After Julie Payette prematurely ended her ill-starred tenure as governor-general in January, Intergovernmental Affairs Minister Dominic LeBlanc promised a speedy replacement.
“We recognize leaving the chief justice as the administrator constitutionally is not something that should go on for months and months,” he told CBC. Months and months later …
We expect Justin Trudeau to announce his choice for a new governor-general very soon. But it can’t come soon enough. Having Chief Justice Richard Wagner fill in as administrator of the Government of Canada in the absence of a governor-general becomes a bigger problem with every passing week.
“I think there’s a great deal of concern,” Mark Walters, Dean of Law at Queen’s University, said in an interview. The chief justice is only supposed to fill in for the governor-general on a temporary basis, such as when the GG is travelling or ill, not for months at a time.
“So this is quite unusual and the longer it goes on, the more potentially problematic it could become,” Prof. Walters said.
One issue is whether Chief Justice Wagner should recuse himself if a bill to which he gave royal assent as administrator came before the Supreme Court. He sees no problem.
“When I wear this hat of administrator, I don’t wear the hat of the judge,” he told the Toronto Star earlier this month. “I don’t have an intention to recuse myself … because I did not give any opinion, legal opinion, or any type of opinion on the legislations for which I provided royal assent.”
Barbara Messamore, a professor of constitutional history at the University of the Fraser Valley, agrees. Giving royal assent to legislation “is now an area where there isn’t real vice-regal discretion,” she told me. Most of the duties of a governor-general, she points out, are ceremonial and uncontroversial, and can be ably handled by the chief justice.
But for some, the wicket is starting to get sticky.
What if, for example, Mr. Trudeau decided not to go to the polls, but to prorogue Parliament and return in September with a Speech from the Throne? In Britain, Prime Minister Boris Johnson’s attempt to prorogue Parliament during the height of the Brexit crisis in 2019 was overruled by the Supreme Court, which declared that the attempted prorogation “was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”
If the courts in Britain can now intervene in such matters, the courts might also in Canada, which could place an administrator in the impossible position of conferring royal assent and denying it.
Another unpleasant situation could see the Canadian Judicial Council, which is chaired by the chief justice, recommending that a judge be removed from the bench, to which the chief justice acting as administrator would assent.
To avoid such situations, Sujit Choudhry proposes making lieutenant-governors also acting governors-general as needed.
“Having the lieutenant-governors serving on a rotational basis, month by month, as administrator seems like a much better option than the status quo,” said Mr. Choudhry, a lawyer specializing in constitutional law. And “the fix would be surgical,” he said. “It would not require a constitutional amendment, in my view.”
A variation on that approach: The chair of the Council of the Federation, consisting of all the premiers, rotates on an annual basis. Whichever provincial premier is chair of the council, that province’s lieutenant-governor could serve as administrator as needed.
There is another, even more important, reason why Canada should not have been without a governor-general this long.
“This country is traumatized,” said Errol Mendes, a professor of constitutional and human-rights law at the University of Ottawa. Some communities have cancelled Canada Day, after the discovery of the remains of hundreds of Indigenous youths at unmarked burial sites at two former residential schools, with many more discoveries certain to come. “We have to have every single aspect of our constitutional democracy really coming together” to heal and reconcile, he said. That includes the embodiment of the Crown in Canada.
The time to announce the new governor-general is now. And so is the time to ensure we never put a chief justice in this difficult situation again.
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