Ottawa appeals court ruling on New Brunswick’s bilingual lieutenant-governor

The federal government is appealing a court ruling that New Brunswick’s lieutenant-governor must be bilingual.

Ottawa filed the application with the New Brunswick Court of Appeal on Friday, asking the court to overturn an April decision by Court of Queen’s Bench Chief Justice Tracey DeWare.

DeWare’s ruling said New Brunswick’s unique status as a bilingual province and the protections of that status in the Constitution require anyone holding the position to be bilingual.

While the language provisions of the Charter of Rights and Freedoms and the law do not normally require individuals to be bilingual, DeWare said Brenda Murphy fills a “particular and unique role.”

“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 oversimplification of a complex issue and does not ignores the uniqueness and constitutional quality of the role itself,” she wrote.

But the federal filing indicates that DeWare made several legal errors in its decision:

  • He argues that the Constitution Act, 1867, which provides for the appointment of provincial lieutenant governors, does not require that the position in New Brunswick be bilingual.
  • He says that the language protections for New Brunswick in the Charter apply to institutions, not individuals, “and the institution of the Lieutenant Governor of New Brunswick is no exception.”
  • He argues that even though Prime Minister Justin Trudeau recommended the appointment to the Governor General, the Governor General was legally responsible for the appointment, meaning it cannot be reviewed by the courts.

There is no court date yet.

DeWare’s decision did not overturn Brenda Murphy’s 2019 nomination because, the judge wrote, it would create legal chaos considering all the laws and nominations Murphy has signed into law since then.

After the April ruling, Trudeau said his government would “review this important judgment very, very carefully and ensure that we comply with it and move in the right direction.”