Prime minister should have lieutenant-governor shortlists, constitutional lawyer says

OTTAWA — The COVID-19 emergency and a recent court ruling in New Brunswick show why the prime minister should have a succession plan for lieutenant-governors, one constitutional lawyer says.

“The weirdest aspect of the Canadian constitution is that if there is no lieutenant-governor, no bill can become law,” said Lyle Skinner. 

And the case of New Brunswick Lt.-Gov. Brenda Murphy shows why that could become critically important. 

She was appointed in September 2019, after her predecessor Jocelyne Roy-Vienneau died of cancer in August.  

“For over a month, nothing could happen with respect to higher level, machinery-of-government decisions that require the input of the New Brunswick cabinet,” Skinner said.

It didn’t turn out to be much of an issue that summer, but in the absence of a lieutenant-governor the provincial government could not recall the legislature or pass laws, nor could it dissolve the legislature and call an election. 

When the Governor General’s office is vacant, the chief justice of the Supreme Court steps in to keep the business of government running, but there is no such provision in Canada’s Constitution for a vacancy in a provincial viceregal office.

Roy-Vienneau’s death was just months after Saskatchewan’s W. Thomas Molloy died on July 2, 2019. Lt.-Gov. Russell Mirasty was appointed on July 15, 2019. 

Imagine those scenarios happening just over a year later, Skinner said, and there could have been serious issues. 

Governments across the country declared and amended states of emergency as the pandemic took hold. A province without a lieutenant-governor “wouldn’t be able to respond,” he said.

The Queen’s representatives in several provinces are in their late seventies, and Skinner said there ought to be a shortlist of candidates ready in case they’re needed.

New Brunswick’s Court of Queen’s Bench recently ruled that appointing Murphy, a unilingual anglophone, was unconstitutional — but that ousting her from the job could “create a legislative and constitutional crisis.”

Following a court challenge by New Brunswick’s Acadian Society, Chief Justice Tracey K. DeWare ruled that lieutenant-governors in that province must be bilingual, but declaring Murphy’s appointment null and void “could undermine countless lawfully enacted pieces of legislations, appointments and decrees” signed since 2019.

The Prime Minister’s Office did not respond to questions about whether it has, or will create, a shortlist of vetted candidates for these roles.

The federal government is appealing the New Brunswick ruling, and that has sparked controversy. 

Some have cited the appeal itself as evidence the government isn’t interested in protecting the rights of both linguistic communities. The Bloc Québécois called Murphy’s appointment part of the Liberal government’s attack on the French language in question period Tuesday.

Official Languages Minister and New Brunswick MP Ginette Petitpas Taylor has said the government is committed to ensuring that all future lieutenant-governors in that province are bilingual.

For her part, Murphy said in a statement this week that as a member of the LGBTQ community she understands the need to fight for one’s rights. 

“I believe it is critical that New Brunswick’s lieutenant-governor be able to relate to francophone and anglophone New Brunswickers in their own language to develop trusting and respectful relationships,” she said, adding that she is working on her French language skills.

That may sound familiar. 

Gov.-Gen. Mary Simon speaks English and Inuktitut, but her inability to speak French has been a source of controversy since she was appointed in July 2021. 

New Brunswick is subject to a unique constitutional requirement that its government advance the interests of both linguistic communities. But the appeal is about more than language and could have broader implications, experts say.

Kerri Froc, a constitutional lawyer who teaches at the University of New Brunswick in Fredericton, said DeWare’s ruling made distinction between how bilingualism is applied within government institutions like courts or legislatures, and the role of the lieutenant-governor, which is held by a single person. She said that could impact the role of the Governor General as well.

The decision also considered whether the court is even allowed to weigh in on the prime minister’s appointment. 

Skinner welcomes the appeal, hoping it will provide clarity and a “second set of eyes.” 

“It’s an interesting balance between that Charter right and just the discretionary power of the federal government,” he said.

Froc believes the ruling won’t hold up to an appeal because of that balance. 

“This is really about the architecture that was put in place by our Constitution to make sure that all of our branches of the government are functioning appropriately without undue interference,” she said.

This report by The Canadian Press was first published May 23, 2022.

Sarah Ritchie, The Canadian Press