Appointment of unilingual NB lieutenant governor violated charter, rules rule

Prime Minister Justin Trudeau’s appointment of a unilingual lieutenant governor in New Brunswick in 2019 violated language guarantees in the Charter of Rights and Freedoms, a Court of Queen’s Bench judge has ruled.

Chief Justice Tracey DeWare says the Charter protections of New Brunswick’s unique bilingual status mean that a lieutenant governor of this province must be bilingual.

Brenda Murphy is not.

DeWare stops short of calling the appointment unconstitutional and invalid, saying declaring the position vacant would create chaos in New Brunswick.

It would call into question all the laws Murphy has signed into law and cabinet appointments and other decisions made in his name.

“Such a situation would create a legislative and constitutional crisis within the province of New Brunswick that is not necessary to adequately assert the infringed language rights in question,” she wrote.

She continues that her decision should be “sufficient to ensure appropriate and prompt action by the government to rectify the situation”, leaving it to the federal government to decide the timing and “extent of such action”.

A spokesperson for Murphy said his office hasn’t had time to digest the decision and has no comment yet.

“This is a legal issue that is being handled at the federal level and questions should be directed there,” communications director Alex Robichaud said.

In Calgary, Deputy Premier Chrystia Freeland told reporters she was unaware of the decision.

DeWare’s decision is based on three articles of the charter that apply only in New Brunswick.

Subsection 16(2) states that English and French have equal status “in all institutions of the legislature and government of New Brunswick”, while subsection 16.1(2) requires the legislature and government to “to preserve and promote” the equality of French and English.

Section 20(2) guarantees the right of every New Brunswicker to communicate with or receive services from “any office of an institution of the legislature or government of New Brunswick” in English or French.

The challenge is not aimed at Murphy, according to the group

The Société acadienne du Nouveau-Brunswick launched the challenge, arguing that these articles apply to the post of lieutenant-governor.

The federal government responded that since the appointment is made by the Governor General on the advice of the Prime Minister, it is not reviewable by the courts.

But DeWare concluded that because the challenge raised constitutional issues, the court had a duty to consider the case.

President Alexandre Cédric Doucet said the association is not looking for Murphy to resign or be fired.

“Let’s be clear. This lawsuit was never against the Honorable Brenda Murphy. It was against the process.”

Alexandre Cédric Doucet, president of the Société acadienne du Nouveau-Brunswick, says the challenge was not to remove Murphy from his role, but to force the federal government to modify the linguistic criteria required for the appointment of lieutenant governors. (Radio-Canada)

He said the correct answer would be for the federal government to amend its legislation on bilingualism requirements in appointments to specify that future lieutenant governors of New Brunswick must be bilingual.

Decision likely to be appealed, experts say

Political scientist Stephanie Chouinard said while the decision won’t affect other provinces, similar Charter provisions that apply to the federal government could have implications for governors general.

“There is no doubt in my mind that this decision will be appealed,” she said.

Governor General Mary Simon speaks English and Inuktitut, but does not speak French.

DeWare’s decision calls the litigation “an inevitable intersection” of the executive, legislative and judicial branches of government and “an uncomfortable exercise” because of the complex jurisdictional issues.

While the language provisions of the Charter and statutes do not normally require individuals to be bilingual, DeWare points out that the lieutenant governor has a “particular and unique role.”

No one else can step into his role to perform his duties bilingually, according to the ruling.

“Simply stating that bilingualism requirements do not apply to a Lieutenant Governor because she, as an individual, cannot be considered an ‘institution’, is a gross simplification of a complex issue and does not ignores the uniqueness and constitutional quality of the role itself.”

University of New Brunswick law professor Kerri Froc called the decision an “unreasonable interpretation” of the charter and predicted it would not survive an appeal.

“It’s also a massive overstepping of the separation of powers,” she said in a tweet. “Like unprecedented. As in, it won’t hold.”