Justin Trudeau – Orders-in-council and royal assents not affected by GG’s resignation
Prime Minister Justin Trudeau said he spoke with the Queen on Friday to inform her that the chief justice would be acting as governor general until a replacement is found for Julie Payette, who resigned from the post yesterday after a report was released containing allegations she’d harassed her staff.
Trudeau made the announcement from his Rideau Cottage home, which is on the grounds of the governor general’s residence.
According to a CBC report, Payette created a toxic work environment by humiliating and yelling at employees in front of others.
The duties of the governor general include: swearing in the prime minister, cabinet ministers, and the chief justice; summoning, proroguing, and dissolving Parliament; delivering the speech from the throne; granting royal assent to bills; on the advice of the prime minister, appointing lieutenant governors, members of the privy council, and some judges; and signing official documents, such as orders-in-council.
An order-in-council can cover a wide range of administrative and legislative matters, including political appointments and decrees. For instance, after a mass shooting in Nova Scotia in April last year, Payette was called upon in May to sign an order-in-council banning certain firearms.
Michael Behiels, a political-constitutional historian, says he doesn’t see a problem with Chief Justice Richard Wagner “wearing two hats” — chief justice and governor general — and that it’s happened before.
According to the Letters Patent of 1947 — letters signed by King George VI to empower the governor general to act on behalf of the Crown — if the governor general dies, is incapacitated, or is out of the country for more than a month, the chief justice becomes the administrator of Canada and assumes all powers and duties of the governor general.
Behiels said when Roméo LeBlanc was governor general from 1995 to 1999, the chief justice was called upon to perform duties on LeBlanc’s behalf.
This happened again years later, when former chief justice Beverly McLachlin sat on the bench. In 2005, she became the administrator when then-governor general Adrienne Clarkson was hospitalized. During that time, McLachlin gave royal assent to the Civil Marriage Act, which legalized same-sex marriages.
The governor general’s resignation does not affect the day-to-day functioning of government, including orders-in-council and giving royal assent to legislation, says Errol Mendes, a law professor at the University of Ottawa and editor-in-chief of the National Journal of Constitutional Law.
But a problem could arise if the government were to prorogue Parliament. In that case, the governor general is responsible for prorogation on the advice of the prime minister, and may need to consult the chief justice.
Mendes says the governor general’s primary role is to uphold the dignity of the office as the Crown’s representative.
He points to Season 1 of the Netflix series The Crown, when the future Queen Elizabeth is told by her tutor that there are “two elements of the constitution: the efficient and the dignified. … Dignified and efficient only work when they support and trust one another.”
Mendes says this is where Payette failed.
“She failed to uphold the dignity of the office, and her resignation was inevitable,” Mendes said.
Trudeau is expected to speak to Wagner on Friday night.