Supreme Court rules that NB’s lieutenant governor must be bilingual

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Is it unconstitutional to appoint a lieutenant governor who is not bilingual?

If it’s in New Brunswick, the country’s only officially bilingual province, the Supreme Court of Canada says it is.

In a 6-3 decision, the Court found that section 16 of the Charter, which sets out the official language rights of Canada’s only officially bilingual province, requires the position to be held by someone bilingual. To that end, former prime minister Justin Trudeau breached section 16(2) when he appointed Brenda Murphy as lieutenant governor of New Brunswick in 2019. 

Murphy was appointed after her predecessor, Jocelyne Roy-Vienneau, died in office. This paralyzed the province's government until a new lieutenant governor could be appointed. 

Her appointment was challenged by the Société de l'Acadie du Nouveau-Brunswick. While the judgment is declaratory and Murphy’s appointment was not rescinded, all future lieutenant governors of the province must be bilingual from here on. Louise Imbeault, who is bilingual, has been in the role since early 2025.

At the Court of Queen’s Bench, as it was then known, the province’s chief justice ruled that Murphy’s appointment contravened the Constitution, but did not see fit to invalidate it, given the significant consequences of doing so. The New Brunswick Court of Appeal unanimously allowed the appeal and rejected the argument that the person in the office of the lieutenant governor needed to be bilingual, as long as the office was.

The majority of the Supreme Court of Canada allowed the appeal and issued simple declaratory relief, opting not to nullify the appointment. The majority felt that, given the particular nature of section 16(2), the equality of languages in the province could not be preserved when a unilingual person holds a highly symbolic institution, as it gives predominance to the majority language, English.

“In a unipersonal institution like that of lieutenant governor, the configuration of the office means that the person called upon to hold it cannot delegate any of their specific authority to their staff,” Chief Justice Richard Wagner wrote for the majority. 

“Even if the lieutenant governor may be supported by administrative staff in carrying out certain activities — which has not, however, been established by evidence in this case — the lieutenant governor must perform most of their functions personally.”

The majority also made it clear that the wording of 16(2) is specific to New Brunswick. So, should there be a challenge to other federal office-holders, including the governor general, even though the language of s.16(1) is similar, “it does not necessarily follow that these provisions must be given the same interpretation.”

Wagner said it wasn’t a question that needed to be resolved in this case.

Likewise, the majority did not feel that this should necessarily apply to other unipersonal offices, such as the prime minister, premier, or cabinet ministers, given the differences in how they attain their roles.

The dissenting judges, led by Justice Malcolm Rowe, were less convinced by this reasoning.

“This logic leads inevitably to a constitutional requirement of personal bilingualism for the premier of New Brunswick and provincial ministers,” he wrote. 

“Under that reasoning, it is difficult to see why the appointment of a unilingual lieutenant governor would violate the equality of status of official languages, but a unilingual premier or a unilingual minister of finance, for example, would not. The premier is no more replaceable than the lieutenant governor while in office, nor would a unilingual premier avoid the same concerns of symbolic inequality.”

Similarly, Rowe said that the similar language of s.16(1) could require a bilingual governor general, prime minister, and cabinet ministers.

Mark Power and Darius Bossé from Power Law LLP in Ottawa represented the Association des juristes d'expression française du Nouveau-Brunswick as intervenors, but also served as counsel for the Société de l'Acadie du Nouveau-Brunswick at trial. Power says they’re “delighted” by the decision. He noted it’s one of the few times the Court has actually weighed in on these sections of the Charter.

“What’s interesting is the normative force that is given to 16(2),” he says. 

“Since 1982, there has been a debate as to whether 16 and its three paragraphs are declaratory only, or whether they have normative force. The Court today falls on the side that 16(2) can lead to very concrete results, such as today’s declaration of invalidity.”

Power says that from a more human perspective, and in particular for Acadians, the Court acknowledged the difficult history of assimilation in New Brunswick, including the Great Upheaval, which saw 10,000 Acadians forcibly deported by the British between 1755 and 1764.

“It is quite an interesting judgment in terms of recounting the highlights of the very difficult relationship between Acadians and the Protestant majority in New Brunswick. Since the 1960s and 1980s in particular, there have been sustained efforts to right those wrongs.”

For language rights, he says the logic is either to protect what is accepted as a minimum or to try to correct historical wrongs, including attempts to assimilate Acadians linguistically and culturally.

“Trying to right those wrongs is one of the themes of the judgment,” Power says.

Simon Bouthillier, an associate with McCarthy Tétrault LLP in Montreal, represented the Fédération des communautés francophones et acadienne du Canada as intervenors in the case.

“We are pleased that the SCC agreed with our submissions that language rights must not be reduced to a purely functional analysis, and that they have an important symbolic aspect,” he said in an email. 

“This is a significant decision, especially given that, in New Brunswick, language rights carry a strong historical, symbolic, identity-based, and community dimension.”

Bouthillier noted that the Court also confirmed that section 16 is not merely introductory or declaratory, but operates as an autonomous constitutional guarantee, which is a “welcome development.”

Denis Frawley, a partner at Owens Wright LLP in Toronto and former chair of the CBA’s French-speaking members’ section, says the majority is repeating that language rights are constitutional rights and need to be interpreted very broadly. In particular, the majority states that these rights must never be viewed as accommodations.

“The Court is often saying that when someone is asserting a right, they’re not requesting an accommodation—they’re requesting something that is recognized by the Charter or by the Constitution as being inherently held by the person or the group, not something that needs to be accommodated,” he says. 

“It was nice to see that language.”

Frawley says recognition of language rights has increased over time, and it’s interesting to see some clarity recently, given the controversies surrounding Murphy and former Governor General Mary Simon.

Power says that from here on, it would likely be a risky proposition to appoint another governor general who isn’t able to perform the job bilingually at the time of their appointment.

“I’m not suggesting that the Court came to that conclusion. In fact, quite the opposite,” he says. 

“That said, I would imagine that for many federal Department of Justice lawyers, the advice going forward would be that this would be risky given how similar 16(1) and 16(2) are.”

Philippe Lagassé, the Barton Chair in International Affairs at Carleton University and an expert on the Crown and Westminster parliaments, says the majority’s reasoning will likely encourage the notion that there is a constitutional convention that the governor general should be bilingual, even though using section 58 of the Constitution Act, 1867, would not indicate that.

“Everything that surrounds the logic of why you would require the office-holder [in New Brunswick] to be bilingual could easily be grafted onto the governor general,” he says. 

“But you would need someone to make that argument, and it would need to get up to the Supreme Court.”

Lagassé thinks Rowe’s dissent may have gone too far in saying that the logic might extend the bilingual obligation to first ministers because the confidence convention binds them. But for the governor general, there is no contradiction around confidence.

“Wagner tries to get around this with some really bizarre reasoning,” he notes. 

“It’s all very strange.”