Viewpoint

Joanna Baron: Without a Governor General, Canada lacks institutional independence

The same person who determines whether a law is constitutional is also granting it Royal Assent
Chief Justice of the Supreme Court of Canada Richard Wagner speaks during a news conference on June 17, 2021. Justin Tang/The Canadian Press.

In January, the Confederacy of Treaty Six sent an urgent letter to Her Majesty, the Queen regarding the situation on the vacant position that resulted from the abrupt resignation of the former Governor General.

“We wanted to remind our treaty partner — the Crown — of our concern that at this time in the state of Canada having no representative of herself,” said Grand Chief Vernon Watchmaker. “The chief justice of Canada can sit in for a short period, but a concern arises when legislation is enacted that might affect us — what happens if the legislation ends up before the Judge? It would be better to have a Governor General in place as soon as possible.”

(The Queen’s reply was tepid: “Thanks for the enquiry,” her communications secretary replied, “but this is a matter for the Canadian government.”)

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Five months later, the Confederacy’s points still stand. When former Governor General Julie Payette stepped down following the Auditor General’s report of a toxic workplace in January 2021, Prime Minister Justin Trudeau was at pains to assure the country that her replacement would be shortly forthcoming.

Ms. Payette’s successor has yet to be named; instead, following the Letters Patent decree of King George VI, Chief Justice Richard Wagner is now the Queen’s representative, the administrator of the government of Canada in addition to his Supreme Court duties.

That means he’s granting royal assent to new laws and orders-in-council, while also adjudicating their constitutionality. Wagner also will effectively bear the role of both advising himself — as head of the Advisory Council of the Order of Canada — and deciding who receives the Order of Canada as acting Governor General.

Admittedly these are mostly ceremonial functions. However, the possibility of a snap election — not uncommon under a minority Parliament— makes things more awkward. The chief justice would have to follow the prime minister’s request to dissolve Parliament.

Worse, were the election to result in a hung Parliament, Wagner would be in the unseemly role of having to choose between competing coalitions, and ultimately select a new prime minister. Effectively, the ultimate authority of our country’s legislative, executive, and judicial branches currently rest in Wagner’s hands. The same guy who determines whether a law is constitutional is granting that law Royal Assent.

Never before in Canadian history has the fact of a chief justice also acting as Governor General been so awkward

His docket at the Supreme Court includes First Nations litigation which touches upon the honour of the Crown in upholding its treaty obligations, a sore spot mentioned by the Confederacy in their letter.

Never before in Canadian history has the fact of a chief justice also acting as Governor General been so awkward, as Supreme Court justices are currently at their zenith of power and prestige over our country’s moeurs and moral self-regard. As Y.Y. Zhu recently observed, “Other countries have public intellectuals; Canada has Supreme Court judges.”

The common remedy to any matter of public controversy in this country has become to throw a retired Supreme Court judge to the task, with mixed results. No less than four were involved in the SNC-Lavalin affair, in a Battle Royale of the judges. More recently, an investigation by Thomas Cromwell apparently failed to cool the embers of a University of Toronto hiring scandal involving a human rights scholar who criticized Israel’s West Bank settlements.

The impulse to consult former Supremes as oracles is obvious: the imprimatur of the Court suggests it is elevated above the fracas of politics, and rooted in a quasi-mystical knowledge of the deep norms of rights and freedoms in our country.

It wasn’t always so: in the years up to 1949, when the right of provincial appeals to the Privy Council in London was abolished, it was difficult to convince qualified jurists to even take a job on the Supreme Court, much less live in Ottawa. Both Montreal and Toronto had their own, better-regarded appellate courts (and, presumably, superior quality of life).

This began to change with Bora Laskin’s appointment to the Supreme Court in 1970 — Laskin famously shepherded the pro-civil liberties Laskin, Spence, and Dickson “LSD connection” in dissent to conservative majorities. The power and prestige of the Court, of course, crested with the adoption of the Charter in 1982, which granted the sequestered justices increasingly full purview over all areas of Canadian law and administrative regulation as well as our most divisive public policy issues such as safe-injection sites, physician-assisted death, and sex work.

The media has mostly been silent about the risks posed by the Governor General vacuum to our institutional independence and legitimacy. This is perhaps unsurprising given the more pressing demands about COVID-19 vaccine supply and military scandals. Or perhaps they simply have failed to grasp the risk to institutional independence and legitimacy occasioned by Wagner’s tenure.

There certainly was no dearth of questions and innuendo in 2014 during l’affaire Nadon, where then-Chief Justice Beverly McLachlin (currently a favourite for appointment to GG) was reported to have warned the justice minister and Stephen Harper’s chief of staff against nominating Justice Marc Nadon, a federal court judge, to fill a Quebec spot on the court.

Was McLachlin improperly interfering with a discretionary decision of the executive? Was she precluding her ability to appear impartial when a constitutional challenge against Nadon’s appointment was promptly launched, concluding that he was indeed ineligible, despite the assiduous legal analysis of yet another retired Supreme, Ian Binnie?

The recently retired media darling of the court Rosalie Abella noted that “a Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph.” Wise words which ought to be heeded. As it happens, her name is being floated widely as Payette’s successor.

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