'Aligning' on bilingual lieutenant-governor doesn't mean complying, experts say

Prime Minister Justin Trudeau's first public comments on a court ruling about New Brunswick's unilingual lieutenant-governor have provided a hint, but only a hint, of the approach his government may take on the issue.

Ottawa now has less than 30 days to decide whether to appeal the ruling, which says a lieutenant-governor of this province must be able to speak English and French.

Fighting the decision could upset francophone voters, while not fighting it would let stand a legal precedent that many experts call fundamentally flawed.

"We will take a very, very careful look at this important judgment and make sure that we're aligning with it and moving forward in the right way," Trudeau said Tuesday during a visit to New Brunswick.

"Aligning" is the key word there. Aligning with a decision does not necessarily mean complying with it. 

Political scientist Stephanie Chouinard of the Royal Military College says Trudeau's careful choice of words was probably deliberate.

"I think what this signals is that, until proven otherwise, the Prime Minister's Office accepts the outcome of the decision that came down last week," she said.

"However, there may be some qualms about the process through which the judge arrived at that conclusion."

Several possible paths

That means there are several possible paths for the federal government.

Last week's ruling says that Trudeau's 2019 appointment of Brenda Murphy, who does not speak French, as lieutenant-governor of New Brunswick violated constitutional language-rights guarantees. 

But the decision by Court of Queen's Bench Chief Justice Tracey DeWare did not reverse the appointment, because that would call into question the validity of all the laws and appointments Murphy has signed over the last two-and-a-half years.

Some constitutional law scholars, including Kerri Froc of the University of New Brunswick, have declared the ruling flawed and ripe for appeal because it infringes on the separation of powers between the executive, legislative and judicial branches.

"There's certain core elements to that that the court can't interfere with … It's simply beyond their powers to do so," Froc says.

Chouinard says an appeal is almost inevitable because the court's intrusion in the prime minister's executive powers could have impacts "way above and beyond language rights."

"It would be in the interest of the Prime Minister's Office to get more clarity on that," she says.

Appeal almost inevitable, political scientist says

Another flaw Froc sees is that the chief justice has given one part of the Constitution – language rights in the charter – precedence over another part: the section of the 1867 document that sets out the appointment of the lieutenant-governor.

"They're all part of the supreme law," she says. "They're all of equal level. So you can't use one portion of the supreme law to override or declare unconstitutional the other part. The Constitution simply doesn't operate like that."

But Érik Labelle Eastaugh, director of the International Observatory on Language Rights at the University of Moncton, says Froc's argument is unsound.

"None of the powers that are granted by the Constitution Act 1867 include any charter rights, because the charter didn't exist," he says.

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"The whole point of the charter was to impose new limits on public powers granted by the original constitution."

Retired law professor Michel Doucet and political scientist Roger Ouellette of the University of Moncton say Trudeau could opt for a "hybrid" approach.

He could appeal the ruling on separation-of-powers grounds while amending legislation to require bilingualism of future lieutentant-governors in New Brunswick.

"It's a way to deal with it politically, but review it at the legal level," Ouellette says.

If Ottawa does fight the ruling, it could ask for a reference ruling by the Supreme Court of Canada, a fast-track process that would skip the New Brunswick Court of Appeal.

While Froc and Labelle Eastaugh disagree on DeWare's decision, they agree a reference case is unlikely.

Going to the provincial appeal court would be more time-consuming, but "the debate will be more fully fleshed out by the time it arrives at the Supreme Court," says Labelle Eastaugh.

Proposed bill could provide an option

If Trudeau opts for appealing the ruling while embracing its outcome, a bill already before Parliament could be his vehicle.

The legislation by Conservative Senator Claude Carignan would add the lieutenant-governor of New Brunswick to a small list of federal appointments that require bilingualism.

"That's an option," Carignan said Wednesday. "He could push to adopt my bill."

But the other positions on the bilingual list are officers of Parliament, not positions established by the Constitution.

It's not clear Parliament itself has the power to alter the appointment criteria for a lieutenant-governor. It could take a constitutional amendment.

"That's an open question in my mind," says Labelle Estaugh.

Besides, he says, Carignan's bill isn't necessary if Trudeau wants to "align" with DeWare's ruling.

"If the government is of the view that the lieutenant-governor should be bilingual, such that it would be willing to support this legislation, then it should just not appeal the decision. We're already there."