N.B. Appeal Court says lieutenant-governor is not required to be bilingual

New Brunswick's lieutenant-governor is not required by the Constitution to be bilingual, the province's top court has ruled.

Everyone agrees that whoever is appointed to the position "should ideally be fluent in both official languages of the province," the New Brunswick Court of Appeal says in a decision issued Thursday morning.

But "our analysis brings us to the conclusion that the Charter does not, in fact, impose such a requirement."

The decision overturns a 2022 ruling by Court of King's Bench Chief Justice Tracey DeWare that the Charter of Rights and Freedoms imposes a bilingualism requirement not just on the institution but on the person holding the position of lieutenant-governor.

A spokersperson says Lt.-Gov. Brenda Murphy 'acknowledges and values the importance of official bilingualism in shaping New Brunswick's distinct character.' (Edwin Hunter/CBC News)

Philippe Lagassé, an expert on the parliamentary system and the monarchy at Carleton University, said DeWare's ruling two years ago "was kind of stretching the concept way too far," and he agreed with the appeal court.

"The attempt to tie the bilingualism of the institution to the individual office-holder was always extremely tenuous," he said.

The Acadian Society of New Brunswick, which launched the case, said it will apply to appeal Thursday's ruling to the Supreme Court of Canada.

"I didn't expect that decision and I think it's important in 2024 that we pursue [it], and we go all the way to the Supreme Court of Canada to have, finally, a decision that will respect our rights," said acting society president Nicole Arseneau-Stuyler.

University of New Brunswick law professor Kerri Froc said that will be difficult because the appeal court's decision is "eminently reasonable."

Lieutenant-governor issues statement

Prime Minister Justin Trudeau appointed Brenda Murphy as lieutenant-governor in 2019.

While she has made attempts to learn some French and speak it, she has acknowledged she is not bilingual.

"The Lieutenant Governor acknowledges and values the importance of official bilingualism in shaping New Brunswick's distinct character," her spokesperson, Alex Robichaud, said in a statement Thursday in response to the ruling.

"Throughout her mandate, the Lieutenant Governor has developed relationships with New Brunswickers of all walks of life in both official languages and is committed to continuing the promotion of the French language and the Acadian culture."

The Acadian Society argued that Trudeau's appointment was subject to bilingualism requirements in the Charter.

Court of King's Bench Chief Justice Tracey DeWare with New Brunswick Court of Appeal Chief Justice Marc Richard. The photo was taken at her swearing-in ceremony. (Submitted by Tracey DeWare)

DeWare's 2022 ruling agreed, though she did not declare the appointment invalid because that would have called into question all the laws Murphy has signed and the appointments and other cabinet decisions made in her name.

DeWare wrote in 2022 that it was "overly simplistic" to argue Charter language provisions don't apply to the individual holding the position of lieutenant-governor, given "the extremely unique character and constitutional quality of the role itself."

But the appeal court suggests DeWare inserted her own opinion when she concluded that, without properly examining the wording of the Charter.

DeWare needed to conduct "a thorough analysis" and find "a true requirement of personal bilingualism" in the wording of the Constitution, the decision says.

"Her opinion on the nature of Lieutenant Governor does not necessarily lead to a finding that these provisions have been violated," it says.

The Charter gives people in New Brunswick the right to communicate with any government office or institution, and to receive government services, in either English or French.

In another section, the court says DeWare reached her decision "without closely examining the exact wording of the relevant provisions and without taking that wording into account in her interpretation."

DeWare said in her 2022 decision that the lieutenant-governor needed to be bilingual because she participates in social and community functions, where she interacts with people.

But the appeal court says the Charter doesn't specify a right to "speak" to the lieutenant-governor herself in English or French, only to communicate with her office.

"Such interactions with the public are occasional and, although desirable and beneficial, they do not fall within the exercise of a constitutional right."

The appeal court said its decision does not call into question the fundamental principle established by the Supreme Court of Canada that language rights must be "interpreted liberally."