RECOMMENDATION OF THE MINISTER

In the Canadian system of parliamentary democracy, the Governor General acts only on the advice of the council of ministers (the Cabinet), although he or she can exercise a certain number of personal prerogatives independently in exceptional circumstances.^[1]

It is because of this constitutional convention that legislation generally uses the term "Governor General in Council" or "Governor in Council"^[2] when a power - regulatory or otherwise - devolves upon the Governor General. In order for the power to be exercised, the minister responsible for the sector of government in question must first make a recommendation to that effect. Sometimes the legislation specifies which minister is to make the recommendation.^[3] In those cases, the recommendation must originate with that minister in order for the power exercised by the Governor in Council to be valid.^[4] In the absence of the minister that is specified in the legislation, another minister who has been authorized by order in council may sign the recommendation on the minister's behalf.^[5] All the measures that the Governor in Council proposes to take must therefore be accompanied by a recommendation from the appropriate minister, which is submitted to Cabinet for approval.

The regulations sections do not examine ministerial recommendations under the Statutory Instruments Act except on special request. It is the department or the regulatory agency that finalizes these recommendations, making certain that the enabling provision and the title of the regulation are the same as in the order.^[6] If a regulations section prepares a ministerial recommendation, the recommendation is not blue stamped.

Example 1 (General):

MINISTERIAL RECOMMENDATION

(departmental or ministerial letterhead)

(date)

To His/Her Excellency the Governor General in Council:

The undersigned has the honour to recommend that Your Excellency in Council, pursuant to section … of the … Act, make the annexed … Regulations (or Regulations Amending . . . ) (or Regulations Repealing … ).

Respectfully submitted,
(signature)

(name)
Minister of (name of department)

Example 2 (Coming-into-force order):

MINISTERIAL RECOMMENDATION

(departmental or ministerial letterhead)

(date)

To His/Her Excellency the Governor General in Council:

The undersigned has the honour to recommend that Your Excellency in Council, pursuant to section … of the ABC Act, chapter … . of the Statutes of Canada, (year), fix (month, day, year) as the day on which sections 1 to 4 of that Act come into force.

Respectfully submitted,
(signature)

(name)
Minister of (name of department)

Part 4 – Table of contents

Footnotes

• ^[1] Paul Lordon, Crown Law (Cowansville: Éditions Yvon Blais/Department of Justice, 1992) at 16.

• ^[2] Although these two terms are synonymous according to the definition in subsection 35(1) of the Interpretation Act, the second is more common.

• ^[3] For example, subsection 11(2) of the Coasting Trade Act states that " … the Governor in Council may, on the recommendation of the Minister of Transport and the Minister of Foreign Affairs, take such action as the Governor in Council considers appropriate."

• ^[4] John Mark Keyes, Executive Legislation (Toronto: Butterworths, 1992) at 67.

• ^[5] Governor in Council Process Guide: Developing a Proposal Seeking the Approval of an Order by the Governor in Council, Privy Council Office, Regulatory Affairs Division, July 2004 at 8.

• ^[6] See ORDERS IN COUNCIL AND OTHER EXECUTIVE ORDERS.