Lost in translation? Not in New Brunswick!

The 2019 appointment of a unilingual anglophone Lieutenant Governor for New Brunswick was challenged under the provisions of the Charter of Rights and Freedoms that establish both English and French as the official languages of the province, including section 16(2). Interpreting section 16(2) for the first time, the Supreme Court held that it not only imposes bilingualism requirements for institutions in New Brunswick but also applies personally to the province’s Lieutenant Governor—a highly symbolic institution represented by one individual. Whether section 16(1), which establishes similar requirements for federal government institutions, carries similar individual requirements is now an open question.

What you need to know

• Charter-mandated individual bilingualism. Interpreting section 16(2) of the Charter for the first time in Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister), 2026 SCC 22, the Supreme Court held that the provision’s mandatory requirement of equal status for both official languages in New Brunswick’s institutions requires the Lieutenant Governor to be personally bilingual.
• Limitations on executive power. As regards New Brunswick, constitutionally mandated bilingualism effectively limits the Prime Minister’s discretion to appoint a Lieutenant Governor under section 58 of the Constitution Act, 1867.
• Remedy. Where a government decision is challenged on a pure question of law, the appropriate remedy will likely be a declaration rather than an order quashing the decision.

Challenge to the appointment of New Brunswick’s unilingual anglophone Lieutenant Governor

Brenda Louise Murphy was appointed Lieutenant Governor of New Brunswick in September 2019 and served in that role until January 2025. Ms. Murphy did not speak French when she took office and, despite efforts to learn the language, did not become bilingual. The Société de l’Acadie du Nouveau-Brunswick (SANB) is an organization that represents the province’s Acadian and francophone communities. Not long after Ms. Murphy became Lieutenant Governor, SANB challenged the appointment on the grounds that it violated the Charter.

New Brunswick is the only constitutionally bilingual province in Canada. Section 16(2) of the Charter states that, “English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick”. Together with sections 17(2), 18(2), 19(2) and 20(2), this provision sets out the specific language guarantees applicable only to New Brunswick, establishing a “complete regime of institutional bilingualism”¹. In 1993, over a decade after the Charter was enacted, it was amended to add section 16(1), which recognizes the equality of the French and English linguistic communities in the province and confers equal rights and privileges on them².

In challenging Ms. Murphy’s appointment, SANB argued that appointing a unilingual Lieutenant Governor violated those constitutional language guarantees. Among other things, SANB sought declaratory relief, and an order nullifying the Prime Minister’s recommendation to the Governor General that Ms. Murphy be appointed.

Ms. Murphy’s term in office ended before the Supreme Court heard the appeal. Her successor and current Lieutenant Governor of New Brunswick, Louise Imbeault, is fluent in both official languages.

Supreme Court: appointment of unilingual Lieutenant Governor of New Brunswick infringes section 16(2) of the Charter

This appeal presented the first opportunity for the Court to interpret section 16(2) of the Charter. Chief Justice Wagner, writing for a six-judge majority, held that the provision requires New Brunswick’s Lieutenant Governor to be bilingual, thereby limiting the power of appointment under section 58 of the Constitution Act, 1867. While he decided the case based on section 16(2), Chief Justice Wagner addressed the other Charter provisions raised by SANB to inform his interpretation of section 16(2).

Although Chief Justice Wagner described the text of the provision as the starting point for the required purposive interpretation—consistent with the Court’s guidance in recent Charter jurisprudence³—he began his analysis by situating section 16(2) and the other provisions constitutionalizing language rights in New Brunswick within the historical context of the province’s francophone minority. He traced the events that followed France’s cession of Acadia to the British in 1713, including the forced displacement of francophone Acadians during the Great Upheaval of 1755-1763 and the francophone minority’s campaign in the 1960s for substantive and institutional linguistic equality, leading to the 1969 Official Languages of New Brunswick Act. He then arrived at the enactment of the Charter and explained how it established a complete regime of institutional bilingualism in New Brunswick.

Turning to the text of section 16(2), Chief Justice Wagner held that the provision provides a “mandatory guarantee of substantive equality for the two official languages in New Brunswick’s institutions”⁴. In interpreting “equality of status” for both official languages, Chief Justice Wagner held that there are two aspects to this equality: functional and symbolic. Chief Justice Wagner’s decision heavily emphasizes the symbolic dimension, explaining that this requires public institutions to reflect, in their “architecture and their official expression”, equality of both official languages.

While this would not normally require individual bilingualism on the part of officeholders, it did in this case. Chief Justice Wagner concluded that “equality of status” cannot be achieved where an institution is represented by a single individual—especially where aspects of their functions cannot be delegated and where the institution publicly expresses itself through the person embodying it—unless the officeholder can express themselves in both languages.

Justice Rowe, writing in dissent, found that neither section 16(2) nor any other Charter provision could be interpreted as requiring the Lieutenant Governor of New Brunswick to be personally bilingual. In his view, section 16(2) did not provide for any independent, substantive right, but rather informed the interpretation of linguistic equality in New Brunswick institutions guaranteed under sections 17(2) and 20(2).

Implications

On its face, this decision states a rule of narrow application: New Brunswick’s constitutional requirement of institutional bilingualism requires that individuals who, in their capacity as sole officeholder, are “constitutionally inseparable” from the institution to which they are appointed, be themselves bilingual. The majority did not speculate about what roles, besides that of Lieutenant Governor, might require individual bilingualism. However, it disclaimed the implication that this requirement would apply to the offices of Premier, Minister, and Attorney General of New Brunswick. The democratic process that culminates in these appointments, and the distinct constitutional conventions governing them, are fundamental differences that distinguish these offices from that of the Lieutenant Governor. The dissenting reasons disagreed, arguing that the same rationale would apply to the provincial premier and cabinet.

Although the majority decision is narrowly focused on a small set of institutions (possibly a single institution) in one province, its interpretation of section 16(2) as having “its own independent mandatory scope” could conceivably inform future analyses of section 16(1), which imposes requirements on the federal government parallel to those in section 16(2). Indeed, the dissenting reasons warn that the majority rationale would apply with equal weight to the federal government and, presumably, to the Governor General.