Jocelyne Roy-Vienneau, the Lieutenant Governor of New Brunswick, has just died of cancer after having revealed the diagnosis in the fall of 2018 around the time of the last change of government from Gallant to Higgs. CBC News reports that the province’s Protocol Office will make more announcements in the coming days. Canada has lost two Lieutenant Governors to cancer in as many months, after W. Thomas Molloy, the Lieutenant Governor of Saskatchewan, died in office on 2 July.

On 16 July, I posted Saskatchewan Needs a New Lieutenant Governor Forthwith, and the Trudeau government announced publicly on 17 July the appointment of Russell Mirasty as a new Lieutenant Governor of Saskatchewan. Interestingly, however, Order-in-Council PC 2019-1093, which promulgated Mirasty’s appointment, dates from 15 July. The Privy Council Officer’s Order-in-Council database also quite correctly lists the source of authority for the appointment of Lieutenant Governors as the Constitution Act, 1867.

The same concerns which applied in Saskatchewan now apply in New Brunswick. Without a Lieutenant Governor, the Legislature of New Brunswick (which consists of the Legislative Assembly and the Lieutenant Governor) can pass no laws, and the Government of New Brunswick 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. Administrators who can act in place of Lieutenant Governors also lose their functions upon the resignation or death of the Lieutenant Governor whom they serve.

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.”[1] It further adds:

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.[2]

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.”[3]

To reiterate, 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.[4] 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.”

Finally, given that the Trudeau government responded promptly to the death in office of Saskatchewan’s Lieutenant Governor last month, we can expect that the Prime Minister will likewise appoint a new Lieutenant Governor of New Brunswick after Jocelyne Roy-Vienneau has been laid to rest.

Similar Posts: 

• Saskatchewan Needs a New Lieutenant Governor Forthwith
• Caretaker Convention 
• Lieutenant Governor

Notes

[1] 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.

[2] 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.

[3] 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.

[4] 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.