Constitutional Law: Charter; Language Rights
Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister), 2024 NBCA 7, 2026 SCC 22 (41398)
“On September 4, 2019, on the recommendation of the Prime Minister of Canada, the Governor General in Council made an order in council appointing Brenda Louise Murphy as the Lieutenant Governor of New Brunswick. Ms. Murphy was not bilingual at the time of her appointment and did not become so during her term of office. A short time later, the Société de l’Acadie du Nouveau-Brunswick filed an application to challenge the appointment on the ground that it violated the constitutional language guarantees applicable to that province, in particular those set out in ss. 16(2), 16.1, 18(2) and 20(2) of the Charter. That application sought declaratory relief with respect to those language guarantees and the nullification of the Prime Minister’s advice to the Governor General recommending the appointment. It also asked that the order in council making the appointment be declared unlawful and of no effect and that both the order in council and the Lieutenant Governor’s appointment be quashed.
The application judge held that ss. 16(2), 16.1 and 20(2) of the Charter impose an obligation of personal bilingualism on the holder of the position of Lieutenant Governor of New Brunswick. She adopted a broad view of the concept of “institution” and took into account the special nature of the office of Lieutenant Governor. However, the judge refused to quash the challenged appointment because of the significant institutional consequences of doing so. The Court of Appeal rejected the application judge’s interpretation and allowed the Attorney General of Canada’s appeal. It stated that the recognition of some institutional bilingualism does not limit the discretionary power of appointment provided for in s. 58 of the Constitution Act, 1867, and it noted that the position of Lieutenant Governor is an office that, while closely tied to the person holding it, is nevertheless distinguishable from that person for the purposes of constitutional analysis.”
The SCC (6:3) held: appeal allowed; N.B.C.A. set aside; N.B.Q.B. restored in part.
The Chief Justice wrote as follows (at paras. 4, 7-9, 93-94, 113, 121-122):
“The case before us raises a novel question in Canadian constitutional law: whether the appointment of a unilingual person to the position of Lieutenant Governor in New Brunswick violates the constitutional guarantees of linguistic equality applicable to that province.
…
…s. 16(2) of the Charter enshrines a mandatory guarantee of substantive equality for the two official languages in New Brunswick’s institutions. Interpreted through the purposive approach applicable to Charter provisions, and in light of its remedial purpose, this provision must be read by reference to the particular history of the Francophone community in New Brunswick and the constitutional commitment to the equality of the official language communities expressed in s. 16.1. Section 16(2) protects both the possibility of using either official language in the province’s institutions and the equality of status of these two languages. This equality cannot be preserved when the position of Lieutenant Governor of the province, a unipersonal and highly symbolic institution, is held by a unilingual person, a situation that necessarily gives predominance to the majority language, English.
Section 16(2) therefore imposes language requirements on the person holding this office that limit the exercise of the power of appointment provided for in s. 58 of the Constitution Act, 1867.
The appropriate remedy is to issue a declaration affirming that the appointment of a Lieutenant Governor in New Brunswick who does not have the ability to understand, communicate in and perform their functions in both official languages infringes s. 16(2) of the Charter.
…
Section 16.1 sheds light on the purpose of s. 16(2) by reaffirming the commitment of governments to fight against the assimilation of Francophone communities and to promote their cultural vitality in New Brunswick. Section 16.1 supports the proper understanding of the standard of equality of status set out in s. 16(2). Section 16.1 reminds us that language rights are not meant to be a response to a request for accommodation and are not merely rights to communicate in the official language of one’s choice, but are aimed at the preservation, promotion and development of minority language communities. This provision confirms that the equality of status provided for in s. 16(2) cannot be interpreted narrowly or in a purely functional manner.
This provision also illustrates the distinctiveness of the New Brunswick context. As I have already said, the interpretation of language rights must take into account the social, demographic and historical realities specific to each province. In the case of New Brunswick, the existence in the Charter of operational provisions specific to the province reminds us that these provisions are the result of intense political advocacy by the Francophone minority. Those efforts twice led to the constitutional entrenchment of provisions to guarantee the equality of the languages and of the linguistic communities they protect. These provisions are the expression of a lasting social pact between the linguistic communities, a pact that governments cannot evade and that reflects both the tensions of the past and the foundation for future relations. Linguistic equality thus takes on particular resonance in that province, and any interpretive analysis must be anchored in this reality.
…
Consequently, to ensure that the equality of status of the official languages is respected, the person called upon to hold this office must be functionally bilingual, that is, able to understand, communicate in and perform their functions in both official languages, for otherwise one of the two languages is relegated to a subordinate role within the very institution that embodies the legislative and executive powers of the province. The interpretation proposed by the respondent neutralizes in practice any expressive or symbolic dimension that the text explicitly affirms through the word “status”.
…
The appellant has shown that the appointment of a unilingual Lieutenant Governor in New Brunswick infringes the rights guaranteed to it by s. 16(2) of the Charter. However, the appellant has not established, or even argued, that the federal government’s decision reflected an unreasonable balancing of the rights or freedoms protected by the Charter and the legitimate objectives pursued by the Governor in Council in appointing Lieutenant Governor Murphy (Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395). As described above, the appellant chose instead to argue its case from the standpoint of a declaration dealing with the pure question of law of the interaction between ss. 16 to 20 of the Charter and s. 58 of the Constitution Act, 1867. In these circumstances, the specific remedy of quashing the order in council making the appointment is not appropriate. The appropriate remedy is a declaration. The jurisprudence recognizes the special value of a declaration in constitutional cases. In Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, this Court noted that such a remedy, even without a coercive order, is an effective measure because it clarifies the legal situation and requires the authorities to comply with the law, while leaving them the measure of discretion they need to determine the most appropriate means of implementation (para. 46). This flexibility is of particular importance where the remedy affects the functioning of a constitutional institution whose responsibilities are closely linked to the continuity of the state, as is the case here.”