Former Quebec lieutenant-governor Lise Thibault to invoke sovereign privilege

Letter to the Editor by Duff Conacher, Coordinator of Your Canada, Your Constitution, June 22, 2012

MONTREAL—When a judge finally decided in May to send Quebec’s former lieutenant governor to trial on fraud charges, a friend spoke out on how Quebecers were treating her.

“I have accompanied Mrs. Thibault for 10 years,” Réal Cloutier said. “I find it deplorable to see how Quebecers insult her, injure her in public, treat her like a criminal.

“She’s not a criminal.”

After so many years of storms gathering over accusations she misspent over $700,000 while in office, Lise Thibault has become a sort of pariah in her own province.

Now the 73-year-old from Saint-Hippolyte is embarking on a novel path to avoid going to trial on charges of fraud, breach of trust and forging documents.

Thibault will invoke sovereign privilege. Since the expenses occurred during her time as the Queen’s representative, the legal logic goes, she’s immune from prosecution.

It’s an audacious attempt to duck being held to account, several constitutional experts agree. But what’s still murky is whether it has half a chance to work.

The argument centres on a British common-law statute that states, “the Queen can do no wrong.” The Crown prosecution, in other words, cannot prosecute the Crown.

“You can’t put her on trial for fraud,” her lawyer, Marc Labelle, said in an interview. “It’s her money, her people.”

Labelle said a lieutenant governor is “to all ends the representative of her majesty.” He also referenced article 17 of Canada’s Interpretation Act, which states that “Her Majesty” is not bound or affected by enactments, unless explicitly stated.

In 2007, the Quebec and Canadian auditors-general reported on undocumented expenses and those Thibault made outside of the functions of her role during her decade in the position, which ended that year.

Thibault has always maintained her innocence, tried to justify her expenses and argued that, as the Queen’s representative in Quebec, she served the citizens well.

“It comes across as a fairly desperate act, to take a fairly significant concept and apply it to a wrong-doer,” said the University of Ottawa’s Philippe Lagassé, an expert on the constitutional monarchy in Canada.

“It would call into question the rule of law.”

Lagassé is of the view that the concept the monarch can do no wrong applies only to the Queen, and that precedent has made it such that those under her, from ministers to bureaucrats, are not immune.

“If this were allowed to stand it’d mean that ministers of the Crown might also be able to claim this,” Lagassé said. “All those who technically serve, from civil servants, members of armed forces, police, could potentially fall under this. That concept was thrown out long ago in British jurisprudence.”

Labelle disagreed. “She’s more than a bureaucrat. She’s the representative of the Queen.”

Thibault has been facing justice for several years. She was hauled in front of a Quebec parliamentary commission in 2008, when skeptical legislators grilled her on the expenses.

The preliminary inquiry lasted over a full year. A judge finally decided to send her to trial on the charges last May.

She’s accused of misspending public money on vacations, fishing trips, even transporting a golf cart to Florida for personal use. There was the 40th birthday celebration for one of her daughters, which cost $4,640, and the hotel room in Beaupré, Que., for a family member. “You must take into consideration,” Thibault argued, “that ours is a close family.”

There were the Christmas parties organized for her or volunteers, and the flowing alcohol — one bill came to $10,000. A tour of the Gaspé and the Îles-de-la-Madeleine cost $16,500.

For some scholars, her accountability as the Queen’s representative is unclear.

“This hasn’t really happened before in Canada,” said Bruce Hicks, a political scientist at Carleton University who studies royal prerogative and the monarchy.

“It’s an interesting case in that it does have a kernel of law behind it.”

Parliament has made it such that everyone under the governor general — including government departments and their ministers — can be sued.

“A question is whether the governor general can be sued,” Hicks said.

The fact that Parliament can subject the governor general to taxes — a 2012 budget provision, unchallenged by Governor General David Johnston — indicates the office holder might also be held responsible in criminal matters, he argued.

Hicks called the attempt at immunity “kind of absurd.”

“The idea that anybody is above the law is no longer acceptable for anyone in Canada.”

For other critics, it’s another example of how rules governing the Queen’s representatives are not transparent enough in Canada.

“As with almost everything that the governors general and lieutenants governor do in terms of powers and privileges, it’s unclear — because most of it isn’t written down anywhere,” said Duff Conacher, spokesperson for a new charity called Your Canada, Your Constitution, which seeks to educate Canadians on the constitution.

Even the Monarchist League of Canada doesn’t know what to think of this one. The League told The Canadian Press it doesn’t have a position on the matter, calling for a debate on the subject.

“We are swimming in rather troubled waters, in new waters,” said Étienne Boisvert, spokesperson for the group in Quebec.

Only a judge and jury can decide if Thibault is a criminal.

If it makes it that far, that is.

The matter will be heard on Aug. 23.

This Letter to the Editor was published in the Toronto Star and St. Catharines Standard.