Death of lieutenant-governor puts limits on what cabinet can do

The death of Lt.-Gov. Jocelyne Roy Vienneau puts the New Brunswick government in an unusual position: it is not able to make any decisions that require a formal cabinet order.

Regulations can't be proclaimed into law, and people can't be appointed to government positions, without a lieutenant-governor to sign an order-in-council.

The Constitution Act of 1867 allows an "administrator" to be designated to fulfil the lieutenant-governor's function "during his Absence, Illness or other Inability."

But it makes no allowance for an administrator when the office is vacant.

"The administrator, the person who normally fills in for him or her when she is absent or ill, cannot function as such," said Michael Jackson, a former chief protocol officer of Saskatchewan, where the issue has come up twice in the last few decades. 

"They can only function when a lieutenant-governor is there to be represented or temporarily replaced, but not in the case of the death of a lieutenant-governor."

Roy Vienneau's death was announced Friday. She had been battling cancer. 

'Province 'will manage'

Premier Blaine Higgs said Friday that he was aware of the situation created by Roy Vienneau's death, but there's no pressing cabinet business to be dealt with right now.

"We will manage that for sure," he said. 

Justice Bradley Green of the New Brunswick Court of Appeal has acted as the administrator several times in the last year during Roy Vienneau''s illness.

He gave royal assent to legislation when the legislature adjourned on June 14, and on June 27 he proclaimed amendments to the Motor Vehicle Act into law and signed several appointments.

But Green can no longer do that without a lieutenant-governor in office, Jackson said.

A spokesperson for Prime Minister Justin Trudeau, who appoints provincial lieutenants-governor, said he is aware of the situation.

"The prime minister recognizes the importance of filling the now-vacant position of lieutenant-governor of New Brunswick and an announcement will be made in due course," Chantal Gagnon said in an email statement.

Appointment after funeral

Higgs said he was in touch with federal cabinet minister Dominic LeBlanc, and an appointment is unlikely before Roy Vienneau's funeral, expected in a week and a half.

"There will not be anyone appointed prior to the service … because this time is a time to reflect on her accomplishments, her memory, and to honour her life here in New Brunswick," he said.

The constitutional void left by the death of a lieutenant-governor is not widely known.

When Saskatchewan's lieutenant-governor died unexpectedly in 1978, "the government of the day assumed that the administrator, who was the chief justice, could just carry on," said Jackson, president of the Institute for the Study of the Crown in Canada.

"But the chief justice informed them that he couldn't. He could only do this if the lieutenant-governor was living." 

Just last month, another Saskatchewan lieutenant-governor, Thomas Molloy, died. Trudeau quickly appointed Russell Mirasty to the position 15 days later.

Lieutenant-governors serve a minimum term of five years unless they resign early, so an appointment to replace Roy Vienneau was widely expected this fall regardless. 

Jackson said the death of a lieutenant-governor, and the unusual situation it creates for a government, is a reminder that the position is more than just ceremonial. 

"Symbolism is important but this constitutional role is a lot more important than most people think," he said.  

"It's a learning experience for everybody."