Trudeau government leaves official languages office in legal limbo

• UPDATE: Government extends interim official languages commissioner

The office of Canada's official languages commissioner is in a state of legal limbo, with nobody officially authorized to make certain decisions or sign documents normally signed by the commissioner, CBC News has learned.

If it drags on, the situation could havemore serious consequences, such as affecting court cases involving the official languages commissioner's office.

"I think that this is an example of a bungled appointment process," said former official languages commissioner Graham Fraser. "I can only think that it reflects a lack of attention, lack of concern for the issue, for the role of agents of Parliament, for the question of official languages."

Donald Savoie, professor at the University of Moncton and an expert on public administration, described the situation as "bizarre" and said he can't recall a previous case of a federal government allowing an agent of Parliament's position to become vacant.

"This is serious. and this has got to be resolved in quick order."

• NDP calls for new committee to review appointments
• Madeleine Meilleur takes herself out of the running

The unusual situation that has left the official languages commissioner's position vacant since Saturday and the office unable to carry out some of its functions is the latest twist in the saga of the government's attempts to fill the vacancy left when Fraser's term expired.

On Dec. 17, the government appointed Ghislaine Saikaley as interim commissioner for six months while it conducted a search for a new official languages watchdog.

In May, Prime Minister Justin Trudeaunominated Madeleine Meilleur, a former Ontario Liberal cabinet minister for the position, but Meilleur ended up stepping aside on June 7, following a furor over the appointment of someone with a political background to a normally non-partisan position.

Meanwhile, Saikaley's nomination expired on June 17, leaving the position vacant.

Office with no legal authority

Unlike with most government bodies, the legal authority for the commissioner's office lies withthe commissioner not the institution itself. If the commissioner's position is vacant the office falls into a legal limbo known as "functus officio," where it does not have legal authority to act.

Officials within the official languages commissioner's office say nobody has had the legal authority to make certain decisions or sign certain papers since Monday morning. While they were being reassured by the government that the situation wouldn't last long, they were not given a firm date for the commissioner's position to be legally filled.

Privy Council officials said Tuesday afternoon they have not yet received an order-in-council to renew Saikaley's appointment or appoint anybody else to the official languages commissioner's position.

Pierre-Olivier Herbert, spokesperson for Heritage Minister MlanieJoly, would not say whether cabinet has moved to fill the vacancy, saying only that he would disclose the name of an interim commissioner once it was done in a few days.

Asked Tuesday about the official languages commissioner's office on her way out of a cabinet meeting, Joly downplayed the question.

"We will have an official languages commissioner and the operations of the commissioner's office are continuing," she said. "We will have very good news shortly."

Absent watchdog

Until then, what exactly the official language commissioner's office canor can't do is up in the air.

Fraser said there are a number of things that only the commissioner can do and a number of documents that only the commissioner signs.

"If there were legal cases being argued before the courts, those lawyers would not be able to intervene. It would be a sort of a down-tools situation, because they would no longer be operating on the formal authority of the commissioner of official languages."

"For the length of time it takes the government to either name a new commissioner or to extend the mandate of interim commissioner Ghislaine Saikaley, the office has no power and no authority."

Beyond that, Fraser said, it is hard to know the impact of the current situation.

"Would the office be able to formally receive complaints and launch investigations or is everything suspended. That, I just don't know."

NDP MP Franois Choquette said he asked Joly repeatedly during a committee hearing last week what she planned to do about the expiration ofSaikaley's appointment.

Not renewing Saikaley's interim appointment is "irresponsible, unacceptable and not understandable," he said.

"The commissioner of official languages is the watchdog of official languages and bilingualism and the official languages law. Right now, there is no watchdog."

Conservative MP John Brassard questioned what the current situation means for a complaint filed against Trudeau with theoffice for refusing to speak English at an event in Quebec. He also questioned why it is taking the government so long to make appointments, pointing out that several positions including the chief electoral officer, the ethics commissioner and the lobbying commissioner need to be named.

"What is happening internally that is causing them not to fill positions?"

Elizabeth Thompson can be reached at elizabeth.thompson@cbc.ca