Supreme Court case over unilingual N.B. lieutenant-governor could have broader implications

Legal experts say a pending Supreme Court of Canada case about whether New Brunswick's lieutenant-governor must be bilingual could have much broader implications and be precedent-setting.

These could include bilingualism requirements for other high-ranking positions in the country, including elected ones, and constraints on the powers of the Governor General and others in making appointments, according to two law professors.

The country's top court announced Thursday that it will hear an appeal filed by the Acadian Society of New Brunswick over the 2019 federal appointment of former lieutenant-governor Brenda Murphy.

The Supreme Court does not give reasons when it accepts applicants who are seeking leave to appeal decisions made by lower courts.

But Michel Doucet, a professor emeritus of law at the University of Moncton and an expert in linguistic rights, notes the top court only agrees to hear issues it deems of national importance.

"So it is certainly a big step in this matter, to have the the Supreme Court of Canada finally decide the issue," he said.

The Acadian Society contends New Brunswick's lieutenant-governor is required by the Constitution to be bilingual.

Three sections of the Charter of Rights and Freedoms apply only to New Brunswick, Canada's only officially bilingual province. 

Section 16(2) declares that English and French have equal status "in all institutions of the legislature and government of New Brunswick," while Section 16.1(2) requires the legislature and government to "preserve and promote" the equality of English and French.

Section 20(2) guarantees the right of any New Brunswicker to communicate with or receive services from "any office of an institution of the legislature or government of New Brunswick" in English or French.

The Acadian Society won its case in 2022 at the superior trial court for the province. Court of King's Bench Chief Justice Tracey DeWare ruled that the Charter imposes a bilingualism requirement not just on the institution but on the person holding the position of lieutenant-governor.

But the New Brunswick Court of Appeal overruled that decision last May.

It ruled that while people appointed to the position should ideally be fluent in the province's two official languages, the Charter does not impose such a requirement.

According to Doucet, the Supreme Court of Canada has historically approached language rights by saying it's not the individual who has the obligation to provide the bilingual service, it's the institution.