In the Acadian Society of New Brunswick v The Right Honorable Prime Minister of Canada, the Supreme Court of Canada (“SCC”) will decide whether the Lieutenant-Governor of New Brunswick must be bilingual [41398]. Overturning the decision by the Court of Queen’s Bench of New Brunswick (“NBQB”), the Court of Appeal of New Brunswick (“NBCA”) ruled in the Right Honourable Prime Minister of Canada et al v. La Société de l’Acadie du Nouveau-Brunswick 2024 NBCA 70 (“SANB” ) that the appointment did not contravene the Charter‘s language provisions. While the court acknowledged the importance of bilingualism in New Brunswick, it concluded that the Constitution Act, 1867 does not explicitly mandate that the Lieutenant Governor be bilingual.
Facts
In 2019, the Honorable Jocelyn Roy-Vinneau, Lieutenant-Governor for New Brunswick, passed away while in office (SANB, para 7). On the advice of Prime Minister Trudeau, the office of the Privy Council recommended the Governor General appoint Brenda Louise Murphy as Roy-Vinneau’s replacement (SANB, para 7). Ms. Murphy, who was appointed in September 2019, was not bilingual when she took office (SANB, para 8). Despite Lieutenant-Governor Murphy’s efforts to improve her French, she remains not bilingual.
There is no mandatory criterion set out in the Constitution Act, 1867, 30 & 31 Vict c 3, which must be considered in selecting a Lieutenant-Governor — the Prime Minister’s recommendation is solely based on political and social considerations (Acadian Society of New Brunswick v Right Honourable Prime Minister of Canada, 2022 NBQB 85, para 10 [“SANB Trial”]). Although the Governor General executes the Order in Council that officially appoints the Lieutenant-Governor, it is premised on the Prime Minister’s recommendation.
The Société de l’Acadie du Nouveau-Brunswick (“the Société”) is an advocacy group dedicated to representing Acadian and Francophone interests in New Brunswick. Acadians are an ethnic group of francophone Canadians who are descended from French colonials who settled in the colony of Acadia in the 17th and 18th centuries (The Canadian Encyclopedia). Today, they live primarily in the maritime provinces, including New Brunswick. The Société brought an application to the NBQB seeking an order that the Prime Minister’s recommendation for appointing Brenda Louise Murphy was unconstitutional in that it violated sections 16(2), 16.1(2), 18(2), and 20(2) of the Canadian Charter of Rights and Freedoms (Charter) (SANB, para 8).
Issues
At issue before the NBCA were:
- Whether personal bilingualism is required on the part of the Lieutenant Governor of New Brunswick (SANB, para 4).
- Whether the language provisions in the Charter require, explicitly or implicitly, that certain holders of public office, such as the Lieutenant Governor of New Brunswick, personally have linguistic skills consistent with official bilingualism (SANB, para 4).
Judicial History
At trial, the NBQB found that the Charter had been violated based on the provisions brought forward. Much of the analysis considered whether the role of the Lieutenant-Governor engenders a requirement of bilingualism for the office-holder (SANB Trial, para 42).
The NBQB stated that the role of Lieutenant-Governor is unique, and the unilingual aspect of the role is more difficult to mitigate compared to other branches of government (SANB Trial, para 54). While the NBQB acknowledged that the bilingual obligations of the Charter are institutional, not personal obligations, the court acknowledged that there is only one head of state and only being able to speak one official language does not represent equality of the linguistic communities (SANB Trial, paras 55, 58-59).
Ultimately, the court stated that telling francophone New Brunswickers to accept a unilingual Lieutenant-Governor because they are not an institution overlooks the importance of the role and “fl[ies] in the face” of the constitutional protections (SANB Trial, para 61).
Decision
In SANB, after dealing with the preliminary issue of the justiciability of the Prime Minister’s recommendation, the NBCA found that the appointment of a unilingual Lieutenant-Governor was constitutional (SANB, paras 18-20). The NBCA emphasized that while the Charter‘s guarantees of linguistic equality apply to institutions, but this does not guarantee a right to communicate with the head of the institution, therefore not violating Charter rights (SANB, para 95). While the NBCA acknowledged the importance of bilingualism in New Brunswick, it concluded, through analysis of the Charter provisions, that there is no mandate that the Lieutenant Governor be bilingual (SANB, paras 145-149). Therefore, appointing a unilingual anglophone did not breach constitutional obligations.
Abrogation or Revocation of the Power Conferred by Section 58
Canada argued that the wording of section 58 in the Constitution Act, 1867 does not impose a bilingualism requirement (SANB, para 22). Section 58 grants power to the Governor General to appoint provincial Lieutenant-Generals by providing “an Officer, styled the Lieutenant Governor, appointed by the Governor General in Council” (SANB, para 21). The NBCA relied on Reference re Bill 30, An Act to Amend the Education Act, [1987] 1 SCR 1148, where the SCC stated that Charter drafters intended to constrain the exercise of legislative powers conferred by the Constitution Act, 1867 when that exercise of power impacts the rights guaranteed in the Charter (SANB, para 38). Based on this, the NBCA reasoned that if the Charter can constrain the scope of federal powers under the Constitution Act, 1867, the Charter can also restrict the exercise of legislative powers under the Constitution Act, 1867. This reasoning led the NBCA to determine that if bilingualism of the New Brunswick Lieutenant-Governor to be required under the Charter, this requirement would at most restrict the power of appointment under section 58 (SANB, para 38).
The Lieutenant Governor of New Brunswick: the Institution and the Office Holder
Much of the decision at the NBQB focused on whether the Lieutenant-Governor is an institution as referred to in the Constitution Act, 1867, and the NBCA agreed that the Lieutenant-Governor is the “head of state” of the province and “head of the institution;” however, the NBCA stated that it is more important to look at the wording of the Charter provisions relating to bilingualism that applies to the Lieutenant-Governor (SANB, para 67). Moreover, the NBCA stated that the question is not as relevant as a detailed interpretation of the provisions in question (SANB, para 67).
The Charter Provisions
Based on R v Beaulac [1999] 1 SCR 768 [Beaulac] and Charlebois v. Saint John (City) 2005 SCC 74, the court adopted a liberal and purposive interpretation of the Charter language rights, confined within the ordinary rules of interpretation (SANB, para 71, Beaulac, paras 15, 25).
Regarding section 20(2), the NBCA concluded that the provision does not offer the public a “right” to speak with the head of state or to the individual who personifies the institution (SANB, para 145). Rather, the public is entitled to receiving services provided by the institution in English or French, therefore not imposing any obligations on the Lieutenant-Governor to be bilingual.
Section 16(2) states “that the English and French communities of New Brunswick have equal rights and privileges, and the role of the legislature and provincial government is to preserve and promote the status, rights, and privileges of those equal rights”. The NBCA interpreted the provision as using both official languages “in” these institutions, which did not depend on the individual bilingualism of the Lieutenant-Governor (SANB, para 146). Moreover, the “distinct institutions” referred to in section 16(1) did not refer to the state institutions of sections 16(2) and 20(2), and therefore were not related to requiring the Lieutenant-Governor to be bilingual (SANB, para 147).
Analysis
This decision underscores the ongoing debate about the extent of linguistic rights and the interpretation of constitutional provisions regarding official bilingualism in Canada. The Société expressed disappointment with the ruling, emphasizing the significance of having a bilingual Lieutenant Governor in a province with a substantial francophone population. The NBCA adopted a narrow institutional approach, distinguishing between systemic bilingual obligations and individual officeholder requirements.
The ruling raises concerns for New Brunswick’s francophone and Acadian community, as it suggests that the Lieutenant-Governor does not need to be bilingual. There is only Lieutenant-Governor in the province – to have them not speak one of the languages in a bilingual province hinders access to the head of state for a portion of the population. How would the anglophone population feel if the Lieutenant-Governor only spoke French?
As the NBQB pointed out, dismissing a bilingualism requirement because the Lieutenant-Governor themselves is not an institution is a “gross oversimplification” of the Lieutenant-Governor’s role (SANB Trial, para 59). Although New Brunswick is officially designated as a bilingual province, threats to French in the province are nothing new. From proposed reforms on removing the French Immersion program to proposing to remove the francophone health system and the Office of the Commissioner of Official Languages for New Brunswick, the current case invites us to consider the broader language tensions beyond a unilingual Lieutenant-Governor (CBC News; CTV News).
This decision represents a restrictive interpretation of New Brunswick’s linguistic rights and could weaken New Brunswick’s governmental bilingualism, leading to further tensions between the francophone population and government institutions. The SCC’s upcoming ruling will be crucial in clarifying the balance between institutional and individual obligations regarding bilingualism. If overturned, it could strengthen the francophone community’s efforts to further entrench bilingual obligations on government institutions.
This article was edited by Alexandre Cachon.