Series GR-1032 - Executive Council transcripts of appeals

In British Columbia, the Executive Council is synonymous with the cabinet, which is composed of the Lieutenant-Governor's principal advisors or ministers. While an advisory council of sorts had existed in Vancouver Island since 1851, a distinct Executive Council (separate from the legislature) was not established on the island colony until 1863. A similar body was not established on the mainland colony of British Columbia until 1864. In both colonies the councils were appointed by the Governor, and even after the union of 1866, the Executive Council of British Columbia was responsible only to the Crown, not to the popularly selected Assembly. Not until British Columbia joined Confederation in 1871 and assumed responsible government were members of the executive accountable to the legislature.

The Executive Council of British Columbia, unlike the cabinets of most of the other provinces of Canada, was created by letters patent, rather than by statute. B.C.'s Executive Council was, nevertheless, regulated by provincial statute, notably by the Constitution Act of 1871 (34 Vict, c.3.). Sections 2 - 5 of the Act provided for a council that would be composed of "such persons as the Governor from time to time thinks fit". Officers of the council were to include the heads of important government departments and were to serve at the pleasure of the governor. Yet while nominally appointed by the Crown's personal representative in the province, Executive Councillors are, in fact, chosen by the Lieutenant-Governor's chief minister, the Premier.

The Premier usually serves as President of the Executive Council and it is expected that he will choose his cabinet colleagues from members of the legislature. It is instructive to note, however, that there is no legal connection between the Executive Council and the Legislative Assembly of the province; that is, it is possible for a person to be a member of the Council without holding elected office. Of course, the conventions of constitutional monarchy and responsible government are normally upheld, and it is unlikely that a lieutenant governor would maintain a minister against the wishes of the elected majority. Similarly, although there have been exceptions to the rule, a premier would not normally take into his cabinet anyone who had not been elected to the House.

It is also instructive to note that British Columbia is one of the few provinces in Canada where the size of the Executive Council is limited by statute. Indeed, only Nova Scotia and New Brunswick have similar legislation. At present, the cabinet comprises twenty-three members, nineteen of whom are entitled to receive the salaries of Executive Councillors. In 1871 the Council was limited to five members. By the terms of the Constitution Act, members were to include the Colonial Secretary (who, after 1872, was styled the Provincial Secretary), the Attorney-General, and the Chief Commissioner of Lands and Works. Two years later (1873) the Constitution Act was amended and the Council enlarged to six members, including the Minister of Finance and Agriculture. Further revisions followed and by 1911 the Council had increased to eight members, six of whom were entitled to ministerial salaries. The Executive Council then included the Provincial Secretary, the Attorney-General, the Minister of Finance and Agriculture, the Minister of Mines, the Minister of Public Works, the Minister of Railways, and the President of the Council.

Since the cabinet is the executive arm of the government, it has the authority to enact regulations, as defined by the Regulations Act (RS 1979 c. 361), Regulations, so defined, include rules, orders, proclamations, and bylaws of a legislative nature, made under or by the authority of any act passed by the legislative assembly. Among the regulations are Orders-in-Council which are formally described as "official documents promulgating Government decisions concerned with the day-to-day operation of the Province. Note that Orders-in-Council are made under the authority of the Lieutenant-Governor or, more precisely, the Lieutenant-Governor in Council. The latter implies the Lieutenant Governor acting by and with the advice of, or by and with the advice and consent or in conjunction with, the Executive Council (Interpretation Act, RS 1979, c.206). Thus, the term "Lieutenant-Governor in Council" occurs frequently with reference to business conducted by what is otherwise known as the Executive Council, or cabinet.

The intricacies of the Executive Council in the colonial period are discussed in James E. Hendrickson, ed., The Journals of the Colonial Legislatures of Vancouver Island and British Columbia, 1851-1871. (Victoria: Queen's Printer, 1980), I, xxvi-xlviii. The nature and limitations of the provincial Executive Council are detailed in A.B. Keith, Responsible Government in the Dominions, 2nd ed. (Oxford: Clarendon Press, 1926), vol. 1. John T. Saywell's The Office of the Lieutenant Governor (Toronto: University of Toronto Press, 1957) is also useful in understanding the constitutional character and complexities of the provincial cabinet.