Ottawa Court of Appeals Decision 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 Appeals on Friday, asking the court to overturn an April decision by the Supreme Court of Queen’s Court Justice Tracey DeWare.

DeWare’s decision said that New Brunswick’s unique status as a bilingual province and the protections of that status in the Constitution require that whoever holds office be bilingual.

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

“Simply to argue that the requirements of bilingualism do not extend to a Lieutenant Governor because she, as an individual, cannot be considered an ‘institution’ is an oversimplification of a complex issue and fails to take into account the unique character and constitutional quality of the role itself,” he wrote.

But the federal filing says that DeWare made several legal errors in its ruling:

  • He argues that the Constitution Act of 1867 providing for the appointment of provincial lieutenant governors does not require the New Brunswick post to be bilingual.
  • It 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 while Prime Minister Justin Trudeau recommended the appointment to the Governor General, the Governor General was legally responsible for the appointment and that means it cannot be reviewed by the courts.

There is no date yet for an appellate court hearing.

DeWare’s ruling did not nullify Brenda Murphy’s 2019 appointment because, the judge wrote, that would create legal chaos given all the laws and appointments Murphy has since signed.

After the April ruling, Trudeau said his government would “take a very, very long look at this important trial and make sure we align with it and move forward in the right way.”

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