Past Letters Patent

King Louis XIV’s finance minister Jean-Baptiste Colbert issued the earliest Letters Patent in what is now Canada in 1663. They were issued to Intendants appointed to New France when it became a royal province (see Jean Talon). These Letters Patent empowered the Intendant to create the Sovereign Council of New France.

Following the British acquisition of French Canada after the Treaty of Paris (1763), the British made use of Letters Patent to define the role of the governor, who represented the sovereign and administrated British North America on the monarch’s behalf.

The Constitution Act, 1867, assumed the presence of a governor general who represents the Crown, but the powers of this office were defined by separate Letters Patent. Between Confederation in 1867 and the appointment of Queen Victoria’s son-in-law John Campbell, Marquess of Lorne, as governor general in 1878, each governor general was issued separate Letters Patent specific to his time in office.

Between 1878 and 1947, governors general received standard Letters Patent with periodic revisions to reflect changing political circumstances. In 1905, the title and authority of commander-in-chief was transferred to the governor general from the senior officer in command of British military forces in Canada. After the Imperial Conference of 1926, new Letters Patent were drawn up in time for the Statute of Westminster (1931), which changed the role of the governor general from a representative of the British government and sovereign, to a personal representative of the monarch in his capacity as King of Canada.

Letters Patent, 1947

King George VI, father and predecessor of the current monarch, Queen Elizabeth II, issued the Letters Patent in 1947. George VI was the first reigning monarch to visit Canada and his rule saw the development of a Commonwealth of equal nations from the former British Empire. The Letters Patent empowered the governor general to exercise Crown prerogatives in the name of the sovereign (see Monarchism).

The Letters Patent, 1947 states, “We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada.” Crown prerogatives delegated by the Letters Patent include the right to grant royal assent to legislation (the last step in creating new laws), the ability to appoint and suspend judges, commissioners and ministers, the right to grant Crown pardons for legal offences, and to administer the Oath of Allegiance.

Despite the wording of the document, the Letters Patent, 1947 did not delegate all of the sovereign’s prerogatives to the governor general. The sovereign did not delegate the power to grant diplomatic accreditation to national ambassadors until 1977, and heraldry was not delegated until 1988. At key moments in Canada’s recent history, the prime minister has directly advised the sovereign. Examples include the proclamation of a new national flag in 1965, the Constitution Act, 1982, and the appointment of additional senators in 1990 (see Senate).

There remain 10 areas where the sovereign has not delegated royal prerogative to the governor general, including the appointment of subsequent governors general, royal patronage, appointments of colonels-in-chief of Canadian regiments and the design of Canadian coins.

The monarch may theoretically revoke the Letters Patent at any time, but section 41(a) of the Constitution Act, 1982 requires the approval of provinces and the federal government for changes to the office of the Queen, which has the potential to impact changes to the Letters Patent.

In the event of the death, removal or departure of a governor general, the Letters Patent states that the Chief Justice of the Supreme Court of Canada should act in this capacity until the appointment of a successor. In 1952, the accession of Queen Elizabeth II was proclaimed by Chief Justice Thibaudeau Rinfret, as Vincent Massey had not yet taken office as governor general.

Controversies

There is a common misconception that the Letters Patent, 1947 devolved the position of Head of State from the sovereign to the governor general. This interpretation of the Letters Patent has been supported by recent Governors General Adrienne Clarkson and Michaëlle Jean. In her memoir, Heart Matters, Clarkson stated,

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, thereby making Canada’s government independent of Great Britain.

Clarkson’s interpretation of the Letters Patent was critiqued because it did not take into account the Statute of Westminster and other legislation that forged Canada’s independence from Great Britain. Clarkson’s interpretation also ignores the fact that the sovereign retains a number of prerogative powers.

In 2009, Governor General Michaëlle Jean described herself as “head of state” twice in a speech to an executive meeting of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in Paris. Jean was not the first governor general to describe herself as head of state, but the speech focused press attention on the intent of the Letters Patent, 1947. The Prime Minister’s Office issued a press statement declaring, “Queen Elizabeth II is Queen of Canada and head of state and the governor general represents the Crown in Canada.”