Supreme Court case over unilingual N.B. lieutenant-governor could have broader implications

Legal experts say a pending Supreme Court of Canada case about whether New Brunswick's lieutenant-governor must be bilingual could have much broader implications and be precedent-setting.

These could include bilingualism requirements for other high-ranking positions in the country, including elected ones, and constraints on the powers of the Governor General and others in making appointments, according to two law professors.

The country's top court announced Thursday that it will hear an appeal filed by the Acadian Society of New Brunswick over the 2019 federal appointment of former lieutenant-governor Brenda Murphy.

The Supreme Court does not give reasons when it accepts applicants who are seeking leave to appeal decisions made by lower courts.

But Michel Doucet, a professor emeritus of law at the University of Moncton and an expert in linguistic rights, notes the top court only agrees to hear issues it deems of national importance.

"So it is certainly a big step in this matter, to have the the Supreme Court of Canada finally decide the issue," he said.

Only officially bilingual province

The Acadian Society contends New Brunswick's lieutenant-governor is required by the Constitution to be bilingual.

Three sections of the Charter of Rights and Freedoms apply only to New Brunswick, Canada's only officially bilingual province. 

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.

The Acadian Society won its case in 2022 at the superior trial court for the province. Court of King's Bench Chief Justice Tracey DeWare ruled that the Charter imposes a bilingualism requirement not just on the institution but on the person holding the position of lieutenant-governor.

But the New Brunswick Court of Appeal overruled that decision last May.

It ruled that while people appointed to the position should ideally be fluent in the province's two official languages, the Charter does not impose such a requirement.

Could affect premier, Governor General

According to Doucet, the Supreme Court of Canada has historically approached language rights by saying it's not the individual who has the obligation to provide the bilingual service, it's the institution.

"So it is basically a very important precedent that the Supreme Court will be deciding in this case."

It could have implications for other "persons who are holding positions which are important," said Doucet, citing the premier as an example.

"It might have an impact on whether those positions are also in the same category as the lieutenant-governor and the person holding that position needs to be able to communicate with the citizens in both official languages," he said.

"It could have also an implication on the position of the Governor General of Canada, because we know that in her case also she is not fluently bilingual."

Asked to clarify whether he believes a decision requiring full bilingualism could affect who political parties can choose to be leaders, Doucet said the parties could still choose who they want.

"But if they do decide to choose somebody that's unilingual French or unilingual English … that person must assume the consequences of his unilingualism," and have somebody who is able to address people in the official language of their choice with them when making a public announcement.

Powers of appointment at play

Kerri Froc, an associate law professor at the University of New Brunswick in Fredericton, and the Arscott Chair at the College of Law at the University of Saskatchewan, agrees the fact that the Supreme Court has agreed to hear the case indicates it has implications "well beyond New Brunswick."

"That's why I'm thinking that it'll be more about whether or not the Charter can put guardrails on the powers of appointment," she said.

"To what extent not only does the prime minister have to consider things like linguistic rights, but what about other rights in the Charter?

"What if, for instance, we look at the history of lieutenant-governors in the province and they're primarily male, or they're all white? To what extent do equality rights come into the appointment process?"

Lieutenant-governors are appointed by the Governor General of Canada, on recommendation from the prime minister,  and serve terms of at least five years.

The federal government has argued that Article 58 of the Constitution Act of 1867, which outlines appointment of lieutenant-governors, does not include a condition of bilingualism or any other constraints on the power of the Governor General.

"The question is, should we have judicial constraints on our elected government in terms of its powers of appointment? And that's something that should concern all of us," said Froc.

"Do we want the judges to be reviewing these things, or do we want essentially the electorate to be the final arbiters as to whether or not governments are making good appointments?"

A date for the hearing has not yet been set.

Last month, former Radio-Canada journalist and executive Louise Imbeault was sworn in as the new lieutenant-governor of New Brunswick, replacing Murphy.