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.
THE AUTHOR OF THIS BLOG IS AN ASSOCIATE JUSTICE
OF THE GRAND DUCAL COURT OF WESTARCTICA
No comments:
Post a Comment