Trudeau should have shortlists, lawyer says

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.

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 federal government is appealing the New Brunswick ruling.