Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister)

Case summary

The Supreme Court of Canada rules that the Lieutenant Governor of New Brunswick must be able to perform their functions in both official languages.

This case was about whether the constitutional guarantees that apply to New Brunswick require the Lieutenant Governor of that province to be able to understand English and French and to communicate in both languages when performing their functions.

New Brunswick is the only officially bilingual province in Canada. The guarantees set out in sections 16(2) and 16.1 of the Canadian Charter of Rights and Freedoms are aimed at substantive equality for the two official languages in the institutions of the legislature and government of New Brunswick, as well as for the communities that speak them in that province.

The former Lieutenant Governor of New Brunswick, Brenda Louise Murphy, was appointed on September 4, 2019. The Société de l’Acadie du Nouveau-Brunswick challenged Ms. Murphy’s appointment given that she was not bilingual. The Société de l’Acadie argued that the appointment of a unilingual English-speaking person violated the constitutional language guarantees applicable to New Brunswick.

The application judge concluded that the language guarantees applicable to New Brunswick imposed an obligation of personal bilingualism on the holder of the office of Lieutenant Governor of New Brunswick. However, she refused to quash the appointment because of the institutional consequences of doing so. The New Brunswick Court of Appeal allowed the Attorney General of Canada’s appeal and set aside the application judge’s decision. According to the Court of Appeal, the recognition of some institutional bilingualism did not limit the discretionary power to appoint a Lieutenant Governor provided for in the Constitution Act, 1867. The Société de l’Acadie appealed to the Supreme Court of Canada.

The Supreme Court of Canada has allowed the appeal.

The Lieutenant Governor of New Brunswick must be able to represent this institution in both official languages.

Writing for the majority, Chief Justice Wagner concluded that the appointment of a Lieutenant Governor who does not have the ability to understand and communicate in both official languages infringes section 16(2) of the Charter. This section provides that English and French have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

Chief Justice Wagner explained that language rights must be given a broad and liberal interpretation that advances their purpose. These rights must also be interpreted in a manner consistent with the preservation and development of the official language communities protected by section 16.1 of the Charter. In New Brunswick, this interpretation must take into account the particular history of the Francophone community and the province’s constitutional commitment to the equality of its two linguistic communities. Chief Justice Wagner did not, however, quash the order in council making the appointment, since a declaration was sufficient to clarify the law and the obligations in question and would also avoid disrupting the functioning of the constitutional institution of Lieutenant Governor.