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Language Skills Act

Bill to Amend--Second Reading--Debate Adjourned

December 14, 2021

Moved second reading of Bill S-229, An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick).

He said: Honourable senators, I rise today to speak to Bill S-229, which I introduced on December 1. The title of the bill is An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick). It is essentially identical to my Bill S-220, which concerns the bilingualism of the Governor General, but this bill deals with the bilingualism of the Lieutenant-Governor of New Brunswick.

When I introduced Bill S-220 on November 24, there was significant media coverage. That same day, a citizen sent me a newspaper article that addressed a similar issue with respect to the Lieutenant-Governor of New Brunswick, Brenda Louise Murphy.

In 2019, on the recommendation of the Prime Minister of Canada, the Committee of the Privy Council recommended that a commission be issued under the Great Seal of Canada appointing Brenda Louise Murphy as Lieutenant-Governor of New Brunswick. The next day, the Prime Minister announced her appointment as the 32nd Lieutenant-Governor of New Brunswick. In an interview that same day, the Lieutenant-Governor admitted that she couldn’t speak and understand both of New Brunswick’s two official languages with proficiency.

That appointment kind of snuck in under the radar, and the information went virtually unnoticed in the Senate. Had I had the information sooner, I would probably have introduced a bill to propose that both positions, those of Governor General and Lieutenant-Governor of New Brunswick, be added to the list of high-level positions whose occupants must be bilingual in accordance with the Language Skills Act.

In hindsight, I now believe it is better to have two separate bills. Certainly the underlying issues of respect for official languages are very similar, but New Brunswick being Canada’s only officially bilingual province raises specific issues regarding the appointment of a unilingual lieutenant-governor for that province.

Let’s start by looking at what the Constitution says about New Brunswick. The preamble to the 1867 Constitution states that New Brunswick is a party to the new Confederation pact. The first “whereas” reads as follows:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom . . . .

Throughout the rest of the constitutional text, particularly in the Charter of Rights and Freedoms, there are specific passages about New Brunswick. I think it would be useful to list the main ones.

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. . . .

English and French linguistic communities in New Brunswick

16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to such distinct educational and cultural institutions as are necessary for the preservation and promotion of those communities. . . .

Then Section 18:

New Brunswick’s statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Section 20:

Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

The Constitution Act, 1867 also stipulates that the executive powers of Canada are vested in the Queen. The Queen is represented in Canada by the Governor General and the lieutenant-governors of each province. Provincial lieutenant-governors are appointed by the Governor-in-Council.

“Governor-in-Council” is an expression referring to the Governor General acting by and with the advice of the Queen’s Privy Council for Canada. According to the constitutional conventions arising from the principles of constitutional monarchy and responsible government, the advice of the Queen’s Privy Council is, in fact, the advice of the Prime Minister of Canada. Although the term “advice” is used in the Constitution Act, 1867, constitutional convention requires that the Governor General, the holder of formal power, exercise it in accordance with the advice of elected members.

According to the Société des Acadiens du Nouveau-Brunswick, the appointment of Brenda Louise Murphy is unconstitutional. I quote as follows:

In this case, the advice of the Prime Minister recommending that the Governor General appoint Ms. Murphy as the Lieutenant-Governor for the Province of New Brunswick is inconsistent with the constitutional language rights protected by subsections 16(2), 18(2) and 20(2) and section 16.1 of the Charter. Neither this advice nor the resulting appointment respect the Constitution. Therefore, this appointment is illegal.

New Brunswick has a constitutional language regime that is quite peculiar to New Brunswick and unique in the country. Subsections 16(2), 17(2), 18(2), 19(2), 20(2) and section 16.1 of the Charter are exclusively devoted to the linguistic rights of New Brunswick. The purpose of all these provisions is to protect the rights of French and English linguistic communities in New Brunswick.

These provisions and the language rights they afford have to be considered as a whole, but also in the historic context in which they were enacted. Although French has been spoken in the Atlantic provinces since 1604, French speakers did not receive any legal protection of their language and culture when New Brunswick was founded in 1784. No rights relating to the use of the French language in government institutions in New Brunswick were enshrined in the Constitution Act, 1867, as was the case for English in Quebec. The French linguistic community of New Brunswick did not have that luck. It was more than 100 years after joining Canada, during the patriation of the Constitution in 1982, that New Brunswick changed this state of affairs. In 1982, New Brunswick had to submit to linguistic obligations that exceeded all those that exist for the other Canadian provinces and even for the federal government.

These obligations were specifically enacted to remedy the status quo, which, in reality, represented a situation of advanced diglossia and a progressive cultural degradation for the French linguistic community in New Brunswick. For anyone who might be wondering, the word “diglossia” refers to a situation in which one of the two languages spoken by a bilingual individual or community has a lower sociopolitical status.

In 1982, the simple protection of acquired rights or the defence of minority language-use rights would have been insufficient to reverse hundreds of years of damage. It would have been too little too late. That is why the Constitution confers protections whose purpose is to correct a situation.

When the Canadian Constitution was repatriated in 1982, New Brunswick enshrined institutional bilingualism by imposing a series of obligations on its state institutions. These obligations are similar to those that enshrine institutional bilingualism at the federal level, but some are more robust and provide for a better guarantee of bilingualism in New Brunswick.

According to the Constitution, the New Brunswick Lieutenant-Governor is the only representative of the state who is a unique, essential, irreplaceable and irreducible part of both the executive and the provincial legislature. The executive and legislature of New Brunswick are subject to a number of bilingualism obligations set out in the Canadian Charter of Rights and Freedoms. Furthermore, these two institutions are the only institutions to which the Charter expressly assigns the role of promoting the equality of New Brunswick’s two official language communities.

I mentioned last week that the government recognizes that French is in decline in Canada. In its document setting out the modernization of the Official Languages Act, Minister Joly, who was the official languages minister at the time, said, and I quote:

The federal government must act in its areas of jurisdiction to respond to the concerns of Francophones in Quebec and across the country in order to protect and promote French and reinforce a sense of linguistic security.

The federal government must play a leading role in bilingualism. The judges appointed to the Supreme Court must be bilingual, the role of the CBC/Radio-Canada as a cultural institution must be strengthened, and the powers of the Commissioner of Official Languages must be enhanced. The public service, as the main point of contact for Canadians with their federal government, must also lead by example.

The minister emphasized that the government must act in its areas of jurisdiction to protect and promote French and reinforce a sense of linguistic security. The appointment of a Lieutenant-Governor of New Brunswick falls entirely within the federal government’s jurisdiction. What possible reason could it have had for appointing a person who has a very hard time speaking French to the position of Lieutenant-Governor for Canada’s only officially bilingual province?

Ultimately, I think the solution to preventing another such lapse is to amend the Language Skills Act to add the position of Lieutenant-Governor of New Brunswick to the list of high-level officials who must be bilingual.

When I gave my speech at second reading of Bill C-220 on the Governor General, I expounded at length on arguments in favour of the Governor General of Canada being bilingual and why it was logical to use the Language Skills Act to provide a framework with respect to bilingualism for the appointment of governors general. I will not revisit each of my arguments for the position of Lieutenant-Governor of New Brunswick. I will just say that they all apply holus-bolus.

Furthermore, constitutional requirements specific to New Brunswick’s institutional bilingualism further justify adding the Lieutenant-Governor of New Brunswick to the Language Skills Act list of high-level officials who must be bilingual upon appointment.

After Brenda Murphy was appointed Lieutenant-Governor, several complaints were in fact submitted to the Commissioner of Official Languages. In his investigation report, which was made public by Radio-Canada last week, he concluded that there had been no violation of the Official Languages Act because the Privy Council Office, a federal institution subject to the Official Languages Act, had not had to intervene in the selection of the new lieutenant-governor. That decision was recommended to the Prime Minister by the Prime Minister’s Office, which is not recognized as a federal institution within the meaning of the Official Languages Act and is therefore not subject to its provisions.

Nevertheless, in his report, the Commissioner of Official Languages makes the following observation and recommendation:

The issue of proficiency in both official languages was clearly not a prerequisite at the time of appointment, although it is a factor usually considered in the appointment process, along with diversity and professional background. If the issue of proficiency in both official languages was discussed, as confirmed by the Privy Council Office, it must be noted that it was not retained. The issue of proficiency in both official languages was raised when the PCO contacted the nominee. The nominee then would have committed to improving her proficiency in French.

Building on this close collaboration between the Privy Council Office and the Prime Minister’s Office, I strongly encourage the PCO to take full advantage of this working relationship with the PMO and to leverage its role of supporting, guiding and advising the Prime Minister to emphasize the special and unique nature of New Brunswick’s linguistic duality and to protect it in future appointments of this kind in the province. Subsection 16(2) of the Canadian Charter of Rights and Freedoms recognizes that French and English are the official languages of New Brunswick and this recognition was enshrined in the Charter at the express request of the province.

Again, during my speech on Bill S-220 regarding the bilingualism of the Governor General, I highlighted section 12 of the Canadian Constitution, which clearly gives Parliament the power to amend, through simple legislation, the powers to appoint the Governor General. This section reads as follows:

All Powers, Authorities, and Functions which . . . are vested in . . . Governors or Lieutenant Governors . . . shall . . . be vested in and exerciseable by the Governor General . . . subject nevertheless . . . to be abolished or altered by the Parliament of Canada.

After introducing my two bills to amend the Language Skills Act to add the Governor General and the Lieutenant-Governor of New Brunswick, a distinguished professor, Benoît Pelletier, who is also a great lawyer, constitutional expert and professor at Ottawa University’s faculty of law, published a very interesting piece in Le Droit on December 11.

I draw your attention to this excerpt from Professor Pelletier’s article, where he states the following:

Nevertheless, Mary Simon’s appointment speaks volumes about how little importance the federal authorities often accord to the French language, even though everyone is elated that an Indigenous person is, for the first time, the head of state.

Speaking of Mary Simon, it was her lack of proficiency in one of Canada’ official languages that led Senator Carignan to propose amendments to the Language Skills Act, an act dating back to 2013, requiring that anyone aspiring to become the Governor General of Canada or the Lieutenant-Governor of New Brunswick be able to clearly speak and understand French and English. We can only applaud this initiative. These legislative amendments could effectively limit the discretion or prerogative of Canada’s Prime Minister . . . .

Honourable senators, I would especially like to highlight this excerpt from Professor Pelletier’s article, which reads as follows:

While that discretion or prerogative is, in fact, constitutional, it is still derived from conventions, which are not, strictly speaking, rules of law. Even an ordinary law can override similar constitutional conventions, which are not sanctionable by a court of law.

Bill S-229 essentially has two provisions. The first would amend the Language Skills Act to add the office of Lieutenant-Governor of New Brunswick to the list of senior officials who must be bilingual at the time of their appointment. The second provision involves coordinating amendments. It accounts for the fact that another bill, Bill S-220, would also amend the Language Skills Act and provides instructions in the event that one bill is passed before the other.

In conclusion, honourable senators, I would like to repeat that we have a constitutional responsibility to protect minorities in Canada. Today, we are faced with a situation that certainly requires us to fulfill that constitutional function.

Honourable senators, I urge you all to support Bill S-229 at second reading stage so that it can be studied in committee.

Thank you.

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