On January 21, 2021, after facing tremendous pressure to depart amidst mounting allegations of mistreatment of staff and creating a toxic work environment at Rideau Hall, Her Excellency The Right Honourable Julie Payette resigned from her post as governor general and commander-in-chief in and over Canada, leaving vacant the nation’s highest office.
As you may know, the governor general of Canada is the official representative of Queen Elizabeth II in Ottawa. Elizabeth II is Canada’s head of state, bearing the title “Queen of Canada” (or “Queen in Right of Canada” in legalese). Primarily, however, as we are all aware, Elizabeth II is queen of the United Kingdom, where she actually lives.
Since she cannot be personally present in Canada (or in any of the other Commonwealth countries over which she reigns as monarch), Elizabeth II must appoint somebody to stand in for her. The governor general is, then, in common parlance, the monarch’s “viceroy”, performing the ceremonial and constitutional duties of the monarch in the Queen’s place. In short, the governor general is Canada’s defacto head of state.
What happens, however, when the viceroy unexpectedly dies or, in Madam Payette’s case, prematurely quits? Well, as it happens, in Canada at any rate, the duties of the governor general, both constitutional and ceremonial, are, by law, shifted to the chief justice of the Supreme Court. Since Julie Payette’s departure from office back in January, therefore, Chief Justice Richard Wagner (pronounced very much like the composer’s name) has been acting as Canada’s head of state in the Queen’s place. You could say that His Honour now wears both the gown and the crown.
A bit jaw-dropping, isn’t it? Imagine this happening in the United States. Imagine that Joe Biden were to resign, tomorrow, and that Chief Justice Roberts would then be called upon to attend to the duties of the president of the United States while at the same time retaining his position as chief justice. It’s an idea Americans would positively rebel against, isn’t it…the leadership of two of America’s three branches of government in the hands of one and the same person? Unimaginable.
The circumstances are, of course, a bit different in Canada. Canada is not a republic and unlike the situation in the United States, the responsibilities of head of state and head of government are separate, being held by two different persons. The executive power is in the hands of the prime minister of Canada as head of government. It is also the case that the three branches of government are not as separate and discrete in a Westminster-style parliamentary monarchy like Canada as they are in a republic (the prime minister, for example, is also a member of Parliament).
The idea of a judge acting as (the mostly ceremonial) head of state, therefore, is at least somewhat less awkward in Canada than it would be in the US.
Chief Justice Wagner, in his role as temporary defacto head
of state, holds the bewildering title of “Administrator of the Government of
Canada”. I say "bewildering" because, well…isn’t that what the prime minister is?
In any event, however little sense his title makes, that is what Wagner is officially known as, and in that role he is entitled to various viceregal perks (such as being addressed as “His Excellency” during the time of his administration). While wearing the viceregal hat, Chief Justice Wagner receives the credentials of ambassadors accredited to the Queen of Canada, appoints public officials, presents awards and honours to deserving Canadian citizens, and could, potentially, be called upon to grant the Royal Assent to legislation, or even to open, prorogue, or dissolve Parliament.
It is those latter duties which give some Canadians (including Richard Wagner) understandable pause. It is all well and good for a chief justice to hand out medals and to shake hands with diplomats, but to sign legislation? To dissolve Parliament? There, things become a bit constitutionally sensitive for an impartial judge who may one day be called upon to rule on questions relevant to legislation bearing his own signature and approval.
Although Canada’s chief justices have often enough been called upon to step into the viceregal shoes, this is now the longest period of time in Canadian history that a chief justice has acted as Canada’s temporary administrator. Much shorter tenures than Wagner’s have put chief justices in uncomfortable positions, perhaps most notably Wagner’s immediate predecessor, then-chief justice Beverley McLachlin, who, while acting as administrator for only a few weeks during the Adrienne Clarkson mandate, was called upon to sign a controversial bill legalizing same-sex marriages in Canada.
In the event that the chief justiceship should happen to be vacant or that the chief justice should be incapacitated or somehow unavailable to take on the role of administrator, the job falls to the most senior puisne justice (associate justice) of the Supreme Court. This has happened, in fact. Between January and April of 1931, for example, Puisne Justice Lyman Poore Duff (whose parents showed no mercy at all when naming him) was called upon to act as Canada's administrator (one British viceroy had, during this time, headed back to London in a box to make way for another).
During his time as Canada's administrator, it fell to Justice Duff to open Parliament on the King’s behalf by reading the Speech from the Throne, a partisan political speech outlining the political agenda of the sitting government. Interestingly, in an age when British lords rather than Canadian citizens served as governors general, Justice Duff became the first Canadian ever to read a throne speech to the Parliament of Canada.
To be sure, then, Canadian justices may and, indeed, have been called upon to get down and dirty with the constitution while acting in the place of the governor general, and back in the times when Canada identified as a British dominion, this arrangement did not necessarily vex the average Canadian. Times have changed since the days of poor Lyman Duff, however, and Canadians most certainly do not identify as British subjects any longer, nor do they view British colonial arrangements as appropriate arrangements for governance in Canada.
In the year 2021, many Canadians are, in fact, unsettled by the optics of the chief justice of Canada’s Supreme Court acting as Canada’s head of state, keeping warm the throne of a non-resident queen for the next unelected person who will be appointed by the leader of one political party to serve as Elizabeth II’s official representative “in and over Canada.”
The prime minister’s office has indicated that the announcement of Madam Payette’s replacement should be announced “by the end of June”, and Prime Minister Trudeau has recently consulted with Queen Elizabeth II, which would seem to indicate that the appointment of a new Canadian viceroy is imminent. Some more stridently vocal Canadians, however, such as conservative journalist (and YouTube personality) J.J. McCullough, have been calling upon the government to take advantage of this moment to finally abolish the office of governor general of Canada (the oldest uninterrupted public office in North America), and to thereby pave the way for the abolition of the Canadian monarchy, itself.
In response to the question of who, if not the Queen (through her viceroy) would serve as Canada's head of state, McCullough responds "How about nobody?" arguing that the office of prime minister serves sufficiently well enough without any need of a ceremonial figurehead to hover aloft of him. The entire concept of distinguishing between a "head of state" and a "head of government" is, in McCullough's view, immodern and nonsensical (McCullough, it must be said, is a known Americanophile who has publicly suggested that Canada will one day become a part of the United States).
Canadians like McCullough who support the abolition of the office of governor general point to Japan as an example of how a prime minister can be appointed by parliamentary resolution rather than by a head of state (the emperor having no actual constitutional role), whereas the power to dissolve or prorogue the Japanese Diet belongs to the prime minister (as it does, in reality, in Canada in any event, only with so much rigmarole and falderol involving the governor general).
It may seem strange, perhaps, that chants to abolish the office of governor general (and the monarchy, itself) come more strenuously these days from the political right (based largely in western Canada) than they do from the left, but this is yet another reflection of how the conservative movement has abandoned its traditional maintain-the-status-quo stances in order to embrace a more "populist" swing in the direction of xenophobic nationalism.
So, has the lengthy delay to replace Julie Payette been all about the need to more carefully vet candidates for the viceregal role going forward, or does the delay, perhaps, indicate that a more seismic change is in the offing?
Either way, His Excellency Richard Wagner, Chief Justice and Administrator of Canada, must be praying that he will soon be able to hand back the Crown so that he may the more comfortably don his gown.