserve a bill, or disallow a bill are rarely used by Lieutenant Governors. This is because of the unwritten constitutional principle of “responsible government”, which requires that the powers of the Crown only be exercised on the advice of elected members of the legislature. Since members of the legislature are elected by the citizens, their decisions more closely represent the “will of the people”, as opposed to the decisions of the Lieutenant Governors or Governor General who are appointed.[9] As the representatives of the Crown, the Lieutenant Governors and Governor General are not to exercise their powers without advice from elected members of government.[10]

The principle of responsible government carries with it certain constitutional conventions. One such convention is the previously mentioned idea that the representatives of the Queen will not refuse to sign a bill into law if Parliament has approved it. However, while constitutional conventions are recognized by the courts, courts cannot enforce them.[11] Even still, conventions such as these are unlikely to be broken because of potential political ramifications.[12]

Therefore, the Lieutenant Governors and the Governor General are unlikely to refuse to give royal assent to a bill, even though they have the power to do so.

Alberta’s Lieutenant Governor has refused to sign bills into law before

There is precedent in Alberta for its Lieutenant Governor refusing to sign a bill into law. In 1936, then Lieutenant Governor William Walsh sent a letter to Premier William Aberhart, leader of Alberta’s Social Credit Government, expressing concern over the constitutionality of the proposed Reduction and Settlement of Debts Act. Lieutenant Governor Walsh gave the Premier three recommendations; to delay the Bill until next session, to send the Bill to the Supreme Court of Alberta[13] for review, or to do nothing in which case royal assent would likely be withheld.[14] Aberhart’s government sent the Bill to the Supreme Court of Alberta for review. The Court held that the Bill was unconstitutional. The Alberta government appealed that decision, but the appeals were unsuccessful.[15] Therefore, the Lieutenant Governor’s refusal to grant royal assent had a significant impact – the Bill went nowhere after the decision of the Court.

In 1937, the Aberhart government passed three pieces of legislation that received royal assent from the Lieutenant Governor; the Credit of Alberta Regulation Act, the Bank Employees Civil Rights Act, and the Judicature Act Amendment Act.[16] Ultimately, the Governor General disallowed all three pieces of legislation as they interfered with Federal jurisdiction and thus were unconstitutional.[17]

The Government later introduced heavily modified versions of the Bills. Then Lieutenant Governor John Bowen reserved royal assent for the Bills until the Supreme Court could review their constitutionality. The Supreme Court of Canada found all three pieces of legislation were unconstitutional.[18]

In response, the Aberhart government launched a legal challenge over the Lieutenant Governor’s ability to reserve royal assent.[19] The Supreme Court of Canada held that both the powers of disallowance (exercised by the Governor General) and the power to reserve royal assent for a bill (exercised by the Lieutenant Governor) are valid powers. The power of reservation is only subject to limitations set out by the Governor General.[20] Thus, the government had to scrap the Bills.[21]

In the Bowen case, the Supreme Court of Canada ruled that the government had no control over the Lieutenant Governor’s powers of reservation. However, the government did have control over the services provided to the Lieutenant Governor’s residence – Government House (the residence of Alberta’s first six Lieutenant Governors). Therefore, in apparent retaliation for Bowen’s actions, the government cut all funds for the upkeep of the residence, and informed Lieutenant Governor Bowen that he and his family would have to vacate the premises. The Premier eventually cut off utilities for the residence and fired all the staff. Lieutenant Governor Bowen left Government House on May 9, 1938. Interestingly, no Lieutenant Governor has ever returned to live in Government House since.[22]

Today’s Lieutenant Governor is unlikely to withhold royal assent for future legislation

As the Bowen-Aberhart case shows, the Lieutenant Governor has the power to withhold royal assent if there are concerns over the constitutionality of proposed legislation. The Supreme Court of Canada has affirmed this.[23] However, the principle of responsible government suggests that the Lieutenant Governor should refrain from doing so. If there are concerns with the constitutionality of a law, legal scholar Professor Peter Hogg argues that the courts are the proper forum for resolving such issues. If there are concerns that a law is unwise, Professor Hogg argues that the voters should be the ones to determine if the proposed law is wise or not.[24] In other words, it is not the place of the Lieutenant Governor to withhold assent for issues of constitutionality, nor for lack of wisdom in a proposed law. The courts are the appropriate arena to review constitutionality. Elected representatives are the appropriate people to create the laws. If the people do not like what their elected representatives are doing, they have the power to vote them out in an election.

The Bowen-Aberhart case also shows the political opposition that might arise if the Lieutenant Governor were to withhold royal assent for a bill. It is unclear whether the current government would enter into a standoff with the Lieutenant Governor in the way Premier Aberhart’s government did in the 1930s, but all parties involved would probably prefer to avoid such a scandal from occurring. Hence, the calls for the Lieutenant Governor to intervene and withhold royal assent are unlikely to spur any action.

Conclusion

While the Lieutenant Governor has the power to withhold royal assent, as a matter of tradition, they are unlikely to do so. Regardless of the concerns over the Alberta Government’s legislative behaviour, the fact remains that the people of Alberta elected them. In order to respect the principle of responsible government, the government’s decisions should probably not be interfered with by the Lieutenant Governor. Once passed, laws can be reviewed by the courts to ensure they comply with the Constitution. While it can take time for judicial review of this nature, it is the preferable avenue to use, as it avoids the possibility of a standoff between the Queen’s appointed representative and the elected government. The people have the power to oust the government in the next election if they believe the government’s decisions are unwise.

Still, one wonders if there could be an extreme circumstance, where the Lieutenant Governor feels it is appropriate to withhold royal assent. Lieutenant Governor Bowen was vindicated by the Supreme Court for his withholding. Unfortunately, that led to the withholding of his utilities. Nonetheless, perhaps the Lieutenant Governor would be justified in exercising their power to withhold royal assent if an extreme circumstance were to arise. However, it is difficult to predict what that extreme circumstance would be.

[1] Caley Ramsay, “Alberta Union of Provincial Employees launches constitutional challenge against controversial blockade bill”, Global News (23 June, 2020), online: <https://globalnews.ca/news/7097520/aupe-alberta-bill-1-constitutional-challenge/>; Jay Cameron, “Ministers as Kings – Alberta’s Bill 10 a dangerous overreach” Western Standard (11 June, 2020), online: <https://www.westernstandardonline.com/2020/06/cameron-ministers-as-kings-albertas-bill-10-a-dangerous-overreach/>; Lisa Johnson, “UCP omnibus bill paves way for more alternative doctor contracts, private surgeries” Edmonton Journal (7 June, 2020), online: <https://edmontonjournal.com/news/local-news/ucp-omnibus-bill-paves-way-for-more-alternative-doctor-contracts-private-surgeries>; Michelle Bellefontaine, “Union picketing and political campaigning curbed under proposed Alberta bill” CBC News (7 July, 2020), online: <https://www.cbc.ca/news/canada/edmonton/alberta-bill-32-workplace-unions-1.5640952>.

[2] See also Teresa Holmes, “Alberta’s Bill 10: The Return of the King(s)?”, Centre for Constitutional Studies (16 July, 2020), online: <https://ualawccsprod.srv.ualberta.ca/2020/07/7146/>; Case Littlewood, “Are Protests Illegal in Alberta? Charter Issues with Bill 1”, Centre for Constitutional Studies (26 June, 2020), online: <https://ualawccsprod.srv.ualberta.ca/2020/06/are-protests-illegal-in-alberta/> [Littlewood Bill 1]; Case Littlewood, “Alberta and its Physicians Clash Over a Right to Something Besides Striking”, Centre for Constitutional Studies (17 June, 2020), online: <https://ualawccsprod.srv.ualberta.ca/2020/06/alberta-and-its-physicians-clash-over-a-right-to-something-besides-striking/>.

[3] Roxane Goldade, “Opinion: Alberta’s lieutenant-governor should block vaping bill to protect youth”, Edmonton Journal (2 July, 2020), online: <https://edmontonjournal.com/opinion/columnists/opinion-albertas-lieutenant-governor-should-block-vaping-bill-to-protect-youth>  at paras 1, 9, 13-15.

[4] Halsbury’s Laws of Canada, Crown (2017 reissue) at para 14.

[5] John D Richard, “Separation of Powers: The Canadian Experience” (2009) 47:4 Duq L Rev 731-760 at 739 [Richard].

[6] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2019) at 9.3 [Hogg]; see also Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5. ss 55, 56, 57, 90 [CA 1867].

[7] Hogg, supra note 6 at 9.3.

[8] Ibid; see also CA 1867, supra note 6 s 55, 56, 57; for more information on reservation and disallowance see the Key Term “Reservation and Disallowance” here: https://ualawccsprod.srv.ualberta.ca/2019/07/reservation-and-disallowance/.

[9] Richard, supra note 5 at 737-738.

[10] Richard, supra note 5 at 737; see also Hogg, supra note 6 at 9.5(d).

[11] Richard, supra note 5 at 738.

[12] Ibid at 738.

[13] The Supreme Court of Alberta no longer exists. The courts now existing in Alberta are called the Provincial Court of Alberta, the Court of Queens Bench, and the Alberta Court of Appeal. Nowadays, if proposed legislation were to be reviewed by the court by way of reference question, it would be sent to the Alberta Court of Appeal; JW McClung, History of the Alberta Court of Appeal, (Alberta: Court of Appeal Alberta) <https://albertacourts.ca/docs/default-source/ca/mcclung.pdf?sfvrsn=1d40d980_0>.

[14] Alberta, Lieutenant Governor of Alberta, Alberta’s Lieutenant Governor and Royal Assent, (Alberta: Lieutenant Governor of Alberta) <https://www.lieutenantgovernor.ab.ca/history/alberta-s-lieutenant-governors-and-royal-assent/> accessed 21 July 2020 at para 2 [Lt Gov].

[15] Ibid.

[16] Ibid at para 3.

[17] Ibid; The legislation was disallowed after the federal government requested Alberta’s government to refer the legislation to the Supreme Court in order to review constitutionality. Alberta’s government refused, stating that the responsibility of contesting the validity of the legislation should fall to those seeking to “… render it abortive”. The federal government, led by William Lyon Mackenzie King, made the request in order to avoid the necessity of exercising the power of disallowance. The refusal of the provincial government to delay the enforcement of the legislation spurred the need for disallowance. The Credit of Alberta Regulation Act, the Bank Employees Civil Rights Act, and the Judicature Act Amendment Act were disallowed on August 17, 1937; JR Mallory, “Disallowance and the National Interest: The Alberta Social Credit Legislation of 1937” (1948) 14:3 Can J Econ Pol Sci 342-357 at 349-350.

[18] Lt Gov, supra note 14 at paras 3, 5; see also Reference Re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] SCR 100, [1938] 2 DLR 81.

[19] Lt Gov, supra note 14 at para 6.

[20] Reference re The Power of the Governor General in Council to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant-Governor of a Province, [1938] SCR 71 at 79, [1938] 2 DLR 8 [Lieutenant-Governor Reference].

[21] Lt Gov, supra note 14 at para 6.

[22] Ibid at paras 7-8.

[23] Lieutenant-Governor Reference, supra note 20.

[24] Hogg, supra note 6 at 5.3(e).