In Canada (Prime Minister) v. Société de l'Acadie du Nouveau-Brunswick, 2024 NBCA 70, a bench of Chief Justice J.C. Marc Richard and Justices Kathleen Quigg and Denise LeBlanc rejected arguments that the appointment of current Lieutenant Governor Brenda Murphy violated Charter language rights.
“Everyone agrees that the individual who is appointed Lieutenant Governor of New Brunswick should ideally be fluent in both official languages of the province. This decision does not reject this ideal,” the bench wrote, noting that the decision instead addressed whether the Charter required personal bilingualism of the person appointed to the position.
In August 2019, Jocelyne Roy-Vienneau, then lieutenant governor of New Brunswick, passed away while still in office.
Under s. 58 of the Constitution Act, lieutenant governors of provinces are appointed by the Governor General in Council based on the prime minister’s advice.
On Sept. 4, 2019, the Committee of the Privy Council recommended that the Governor General in Council issue an order in council, appointing Brenda Murphy, who is unilingual in English as the 32nd lieutenant governor of New Brunswick.
On Sept 5, 2019, the premier announced the appointment of Brenda Murphy as the next lieutenant governor of New Brunswick.
On Dec. 3, 2019, the respondent, the Société de l’Acadie du Nouveau-Brunswick (SANB), filed an application challenging the appointment of a unilingual individual to the office of the lieutenant governor, arguing that it violated constitutional guarantees respecting official languages that apply in New Brunswick.
In Acadian Society of New Brunswick v. Canada (Prime Minister), 2022 NBQB 85, an application judge held that pursuant to ss. 16(2), 16.1 and 20(2) of the Charter, the lieutenant governor of New Brunswick must be bilingual and capable of executing all tasks required of the role in both French and English.
The application judge found that the holder of the office of lieutenant governor of New Brunswick is herself or himself an “institution” and must be bilingual; otherwise, the rights guaranteed under ss. 16(2), 16.1 and 20(2) of the Charter are rendered meaningless.
The application judge did, however, find that the appointment did not violate s. 18(2) of the Charter, since the lieutenant governor is not responsible for drafting or interpreting the statutes, records or journals of the legislature in either official language.
Canada appealed the decision, arguing that the application judge erred in finding that the Constitution required the individual holding the office of lieutenant governor of New Brunswick to be bilingual.
Canada argued that there is nothing in ss. 16(2), 16.1, 18(2) and 20(2) of the Charter that requires the lieutenant governor of New Brunswick to be fluent in both official languages of the province.
Subsections 16(2) and 20(2) impose institutional language obligations on all institutions of the legislature and government of New Brunswick while s. 18(2) provides that the statutes, records and journals of the Legislative Assembly of New Brunswick shall be printed in English and French.
Subsection 20(2) grants members of the public in New Brunswick the right to communicate with any office of an institution of the legislature or government and the right to receive services from such offices in English or French.
With respect to ss. 16(2) and 20(2), Canada argued that the obligation to implement language rights is directed at institutions rather than individuals.
The SANB submitted that the lieutenant governor embodies both the executive authority and the legislative authority of the Crown as the representative of the head of state of New Brunswick.
The respondent submitted that the role of the lieutenant governor could clearly be distinguished from other state branches since the lieutenant governor exercises their prerogatives in an individual capacity.
The SANB further argued that the institutional nature of bilingualism also applies to the institution of the lieutenant governor and that the singularity of the institution implied that only the holder of the office of lieutenant governor can guarantee the bilingualism of the institution that they personify.
The appeal court rejected this argument, noting that even though the institution of the lieutenant governor cannot be completely separated from the individual who holds the office, a true requirement of personal bilingualism that applies to the lieutenant governor needed to be found in the wording of Charter provisions related to language rights.
With respect to s. 20(2), Canada argued that the use of the word “office” in the provision was key as it indicated that the public is entitled to use English or French in communicating with the office of an institution of the legislature or government to receive service.
Canada submitted that the meaning of the provision could not be interpreted as requiring that a particular individual be bilingual.
The court accepted this argument, noting that there is no right to communicate with the head of the institution or with the individual who embodies it or a right to obtain any service from the same.
The bench held that the appointment did not therefore violate s. 20(2).
The court noted that s. 16(2) establishes equality of status and equal rights and privileges with respect to the use of English and French in all institutions of the legislature and government of New Brunswick.
“The use of both official languages ‘in’ the institution that is the Lieutenant Governor does not depend on the personal language skills of the Lieutenant Governor,” the bench added.
The court also noted that the provision does not stipulate that both languages are to be used equally.
The respondent also argued that the Lieutenant Governor has a duty to interact with the public on a regular basis in both official languages and that since a unilingual lieutenant governor would not be able to fulfill this duty, such an appointment is a violation of s. 16.1.
Subsection 16.1(1) of the Constitution Act concerns the equality of status and the equal rights and privileges of the French linguistic community and the English linguistic community in New Brunswick.
Subsection 16.1(2) provides that the legislature and government of New Brunswick are responsible for preserving and promoting the status, rights and privileges set out in s. 16.1(1).
The respondent argued that the appointment of a unilingual Anglophone head of state introduces a distinction that is inevitably discriminatory, goes against the substantive equality of the two linguistic communities, and is contrary to s. 16.1(1).
The appeal court cited the report of the New Brunswick Commission on Canadian Federalism, established by the New Brunswick government prior to constitutional negotiations, which supported the principle of equality of the two linguistic communities by insisting on the need for distinct institutions.
“At the heart of this duality were the educational institutions and the community centres. However, the Commission specifically excluded duality within the apparatus of government from this proposition,” the court noted.
The bench noted that the commission's report preceded constitutional negotiations and debates that led to the enactment of s. 16.1 of the Charter.
The court held that it was, therefore, obvious that the provision was never meant to impose linguistic duality in state institutions.
The respondent had also cross-appealed the lower court decision, arguing that the application judge erred in failing to find that the lieutenant governor of New Brunswick must be bilingual pursuant to s. 18(2) of the Charter.
The SANB argued that since only the lieutenant governor has the power to provide assent to legislation, the lieutenant governor must be bilingual.
The appeal court noted that s. 18(2) guarantees that both Anglophones and Francophones in New Brunswick have equal access to the statutes of their legislature.
“The wording of s. 18(2) concerns neither the members of the legislature nor the Lieutenant Governor himself or herself. It focuses only on the documents of the legislature,” the bench wrote.
The court held that the linguistic capabilities of the lieutenant governor had no impact on the realization of the purpose of s. 18(2) since they did not limit in any way the access that members of either linguistic community had to enactments of the legislature.
The court set aside the application judge’s decision and dismissed the cross-appeal by the respondent.
The SANB intends to appeal the decision, according to a release.
“Acadians of New Brunswick cannot accept that the position nomination process does not respect the linguistic regime of the province. This is why we will use all legal recourses at our disposal to defend the rights of the Acadian and francophone community of New Brunswick,” said Nicole Arseneau-Sluyter, interim president of the SANB.
Counsel for the parties were not immediately available for comment.
Counsel for Canada were Bernard Letarte and Nadine Dupuis of Justice Canada and Michaël Fortier.
Counsel for the respondent were Gabriel Poliquin and Érik Labelle Eastaugh.
If you have any information, story ideas, or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Karunjit Singh at karunjit.singh@lexisnexis.ca or 905-415-5859.