The Queen’s Bench of New Brunswick just ruled that the appointment of a unilingual Lieutenant Governor by the federal government violates the Charter. However, Chief Justice DeWare declined to invalidate the appointment, noting the significant ramifications of doing so (i.e. basically declaring that all legislative enactments and executive decrees since the appointment would be null and void.)

This is an interesting, but implausible, ruling.

Among other things, the ruling side steps the most important counterpoint: that one constitutional provision shouldn’t invalidate another. Section 58 of the Constitution Act 1867 is a constitutional provision. Treating it as a common law prerogative to ensure that the appointment is justiciable and subject to a Charter challenge looks like a sleight of hand. Put differently, the appointment of an LG is a constitutional power of the federal Cabinet, not an authority recognized at common law that can be displaced by statute.

Yes, the appointment of an LG is without a doubt an executive action by the Prime Minister. But it’s hard for me to accept that it’s not a constitutionally insulated decision in terms of who is named, not only as a political question but in terms of the Crown’s discretion over vice-regal representatives. I also don’t see how this ruling aligns with past findings regarding ministerial and senatorial appointments.

Next, the ruling tells us that this isn’t about the bilingualism of the LG as an individual, but about the LG as a institution. As per the Charter, people in New Brunswick have the right to communicate with, and get services from, provincial institutions in either French or English. In order to get around the fact that a member of the public would get communications and services from the office of the LG in either language, though, the ruling still points out that the LG herself doesn’t speak French, and that nobody else can act for the LG, meaning that someone couldn’t communicate with a member of the public in that language in her stead. So, the issue isn’t the attributes of the LG as a person, but of the institution, though the LG is so unique as a institution that the attributes of the LG as a person are what matters here. That’s a lot to unpack and wrap one’s head around.

The ruling makes important points about the LG’s role in New Brunswick society and how the province’s bilingual essence is recognized by the constitution. Still, I can’t help but feel that the issue here isn’t about Charter compliance, but about constitutional convention. The idea that someone’s Charter rights are being violated because the LG can’t engage in conversations in French seems like a really big stretch.

To my mind, the ruling would have been on much firmer ground had it found that the Canadian constitution includes a convention that the Governor General and Lieutenant Governor of New Brunswick should be bilingual in English and French. The Charter could have been used to bolster the case that this convention exists. The court could therefore have found that the convention was violated in this case, but that as a political rule, the convention is not judicially enforceable.

Instead, the ruling uses an expansive understanding and application of the Charter to arrive at the conclusion that the government violated the Charter when appointing a largely ceremonial figurehead, but that it is up to the federal executive to find a remedy as per Khadr and the separation of powers. Basically, there was a much easier and more plausible an way to get to the same end result. Indeed, I can’t help but feel that the ruling will collapse on appeal on account of its highly complex and contestable interpretations of the interaction between different parts of the constitution.