There is no constitutional requirement that New Brunswick's lieutenant-governor must be bilingual, the federal government argued Thursday in an appeal of a court ruling last year.

The New Brunswick Court of Appeal heard arguments from Ottawa on Thursday, asking the court to overrule an April 2022 decision that said a unilingual appointment violated the Charter of Rights and Freedoms.

Chief Justice Tracey DeWare ruled Prime Minister Justin Trudeau's appointment of Brenda Murphy, who only speaks English, violated language rights under the Charter of Rights and Freedoms. 

The Acadian Society of New Brunswick launched the legal challenge after Murphy's appointment in 2019.

While language protections typically extend to institutions and not individuals, DeWare said in her decision that the lieutenant-governor fills a "peculiar and unique role."

Lawyers Gabriel Poliquin, left, and Érik Labelle Eastaugh, both representing the Acadian Society of New Brunswick, leaving the courthouse Thursday. (Alexandre Silberman/CBC)

The federal government filed an appeal of the ruling in May 2022.

Before the New Brunswick Court of Appeal on Thursday, Ottawa's arguments centred around interpretation of sections of the Charter of Rights and Freedoms that outline linguistic requirements. Justices Justice Kathleen Quigg, Marc Richard and Denise LeBlanc presided.

Ottawa says legal errors were made

Lawyer Bernard Letarte, representing the federal government, argued several legal errors were made in the ruling.

He said Article 58 of the Constitution Act of 1867, which outlines appointment of lieutenant-governors, does not include a condition of bilingualism or any other constraints on the power of the Governor General.

"If the creators of the Constitution would have wanted the lieutenant-governor to be bilingual, they would have done so expressly," he said.

LeTarte argued that given linguistic protections included in Article 133, which allow the use of English or French in Parliament and Quebec's legislature, the intention at the time was not to limit the lieutenant governor.

The Constitution Act of 1982 did not modify the guidelines for the position either, he said.

WATCH | CBC's Raechel Huizinga explains why Brenda Murphy's unilingualism has the federal government in court: 

LeTarte said the ruling by DeWare results in a modification of the requirements of the lieutenant-governor, and in turn, a modification of the powers of the sitting Governor General. He said such a change would require a constitutional amendment, with consent from the provinces.\

"It affects the powers of the government general because it restrains his or her powers to choose a person at their discretion," LeTarte said.

If the view of the New Brunswick Acadian Society is accepted, he argued, the Governor General no longer has the same power because the pool of people eligible for appointment as lieutenant-governor becomes restricted.

Justice Richard interjected, adding that a bilingual requirement poses another challenge: How would the standards for bilingualism for a lieutenant governor be determined?

Distinguishing the role as an institution

Many of the arguments from the federal government were based on the sections of the charter that apply specifically to New Brunswick.

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.

Chief Justice of New Brunswick Marc Richard added that a bilingual requirement poses another challenge: How would the standards for bilingualism for a lieutenant governor be determined? (CBC)

Lawyer Nadine Dupuis, also representing Ottawa, argued the lieutenant-governor as an institution and an office, provides equal status to English and French, and communicates in both languages.

"It is not a question of whether or not it is desirable for the lieutenant government to be bilingual," she said. "Yes, it is desirable. But it is a question of whether or not the Constitution requires it."

Dupuis said the federal government recognizes that charter language protections for New Brunswick apply to the lieutenant-governor as an "institution."

"Our position is that it is necessary to distinguish the lieutenant-governor, the institution, the office, from the person who occupies the role," she said.

There is nothing in the Constitution to indicate a person could be considered an institution, Dupuis argued, adding the fact that the lieutenant-government does not master French does not conflict with the requirements under Section 16(2) and 20(2).

Communication with citizens

Richard asked the federal government lawyers if it would be a problem if a citizen addresses a unilingual lieutenant-government and they respond in the language they speak.

Dupuis said Brenda Murphy currently operates bilingually, meeting her Charter obligations, by reading the speech from the throne in both languages.

The case of a citizen having a conversation with the lieutenant-governor is different, because it is not required, she said.

"There is no citizen in New Brunswick who has the constitutional right to communicate with the L-G," Dupuis said.

Richard asked if a conflict over equality in English in French could arise. He said Murphy could visit a school in Saint John, but she might not be able to do the same at a school in Shippagan.

"I think she'd be able to read a speech," Dupuis responded.

Richard then asked if it would be problematic to have a unilingual person, who could not pronounce a word of French.

"It would not be problematic," Dupuis said, "because the lieutenant-government would not be providing a service."

The lieutenant-governor is not constitutionally obligated to attend social functions and events to discuss with the public.

Bilingualism essential, Acadian Society says

Gabriel Poliquin, a lawyer representing the Acadian Society of New Brunswick, said the group's argument is centred on the "unique" role of the position.

The lieutenant-government cannot delegate powers to someone else, such as granting royal assent to legislation, or opening or dissolving the legislature, except in the case of absence or illness.

Poliquin said the principle of institutional bilingualism is that institutions need to adopt the necessary resources to meet their obligations, and that includes human resources, including requiring certain people to be bilingual

The lieutenant-governor, as a unilingual anglophone, cannot properly connect with all citizens of New Brunswick, he argued.

"When the lieutenant-governor goes to Dieppe to open a new francophone school, goes to Saint-Quentin to have tea at a seniors' home, or to Shippagan to welcome the start of the lobster or crab-fishing season, it may be an act of goodwill, but they can't be understood," he said. "She has no entry point to the culture and language."

Poliquin said the lieutenant-governor has a fundamental role to bring people together under the same banner, a duty which cannot be accomplished without the ability to communicate in both official languages.

The Acadian Society of New Brunswick has previously said it is not looking for Murphy to resign or be removed. Instead, it would like the federal government to amend its legislation to make clear future lieutenant-governors must be bilingual.

Political scientists have previously said the case would have implications for Governors General.

Lawyer Érik Labelle Eastaugh, also representing the Acadian Society, argued that with a unilingual anglophone, French is rarely used and is reduced to an inferior status. This violates the equality of status of English and French under the charter, he said.

"In the framework of institutional bilingualism, a request for service should not give the impression that one language is superior," he said.

Labelle Eastaugh said because the lieutenant-government frequently goes out into communities, the person in the role should be viewed as an institution New Brunswickers communicate with.

He also said the fact that the lieutenant-governor provides royal assent, the person who fills the role should be bilingual, because laws must be adopted in both official languages.

The Appeal Court will rule on the case at a later date.