THE ADVOCATE 341
VOL. 80 PART 3 MAY 2022
CHANGING OF THE CONSTITUTIONAL
GUARD: WHY THE CHIEF JUSTICE OF
CANADA SHOULD NEVER ALSO BE THE
GOVERNOR GENERAL
By Michael A. Johnston
In Canada, separation of powers between the executive, legislative
and judicial branches—an important requirement for a vibrant
democracy—is more illusory than real.
Chief Justice Wagner was appointed head of the Supreme Court
of Canada by Prime Minister Justin Trudeau in 2017. All justices of the
Supreme Court may be called on to act as a deputy of the governor general
pursuant to the protocol in the Letters Patent, 1947. As Chief Justice, he also
became the Administrator of the Government of Canada, by taking the Oath
of Office and the Oath of the Keeper of the Great Seal of Canada,1 from January
23, 2021 to July 26, 2021, as a result of Governor General Julie
Payette’s resignation in January 2021. For six months, the Chief Justice of
Canada granted royal assent to nascent laws, signed Orders in Council and
acted as Commander-in-Chief of the Canadian Armed Forces. It is, no
doubt, a position he never sought, and one his predecessors have also filled,
but it is a position a justice ought never to have been given. We ought to
appoint a deputy governor general who is not a judge or otherwise involved
in the legislative process.
This was not the first blurring of judicial and legislative lines for the Chief
Justice. In June 2020, Chief Justice Wagner co-chaired the COVID-19 Court
Response Committee with the Attorney General (the latter probably the
most frequent litigant before the Supreme Court), wherein he publicly
expressed his views about the propriety of legislatively reducing the number
of jurors required for a criminal jury trial, along with other jury and justice
system issues. His involvement in the process was problematic both
procedurally and substantively. For example, in 1982, at the dawn of the
Canadian Charter of Rights and Freedoms, Justice Brian Dickson, who served
as Chief Justice from 1984 to 1991, ruled in R. v. Basarabas that a person
accused of an indictable offence has the “common law right to the unani-