For weeks, francophone Liberal MLAs remained silent as pressure mounted on them to speak up about the first language controversy to confront the Susan Holt government.
Now that one of them has spoken out, it’s clear the premier finds herself in a legal and political conundrum.
The provincial government is arguing to the Supreme Court of Canada that the Constitution does not require New Brunswick’s lieutenant-governor to be bilingual.
That argument — identical to the one taken by the previous Progressive Conservative government of Blaine Higgs — has angered and alarmed many francophones.
“I want to be very clear: the lieutenant-governor of an officially bilingual province must be bilingual,” Tourism, Heritage and Culture Minister Isabelle Thériault told Radio-Canada.
The Caraquet MLA explained she learned of the decision as a fait accompli and she acknowledged the pressure on her has been intense.
“It’s been extremely difficult, but I want to reassure people, Acadians, francophones in New Brunswick that I have always defended the rights and interests of the community.”
The question is symbolically and constitutionally important.
The lieutenant-governor’s role is seen as mainly ceremonial, but it’s also a pillar of Canada’s constitutional architecture, embodying the Crown’s role in Canada’s system of government.
Under language equality provisions of the Charter of Rights that apply specifically to New Brunswick, provincial institutions must communicate with citizens in English or French.
The Acadian Society of New Brunswick argues that the person who holds the office of lieutenant-governor becomes the institution, and is therefore covered by the obligation.
The province disagrees in a legal submission it filed with the Supreme Court on July 21.
Lieutenant-governor case puts pressure on Holt, Liberal MLAs
The Acadian Society launched the case against the federal government in 2019 after Prime Minister Justin Trudeau appointed Brenda Murphy, who did not speak French, to the position.
Court of King’s Bench Chief Justice Tracey DeWare ruled for the society, writing that the “peculiar and unique role” means no one else can step in to fulfil its functions bilingually.
The New Brunswick Court of Appeal overturned that ruling, finding that the Charter does not impose a bilingualism requirement on the individual office holder.
The Acadian Society appealed that to the Supreme Court, which will hear the case Nov. 13.
While Murphy’s term ended in January and the new lieutenant-governor, Louise Imbeault, is bilingual, the society wants a clear ruling for future appointments.
The case turns on a web of constitutional arguments, but as Holt is discovering, it also carries the weight of political expectations.
When the Higgs government filed arguments as an intervenor against the Acadian Society’s position, francophones were dismayed but not surprised. They already considered Higgs unsympathetic to their minority-language preoccupations.
From Holt, they expected more.
In 2023, the Liberal leader criticized Higgs’s position, suggesting she believed a legal requirement exists.
“We are officially bilingual, we have a Constitution and … the position of lieutenant-governor should be bilingual to serve every New Brunswicker,” she said at the time.
Now her government is taking the opposite position, the same one taken under Higgs.
“It is important to note that saying the lieutenant-governor should be bilingual is different from saying it is a constitutional requirement. That legal distinction is what’s at the heart of this case,” Attorney-General Rob McKee said in a statement.
Letters and opinion articles in the French-language newspaper L’Acadie Nouvelle described the province’s stance as “a slap in the face” and spoke of “rage and disappointment.”
The Acadian Society hasn’t asked the province to completely reverse its position, but to withdraw from the case as an intervenor.
That is easier said than done. While Holt’s government has reversed some legal positions taken under Higgs, it would be embarrassing to back away from its own arguments filed in July.
And a win for the Acadian Society could in theory still have important implications for the province.
If Murphy’s appointment is deemed unconstitutional, the government argued in its July submission, it may invalidate all legislation she signed into law during her five-year term.
In that scenario, the province wants the court to take steps to avoid legal chaos.
The political consequences of the province’s intervention may be secondary to that, but they are potentially serious.
Holt knows from watching Higgs’s PC caucus implode over gender identity policy in 2023 that internal divisions can be fatal.
So far, Isabelle Thériault is the only Liberal MLA who has spoken publicly about her discomfort with the province’s position.
Other francophone members — including Moncton East MLA Alexandre Cedric Doucet, who was president of the Acadian Society when it launched the case — have refused to comment.
Spokesperson Ashley Beaudin said no Liberal MLAs would comment because “things have been moving quickly on our end, and our team is still in the midst of it all.”
Holt told L’Acadie Nouvelle last week that she did not consult her cabinet or caucus on the province’s position, because that would violate the principle that the attorney general’s office must operate independent of politics.
That is a conveniently broad interpretation of the attorney general’s independence.
There are precedents for a cabinet or caucus being consulted in civil litigation cases that have major policy consequences or touch on the fundamental values of the party in power.
The Acadian Society gave the government until Aug. 14 to withdraw the province’s filing.
That deadline came and went, and last week society president Nicole Arseneau-Sluyter turned up the pressure, posting a video that urged members to write letters to their MLAs, to McKee and to Holt.
Thériault’s comments were similar to those of other ministers and MLAs in past governments who wanted to express their discontent with a decision while remaining a team player.
“I’m doing everything I can now to make my voice heard, and that of my community,” Thériault told Radio-Canada.
And did she feel her point of view was being heard?
“I’m doing everything I can so that my point of view is heard, yes.”
