L’Affaire Payette and the Office of the Governor General

Philippe Lagassé

January 29, 2021

Julie Payette’s resignation as governor general offers us an opportunity to examine fundamental aspects of this office. Three issues, in particular, are worth discussing: first, when the governor general might be called upon to exercise powers with discretion; second, how the governor general’s generous annuity contributes to their independence; and third, what role the Queen plays when a governor general must be replaced.

The governor general’s constitutional functions usually involve formalities. Bills passed by the House and Senate must be granted royal assent by the GG before they become law. The viceregal representative acts on the advice of the House of Commons and Senate when granting assent, with no possibility of a refusal except in cases of procedural error or evident constitutional crisis. As part of the day-to-day business of the executive, the GG is further required to sign a number of official documents, such as proclamations and orders-in-council. The constitutional aspects of the job, in effect, mostly involve a series of signatures.

When Parliament finds itself in a minority situation, the governor general’s role and discretion increase, but only in specific circumstances. If the governing party secures a plurality of seats following a general election, the governor general is not required to ask the prime minister to stay on or form a new ministry. While the prime minister may choose to shuffle the cabinet or re-swear ministers who will be keeping their portfolios, the ministry itself remains the same. If, on the other hand, the prime minister resigns following an unfavourable election, the governor general will call on the leader of the party best placed to maintain the confidence of the Commons to form a new government. Since this party will normally be obvious, the governor general will not act with veritable discretion here.

The governor general has a discretionary role in the formation of a government if the PM loses a vote of non-confidence and requests a dissolution soon after a general election. In that case, the viceregal representative will need to determine whether another party leader can form a government that can maintain confidence. If so, then the governor general can refuse the prime minister’s dissolution request and ask the other leader to form a government. The time period during which a governor general can refuse a request to dissolve will depend on a number of factors, but 6-12 months following the last election is often cited by authorities. A recent example of a viceregal representative exercising discretion in this matter is found in the aftermath of the 2017 general election in British Columbia. Premier Christy Clark’s minority Liberal government was defeated on a confidence vote when the legislature met; she then sought a dissolution from the lieutenant-governor. This request was denied and the New Democratic Party leader, John Horgan, was invited to form a government. With the support of the Green Party members, Horgan governed with a majority in the legislature, and was returned with a majority in his own right in the “pandemic election” of 2020.

Viceregal discretion might also come into play when parties are jockeying for power and the rules surrounding the confidence convention and government formation are contested. Both the 1926 King-Byng Affair and the 2008 prorogation crisis involved this kind of dilemma.

In 1926, the Governor General, Lord Byng, refused Prime Minister William Lyon Mackenzie King’s request to dissolve in order to give the opposition Conservatives a chance to govern. The Conservatives had won more seats than King’s Liberals in the previous election and Byng considered it proper to let their leader, Arthur Meighen, have a chance to form a government. This ultimately proved to be a bad call, since the Meighen government quickly fell, provoking the dissolution Byng had sought to avoid, resulting in King’s return to his office until his defeat by R.B. Bennett in 1930 after the stock market crash of 1929 that provoked the Great Depression.

In 2008, Prime Minister Stephen Harper advised a prorogation of Parliament to avoid a non-confidence vote that might have led to his government being replaced by an impromptu opposition party coalition. Had Governor General Michaëlle Jean refused the prime minister’s advice, it is unclear if Harper would have willingly faced the Commons, rather than resign and raise questions about the constitutionality of the viceregal representative’s choice. In the end, Jean followed the prudent course by granting Harper a short prorogation. By the time Parliament resumed, the opposition coalition had fallen apart, and Harper led a minority government until the 2011 election which finally returned him as a majority PM after two minorities and five years in office. After his brush with viceregal discretion, Harper established an independent committee process for recommending a governor general and lieutenant governors. It is this committee that recommended David Johnston, a former president of Waterloo University and principal of McGill, who is widely seen as an exemplary governor general. The non-partisan committee was disbanded by Harper’s successor, Justin Trudeau, a decision resulting in a fateful turn of history with the poorly vetted Julie Payette.

However rare, episodes such as those of 1926 and 2008 remind us of the consequential adjudicative functions that can be thrust upon the governor general.

Given that the GG can be called upon to make significant decisions about the life of governments and parliaments, the officeholder must be seen to be independent and impartial. Appointees to the office should, ideally, not be associated with any political party. This renders the past practice of appointing former cabinet ministers inadvisable. Lamentably, however, partisan politicians continue to be appointed as provincial lieutenant governors. This should no longer be acceptable provincially, either.

Yet avoiding partisan bias is not enough. Governors general must not be vulnerable to political or private influence. This is where the office’s generous retirement annuity comes in. Providing governors general with a sizable pension is supposed to ensure that they will not be concerned with their livelihoods after leaving office. In theory, this means that governors general should not be contemplating employment opportunities that the prime minister and cabinet, a political party or private corporation with ties to a particular politician or party might have to offer the GG upon leaving office.

These considerations further highlight why the office of governor general should be held by someone nearing retirement. Younger viceregal representatives face the unenviable task of finding a position of comparable standing after they cease holding the second highest office of the Canadian state, the highest being the Queen herself. The best candidates for this position are those who do not need to worry about restarting their career after representing the Queen.

The Payette saga, finally, demonstrates that the Queen retains discretionary powers in the Canadian constitution. Had Payette refused to resign in spite of the findings of the independent report on the toxic workplace environment at Rideau Hall, the Queen would have been the prime minister’s only recourse if he truly believed that the governor general had to go. Her Majesty’s prerogative over the appointment of the governor general is accompanied by the power to dismiss her viceregal representative. These are twinned powers that have been left with the Queen, notwithstanding the delegation of nearly all her powers to the governor general under the Letters Patent of 1947.

The Queen exercises her prerogative to appoint the governor general on the advice of the prime minister. Were a PM to request that the Queen dismiss or replace her viceregal representative, however, Her Majesty would need to consider her first minister’s motivations. Specifically, if a prime minister were trying to replace a governor general who has prevented them from acting unconstitutionally or who is contemplating a dismissal of their government, the Queen would have the authority to reject the request. Indeed, alongside her power to name additional Senators, this is the Queen’s most significant power in Canada. She serves as a safeguard against a prime minister who is seeking to remove a governor general for nefarious reasons or to save their own political skin. If, however, the Queen determines that the prime minister is requesting the dismissal of an ill-suited or underperforming governor general, then Her Majesty would be bound to accept. Likewise, if the prime minister informs the Queen that her viceregal representative has acted unethically, criminally, or unconstitutionally, she would have no grounds to refuse a request to dismiss; in fact, Buckingham Palace would probably be eager to remove a viceregal representative who is undermining the Crown’s institutional reputation.

Requesting that the Queen dismiss her governor general is a last resort, one that should only be pursued if all other avenues have been exhausted and the circumstances truly warrant her intervention. Thankfully, Ms. Payette did not force the prime minister to consider an appeal to the Queen, though we do not know if he threatened to do so.

L’Affaire Payette will go down as a sad moment in Canada’s constitutional history. The employees she and her secretary are alleged to have humiliated and verbally abused may find solace in seeing them leave office, though questions about how this was allowed to occur in the first place will fester. Payette herself may no longer be remembered for her accomplishments in the space program and her numerous professional honours, but as a failed governor general. The viceregal office, in turn, may be diminished if Payette’s tenure increases doubts about the utility and cost of having a governor general.

Our awareness of these unhappy developments is entirely due to the tireless reporting of Ashley Burke of CBC News. She broke the story last summer after interviewing dozens of present and former Rideau Hall staffers, leading the government to commission the independent review that found “allegations of yelling, screaming, aggressive conduct, demeaning comments and public humiliations.” Burke followed up by reporting another exclusive that Quintet Consulting, which conducted the review, found the pattern of mistreatment included “physical contact” in some cases. Burke’s reporting followed coverage early on in Payette’s term by National Post journalists Brian Platt and Marie-Danielle Smith, who raised early flags about tensions at Rideau Hall and the former astronaut’s seeming incompatibility with the position. Future governors general would be wise to expect greater media scrutiny on par with their work.

If we are to find a silver lining here, it is that governments will appreciate that whom they appoint as the Queen’s viceregal representatives can matter, and that their choice should be approached with care. Given the significant decisions that governors general can be forced to make, we should demand nothing less.

Philippe Lagassé is an associate professor and Barton Chair at Carleton University.