Letters Patent, 1947

First page of the proclamation of the 1947 Letters Patent as published in the Canada Gazette

The first letters patent in Canada were, starting in 1663, issued to the governors of New France by the kings of France.[7] At that time, the letters patent outlining the office of the governor and its role were issued with a commission appointing the occupant to the office, as well as an accompanying set of royal instructions. In this way, a different set of letters patent were issued by the Crown each time a new governor was appointed, a custom that was continued by the British following the surrender of New France in 1763 to the United Kingdom. This system remained largely unchanged until 1947 with two exceptions: The first was the granting of the title commander-in-chief in 1905 and the second occurred in 1931 under the Statute of Westminster, when the governor general went from acting as an agent of the British government to a representative of the Canadian Crown.[8]

The experiences of the Kingdom of Iceland during the Second World War also gave Prime Minister Louis St. Laurent an example of how the lack of a regency act or similar mechanism could, in certain circumstances, evoke a constitutional crisis. When Denmark was invaded by Nazi Germany in 1940, Iceland found itself in the peculiar position wherein its king, Christian X, who was also king of and resided in Denmark, was effectively cut off and unable to perform his constitutional duties, such as passing bills and exercising the royal prerogative, in Iceland. With no method to allow for the incapacity of the sovereign, the Icelandic parliament was forced into passing an illegal declaration of independence, with the appointment of Sveinn Björnsson as regent.[9]

The subject of the Canadian governor general's ability to act in the absence or incapacitation of the monarch was discussed in the House of Commons in 1947. This discussion brought up Canada's lack of something similar to the United Kingdom's Regency Act, which further underscored the need for such a mechanism within the Canadian political structure. As a result, the 1947 Letters Patent were issued by the King later that year, allowing the governor general to carry out nearly all of the sovereign's duties in case of capture or incapacity and thus negated the need for His Majesty's Canadian government to go through the process of passing legislation equivalent to the Regency Act.[8]

While the governor general is authorized by the Queen to exercise the authority of the Crown on the monarch's behalf, there is no legal impediment to the Queen exercising any of her powers herself,[10] and only the Queen can revoke,[11][10][12] alter, or amend the 1947 letters patent.[13] Subsequently, despite the permissions in the Letters Patent 1947, the Canadian sovereign continues to wield "her prerogative powers in relation to Canada concurrently with the Governor General".[10] As a matter of law, the governor general of Canada is not in the same constitutional position as the sovereign and,[10] as such, the Office of Governor General has never been invested with the powers of the Royal Prerogative, a fact the Constitution Act, 1867 leaves unchanged.[14]

Further, unlike other parts of the constitution, the letters patent are a creation of the monarch's Royal Prerogative and cannot be repealed by parliament,[15] though, conversely, the Letters Patent 1947 would not be sufficient to effect such a dramatic change as a transfer of power from the Queen to the governor general, as any changes to the role of both of these positions are subject to the amending formula provided in section 41 of the Constitution Act, 1982.[16] For example, the position of Commander-in-Chief, while expressly delegated to the governor general in the Letters Patent, cannot be construed as an abdication of this role by the Queen, as any changes to this position would require a constitutional amendment of section 15 of the Constitution Act, 1867.[12][17]

While the issuance of the Letters Patent in 1947 has sometimes been depicted as a complete transfer of power, meaning that the crown becomes unnecessary, and thus a radical change from previous practices, they are in reality remarkably similar to other letters patents, above all those of 1931. At the time, it was remarked that "there seems to be no change in the status of governor-general" and that the governor-general "still remains an officer to whom his Majesty has committed extensive but definite powers and functions."[18] The intent behind the letters patent was never to alter the existing practice where certain matters were always referred to the sovereign, but to redraft the 1931 Letters Patent into a uniquely Canadian document empowering the governor general by way of "enabling legislation".[19] Prime Minister Mackenzie King wrote to the King, stating that "unless exceptional circumstances made it necessary to do so, it was not proposed by the Canadian Government to alter existing practices without prior consultation or notification to the Governor General and the King".[20] Even many years after the implementation of the letters patent, a variety of matters continue to be submitted exclusively to the sovereign, such as the creation of honours, the appointment of governors general, authorizing declarations of war, signatures of full powers for the signing of treaties in the heads of state form, signatures of ratifications of such treaties, and the approval of Canadian ambassadors to and from foreign countries.[21]

The Letters Patent of 1947 has been widely misconstrued, both intentionally and unintentionally, as effecting a transfer of all the powers of the Crown to the governor general, and thus putting the governor general in a position equal to that of the Queen. Even former governors general have failed to grasp the essence of the Letters Patent.[3] For example, under the tenure of Michaëlle Jean, nearly all references to the Queen were removed from the Governor General's website, citing the 1947 Letters Patent as "transferring all the duties of Head of State of Canada to the Governor General".[22] This opinion seems to have surfaced under former Governor General Adrienne Clarkson, who in her memoirs expressed that even "many politicians don't seem to know that the final authority of the state was transferred from the monarch to the Governor General in the Letters Patent of 1947",[23] a statement determined to be "nonsense on Clarkson’s part" and where her referring to herself as a "head of state" simply reinforced her "misunderstanding of the Letters Patent".[3] This misunderstanding came to a head in 2009 when Michaëlle Jean also stated that she was, in fact, Canada's head of state, which led to a rare public rebuke from the prime minister of Canada, Stephen Harper, who stated "categorically that Queen Elizabeth II is Canada's Head of State" and that the governor general serves as the Queen's representative in Canada.[24] It is apparent from political correspondence of the time that it was never the belief of the government that such powers had ever been transferred.[18][21][25] In addition, the tabling of Bill C-60 in 1978, which moved to legally transfer the powers exercised by the Queen to the governor general, would have been completely redundant if such a transfer had already occurred 31 years previous.[25][26]

While the role of the governor general is largely considered a ceremonial one, the powers of the Crown that were delegated to the Office of the Governor General in 1947 are substantial. Increased attention is sometimes brought to these powers by political events, such as the 2008 and 2009 prorogations of the federal parliament, which serve to increasingly highlight the role that the governor general plays within the Canadian constitution.[27] Even though the monarch's delegation of powers put the governor general "not in quite the same position as the Sovereign in regard to the exercise of certain prerogative powers",[28] the 1947 Letters Patent serve to allow the Canadian political system a greater amount of flexibility in the exercise of the Canadian Crown's powers.