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N.B. lieutenant-governor ruling unlikely to survive appeal: constitutional expert

Click to play video: 'Constitutional expert reacts to N.B. top court ruling on lieutenant governor'
Constitutional expert reacts to N.B. top court ruling on lieutenant governor
The federal government is still deciding how to respond to a bombshell ruling from New Brunswick’s top court last week, saying the 2019 appointment of Brenda Murphy as lieutenant-governor violated the Charter of Rights and Freedoms. But one constitutional expert says the ruling is not likely to stand if appealed. Silas Brown reports. – Apr 18, 2022

A constitutional lawyer says the ruling made by New Brunswick’s Court of Queen’s Bench last week regarding the appointment of Lt.-Gov. Brenda Murphy is an unprecedented overreach of the judiciary and is unlikely to survive an appeal.

On Thursday, Court of Queen’s Bench chief justice Tracey Deware ruled that New Brunswick’s unique language protections in the Charter of Rights and Freedoms as the country’s only bilingual province means it must have a bilingual lieutenant-governor.

Murphy, who was appointed by Justin Trudeau in 2019, does not speak French.

Kerri Froc, an associate professor at the University of New Brunswick, says it is inappropriate for the judiciary to interfere with the powers of appointment held the executive branch of the federal government.

“It seems to go against the grain with how the court treats these kinds of political decision making powers,” Froc said.

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“It’s unprecedented for a court to interfere with the appointment, especially with the head of state of Canada, the lieutenant-governor.”

Read more: Court rules New Brunswick lieutenant-governor must be bilingual

The ruling has issues other than those dealing with the separation of powers. According to Froc, the ruling effectively uses one piece of the constitution, the charter, to add a requirement to another part of the constitution.

“If you think of the constitution as the supreme law of Canada, all of it is the supreme law,” Froc said.

“So if you have two pieces of the supreme law, it really doesn’t make sense, even as a matter of logic, that one would be able to over ride, amend, or strike down another piece. It simply doesn’t work that way.”

In a statement, federal justice minister David Lametti said the government is still reviewing the ruling and has yet to decide if it will appeal.

“While we will be taking time to review this decision and consider next steps, we remain committed protecting and promoting French everywhere in the country and advancing our linguistic duality,” Lametti said.

The court challenge was launched by the Acadian Society of New Brunswick, arguing that the sections guaranteeing the equal status of French and English in New Brunswick and the right of any New Brunswicker to communicate with and receive service from any government institution in the official language of their choice should apply to the lieutenant-governor.

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Read more: Brenda Murphy officially installed as New Brunswick lieutenant -governor

But Froc says such decisions should left with the legislative and executive branches of the government, not the judiciary. Ultimately, she argues, it would now take a constitutional amendment to require a bilingual lieutenant-governor for New Brunswick.

“It would have been very easy at the time that our constitution was patriated in 1982 to insert that uniqueness with respect to the appointment of the lieutenant-governor and the ratifiers of the constitution simply did not do that,” Froc said.

“It’s fairly straightforward to me that reading in a requirement of bilingualism is not something that can be accomplished by judicial fiat, it needs a constitutional amendment.”

Deware’s ruling does not invalidate Murphy’s appointment, which would create a constitutional crisis in the province, calling into question the laws she has signed and the cabinet regulations that require the lieutenant-governor’s use of the Great Seal of New Brunswick. Rather, she leaves the decision on how to “rectify the situation” with the federal government, noting the country’s strong history of complying with judicial rulings.

Click to play video: 'Brenda Murphy gets appointed as new Lt.-Gov. of New Brunswick'
Brenda Murphy gets appointed as new Lt.-Gov. of New Brunswick

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