The federal government still maintains that the appointment of a unilingual English-speaking lieutenant-governor in New Brunswick — the only officially bilingual province in Canada — in 2019 was not unconstitutional.
Ottawa has decided to appeal last month’s decision by Chief Justice of the Court of Queen’s Bench, Tracey K. DeWare, who ruled that the appointment of Brenda Murphy, a unilingual Anglophone, did not respect the Constitution .
It was the Société de l’Acadie du Nouveau-Brunswick which, in 2019, had applied to the court to have the appointment of Lieutenant-Governor of New Brunswick annulled, since it did not control, at the time of its appointment. , French.
“The Lieutenant Governor of New Brunswick must be bilingual and able to perform all the duties required of his role in English and French,” Judge DeWare wrote in her judgment dated April 14.
However, in its appeal, obtained by The Canadian Press, Ottawa maintains that the power to appoint the Lieutenant-Governor of New Brunswick contains “no bilingualism requirement” and that neither the Constitution nor the Canadian Charter of Rights and freedoms cannot subject it to such a requirement.
“The power to appoint Lieutenant Governors by the Governor General in Council (…) leaves Her Majesty complete discretion as to who she will appoint.
“This power is not subject to any condition of bilingualism, nor to any other,” reads the federal government’s motion filed Friday at the New Brunswick Court of Appeal.
By affirming that the province’s lieutenant-governor must be bilingual, Justice DeWare imposes conditions on the appointment of the lieutenant-governor of New Brunswick, which Ottawa considers to be an amendment to the Constitution that requires the approval of all provinces and the federal government.
The person and the institution
The Trudeau government also defends that the Canadian Charter of Rights and Freedoms requires the bilingualism of institutions rather than individuals, which means that the appointment of Ms. Murphy, who took office in September 2019, was not unconstitutional. .
“While the institution of the Lieutenant-Governor of New Brunswick is unique in that it is personified by a single individual who plays a unique role at the executive and legislative levels, the fact remains that we must distinguish the institution of the individual. An individual is not an institution,” insists the federal government.
Judge DeWare, however, felt that the case of the lieutenant governor in Canada’s only bilingual province is special.
“The Charter does not require that all government employees, ministers, judges or provincial and federal premiers be bilingual. However, these people can all be replaced by another person for the performance of their duties, unlike a lieutenant-governor,” explained the judge.
Despite this, Ottawa considers that “the Lieutenant-Governor of New Brunswick can very well promote the status, rights and privileges of the members of the two linguistic communities through his commitment, his actions, his written communications, the initiatives he promotes and the words he speaks, all while being supported by the staff of his office, some of whom are bilingual or French-speaking.”
In her ruling, Judge DeWare did not seek to have Brenda Murphy’s appointment overturned, as a constitutional and legislative crisis could ensue, including undermining statutes, executive orders, and appointments that have been lawfully enacted. .
The Court of Appeal will therefore have to decide whether or not Judge DeWare was right to declare unconstitutional the appointment of a unilingual English-speaking person as Lieutenant-Governor of New Brunswick.
In response, the Bloc Québécois indicated that “Justin Trudeau and the Liberals are stubborn in wanting to appoint personalities who do not speak French to the positions of Lieutenant Governor and Governor General despite the opinion of the Court.
“Quebecers, like the Francophone and Acadian communities, must take note of this decision, emblematic of the Liberal action vis-à-vis the French language,” wrote the party’s spokesperson for Official Languages, Mario Beaulieu. .