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In the Acadian Society of New Brunswick v The Right Honorable Prime Minister of Canada<\/em>, the Supreme Court of Canada (\u201cSCC\u201d) will decide whether the Lieutenant-Governor of New Brunswick must be bilingual [41398<\/a>].\u00a0 Overturning the decision by the Court of Queen\u2019s Bench of New Brunswick (\u201cNBQB\u201d), the Court of Appeal of New Brunswick (\u201cNBCA\u201d) ruled in the Right Honourable Prime Minister of Canada et al v. La Soci\u00e9t\u00e9 de l\u2019Acadie du Nouveau-Brunswick<\/em> 2024 NBCA 70<\/a> (\u201cSANB<\/em>\u201d ) that the appointment did not contravene the Charter<\/em>‘s language provisions. While the court acknowledged the importance of bilingualism in New Brunswick, it concluded that the Constitution Act, 1867<\/em> does not explicitly mandate that the Lieutenant Governor be bilingual.<\/p>\n Facts<\/strong><\/p>\n In 2019, the Honorable Jocelyn Roy-Vinneau, Lieutenant-Governor for New Brunswick, passed away while in office (SANB<\/em>, para 7). On the advice of Prime Minister Trudeau, the office of the Privy Council recommended the Governor General appoint Brenda Louise Murphy as Roy-Vinneau\u2019s replacement (SANB<\/em>, para 7). Ms. Murphy, who was appointed in September 2019, was not bilingual when she took office (SANB<\/em>, para 8). Despite Lieutenant-Governor Murphy\u2019s efforts to improve her French, she remains not bilingual.<\/p>\n There is no mandatory criterion set out in the Constitution Act, 1867, <\/em>30 & 31 Vict<\/a> c 3, which must be considered in selecting a Lieutenant-Governor \u2014 the Prime Minister\u2019s recommendation is solely based on political and social considerations (Acadian Society of New Brunswick v Right Honourable Prime Minister of Canada<\/em>, 2022 NBQB 85<\/a>, para 10 [\u201cSANB<\/em> Trial\u201d]). Although the Governor General executes the Order in Council that officially appoints the Lieutenant-Governor, it is premised on the Prime Minister\u2019s recommendation.<\/p>\n The Soci\u00e9t\u00e9 de l\u2019Acadie du Nouveau-Brunswick (\u201cthe Soci\u00e9t\u00e9\u201d) is an advocacy group dedicated to representing Acadian and Francophone interests in New Brunswick. Acadians<\/a> are an ethnic group of francophone Canadians who are descended from French colonials who settled in the colony of Acadia in the 17th and 18th centuries (The Canadian Encyclopedia). Today, they live primarily in the maritime provinces, including New Brunswick. The Soci\u00e9t\u00e9 brought an application to the NBQB seeking an order that the Prime Minister\u2019s recommendation for appointing Brenda Louise Murphy was unconstitutional in that it violated sections 16(2)<\/a>, 16.1(2)<\/a>, 18(2)<\/a>, and 20(2)<\/a> of the Canadian Charter of Rights and Freedoms <\/em><\/a>(Charter<\/em>) (SANB<\/em>,\u00a0 para 8).<\/p>\n Issues<\/strong><\/p>\n At issue before the NBCA were:<\/p>\n Judicial History<\/strong><\/p>\n At trial, the NBQB found that the Charter<\/em> had been violated based on the provisions brought forward. Much of the analysis considered whether the role of the Lieutenant-Governor engenders a requirement of bilingualism for the office-holder (SANB <\/em>Trial, para 42).<\/p>\n The NBQB stated that the role of Lieutenant-Governor is unique, and the unilingual aspect of the role is more difficult to mitigate compared to other branches of government (SANB<\/em> Trial, para 54). While the NBQB acknowledged that the bilingual obligations of the Charter<\/em> are institutional, not personal obligations, the court acknowledged that there is only one head of state and only being able to speak one official language does not represent equality of the linguistic communities (SANB<\/em> Trial, paras 55, 58-59).<\/p>\n Ultimately, the court stated that telling francophone New Brunswickers to accept a unilingual Lieutenant-Governor because they are not an institution overlooks the importance of the role and \u201cfl[ies] in the face\u201d of the constitutional protections (SANB<\/em> Trial, para 61).<\/p>\n Decision<\/strong><\/p>\n In SANB<\/em>, after dealing with the preliminary issue of the justiciability of the Prime Minister\u2019s recommendation, the NBCA found that the appointment of a unilingual Lieutenant-Governor was constitutional (SANB<\/em>, paras 18-20). The NBCA emphasized that while the Charter<\/em>‘s guarantees of linguistic equality apply to institutions, but this does not guarantee a right to communicate with the head of the institution, therefore not violating Charter<\/em> rights (SANB<\/em>, para 95). While the NBCA acknowledged the importance of bilingualism in New Brunswick, it concluded, through analysis of the Charter<\/em> provisions, that there is no mandate that the Lieutenant Governor be bilingual (SANB<\/em>, paras 145-149). Therefore, appointing a unilingual anglophone did not breach constitutional obligations.<\/p>\n Abrogation or Revocation of the Power Conferred by Section 58<\/strong><\/em><\/p>\n Canada argued that the wording of section 58<\/a> in the Constitution Act, 1867<\/em> does not impose a bilingualism requirement (SANB<\/em>, para 22). Section 58 grants power to the Governor General to appoint provincial Lieutenant-Generals by providing \u201can Officer, styled the Lieutenant Governor, appointed by the Governor General in Council\u201d (SANB<\/em>, para 21). The NBCA relied on Reference re Bill 30, An Act to Amend the Education Act<\/em>, [1987] 1 SCR 1148<\/a>, where the SCC stated that Charter<\/em> drafters intended to constrain the exercise of legislative powers conferred by the Constitution Act, 1867<\/em> when that exercise of power impacts the rights guaranteed in the Charter<\/em> (SANB<\/em>, para 38). Based on this, the NBCA reasoned that if the Charter<\/em> can constrain the scope of federal powers under the Constitution Act, 1867<\/em>, the Charter<\/em> can also restrict the exercise of legislative powers under the Constitution Act, 1867<\/em>. This reasoning led the NBCA to determine that if bilingualism of the New Brunswick Lieutenant-Governor to be required under the Charter<\/em>, this requirement would at most restrict the power of appointment under section 58 (SANB<\/em>, para 38).<\/p>\n The Lieutenant Governor of New Brunswick: the Institution and the Office Holder<\/strong><\/em><\/p>\n Much of the decision at the NBQB focused on whether the Lieutenant-Governor is an institution as referred to in the Constitution Act, 1867<\/em>, and the NBCA agreed that the Lieutenant-Governor is the \u201chead of state\u201d of the province and \u201chead of the institution;\u201d however, the NBCA stated that it is more important to look at the wording of the Charter<\/em> provisions relating to bilingualism that applies to the Lieutenant-Governor (SANB<\/em>, para 67). Moreover, the NBCA stated that the question is not as relevant as a detailed interpretation of the provisions in question (SANB<\/em>, para 67).<\/p>\n The <\/em>Charter Provisions<\/em><\/strong><\/p>\n Based on R v Beaulac<\/em> [1999] 1 SCR 768<\/a> [Beaulac<\/em>] and Charlebois v. Saint John (City)<\/em> 2005 SCC 74<\/a>, the court adopted a liberal and purposive interpretation of the Charter<\/em> language rights, confined within the ordinary rules of interpretation (SANB<\/em>, para 71, Beaulac<\/em>, paras 15, 25).\u00a0<\/p>\n Regarding section 20(2), the NBCA concluded that the provision does not offer the public a \u201cright\u201d to speak with the head of state or to the individual who personifies the institution (SANB<\/em>, para 145). Rather, the public is entitled to receiving services provided by the institution in English or French, therefore not imposing any obligations on the Lieutenant-Governor to be bilingual.<\/p>\n Section 16(2) states \u201cthat the English and French communities of New Brunswick have equal rights and privileges, and the role of the legislature and provincial government is to preserve and promote the status, rights, and privileges of those equal rights\u201d. The NBCA interpreted the provision as using both official languages \u201cin\u201d these institutions, which did not depend on the individual bilingualism of the Lieutenant-Governor (SANB<\/em>, para 146). Moreover, the \u201cdistinct institutions\u201d referred to in section 16(1) did not refer to the state institutions of sections 16(2) and 20(2), and therefore were not related to requiring the Lieutenant-Governor to be bilingual (SANB<\/em>, para 147).<\/p>\n Analysis<\/strong><\/p>\n This decision underscores the ongoing debate about the extent of linguistic rights and the interpretation of constitutional provisions regarding official bilingualism in Canada. The Soci\u00e9t\u00e9 expressed<\/a> disappointment with the ruling, emphasizing the significance of having a bilingual Lieutenant Governor in a province with a substantial francophone population. The NBCA adopted a narrow institutional approach, distinguishing between systemic bilingual obligations and individual officeholder requirements.<\/p>\n The ruling raises concerns for New Brunswick\u2019s francophone and Acadian community, as it suggests that the Lieutenant-Governor does not need to be bilingual. There is only Lieutenant-Governor in the province \u2013 to have them not speak one of the languages in a bilingual province hinders access to the head of state for a portion of the population. How would the anglophone population feel if the Lieutenant-Governor only spoke French?<\/p>\n As the NBQB pointed out, dismissing a bilingualism requirement because the Lieutenant-Governor themselves is not an institution is a \u201cgross oversimplification\u201d of the Lieutenant-Governor\u2019s role (SANB <\/em>Trial, para 59). Although New Brunswick is officially designated as a bilingual province, threats to French in the province are nothing new. From proposed reforms<\/a> on removing the French Immersion program to proposing to remove<\/a> the francophone health system and the Office of the Commissioner of Official Languages for New Brunswick, the current case invites us to consider the broader language tensions beyond a unilingual Lieutenant-Governor (CBC News; CTV News).<\/p>\n This decision represents a restrictive interpretation of New Brunswick\u2019s linguistic rights and could weaken New Brunswick\u2019s governmental bilingualism, leading to further tensions between the francophone population and government institutions. The SCC\u2019s upcoming ruling will be crucial in clarifying the balance between institutional and individual obligations regarding bilingualism. If overturned, it could strengthen the francophone community\u2019s efforts to further entrench bilingual obligations on government institutions.<\/p>\n This article was edited by Alexandre Cachon.<\/em><\/p>\n<\/div>\n\n","protected":false},"excerpt":{"rendered":" \u00a0 In the Acadian Society of New Brunswick v The Right Honorable Prime Minister of Canada, the Supreme Court of Canada (\u201cSCC\u201d) will decide whether the Lieutenant-Governor of New Brunswick must be bilingual [41398].\u00a0 Overturning the decision by the Court of Queen\u2019s Bench of New Brunswick (\u201cNBQB\u201d), the Court of Appeal of New Brunswick (\u201cNBCA\u201d) […]<\/p>\n","protected":false},"author":1,"featured_media":279959,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[109033,109027,109034,109028,109035,109029,109036,109037,109030,109031,109032],"tags":[109039,7318,24672,109038],"dealstore":[],"offerexpiration":[],"class_list":["post-279958","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-acadian","category-appeal-watch","category-charter","category-charter-of-rights-freedoms","category-charter-of-rights-and-freedoms","category-constitutional-law","category-language-rights","category-new-brunswick","category-official-languages","category-thecourt","category-thecourt-ca-library","tag-lieutenantgovernor","tag-rule","tag-scc","tag-unilingual"],"yoast_head":"\n\n