Appointment of unilingual N.B. lieutenant-governor violated charter, judge rules

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

Chief Justice Tracey DeWaresays the charter's protections of New Brunswick's unique bilingual status means that a lieutenant-governor in this province must be bilingual.

Brenda Murphy is not.

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

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

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"Such a situation would create a legislative and constitutional crisis within the Province of New Brunswick which is not necessary to adequately vindicate the infringed language rights in question," she writes.

She continues that her ruling should be "sufficient to ensure appropriate and prompt action on behalf of the government to rectify the situation," leaving it up to the federal government to decide on the timing and "the extent of that action."

A spokesperson for Murphy said her office had not had time to digest the decision and had no comment yet.

"This is a legal matter being dealt with at the federal level and questions should be directed there," said director of communications Alex Robichaud.

In Calgary, Deputy Prime Minister Chrystia Freeland told reporters she was not aware of the decision.

DeWare's ruling is based on three sections of the charter that apply only to New Brunswick.

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Section 16(2) declares that English and French have equal status "in all institutions of the legislature and government of New Brunswick," while Section 16.1(2) requires the legislature and government to "preserve and promote" the equality of English and French.

Section 20(2) guarantees the right of any 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.

Challenge not aimed at Murphy, group says

The Acadian Society of New Brunswick launched the challenge, arguing that those sections apply to the lieutenant-governor's position.

The federal government responded that because the appointment is made by the Governor General on the advice of the prime minister, it's not reviewable by courts.

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

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

"Let's be clear. This lawsuit has never been against the Honourable Brenda Murphy. It was against the process."

He said the right response would be for the federal government to amend its legislation on bilingualism requirements in appointments to make clear future lieutenant-governors in New Brunswick must be bilingual.

Ruling will likely be appealed, experts say

Political scientist Stephanie Chouinard saidwhile the ruling won't affect other provinces, similar charter provisions that apply to the federal government could have implications for Governors General.

"There's no doubt in my mind that this decision will be appealed," she said.

Gov. Gen. Mary Simon speaks English and Inuktitut but does not speak French.

DeWare's ruling calls the litigation "an unavoidable intersection" of the executive, legislative and judicial branches of government and "an uncomfortable exercise" because of the complex jurisdictional questions.

While language provisions of the charter and the laws don't normally require individuals to be bilingual, DeWare points out that the lieutenant-governor occupies a "peculiar and unique role."

No one else can step into her role to fulfil her functions bilingually, the ruling says.

"To simply argue that the requirements of bilingualism do not extend to a Lieutenant-Governor because she, as an individual, cannot be considered an 'institution' is a gross oversimplification of a complex question and fails to account for the unique character and constitutional quality of the role itself."

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

"This is also a massive overstep on the separation of powers," she said in a tweet."As in unprecedented.As in, it will not stand."