The famous Persons Case (more formally, Reference re: British North America Act 1867 (UK) Section 24 IN THE MATTER OF a Reference as to the meaning of the word “Persons” in Section 24 of the British North America Act, 1867.  S.C.R. 276) shows that while the introduction of responsible government to the Canadian crown colonies occurred in 1848 and 1849, the principle underwent significant developments in between its introduction and Confederation, and until at least the Dominion Conference of 1926 that formally amended the role of the Governors-General. Prior to that time, the Governors functioned as representatives of the British government in the colonies, and also as ambassadors. Well into the 1860s, cabinet still required the Governor’s presence to enact “Commissions, Instructions and Statutes” on behalf of the Crown, which implies that the Governor took an active role in meetings of the Queen’s Privy Council.
“The subject of ‘responsible government,’ as the phrase went, had been for many years the field of a bitter controversy, especially in the province of Canada. The Colonial office had encountered great difficulties in reconciling, in practice, the full adoption of this principle with proper recognization of the position of the Governor as the representative of the Imperial Government. It was only a few years before 1867 that Sir John Macdonald’s suggestion had been accepted, by which “Governor-in-Council” in Commissions, Instructions and Statutes was read as the Governor acting on the advice of his Council, which was thus enabled to transact business in the Governor’s absence. There can be no doubt that this inter-relation between the executive and the representative branches of the government was in the view of the framers of the Act, a most important element in the constitutional principles which they intended to be the foundation of the new structure.”
In The Supreme Court of Canada: History of an Institution, Snell and Vaughan unintentionally highlighted an appointment that would clearly violate the caretaker convention today, whether in Canada, the UK, or New Zealand. “Two days before leaving office in 1878 and twenty days after its defeat at the polls, the Mackenzie government named Taschereau to the Supreme Court of Canada.” Such a major appointment after the election but just before the appointment of the new government would simply not be acceptable today.
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