Background
In September 2019, the Governor General in Council, acting on the Prime Minister’s recommendation, appointed Brenda Louise Murphy as Lieutenant Governor of New Brunswick. Murphy was unilingual English-speaking at the time of her appointment and did not become bilingual during her tenure. New Brunswick holds a constitutionally unique status as Canada’s only officially bilingual province, with language guarantees enshrined in ss. 16(2), 16.1, 18(2), and 20(2) of the Canadian Charter of Rights and Freedoms.
The Société de l’Acadie du Nouveau-Brunswick challenged the appointment, arguing it violated those constitutional language guarantees. The application sought declaratory relief, nullification of the Prime Minister’s advice, and an order quashing both the appointment order-in-council and the appointment itself. The application judge agreed that ss. 16(2), 16.1, and 20(2) impose an obligation of personal bilingualism on the Lieutenant Governor, but declined to quash the appointment given the institutional consequences. The New Brunswick Court of Appeal reversed, holding that recognizing institutional bilingualism does not constrain the discretionary appointment power in s. 58 of the Constitution Act, 1867.
The Supreme Court of Canada granted leave and heard the appeal on November 13, 2025, with judgment rendered June 12, 2026.
The Court’s Holding
In a 6–3 decision, the Supreme Court allowed the appeal, set aside the Court of Appeal’s judgment, and restored the application judge’s decision in part. Chief Justice Wagner, writing for the majority, held that appointing a Lieutenant Governor of New Brunswick who lacks the ability to understand, communicate in, and perform their functions in both official languages infringes s. 16(2) of the Charter. The majority reasoned that the office of Lieutenant Governor is a uniquely “unipersonal and highly symbolic institution” — inseparable from its sole holder — and that appointing a unilingual person relegates one official language to a subordinate status, undermining the substantive equality guarantee that s. 16(2), read with s. 16.1, imposes on New Brunswick’s institutions. Section 16(2) therefore limits the exercise of the appointment power in s. 58 of the Constitution Act, 1867 as it applies to that province.
The appropriate remedy under s. 24(1) of the Charter, the majority held, is a declaration — not nullification of the past appointment. A declaration clarifies the constitutional obligation going forward while leaving the executive branch the necessary discretion to determine how to comply, and is particularly apt where remedy would affect the functioning of a constitutional institution tied to continuity of the state.
Justice Rowe, joined by Justices Karakatsanis and Jamal, dissented. The dissent argued that the Charter’s language scheme creates institutional bilingualism — obligations on government organizations — not personal bilingualism requirements for individual officeholders. In their view, “institutions” in s. 16(2) refers to organizations, s. 16(2) is an interpretive principle rather than a freestanding substantive right, and s. 16.1 could not constitutionally impose a condition on appointment to the Lieutenant Governor’s office because it was enacted via the s. 43(b) bilateral amendment process rather than the unanimous consent procedure required by s. 41(a) for changes to that office. The dissent also warned that the majority’s reasoning would logically extend personal bilingualism requirements to the Premier, Cabinet ministers, and potentially the Prime Minister, threatening responsible government.
Key Takeaways
- The Lieutenant Governor of New Brunswick must be personally bilingual — capable of understanding and communicating in both English and French when performing the functions of the office — as a constitutional requirement flowing from s. 16(2) of the Charter.
- Where a provincial institution is constitutionally inseparable from a single individual and carries a uniquely symbolic role, the equality-of-status guarantee in s. 16(2) reaches the personal language capacity of the officeholder, not merely the administrative apparatus around them.
- A declaratory remedy under s. 24(1) is the appropriate relief when constitutional non-compliance involves an appointment to a high constitutional office; courts will not retroactively void the appointment, but will bind future exercises of the appointment power.
- The decision is confined by its own reasoning to offices that are unipersonal and uniquely symbolic; the majority expressly left open the extent to which similar obligations apply to other officeholders such as provincial premiers or federal ministers.
Why It Matters
This ruling marks the first time the Supreme Court has held that the Charter‘s language equality guarantees directly constrain the appointment of a constitutional officer in a bilingual province. For lawyers and governments, it establishes that the functional/symbolic duality of s. 16(2) — equal use rights and equal status — can, in the right institutional context, translate into an affirmative requirement for personal bilingualism rather than merely an obligation on the surrounding bureaucracy. It also reaffirms that language rights in New Brunswick are to be interpreted with particular force given the province’s unique constitutional history and the Francophone minority’s long advocacy for protection.
The sharp 6–3 split signals live tension on the Court over the boundary between institutional and personal language obligations under the Charter. Practitioners advising federal and provincial executives on appointments to symbolic constitutional offices — particularly in officially bilingual provinces — should treat personal bilingualism as a constitutional prerequisite going forward. The dissent’s warning about downstream implications for other senior officeholders, including premiers and Cabinet ministers, means this decision is unlikely to be the last word on the reach of Canada’s official language equality guarantees.