While Prime Minister Justin Trudeau says the federal government will be “aligning” with a ruling on New Brunswick’s lieutenant-governor, that doesn’t necessarily mean the decision won’t see further scrutiny by the courts.
Last week Court of Queen’s Bench Chief Justice Tracey Deware ruled that Trudeau’s 2019 appointment of Lt.-Gov. Brenda Murphy violated language rights. Deware ruled that the position should be filled by someone who speaks both official languages in light of New Brunswick’s unique position as the county’s only bilingual province.
During a visit to Dalhousie, N.B., on Tuesday Trudeau commented on the recent ruling for the first time.
“We will take a very, very careful look at this important judgement and make sure that we are aligning with it and moving forward in the right way,” he told reporters when asked about the judgment.
While on the surface Trudeau’s comments seem to suggest that the federal government will not appeal the decision, the vague wording means the reality may not be so simple.
“What we’re hearing, between the lines, from the prime minister is, ‘We’re accepting the outcome, unless otherwise proven, but that doesn’t mean the government will not want to get further clarification on the process of thought that led the judge to arrive at this outcome,” said Stephanie Chouinard, a political scientist at the Royal Military College.
The court challenge to Murphy’s appointment was launched by the Acadian Society of New Brunswick, which wants to see bilingualism be made a requirement of the position. That’s a view the federal government may agree with, Chouinard said, but the way in which the court decision was reached may have unintended and far-reaching consequences if left unchallenged.
Ottawa has 30 days to decide if it will appeal, which Chouinard says is likely.
“We’re really dealing with new questions on law that have far-reaching consequences beyond language rights,” she said.
“We’re talking about to what extent can the charter constrain executive powers, when we’re talking about the division of powers between the judiciary, legislative and executive, those are fundamental questions that could have consequences for the whole of the constitution of Canada.”
The issues at play go beyond the separation of powers. According to constitutional law expert Kerri Froc, the decision is fundamentally flawed, as it asks one part of the constitution to amend or strike down another; the language rights of the Charter of Rights and Freedoms to rule on the appointment process of lieutenant governors, outlined in the constitution itself.
“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 override, amend or strike down another piece. It simply doesn’t work that way.”
But the ruling does provide an opportunity to think about what the head of state of New Brunswick looks like and to recognize that the province’s unique position may necessitate a unique head of state.
“What is really important about this ruling is that it articulates that New Brunswick’s Crown is unique in Canada,” said vice-regal expert Robert Tay-Burroughs.
“It should put to bed the idea that the Canadian Crown is a single entity that appears and happens to materialize in different contexts across the country.”
Tay-Burroughs says the decision challenges the dominant view of scholars on the issue that doesn’t see lieutenant-governors as representatives of distinct Crowns, despite cultural and linguistic differences.
“There have to be inherently different Crowns in Canada,” he said.
“New Brunswick’s Crown is unique. It must address its disconnect between its English loyalist past and the fact that it now represents, even just in the white settler context, both English and French speakers. How does it reconcile that particular tensions that we don’t need to reconcile anywhere else in the country quite to the same extent.”
Should the federal government choose to support the decision in spirit, to ensure that future lieutenant-governors of New Brunswick are bilingual, while also appealing the decision, there are a few options available.
One is simply to wait. Murphy could be replaced as early 2023.
“It could appeal and say it wants to get more clarity on the legal issues, at the same time making public declarations that the next lieutenant-governor will be bilingual,” Tay-Burroughs said.
That would be keeping with tradition that sees the position alternated between the province’s anglophone and francophone linguistic groups.
Another opportunity lies in a piece of legislation already working its way through the senate that would make bilingualism a requirement for the lieutenant-governor position, though it’s unclear if that can be done through legislation or whether a constitutional amendment is needed.
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