Canada Supreme Court finds Crown representatives must be bilingual in New Brunswick

MONTREAL (CN) — The Supreme Court of Canada declared Friday that appointing an anglophone lieutenant governor violates New Brunswick’s linguistic rights.

Chief Justice Richard Wagner says the equality between French and English “cannot be preserved when the position of lieutenant governor of the province, a unipersonal and highly symbolic institution, is held by a unilingual person.”

“The equality of status of the official languages must be reflected in the holder’s personal ability to speak and to represent the institution in each official language”, he wrote in the judgment.

He adds that appointing a non-bilingual representative relegates the French language to “a secondary status” and undermines the rights of the province’s Francophones.

“It thus makes them feel that their language and identity are not recognized in public institutions, and it revives the persistent sense of exclusion that the Constitution specifically sought to remedy."

In 2019, former Prime Minister Justin Trudeau appointed Brenda Louise Murphy, an anglophone, as Lieutenant Governor of New Brunswick, the only officially bilingual province in Canada. The appointment stirred discontent among Acadians, a community descended from French settlers who arrived in the early 17th century in New France’s maritime colony.

Francophone organization Société de l’Acadie du Nouveau-Brunswick went to court to overturn Murphy’s appointment, arguing that it violated several sections of the Canadian Charter of Rights and Freedoms, including section 16(2), which guarantees equal status and rights for English and French in New Brunswick’s legislative and government institutions.

The Court of Queen’s Bench of New Brunswick ruled in 2022 that a Lieutenant Governor of New Brunswick must be able to perform all duties in both English and French. However, the New Brunswick Court of Appeal later held that institutional bilingualism should not be confused with individual bilingualism and concluded that Murphy’s appointment did not violate the charter.

During a November Supreme Court of Canada hearing, the Société de l’Acadie du Nouveau-Brunswick emphasized the importance of interpreting the charter’s provisions within New Brunswick’s specific linguistic context.

In the 18th century, as France and Britain fought for control of North America, many Acadians were forcibly removed from their lands, their villages destroyed and families separated. When Acadian families later returned to New Brunswick, the Crown’s assimilationist policies marginalized their francophone heritage. Today, Acadians remain a linguistic minority in the province.

“It’s a bit ironic that the only officially bilingual province in Canada is headed by a unilingual person,” Wagner said in the hearing.

The defense’s main argument was that the linguistic obligations imposed by the charter are institutional, not personal. The lieutenant governor herself may be unilingual, it argued, because it is the institution — the Office of the Lieutenant Governor — that must be bilingual. Duties can be delegated to others within the office who speak French.

However, several justices expressed concern that some functions of the lieutenant governor cannot be delegated, such as dissolving the provincial legislature.

“Suppose you have an anglophone unilingual lieutenant governor, and the Premier of New Brunswick is unilingual francophone,” Justice Suzanne Côté asked then. “If the premier goes to the lieutenant governor to request the dissolution of the legislature, how will they communicate?”

The lieutenant governor’s responsibilities also include granting royal assent to legislation so that laws can come into force — a process that must occur in both official languages. This raised concerns that a unilingual lieutenant governor could be approving legislation they do not understand.

In its judgment, the Supreme Court refused to quash Murphy’s appointment and ruled that 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.”