The appointment of Prime Minister Justin Trudeau in 2019 as the monolingual vice-governor of New Brunswick violated the language guarantees in the Charter of Rights and Freedoms, a judge of the Queen’s Court ruled.
Chief Justice Tracy Dewey says defending the charter for New Brunswick’s unique bilingual status means a lieutenant governor in the province must speak two languages.
Brenda Murphy is not.
DeWare did not call the appointment unconstitutional or invalid, saying declaring the position vacant would create chaos in New Brunswick.
This will call into question all the laws Murphy has signed and the appointments and other cabinet decisions made on her behalf.
“Such a situation would create a legislative and constitutional crisis in the province of New Brunswick, which is not necessary to adequately justify the violated language rights in question,” she wrote.
She goes on to say that her decision must be “sufficient to ensure appropriate and swift action on behalf of the government to rectify the situation”, leaving it to the federal government to decide on the timing and “extent of this action”.
A Murphy spokesman said her office had not had time to absorb the decision and had no comment yet.
“This is a legal issue that is being addressed at the federal level, and issues need to be addressed there,” said communications director Alex Robisho.
In Calgary, Deputy Prime Minister Christia Freeland told reporters he was unaware of the decision.
DeWare’s decision is based on three sections of the charter that apply only to New Brunswick.
Section 16 (2) declares that English and French have equal status “in all institutions of the legislature and the Government of New Brunswick”, while Section 16.1 (2) requires the legislature and the government to “preserve and promote” the equality of English and French. .
Section 20 (2) guarantees the right of every New Brunswick to communicate with or receive services from “any service of a legislative institution or the Government of New Brunswick” in English or French.
The challenge is not aimed at Murphy, the group said
The Acadian Society of New Brunswick launched the challenge with the argument that these sections apply to the position of Vice-Governor.
The federal government responded that since the appointment is made by the governor-general on the advice of the prime minister, it is not subject to review by the courts.
But DeWare found that because the challenge raises constitutional issues, the court is required to hear the case.
President Alexander Cedric Dusse said the association was not seeking Murphy’s resignation or removal.
“Let’s be clear. This lawsuit was never against the venerable Brenda Murphy. She was against the lawsuit.”
Alexander Cedric Dusse, president of the Acadian Society in New Brunswick, said the challenge was not to remove Murphy from her role, but to force the federal government to change the language criteria needed to appoint vice governors. (Radio Canada)
He said the right answer would be for the federal government to change its legislation on bilingual requirements for appointments to specify that future vice governors in New Brunswick should be bilingual.
The decision is likely to be appealed, experts say
Political scientist Stephanie Schuinar said that while the decision would not affect other provinces, similar provisions of the charter that apply to the federal government could have consequences for governors-general.
“There is no doubt that this decision will be appealed,” she said.
Governor-General Mary Simon speaks English and Inuktitut, but does not speak French.
DeWare’s decision called the lawsuit an “inevitable crossover” between the executive, the legislature and the judiciary and an “awkward exercise” due to complex jurisdictional issues.
While the language provisions of the charter and laws do not usually require people to speak two languages, DeWare points out that the lieutenant governor has a “special and unique role.”
No one else can take on her role to perform her functions bilingually, the ruling said.
Simply to say that the requirements of bilingualism do not apply to a lieutenant governor because, as an individual, it cannot be considered an “institution” is a crude simplification of a complex issue and does not take into account the unique nature and constitutional quality of itself. role. “
Kerry Frock, a law professor at the University of New Brunswick, called the decision an “unreasonable interpretation” of the charter and predicted he would not survive the appeal.
“This is also a huge excess of separation of powers,” she tweeted. “As in the unprecedented. As in, will not resist.”
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