Saskatchewan Needs a New Lieutenant Governor Forthwith


Standard of the Lieutenant Governor of Saskatchewan

W. Thomas Molloy, the Lieutenant Governor of Saskatchewan, died in office on 2 July at the age of 78, and he was laid to rest on 13 July in Saskatoon.[1] This leaves his family and friends in mourning. And it also grinds the machinery of government in the province of Saskatchewan to a sudden halt and could potentially throw the province into chaos and leave it vulnerable to all sorts of ills. Without a Lieutenant Governor, the Legislature of Saskatchewan (which consists of the Legislative Assembly and the Lieutenant Governor) can pass no laws, and the Government of Saskatchewan can promulgate no Orders-in-Council in the name of the Lieutenant Governor-in-Council and no proclamations in the name of the Lieutenant Governor.

A demise of the Crown works on the principle of automatic hereditary succession to a corporation sole; when one reigning monarch dies, the heir apparent automatically ascends to the throne. The Office of Governor General and the offices of the Lieutenant Governor are corporations sole by statute or at common law,[2] which provides for an unbroken legal-constitutional continuity of the office across all its office-holders; however, these offices – like all of those of the various Governors in all the Commonwealth Realms and British Overseas Territories – remain dependent upon appointment by the appropriate authority, which means that they, unlike the sixteen offices of Queen across the Commonwealth Realms, can become vacant when the incumbent dies in office. Administrators who can act in place of Lieutenant Governors also lose their functions upon the death of the Lieutenant Governor whom they serve; similarly, each Prime Minister establishes an order of precedence of cabinet ministers who act in his stead, but this Order-in-Council loses its legal force if the Prime Minister dies in office.[3] Down Under, the state Premiers advise the Queen of Australia directly on the appointment of state Governors; but in Canada, the Governor General appoints the Lieutenant Governor’s on the Prime Minister’s advice.

In November 2012, Prime Minister Harper had established the Advisory Committee on Vice-Regal Appointments to make recommendations on candidates for Lieutenant Governor whom the Prime Minister would then recommend that the Governor General appoint.[4] Prime Minister Trudeau has thus far opted not to use the Vice-Regal Appointments Committee, which has gone dormant, though he seems to have applied this same principle in creating the Independent Advisory Board for Senate Appointments.[5]

CBC News reported today, 16 July 2019, that Premier Moe of Saskatchewan has asked that the Trudeau government expedite the appointment of a new Lieutenant Governor of Saskatchewan, and the Privy Council Office told CBC News on 15 July:

“The Government of Canada extends its condolences to Mr. Molloy’s family. The Prime Minister recognizes the importance of filling the now vacant position of Lieutenant Governor of Saskatchewan and an announcement will be made in the near future.”[6]

Contrary to the emerging popular belief, the Restraints on Government Activity associated with the Caretaker Convention did not begin when the House of Commons and Senate rose for the summer at the end of June 2019; under the Privy Council Office’s internal guidelines, they will not begin until the writ is drawn up between 1 and 15 September 2019.[7] And even if this had happened when the Restraints on Government Activity did apply, the appointment of a new Lieutenant Governor most assuredly qualifies as “urgent and in the public interest.” Furthermore, the Manual of Official Procedure of the Government of Canada says: “If a Lieutenant Governor dies in office a successor should be appointed immediately since an Administrator cannot act when the post is vacant.”[8] It further adds:

15. The provisions for appointing an Administrator to take over during the absence or illness of the Lieutenant-Governor do not apply when the post is vacant. It is therefore imperative that a new appointment be made immediately if a Lieutenant-Governor dies in office in order that the Government of a province may function. Also, because of this situation, a Lieutenant-Governor does not normally vacate the office until the new appointee takes over.[9]

This all stems from section 67 of the Constitution Act, 1867:

 The Governor General in Council may from Time to Time appoint an Administrator to execute the Office and Functions of Lieutenant Governor during his Absence, Illness, or other Inability.

This section makes no provision for the Administrator continuing upon the death of a Lieutenant Governor, and “this has been interpreted by the Department of Justice to preclude an Administrator from acting if the post of Lieutenant-Governor is vacant.” [10]

Prime Minister Trudeau could advise Her Excellency the Governor General to appoint a new Lieutenant Governor of Saskatchewan – whether through work done by the old Advisory Committee on Vice-Regal Appointments and any short-lists that it might have compiled or through any other means that he thinks fit – at any time.

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[2] Governor General’s Act, RSC 1985, c G-9, s.2 “2 The Governor General of Canada or other chief executive officer or administrator carrying on the Government of Canada on behalf and in the name of the Sovereign, by whatever title designated, is a corporation sole.”;

Lieutenant Governor Act, RSO 1990, c L.13 (Ontario), s. 3: “The Lieutenant Governor for the time being is a corporation sole, and all bonds, recognizances and other instruments by law required to be taken to the Lieutenant Governor in his or her public capacity shall be taken to him or her by the name of the office of Lieutenant Governor, and may be sued for and recovered by him or her by the name of the office of Lieutenant Governor, and the same shall not in any case go to or vest in the personal representatives of the Lieutenant Governor during whose government the same were so taken.”;

Interpretation Act, R.S.B.C. 1979, c. 29 (British Columbia) defines the Lieutenant Governor of British Columbia as a corporation sole: “”corporation” means an incorporated association, company, society, municipality or other incorporated body where and however incorporated, and includes a corporation sole other than Her Majesty or the Lieutenant Governor”;

Saskatchewan has not established a Lieutenant Governor Act like some provinces have, but the principle of maintaining continuity remains the same.

[3] Canada, Privy Council Office, “Current Ministry and Order of Precedence,” 18 March 2019

[4] Christopher McCreery, “Subtle Yet Significant Innovations: The Advisory Committee on Vice-Regal Appointments and the Secretary’s New Royal Powers,” chapter 9 in The Crown and Parliament, edited by Michel Bédard and Philippe Lagassé, 241-261 (Montreal: Thomson-Reuters, 2015), 245. The Advisory Committee consisted of two permanent members, Robert Watt and Jacques Monet, and two members ad hoc for the province concerned, and the Canadian Secretary to the Queen as ex-officio chairperson.

[5] Canada, Privy Council Office, Order-in-Council PC 20160011, 19 January 2016.

[7] Canada. Privy Council Office, Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election (Ottawa: Her Majesty the Queen in Right of Canada, 2015): no page number online.

[8] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 295.

[9] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 297.

[10] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 324.

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4 Responses to Saskatchewan Needs a New Lieutenant Governor Forthwith

  1. Pingback: Roundup: A carbon reality check | Routine Proceedings

  2. In Australia there seems to be a practice that in relation to the role of the state governors (as we call them) the Chief Justice of the state supreme court also has the role of ‘lieutenant governor’, and would step up seamlessly in cases like this. But I can’t recall a case of an Australian GG or state governor dying abruptly in office.

    Unrelated to this current situation in SK, but when the Australian Governor-General is overseas the senior state governor is appointed to act as ‘Administrator’ of the Commonwealth.

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    • We should have amended section 67 in 1982. The constitutions of the Australian states must have corrected the error and oversight in the Constitution of Canada. The way that Australia does things here makes so much more sense.

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      • Ronald McCallum says:

        James,

        “We should have amended section 67 in 1982. The constitutions of the Australian states must have corrected the error and oversight in the Constitution of Canada. The way that Australia does things here makes so much more sense.”

        ABSOLUTELY James. Each State in the Commonwealth of Australia have their own written CONSTITUTION ACT, and have been able to amend them independently since the 1850’s. Since Federation in 1901, some of the States codified — as much as possible —- their Constitution Acts and updated them.

        New South Wales enacted the Constitution Act 1902, and is still governed by it, with some important modifications:

        Section 7A was added in the late 1920’s to prevent the abolition of the Legislative Council without popular consent via a Constitutional referendum. Section 7B was added to protect the Legislative Assembly at a later date.

        Constitution Act 1902: https://www.legislation.nsw.gov.au/#/view/act/1902/32

        South Australia’s current Constitution dates from 1934. Tasmania’s current Constitution as well dates from the 1930’s, whereas, Victoria’s dates from 1975, and Queensland from 2001 with one extremely amendment: the Fixed Term Parliament Act was ratified by referendum in 2016, and will go into effect with the next State Parliament in 2020. All these Constitutions are available online.

        Ronald A. McCallum

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