PM should have shortlists of lieutenant governors, constitutional lawyer says

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

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

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

And the case of the Lieutenant-Governor of New Brunswick. Brenda Murphy shows why this could become hugely important.

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

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

It wasn’t much of a problem that summer, but in the absence of a Lieutenant Governor, the provincial government could not recall the Legislative Assembly or pass laws, or dissolve the Legislative Assembly and initiate elections.

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

Roy-Vienneau’s passing came just months after W. Thomas Molloy of Saskatchewan passed away on July 2, 2019. Lt. Gov. Russell Mirasty was appointed on July 15, 2019.

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

Governments across the country declared and modified states of emergency as the pandemic took hold. A province without a lieutenant governor “would not be able to respond,” he said.

The Queen’s representatives in several provinces are over seventy, and Skinner said there should be a shortlist of candidates ready in case they are needed.

The New Brunswick Court of Queen’s Bench recently ruled that the appointment of Murphy, a unilingual Anglophone, was unconstitutional, but that removing her from her position could “create a legislative and constitutional crisis.”

Following a legal challenge by the Société acadienne du Nouveau-Brunswick, Chief Justice Tracey K. DeWare ruled that the lieutenant governors of that province must be bilingual, but declared Murphy’s appointment null and void ” could undermine countless legally enacted laws, appointments and decrees” signed since 2019.

The Prime Minister’s Office did not respond to questions about creating or establishing a shortlist of shortlisted candidates for these positions.

The federal government is appealing New Brunswick’s decision, which has sparked controversy.

Some have cited the appeal itself as proof that the government is not 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 during question period on Tuesday.

Official Languages ​​Minister and New Brunswick MLA Ginette Petitpas Taylor said the government is committed to ensuring that all future lieutenant governors of this 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 her rights.

“I believe it is essential that the Lieutenant Governor of New Brunswick be able to communicate with French and English New Brunswickers in their own language to develop relationships of trust and respect,” she said, adding that she is working on her French skills.

This may sound familiar.

Governor-gen. Mary Simon speaks English and Inuktitut, but her inability to speak French has been a source of controversy since her appointment in July 2021.

New Brunswick is subject to a unique constitutional requirement that its government defend the interests of both linguistic communities. But the appeal is not limited to language and could have wider implications, experts say.

Kerri Froc, a constitutional lawyer who teaches at the University of New Brunswick in Fredericton, said DeWare’s decision draws a distinction between how bilingualism is enforced within government institutions like courts or legislatures, and the role of the lieutenant governor, which is held by one person. She said it could also affect the role of the Governor General.

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

Skinner welcomes the call, hoping it will bring clarity and a “second pair of eyes.”

“It’s an interesting balance between this right guaranteed by the Charter and the sole discretion of the federal government,” he said.

Froc thinks the decision won’t stand up to appeal because of that balance.

“It’s really about the architecture that has been put in place by our Constitution to ensure that all of our branches of government function properly without undue interference,” she said.

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

Sarah Ritchie, The Canadian Press

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