Bilingualism required? The New Brunswick Court of Queen’s Bench considers the appointment of a unilingual English speaking Lieutenant-Governor

On April 14, 2022, the Chief Justice of the New Brunswick Court of Queen’s Bench (the “Court”), Tracey K. DeWare, answered an important language rights question in Acadian Society of New Brunswick v. The Right Honourable Prime Minister of Canada:1 must the person who holds the office of Lieutenant-Governor of New Brunswick be bilingual?

 

Background

On September 4, 2019, on the advice of the Prime Minister, the Privy Council Office recommended that the Governor General of Canada appoint Brenda Louise Murphy, a unilingual English speaker, as Lieutenant-Governor of New Brunswick. In accordance with constitutional convention in Canada, the Governor General complied with the recommendation and signed the Order in Council appointing Ms. Murphy.

The Acadian Society of New Brunswick then brought an application seeking an order of the Court declaring that the Prime Minister’s recommendation regarding the appointment of Ms. Murphy was unconstitutional in that it violated sections 16(2), 16.1(2), 18(2), and 20(2) of the Canadian Charter of Rights and Freedoms (the “Charter”) and was not justified under its section 1.

New Brunswick is the only province in Canada where such constitutional guarantees protect the equality of both the French and the English linguistic communities.

 

Justiciability of the issue 

In her judgment Chief Justice DeWare agreed to consider whether the Prime Minister’s advice that led to the appointment of Lieutenant-Governor Murphy was compliant with the language rights conferred by the Charter on the people of New Brunswick.

After reviewing the Canadian case law on justiciability, the Court found that it now appears settled law that all government action, including the exercise of prerogative powers, is reviewable by the courts when violations of Charter rights are alleged.2

 

Substantive equality requires that New Brunswickers be able to interact with their head of state in the language of their choice

The Court began its analysis by noting that Canadian case law clearly establishes that the equality of the two official languages enshrined in the Charter creates obligations for the institutions of government and the legislature rather than for the individuals who work in them.3

The Court however held that it would be simplistic to disregard the provisions of the Charter at issue on the ground that the office of Lieutenant-Governor is held by an individual.4 On that point, it noted the uniqueness of the office, whose holder acts as head of state of New Brunswick. In the circumstances, the Court found that it was difficult to reconcile the appointment of a unilingual person with a purposive interpretation of the provisions of the Charter at issue or with the spirit of those provisions.5 In fact, according to Chief Justice DeWare, substantive equality requires that the members of both constitutionally recognized linguistic communities be able to interact directly with their head of state in the official language of their choice.6

Chief Justice DeWare did not distinguish between recommending the appointment of a unilingual French speaking person and recommending the appointment of a unilingual English speaking person as Lieutenant-Governor:

[56] The current application before the Court involves a unilingual anglophone Lieutenant-Governor. It is perhaps important to acknowledge that there has never been a unilingual francophone Lieutenant-Governor in the Province of New Brunswick. The legal arguments before the Court would be the same if the Lieutenant-Governor was a unilingual francophone; however, such a situation has never arisen in the Province of New Brunswick. A frank acknowledgment of this reality is helpful to the present analysis.

The Court therefore concluded that the Prime Minister’s recommendation to appoint Ms. Murphy, a unilingual anglophone, as Lieutenant-Governor of New Brunswick violated sections 16(2), 16.1(2), and 20(2) of the Charter. The Court added that section 1 of the Charter was not relevant in the circumstances, especially since it was not argued by either of the respondents in the case, i.e., the Prime Minister and the Governor General.7

 

Remedy left to the federal executive branch

Concerned about the legal instability that might arise if the Court invalidated the Order in Council appointing Ms. Murphy as Lieutenant-Governor, Chief Justice DeWare refused to declare the Order in Council invalid and instead disposed of the case as follows:

[76] For all these reasons, the court orders as follows:

(i) Pursuant to sections 16 (2), 16.1 (2) and 20 (2) of the Canadian Charter of Rights and Freedoms a Lieutenant-Governor in the Province of New Brunswick must be bilingual and capable of executing all tasks required of the Role of Lieutenant-Governor in both the English and the French Languages; …

The Court thereby left it to the federal executive branch to take “appropriate and prompt action … to rectify the situation.”8 The federal government has recently announced its intention to appeal the decision.9

 

Conclusion 

If this decision is confirmed on appeal, it could have repercussions both in New Brunswick and at the federal level. We would note that the current Governor General, Her Excellency the Right Honourable Mary May Simon, is not fluent in French. A bill to require that the holder of the office of Governor General be bilingual is currently before the Senate.10 Clearly, this is not the last we will hear about the bilingualism of the Queen’s representatives in Canada.

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1 2022 NBQB 85.
2 Ibid., paras. 29-33.
3 Ibid., para. 42.
4 Ibid., para. 54.
5 Ibid., para. 53.
6 Ibid., para. 62.
7 Ibid., paras. 63-64.
8 Ibid., para. 75.
9 See, for example: https://ici.radio-canada.ca/nouvelle/1883626/lieutenant-gouverneur-jugement-federal-appel-constitution.
10 See S-220 (44-1) – LEGISinfo – Parliament of Canada.

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