Canada Supreme Court asks if Crown representatives must be bilingual

MONTREAL (CN) — French is a big deal in New Brunswick, the only officially bilingual province in Canada.

So when former Prime Minister Justin Trudeau appointed Brenda Louise Murphy, an anglophone, as Lieutenant Governor in 2019, many Acadians were not pleased — a community descended from French settlers who arrived in the early 17th century in New France’s maritime colony, then known as Acadia.

The Société de l’Acadie du Nouveau-Brunswick, a major francophone advocacy organization, is now asking the Supreme Court of Canada to overturn Murphy’s appointment. Each Canadian province has a Lieutenant Governor, who represents the King at the provincial level. They are appointed by the Governor General on the advice of the Prime Minister.

The Acadian Society says that the appointment violated several sections of the Canadian Charter of Rights and Freedoms, including section 16(2), which states that English and French “have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.”

From the very opening of the Thursday hearing, Chief Justice Richard Wagner set the tone.

“It’s a bit ironic that the only officially bilingual province in Canada is headed by a unilingual person,” he said.

The Acadian Society, represented by Gabriel Poliquin, went further, saying that “this irony is experienced as a sign of disrespect.”

The attorney emphasized the importance of situating the Charter’s provisions within the specific linguistic context of New Brunswick.

He recalled that after the Acadians went through Le Grand Dérangement — what he called “an euphemism for ethnic cleansing” — many Acadian families returned to New Brunswick, but the Crown acted as if they didn’t exist. There was no recognition of their presence; invisibility was deliberate, part of an assimilationist policy.

During Le Grand Dérangement in the 18th century, while France and Britain fought for North American control, many Acadians were forcibly removed from their lands, their villages destroyed and families separated. Today, Acadians remain a linguistic minority in New Brunswick but form a vibrant francophone community in New Brunswick with their own institutions, festivals and even their own flag.

During the hearing, the defense argued that the linguistic obligations arising from the Charter are institutional, not personal.

After the initial filing in 2019 in the Court of Queen’s Bench of New Brunswick, Justice Tracey K. DeWare of the Court of King’s Bench ruled in 2022 that a Lieutenant Governor of New Brunswick must be able to perform all duties in both English and French

But the New Brunswick Court of Appeal held institutional bilingualism should not be confused with individual bilingualism, and determined Murphy’s appointment did not violate the Charter.

Echoing that ruling, the federal government argued the Lieutenant Governor herself can be unilingual because it is the institution — the Office of the Lieutenant Governor — that must be bilingual. Functions can be delegated to others within the institution who speak French, it argued.

But Justice Suzanne Côté responded to Ottawa’s representative that some functions of the Lieutenant Governor cannot be delegated, such as dissolving the legislature.

“Suppose you have an anglophone unilingual Lieutenant Governor, and the Premier of New Brunswick is unilingual francophone,” Côté asked. “If the Premier goes to the Lieutenant Governor to request the dissolution of the legislature, how will they communicate?”

Côté also highlighted that Royal Assent cannot be delegated. Lieutenant Governors grant Royal Assent to provincial laws, allowing them to come into force, and they also open and dissolve the provincial legislature.

She reminded the court that it must take place in both languages for a law to come into force. This means that a unilingual Lieutenant Governor would be signing a law that they do not understand, she said.

While the Supreme Court seemed inclined to declare Murphy’s nomination unconstitutional, some justices expressed concern about the reparations proposed by the Acadian Society.

Since Murphy’s term, New Brunswick now has a bilingual Lieutenant Governor, Louise Imbeault, ensuring that the office can carry out its duties in both English and French. Nevertheless, the Acadian Society is still asking the court that all laws which received Royal Assent from Murphy be individually re-enacted.

Several judges noted that such a measure could resemble the legal chaos of 1985, when the Supreme Court ruled that all Manitoba laws adopted in English only were unconstitutional, as they violated the Manitoba Act of 1870, which guaranteed the use of both English and French in legislation and courts.

Isabel Lavoie Daigle, representative of New Brunswick’s Attorney General, who appeared as an intervenor, warned that such a decision “could significantly disrupt the established constitutional order and threaten the rule of law throughout the province of New Brunswick.”

Justice Mahmud Jamal raised questions about the broader implications of declaring that Lieutenant Governors must be bilingual. For example, all current Supreme Court judges are bilingual, but this is not explicitly mandated by the Constitution.

“It is very important that judges are bilingual to understand the arguments,” Jamal said, “but is it a constitutional duty? Are all the decisions of unilingual judges invalid?”