Question Period Note: Challenge against the appointment of the Lieutenant Governor of New Brunswick

On May 13, 2022, the Government of Canada appealed the judgment of the New Brunswick Court of Queen's Bench (the Court). The Court rendered its decision in the matter of the Société de l'Acadie du Nouveau-Brunswick (SANB) against The Right Honourable Prime Minister of Canada and Her Excellency the Right Honourable Governor General on April 14, 2022. In its decision, the Court granted the SANB's request but did not annul the appointment of the current Lieutenant-Governor of New Brunswick.

• We can protect and promote our two official languages without fundamentally changing our Constitution. For this reason, we have asked the New Brunswick Court of Appeal to clarify certain constitutional elements.
• The Lieutenant Governor of New Brunswick has reconfirmed her commitment to improve her French to better represent the province's Francophones. That said, our government is committed to recommending a bilingual successor to this position in the future.
• Our Government is proud of the substantial progress that has been made on bilingualism and rights protection on official languages in collaboration with our official language minority communities across Canada, including those in New Brunswick.

• On April 14, 2022, the Court of Queen's Bench of New Brunswick rendered its decision in the case of the Société de l'Acadie du Nouveau-Brunswick (SANB) against The Right Honourable Prime Minister of Canada and Her Excellency the Right Honourable Governor General. The Court granted the SANB's request but did not annul the appointment of the current Lieutenant-Governor of New Brunswick.
• While the Court recognized that the language provisions of the Charter adopt institutional bilingualism requirements, it held that in the case of the Lieutenant Governor of New Brunswick, it is individual bilingualism that should take precedence, given the unique and "highly singular" role as head of state of a province that has declared itself bilingual and has had the equality of status of the two official languages and related rights and privileges recognized in the Constitution. In its judgment, the Court emphasized that the Lieutenant-Governor of New Brunswick must be bilingual and able to perform all the duties of his or her role in both English and French.
• However, the Court refused to overturn the appointment of the current Lieutenant Governor of New Brunswick and left it to the Government of Canada to consider what action it should to take.
• On May 13, 2022, the Government of Canada appealed the judgment of the Court of Queen's Bench of New Brunswick. According to the Attorney General of Canada, the power of appointment of the Lieutenant Governor of New Brunswick's gives the Queen "complete discretionary power and ... there is no bilingualism requirement in that power." In addition, counsel argued that sections 16(2), 16.1(2) and 20(2) of the Charter, on which the Court's decision is based, impose obligations on institutions, not individuals, and that the institution of the Lieutenant Governor of New Brunswick is no exception.
• This judgment could have an impact on appointments to the position of Lieutenant-Governor of New Brunswick and, by extension, to the office of Lieutenant Governor of certain provinces and Commissioners of the territories, as well as to the office of Governor General of Canada. It should be noted that the required consequential amendment to the Constitution is an overly burdensome proposal, as it would require a unanimous vote of both Houses of the Parliament of Canada, as well as the legislatures of all 10 provinces.
• On May 16, 2022, the Lieutenant-Governor of New Brunswick commented for the first time on the decision of the Court of Queen's Bench of New Brunswick. In a written statement, the Lieutenant Governor acknowledged the importance of the courts considering the issue. She added that "as a member of a minority group whose rights have been affirmed by the court system, I understand the need to fight for rights." She also said she "wants to be an ally for New Brunswick Francophones who are striving to preserve and promote the French language and Acadian culture."
• On September 5, 2019, the Premier announced the appointment of Brenda Murphy as the next Lieutenant Governor of New Brunswick, following the death of Lieutenant Governor Jocelyne Roy Vienneau. Ms. Murphy is unilingual English but is committed to improving her French skills. She is the first person from the LGBTQ+ community to be appointed to the position of Lieutenant Governor of New Brunswick.
• In December 23, 2019, the SANB filed a motion in the Court of Queen's Bench challenging the appointment of Ms. Brenda Murphy to the position of Lieutenant Governor on the grounds that "...the Prime Minister has violated subsections 16(2), 18(2), 20(2) and section 16.1 of the Canadian Charter of Rights and Freedoms, the values enshrined therein, as well as the constitutional principle of the protection of minority rights."
o The legal challenge was heard from December 13 to 15, 2021 in the New Brunswick Court of Queen's Bench.
• On December 1, 2021, Quebec Senator Claude Carignan introduced Bill S-229, which would amend the Language Proficiency Act to add the position of Lieutenant-Governor of New Brunswick to the list of public service positions where knowledge of both French and English is mandatory. Debate at the second reading in the Senate took place on February 10, 2022. The SANB thanked Senator Claude Carignan for introducing his Bill S-229.

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