Trudeau needs to bring back the vice-regal appointment committee



We have just gone through an unprecedented stroke of bad luck, with two lieutenant governors passing away in office in as many months, both in Saskatchewan and New Brunswick, and the implications are pretty severe.  It is an underappreciated fact that so long as there is no lieutenant governor in a province, that province’s government must grind to a halt, and with that in mind, it becomes incumbent on the prime minister and Cabinet to appoint a replacement as soon as possible.  This appointment process, however, is where a bit of trouble has come in – a post that began as pure patronage had gradually moved to a more professional one, all the way to an arm’s length advisory committee before this government reeled it back into the black box of the PMO.  These two deaths have demonstrated that it should be a priority for the government, whether it be the current one or a new one following the election, needs to restore the vice-regal appointments committee.

The gravity of the situation in the provinces when a lieutenant governor dies in office cannot be understated.  It’s not just the ceremonial aspects of our system that the lieutenant governors perform – it’s actually everything that passes through their offices, from bills, to regulations, to Orders in Council, to appointments.  Our whole system of government is predicated on the notion that governments offer advice to the Queen or her representatives, who then act on that advice.  Governments don’t actually make governing happen on their own.  Granted, there isn’t a direct relationship between lieutenant governors and the Queen – it’s a little more tangential than that because the positions were initially set up as representatives of the Dominion Government in the provinces – but operationally there still is a requirement for a lieutenant governor to be in the position.  Ordinarily, an administrator can be appointed to act in their absence – usually the province’s chief justice, and those absences are generally assumed to be temporary.  But death changes the equation.

In 1978, the lieutenant governor of Saskatchewan died in office, and his administrator, provincial Chief Justice Edward Culliton decided that he had no power to act with the office vacant, presumably because he can’t act on behalf of someone who isn’t alive and in the position.  The federal department of justice backed up this interpretation, and for a period of about three weeks, the province’s government was in suspended animation until a new lieutenant governor was appointed.  We’ve just seen that very same situation replay where there was a period of almost three weeks between the death of Thomas Molloy and the appointment of Russell Mirasty.  With the death of Jocelyne Roy-Vienneau, New Brunswick’s government is now entering into its own state of suspended animation.

This is the part where the vice-regal appointments committee comes in.  This was one of Stephen Harper’s most inspired ideas – an arm’s length committee that could professionalize the appointment process for all vice-regals (the governor general, lieutenant governors, and also territorial commissioners, even though they’re not technically vice-regals).  Led by the Canadian Secretary to the Queen (another post that Trudeau has let go vacant after the retirement of the incumbent), he and the committee members (three permanent federal members, including the Canadian Secretary, and two ad hoc provincial or territorial members, who were filled when that province or territory’s search was underway) would engage with those provinces or territories.  Civil society groups, community leaders, elected officials, and so on, were all consulted for a couple of months to get a list of names and CVs, which the committee would then narrow down to a short list to present to the prime minister.

This process had more than a few things to recommend it.  One was the level of transparency that it entailed.  While we won’t ever know who was on the shortlist, we know that there was an open process by which names were gathered (and one that discouraged self-nomination, the reliance on which is one of this current government’s greatest failings) and that there was a process with listed criteria by which a short list was drawn up.  This process gave those provinces and territories a greater sense of ownership in the office of the lieutenant governor because they had a say in helping to offer names – it wasn’t just going to be a friend of the prime minister in that province, as had been the case for over a century.  Plus, it was conducted at the proper distance from the PMO so that they could recommend names but not do the final vetting by the RCMP, CRA, and so on, thus ensuring that the prime minister couldn’t try to launder the accountability for the choice that got made in the end.

Above all, it showed that there was a process for those appointments that there could be some public confidence in.  Were that committee still in place, it would provide more reassurance about the replacement for the recently deceased lieutenant governor of a province because there would be either the short-list still in existence (such as would be the case with Molloy in Saskatchewan, who had been in office for only about a year), or a process would already be underway for their replacement (as would have been the case in New Brunswick, as Roy-Vienneau was already near the end of her term).  Instead, we are forced to rely on a black box process from Trudeau’s PMO, where we have no idea what kind of search or criteria were used to select the candidates – and given the fact that Judy Foote in Newfoundland and Labrador was appointed as lieutenant governor mere months after she stepped down as a Cabinet minister, it certainly looks like a return to the days of appointing the PM’s friends.

It’s a regression that makes no sense, particularly because Trudeau replicated the vice-regal appointment committee’s essential features for his Senate appointment committee.  These two recent deaths in office have demonstrated the need for Trudeau to get serious and restore the vice-regal appointment committee (under a restored Canadian Secretary to the Queen, thank you very much), because these offices are too important to keep them at the whim of a prime minister.

Photo Credit: CBC News

More from Dale Smith.     @journo_dale

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