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Lorsque le document est trop grand pour §tre reproduit en un seul clich6, il est film^ d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants lllustrent la m6thode. 1 2 3 1 32X <-> C,(ro."I:)oc. North America. No. 86. - / K f^ri!- iTe (on( ft I Ci Axj». Printed for the use of the Colonial Office. ' CONFIDENTIAL. MEM0RANDUM^Q2iilV BT MR. BLAKE OF HIS VIEWS ON THE SUBJECT OF THE ROYAL COMMISSION AND INSTRUCTIONS 1% TO THE GOVERNOR-GENERAL OF CANADA. Colonial Office, August 1876. i I Printed for the use of the Colonial Office. CONFIDENTIAL. Memoraiitliiiii by Mr. Hlake of his views on llie sultjctt of the Royal Commission and Inslructions to the Governor-Cu'iicral of Canada. t I The Honourable E, Blake to the Earl of Carnarvon. — {Received nhout July 1, 187tj.) My Lord, IT may be convenient, as a basis for discussion, that I should lay before your Lordship a Memorandum of my present views on the subject of the Royal Commission and Royal Instructions to tlie Governor-General of Canada, with reference to which I am charged to confer with your Lordship. The existing forms in the case of Canada have been felt for some time to be capable of amendment for reasons which require that special consideration should be given to her position, and which render unsuitable for her the forms which may be €min>. ntly suited to some of the Colonies. Canada is not men^ly a Colony or a Province : she is a Dominion composed of an aggregate of seven large provinces federally united under an Imperial Charter, which expressly recites that her constitution is to be similar in principle to that of the United Kingdom. Nay, more, besides the i)owers with which she is invested over a large part of the affairs of the inhabitants of the several provinces, she enjoys absolute powers of legislation and administration over the people and territories of the north- west, out of which she has already created one province, and is empowered to create others, with representative institutions. These circumstances, together with the vastness of her area, the numbers of her free population, the character of the representative institutions and of the resj)onsible Government which as citizens of the various provinces and of Canada her people have so long enjoyed, all point to the propriety of dealing with the question in hand in a manner very different from that which night be fitly adopted with reference to a single and comparatively small and young Colony. Besides the general spread of the principles of constitutional freedom there has been, in reference to the Colonies, a recognised difference between their circnnistances, resulting in the application to those in a less advanced condition of a lesser measure of self-government, while others are said to be invested with "the fullest fret-dom of political government;" and it may be fairly stated that there is no dej)endency of the British Crown which is entitled to so full an application of the principles of constitutional freedom as the Dominion of Canada. I feel, however, that I am not on the present occasion charged with tin; duty of entering into all the considerations involved in this proposition, or of proposing any- thing requiring Parliamentary action, but am limited to the suggestion of sucli interpretations of and changes in the Commission and Instructions as may remove or lessen some of the anomalies which they pi'csent. Before referring to the several clauses which seem to call for remark I may observe that by the 12th clause of the British North America Act, eerfain powers atul authorities, defined only by reference to various statutes, are eonforred, some on (he Governor, and others on the Governor in Council. It would seem expedient to refer [625] '1 in tlic rDiMiiiissiori to tliis cfrniit in siicli terms as to avoid any implication of an attcin|it('(l restriction of !iny of tliesc jiowcrs. CnmmlK.tioii, Chiasp A. — Tiie exercise of tlie yirerosfative of pardnn witli wliieli tliis (.'laiisc (icais is also dealt witli l»y clause 11 of t!ie instructions, and tliey may, perhaps, be conveiiieiitly treated to<,'etlier. 'I'lie sni)ieet of |iarilon liein^' in cITect a hrancli of crinunal justice lias bei-n rii^lilly assumed to Ix; witiiin th(! Iei;islative powers of the I'arliament of C:mada ; aiul varictus provisions are mad(! on tliat subject by the 12.")tli and fullo\vin>,' st'etii)ns of the Canadian Criminal Procedure Act of Isfi'.), 152 and .'W Vict., cajt. 2!). Section 12i> (preventini^ any of the clauses from liniitini,' nr atlectini; the |{oyal preroLrative of mercy), wliile it e\ idenees the adoption of that ])olicy by I'arliament is, of course, a reiteration of the competency of I'arliament to act in the other dii'cetion. In the present state of let,'islatioti it may he suLi:t,'ested that the jiower of jiardoii would be most fitly vested in the (lovernor-tieneral under <,'eneral words in , the Commission empow.'rinf^ him to act in that matter as Her Majesty's repre- sentative in so far as concerns persons amenable to the Canadian criminal laws. If, however, the more speeitic lanifuaj^e is to be ri'taiiu'd it would seem reasonable to extend the j)ower to i;rant a pardon to accomplices to cases -where a crime has lH''n comnulted without Caiuula for whicb the olVender may l)e tried tberein. I may observe that it is not intended for the future in any case, save possibly that of a political offender, to advise the Governor to make it a conditi(m of any pardon that the offender should be banished or absent himself from the Dominion. The principal reasons for this determination are to be found in the correspondence with the Australian Colonies, transnutted for the information of the Government in your Lordship's des])atcli of 5tb of November, 1875. They arc sucli as to render it im])ossihle to resist your Lordship's conclusions, since it cannot be denied that it is wroni,' til thrust upon other communities a criminal deemed unfit to live among-it his own ])eople. I have, liow'cver, to sugs^est that it may be just and convenient tliat tlie restriction should not be applicable to the cases of political criminals, to whose olTences as a rule the considerations which make such a condition obnoxious hardly a])ply, while public convenience and the ti'amiuillity of the country may occasionally be best consulted by so dis])osing of them. Instrurlions. — Clause 11 instructs the Govei'nor as to the exercise of the power of pardon in capital cases. Uy the Statutes of Canada 1873, 30 Viet., cap. 3, provision is made in such cas(!s for a report from the Judge to the Sec^retary of State for the information of the Governor in sufficient time for the signification of his pleasure l)efore the arrival of tlu; day fixed for execution. In this state of the law it seems unnecessary to instruct the Governor to call upon the presiding Judge for a report. The mode picseribed by the instructions for the consideration of the report varies from the mode actually observed in this as in other matters as elsewhere explained. It is, however, the invariable pnu-tice to dispose of capital cases in Council, while other cases are, as a rule, disj)osed of on reports from the Minister of Justice without the inter- vention of Council, though of course these also may become the subject of action in Council. These are miiu)r matters. The main ipiestion is upon the instruction given to the Governor, that he is, in capital cases, either to extend or withhold a pardon or a reprieve, according to his own deliberate judgment, whether the members of the Com. il concur in it, or otherwise. Having regard to the form of the Commission, and to this instruction, the proper inference is that in all cas(>s not capital the action of the Governor by way of pardon or commutation is to be, as is his action in other matters, under advice, and that it is only in the capital cases, which are specially dealt with by the instruction, that he is to act upon his own judgment, even against advice. The distinction thus created was not ir.aintained in the Australian correspondence, and does not appear well- founded. It provides a different rule of action, based simply ou the gravity of the isenteiu-e, whereas the only tenable distinction that occurs to me is between the cases (whether capital or not) which may involve Imperial interests and those which not involving such interests, concern solely the internal administration of the affairs of the Dominion. The cases involving Imi)erial interests arc referred to by your Lordship in your despatch on this subject to Governor llobinson of May Ith, 1875, as cases where " matters cf Imperial interest or policy, or the interests of other coimtries or colonies, arc involved." Your Lordship instances tlie case of a kidnapper tried and sentenced under nn Tni|)orial Act liy a Coloninl Court, and tliat nl' a cnnxict Mlio^r m ntiMico was coniniiiti (1 on fondition ol' I'xilc Inmi llic Cuiunv. \\'itli tlir hitirr (•l;i'-< I iiavi' dealt in niv remarks Inrini-r ela^s niav be ransicd tlioso ol' olVenders who I'.rc subjects of other coutitries. ar i of certain pnlitieal ollendcrs. It is iirul)al)le tliat even in tlie exeeptionnl eases suifLT^'stcd iwhifdi of ciinr>-c involve .is well internal as \\r\\ as external interests) the action of the (inxernor, not- witiistandiu'j: the cxistinLi; instructions, would generally l)e in accordance with advice; ard no dmiht to act at,'ainst advice would he to incur a very ixravc rcsponsihility, tho\it;ii not to tlu' ("anndian jieoplc. It would a!»o seem that in tlie vast majority of excep- tional cases the exception would lie found to he technicil, not real, the suhst.iiitia! interests involved heini; solely Canadian ; in which event the (lovcrnor would, notwith- standiu!,' the instruction, ])rcsumahly a<'t under advice, 'i liese ohser\atioiis, however, only show that the instruction <'annot he maintained. I have freely recou'iii/cd the possible existence in the excepted classes of Iniperia! interests; and this possibility furnisln s. ii; niy view, the only u'ronnd for the ap]i|ieMtioii to those (dasscs of a special laile. II iviiii;' reu:ai'd, however, to the considerations I jim about to urije with reference to the oth clause of the instructions, I do not think it imssiblc to ibrmiilato any such rule, and 1 sui,';,'cst that the best course is not to attcnijit it, but to leave these rare and exceptioiiiil mattiM-s to be disposed of, when they arise, liy mutual adjustment, in which necessarily diie rej^ard nuist lie had to the constitutional powers and rcl.ations of the Crown, the (iovernor-deneral, and the Council. If my pro])os;ils for the omissioii ''>oth the special rule am! tlie ,"itli (dause of the instructions be not adopted, I have Unther to suL'irest tliat any special rule on this subject may with less inconvenience be embraced in the Ljeneral lanuruau'c substituted for that of the otli clause, and that under no circumstances should there be a special rule ])articularly directed to the pardoiiini: ])ower. It now becomes my duty to refer brielly to the arijumeiits upon whi(di in the case of the Australian Colonies it has been atTu'ined that the indcjiendont action of the Governor in the exercise of this ])ower should be of a widi-r rani^c than that which I su;?£^ost as jirojicr in the case of Canada. To the ari^ument for indeiieiidcnt fiction in certain cxcejitional cases i have already alluded, and 1 refer to h now only in order to point out that tin- existence of an exception, if admitted, is not a reason for i^iving in all cases ind''pendent jiowcr, but rather the revei-se. It is the exceptimi whi(di proves the rule; all ariiumcnts b.-iscd ujion its existence are ari^uments for exceptional treatment, but they are not reasons for makinir that treatment i^encral, and th(>y leave apiilicable to the bulk of the eases the rule which, but for the exccjition, would be of universal application. The other reasons referred to ajijiear to be — 1. That the liif^li prerogative in question l)eint; personally delcijated to the Governor, he cannot he in any way relieved from the (bity of judij;in^ for hiniscif in every case in which that prcroj^ative is to be exercised; as the rcsjionsible Minister of the Crown in a Colony cannot be looked on as occupying; the same position in regard to the Queen's prerogative of jiardon as the Home Secretary. I would, in this connection, refer to the views of the Canadian Privy Council on the general quest ion of ministerial powers and responsibilities, as expressed in tin; ilinutc of Council of 29th February, 1870, and the report aiin(>xed thereto, thinking it needless to restate in detail the position taken (m the general subject, and the arguments advanced against the proposed div sion of jiowers and responsibilities. The prerogative of pardon has been rightly vested by statute in the Sovereign, since all criminal offences arc against " her peace," or " her crown and dignity," and it is reasonable that the person injured should have the power to forgive ; but neither the punishment of these injuries nor their forgiveness (both being matters wliicli affect the people) is arbitrary; the (me can be, and accordingly is, regulated principally by law, thnugli a wide discretion as to the punishment is given in many cases to the Judge; the other being mainly beyond the in'ovince of law, is yet like the remaining prerogatives of the British Sovereign, held in trust for the welfare of the people, and, so far as it is beyond the province of law, is regulated by the general princiiilc of the constitution. There may in this, as in other instances, be some difficulty in running out an exact analogy between the jiosition in Canada aiul in l>iii;laiid ; but I venture to suggest tliat the apjilication to this subject of the fuiidameutal rule of tin- Con- stitution, as expounded in the report referred to, affords the true solution of the [625] C (jiic.sfii)ii, ami would liimish tlu; uoareHt |M)S8il)It' mmlof^y lietwccii tlie priU'tioi' tii bo puisuitl ill cacli rduiilry. ill tliu L'liili'd Kiii^fdoni, wliilc tlie llritisli I'ai'liaiiifut maki's hnvs for tlie puiiihlimt.'iit of crinieii L'oiiiiiullfd liy tlu! inliiiliitaiits, the Sovcjrcigii cxciriHCM licr prcro^'ativo of mercy towards Midi criiiiiMals, iiiidrr llic advitM! of lu-r .Minister tliero, who is eiioseii as otiier IJiitisli Ministers are clioseii, and is res|)oiisil)le to tlie Hritish I'ar'iaiiieiit for Ids advice. 'I'lierelore, in tlie I'nitt.'d K.iiifj;doiii, this power is exercised under the same restraints and with the same securitius to the people eoueerned us the other powers of (Jovernmeiit. 'J'liis, it seems to me, is the practical result wliieli should l)c obtained in Canada. 'J'here, while the Canadian TarlianK'nt makes laws for the punishment of crimes eoiiimitted by the inhabitants of Canada, the Sovereij,'n should exer<'ise the preroi^ativo of mercy towards such criminalH under the advice of her I'rivy Council for Canada, or ^orth America Act, the 82nd section of which in terms confers on the Lieutenant- Govei'iiors of the new I'rovinces of Ontario and Quebec the power in the Queen's name to summon the local bodies, a power which no doubt was assumed to be con- tinued to the Governors of the other i'rovinces. ConiinisKion, Clausi' 7, appears unsuitable to Canada. All the subjects witli which it deals, namely, marriage licenses, h'tters of administration, probates of wills, and the custody and management of lunatics and idiots and their estates, an; within the exclusive control of the several provinces, and are dealt with under local legislation, the Governor-General and his advisers having no concern with these matters. The only possible ai)pIieation 't can have is to the north-west territories pending the cstob- lisbment there of loi-al government ; and as this is shortly to take place, it would seem proper to omit the clause in the iiext Commission. Roi/ul Instructions, Clause 5, purports to authorize the Governor to act under limi- tations ui opposition to advice. In so far as it mny he intfiidcd h\ tlic clriiiM' to vest in tin- (iovcrtior llw full fonstitiitiuiial i«>\vcrs wliicii llrr .Majesty, if nIic won' niliiii,' |)crMinaliy instoa>l of throiii,'li ills ai^i'iicy, could exercise, it is, of cuir.'se, imi.iijectiimalile, 'I'lie (ioteriior- Geiieral lias an iindoiil)ted rii^lit to refuse eoni|tliaiie(' uitli liie advice of liis .Ministers, whereiipoM tlie latter must either ado])t and lieeotne responsilile for Ids views, or lea\e tliL'ir places to l»e tilled Ity others ])iv|)ared to take that course. Hut the laiii,'uai,'e of the clause i which for the sui^u'ested |turpose would 1h' unnecessary I is wider, and seems to authori/e action in opposition tn the advice imt merely of a particular set of .Ministers, hut of any .Ministers. Aotwithstandini^ the ^enerality of the lan-^uai^e, there are hut few en.ses in which it would he possihie to exercise such a ])ower, foi' as a rule the ' iovcrnor iloes and must ad throuLfh the at,'cncy of Ministi'rs, and .Ministers must he responsihie for such action. Till- eases not fallint? within this limitation may he said fur practical pur|ioses to be those in which the line taken l»v the Governor is luindv neirative — in wliicdi, while dissentint; from action proposed to him hy Alini^ters, lie does nothiiiL,' out dissent. Even in such eases I ])resume no fine would contend that any such power shmild he exercised under this cl.ause save upon the arf^iinicnt that there are certain conccivahle instances in which, owinf» to the existence of suhstantial Imperial as distinguished from Canadian interest.s, it may he considered that full I'reedom of action is not vesteil in the Canadian jieople. It appears to uw that a'ly such cases must, pendint,' the solution of the great prohlem of Imperial (iovernment, he dealt with as tliry aii>.e. Were the clause retained, though in a limited form, it would he found incrcasini;ly dilTieult to divest the Canadian Ministers even in sucdi cases of lull rcsponsihility lor the action of the Governor; and the question in each ease of the relative rights and duties of the Governor and the Ministers would prohahly he more and more earnestlv discussed. It is, KO far as I can see, impossihle to formulate any limitation. The effort to reconcile hy any form of words the rcsjionsihiiily ol' Ministers under the Canadian con- stitution with a power to the (Jovernor to take even a negative line independently of advice cannot, I think, succeed. The truth is, that Imju'rial interests are, luider our present system of government to he secured in matters of Canadian executive policy, not by any such clause iu a Governor's instructions (which would be j)ractically inoperative, and if it can be su[)pose(l to he oi)erative would be mischievous) ; hut by mutual good feeling, and by proper consideration for Imperial interests on the jiart of Her ^lajesty's Canadian advisers : the Crown necessarily retaining all its constitutional rights and j)i)wers which would he exercisable in any enu'rgency in which the indicated .securities might be found to fail. I have, therefore, for the reasons suggf.'sted here and in the former jiarf of this letter, to propose that this clause should be omitted; the Governor-Cieneral's status being determined by cur own constitutional Act, that oflicer remaining, of course, subject to any further instructions, special or general, which the Crown may lawfully give should circumstances render that course desirable. Clause G. — It may be proper to observe that the practice for a very great number of years has been that the business of Council is done in the absence of the Governor. On very exceptional occasions the Governor may preside, but these would occur only at intervals of years, and would probably be for the purpose of taking a formal decision ou some extraordinary occasion, and not for deliberation. The mode in which the business is done is by report to the Governor of the rccum- mendations of the Council, sitting as a Connnittee, sent to the Governor for his cnii- sideration, discu.ssed where necessary between the Governor and the lirst .Minister, and becoming operative upon being marked " approved" by the Governor. This sysli ni is in accordance with constitutional principle, and is found very convenient in practice. It is probable that the language of this clause is not intended to re(piire a dillVrent practice, but it has been thought right to point out the actual working of the system under it ^vith a view to anv amendment which mav be thought neces hhIiJccI of the roNon'ftftnn ftnd (lisallowaiu-n of Hills, or to touch on llic priiii'inlcs on uiiidi llic |iov»ir of (lisallouancc wliilc rctaincil in tlic f resent luini slioiild ]»• cxcrciscil. '11 rw ((ncslions involve iinotlier diUlcnlt pliiise of lie |irolileni ol' lni|ii'ri!il (ioverniiient, liiit one tliat is not. (Iire commissions may with propriety be during pleasure, although, of course, the language does not prevent their commissions being couched in proper terms according to law. This completes the observations which occur to me. I have, &c. (Signed) EDWARD BLAKE. ?; i'l'i rilNTXD *T TIIS rORtlON omcE BT T. IIARBUON. — 11/8/76.