The Commissioner vs the Constitution

The Commissioner of Official Languages, Raymond Théberge, is launching an investigation into the appointment of Mary Simon as Canada’s new Governor General.

After receiving over 400 complaints about Simon’s lack of fluency in French (see my views on the matter here), Théberge will be investigating the Privy Council Office (PCO). On the surface, it’s not hard to see why he is focusing on PCO. It’s the only federal institution he might hope to claim jurisdiction over in this matter. If he honestly believes PCO decided on Simon’s appointment or that they violated any Act of Parliament, though, he needs to bone up on the Canadian constitution.

The Governor General is appointed by the Queen under her prerogative authority. The exercise of this power is the most important function the Queen plays in the Canadian constitution today. It’s unlikely that the courts would consider exercises of this power justiciable, and it’s almost certainly protected by the unanimous constitutional amending procedure under paragraph 41(a) of the Constitution Act, 1982.

Théberge evidently realized that he couldn’t investigate the Queen under the Official Languages Act. The Queen doesn’t constitute a federal institution under that law and there’s no Act of Parliament that touches on the appointment of the Governor General by the Queen. The Governor General’s Act doesn’t deal with the Queen’s power to appoint the Governor General and the Letters Patent 1947 that define the Governor General’s functions and powers are not an Act of Parliament.

The Office of the Governor General headed by the Secretary to the Governor General is a federal institution under the Official Languages Act, but nobody is claiming that it doesn’t run in both official languages. Nor is there any suggestion that Rideau Hall won’t work in both official languages once Simon takes up her office. So, that’s another dead end for an investigation.  

Let’s look at the bilingualism requirement itself. Did the Prime Minister break any laws by recommending Simon to the Queen? Nope. The rules that surround the appointment of the Governor General are constitutional conventions, not laws. We keep certain core constitutional rules as conventions to ensure that that courts (and overreaching officers of Parliament, it seems) don’t try to enforce them. The consequences of skirting convention are political, not legal. As importantly, even if convention demands that the Governor General be bilingual, conventions are meant to be flexible. They’re also meant to evolve, which runs counter to attempts to cast them in stone.

With nowhere else to turn, Théberge has decided to focus on the one federal body where an investigation might have traction: the Prime Minister’s department, aka PCO. What’s PCO’s role here? PCO coordinates the appointments process and assists the Prime Minister in his official communications with the Queen, including in matters related to the Governor General. As part of this particular vice-regal appointment, PCO also supported the committee of notables that advised the Prime Minister on potential candidates for the office. As far I can surmise, it seems like Théberge is going to check if PCO officials and the advisory committee paid enough attention to bilingualism when looking at potential candidates. Or maybe that they failed in some way by offering up the name of someone who isn’t bilingual? Who knows.

The problem, though, is that PCO and the committee were offering non-binding advice. That’s it. The Prime Minister was free to ignore them and demand only bilingual candidates if he wanted. He didn’t. He decided that convention could be bent a bit, or perhaps allowed to evolve, to allow him to recommend Simon to the Queen. And the Queen, in keeping with constitutional convention, duly appointed who her Prime Minister recommended.

In essence, then, Théberge will be investigating bureaucrats and an advisory committee for providing non-binding advice, on a non-justiciable decision that was the Prime Minister’s to make, under a constitutionally-protected power that the Queen exercises.

Ok, then.

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