SUPREME COURT OF CANADA

Citation: Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister), 2026 SCC 22

Appeal Heard: November 13, 2025

Judgment Rendered: June 12, 2026

Docket: 41398

Between:

Société de l’Acadie du Nouveau-Brunswick

Appellant

and

The Right Honourable Prime Minister of Canada,

Her Excellency the Right Honourable Governor General

and the Governor General in Council

Respondents

• and -

Attorney General of New Brunswick,

Fédération des communautés francophones et acadienne du Canada,

Commissioner of Official Languages of Canada,

Association des juristes d’expression française du Nouveau-Brunswick,

St. John’s International Airport Authority and

Michel Thibodeau

Interveners

Official English Translation: Reasons of Wagner C.J.

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

Reasons for Judgment:

(paras. 1 to 123)

Wagner C.J. (Côté, Martin, Kasirer, O’Bonsawin and Moreau JJ. concurring)

Dissenting Reasons:

(paras. 124 to 245)

Rowe J. (Karakatsanis and Jamal JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Société de l’Acadie du Nouveau-Brunswick Appellant

v.

The Right Honourable Prime Minister of Canada,

Her Excellency the Right Honourable Governor General and

the Governor General in Council Respondents

and

Attorney General of New Brunswick,

Fédération des communautés francophones et acadienne du Canada,

Commissioner of Official Languages of Canada,

Association des juristes d’expression française du Nouveau-Brunswick,

St. John’s International Airport Authority and

Michel Thibodeau Interveners

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

2026 SCC 22

File No.: 41398.

2025: November 13; 2026: June 12.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal of new brunswick

Constitutional law — Charter of Rights — Official languages of New Brunswick — Remedy — Appointment of unilingual English-speaking person to position of Lieutenant Governor of New Brunswick — Whether language guarantees applicable to New Brunswick that are enshrined in Charter require Lieutenant Governor of that province to be bilingual — If so, what remedy is appropriate — Canadian Charter of Rights and Freedoms, ss. 16(2), 24(1).

On September 4, 2019, on the recommendation of the Prime Minister of Canada, the Governor General in Council made an order in council appointing Brenda Louise Murphy as the Lieutenant Governor of New Brunswick. Ms. Murphy was not bilingual at the time of her appointment and did not become so during her term of office. A short time later, the Société de l’Acadie du Nouveau-Brunswick filed an application to challenge the appointment on the ground that it violated the constitutional language guarantees applicable to that province, in particular those set out in ss. 16(2), 16.1, 18(2) and 20(2) of the Charter. That application sought declaratory relief with respect to those language guarantees and the nullification of the Prime Minister’s advice to the Governor General recommending the appointment. It also asked that the order in council making the appointment be declared unlawful and of no effect and that both the order in council and the Lieutenant Governor’s appointment be quashed.

The application judge held that ss. 16(2), 16.1 and 20(2) of the Charter impose an obligation of personal bilingualism on the holder of the position of Lieutenant Governor of New Brunswick. She adopted a broad view of the concept of “institution” and took into account the special nature of the office of Lieutenant Governor. However, the judge refused to quash the challenged appointment because of the significant institutional consequences of doing so. The Court of Appeal rejected the application judge’s interpretation and allowed the Attorney General of Canada’s appeal. It stated that the recognition of some institutional bilingualism does not limit the discretionary power of appointment provided for in s. 58 of the Constitution Act, 1867, and it noted that the position of Lieutenant Governor is an office that, while closely tied to the person holding it, is nevertheless distinguishable from that person for the purposes of constitutional analysis.

Held (Karakatsanis, Rowe and Jamal JJ. dissenting): The appeal should be allowed, the judgment of the New Brunswick Court of Appeal set aside and the judgment of the New Brunswick Court of Queen’s Bench restored in part.

Per Wagner C.J. and Côté, Martin, Kasirer, O’Bonsawin and Moreau JJ.: The appointment of a Lieutenant Governor in New Brunswick who does not have the ability to understand both official languages and to communicate in these languages when performing their functions infringes s. 16(2) of the Charter. Interpreted by reference to the particular history of the Francophone community in New Brunswick and the constitutional commitment to the equality of the official language communities expressed in s. 16.1, s. 16(2) enshrines a mandatory guarantee of substantive equality for the two official languages in the province’s institutions. This equality cannot be preserved when the position of Lieutenant Governor of the province, a unipersonal and highly symbolic institution, is held by a unilingual person. Section 16(2) therefore limits the exercise of the power to appoint a Lieutenant Governor set out in in s. 58 of the Constitution Act, 1867 as it applies to New Brunswick.

Section 58 of the Constitution Act, 1867 gives the Governor General in Council the power to appoint a Lieutenant Governor for each province. This power is not made subject to any particular requirement, but it is exercised in accordance with the convention whereby the Governor General in Council follows the Prime Minister’s advice in making appointments. The Lieutenant Governor is the Crown’s representative in the province and, as such, embodies the Crown and exercises the powers, prerogatives, immunities and capacities granted to it in right of the province. The office of Lieutenant Governor is distinctive, because the Lieutenant Governor personifies both the legislative and executive powers of the province. They also perform an important ceremonial and social role, representing the continuity of the state and providing a link between the Crown and Canadian society.

Like all other rights guaranteed by the Charter, language rights must be given a broad and liberal purposive interpretation, rather than a formalistic one, that seeks to further their purpose and the cardinal values underlying them. Language rights must always be interpreted in a manner consistent with the preservation and development of official language communities. The fact that such rights result from a political compromise does not affect their nature, and the strict construction that for a time characterized them has been definitively rejected. The interpretation of language rights must reflect their dual nature — both individual and collective — and must strive for the substantive equality of the languages and the communities they represent. This standard of equality does not have a lesser meaning in matters of language, and it sometimes requires different treatment and positive action to ensure that it is met. Consequently, the exercise of language rights must never be viewed as exceptional or as a request for accommodation. Language rights serve a threefold purpose: preventive, remedial and unifying. Their interpretation must take into account the historical wrongs that made their entrenchment necessary and must be anchored in the social, demographic and historical realities specific to each province. These teachings have particular resonance in New Brunswick, the only bilingual province in Canada where specific rights have been entrenched in the Constitution. The language protections constitutionalized in the Charter must also be read in light of the other provisions to which they are related, since the Charter must be construed as a system where every component contributes to the meaning as a whole, and the whole gives meaning to its parts.

The first step in the interpretive process is to look at the text of the provision, since the text of the Charter is the first indicator of its scope. Section 16(2) gives the two official languages equality of “status” and “equal rights and privileges” as to their “use” in all institutions of the legislature and government of New Brunswick. This section sets out the fundamental, autonomous and binding principle of New Brunswick’s language policy aimed at ensuring the equality of the official languages in its institutions. The ordinary meaning of the text reveals that the equality of both official languages in the province’s institutions has two dimensions, functional and symbolic. The functional dimension, which is characterized by the presence of the words “equal rights and privileges as to their use”, ensures that English and French speakers have the right to access public services of equal quality in their language. As for the symbolic dimension, which results from the presence of the word “status”, it touches on the recognized place of the official languages in the province’s institutional order. Equality of status means that there is no normative or symbolic hierarchy created between the official languages within an institution, and it ensures that the two official languages have a truly equal place in public institutions and in the provision of services to the public.

With regard to the context of s. 16(2), the equality of the linguistic communities recognized in s. 16.1 confirms and clarifies the scope of equality of status and reinforces the symbolic dimension of institutional bilingualism. This provision is a separate constitutional guarantee that commits the legislature and government of New Brunswick to ensuring the preservation and promotion of the equality of status of the official language communities. By constitutionalizing this principle, the framers sought to make it an essential element of the province’s identity and to clearly affirm their commitment to fully achieving this equality. Section 16.1 reaffirms the commitment of governments to fight against the assimilation of Francophone communities and to promote their cultural vitality. This provision also illustrates the distinctiveness of the New Brunswick context: the existence in the Charter of operational provisions specific to the province reminds us that they are the result of intense political advocacy by the Francophone minority. Linguistic equality thus takes on particular resonance in that province, and any interpretive analysis must be anchored in this reality.

This interpretation of the text and context of s. 16(2) is consistent with the broader purposes of the Charter itself in matters of language rights. The proclamation of equality of status between the official languages serves an important remedial, unifying and preventive purpose: it breaks with an institutional history in which French had no place in the legislature and in public institutions; it establishes the bases for a genuine partnership between the two official languages and the communities that speak them; and it reflects the province’s desire to preserve the living character of the minority official language and ensure that it is passed down to future generations. Together, these operational provisions specific to New Brunswick are the expression of a lasting social pact between the linguistic communities, a pact that governments cannot evade.

New Brunswick’s constitutional language policy is aimed at the bilingualism of institutions, not the bilingualism of the people working in them. However, where the institution in question is constitutionally inseparable from its sole office holder, where it has a uniquely symbolic role in the province and where its functions cannot be performed by anyone else, 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. The Lieutenant Governor of New Brunswick is one such institution. The appointment of a unilingual English-speaking person has the effect of relegating the official language in which that person is not proficient to a secondary status and of undermining, through the symbolic effect of the appointment itself, 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 this case, the appropriate and just remedy under s. 24(1) of the Charter 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. In constitutional cases, the special value of a declaration is recognized, because it clarifies the legal situation and requires the authorities to comply with the law, while leaving them the measure of discretion they need to determine the most appropriate means of implementation. This flexibility is of particular importance where the remedy affects the functioning of a constitutional institution whose responsibilities are closely linked to the continuity of the state.

Per Karakatsanis, Rowe and Jamal JJ. (dissenting): The appeal should be dismissed. None of ss. 16(2), 16.1, 18(2) or 20(2) of the Charter, purposively interpreted, requires that the Lieutenant Governor of New Brunswick be personally bilingual. Accordingly, the appointment of the Lieutenant Governor of New Brunswick was lawfully made. The appointment of a bilingual Lieutenant Governor in Canada’s only officially bilingual province may carry important symbolic value. However, abstract ideals cannot expand the Charter’s constitutional protection to interests it was never intended to protect. That approach would amount to amending the Constitution under the guise of interpreting it. Constitutional imperatives must not be conflated with political and policy considerations. The wisdom of appointing a unilingual Lieutenant Governor is a matter for the executive branch, which makes the appointment, not the courts.

The legitimacy of constitutional interpretation rests on adherence to a principled and consistent methodology. The rights and freedoms guaranteed by the Charter must be given a large and liberal interpretation aimed at fulfilling the purpose of each guarantee. A right must be understood by reference to its underlying purpose, that is, in light of the nature of the interests it is meant to protect. The purpose of a specific provision is identified by reference to the larger objects of the Charter, the language chosen to articulate the specific right or freedom, the historical origins of the concepts enshrined, and the meaning and purpose of associated Charter rights and freedoms. Charter interpretation is therefore constrained by the language, structure, and history of the constitutional text. So as to not overshoot or undershoot the actual purpose of the right, purposive interpretation must not lose sight of the specific interests intended to be given protection, which embody enduring constitutional values. The purpose of the provision thereby directs its application in new contexts and allows it to apply to new social, political and historical realities. Courts are not, however, free to invent new obligations foreign to the purpose of the provision at issue.

The purposive approach to Charter interpretation applies with equal force to language rights. Language rights must be interpreted in a manner consistent with the preservation and development of official language communities in Canada, which entails preserving their languages and their distinctiveness. Language rights should also be construed remedially and must be understood within the context of Canada’s history as a country founded on linguistic duality and committed to the protection of its minorities.

Sections 16(2), 16(3), 16.1, 17(2), 18(2), 19(2), 20(2), 21 and 22 of the Charter, which are all located under the heading “Official Languages of Canada”, form a scheme of constitutionally protected, institutionally based language rights in New Brunswick. They amount to a regime of institutional bilingualism, in which specified activities of the state are to be carried out in both languages and in which individuals have the choice to use English or French in their dealings with certain government institutions. None of the provisions at issue, purposively interpreted, requires that the Lieutenant Governor of New Brunswick be personally bilingual.

Section 16(2) states in part that both official languages shall have equal status, rights, and privileges as to their use in the institutions of the legislature and government of New Brunswick. A purposive interpretation of s. 16(2), which introduces the Charter’s scheme of institutional bilingualism, confirms that this scheme does not impose obligations of personal bilingualism on the state’s representatives. The ordinary and grammatical meaning of the text of s. 16(2) and the provision’s historical and philosophical origins indicate that “institutions” is a reference to organizations, not individuals. Therefore, the relevant “institution” in the instant case is not the Lieutenant Governor personally, but the Office of the Lieutenant Governor, the government unit that she heads.

Section 16(2) cannot independently ground a personal bilingualism requirement for the Lieutenant Governor because it does not provide a freestanding, substantive right. Rather, it is a statement of purpose that serves an interpretative function for the specific guarantees of ss. 17(2) to 20(2). The component of s. 16(2) that provides for equal rights and privileges as to the use of English and French in New Brunswick’s institutions requires that, in the operation of ss. 17(2) to 20(2), both languages be treated in a functionally equivalent manner. The component of s. 16(2) that provides for equality of status in those institutions sets a standard of substantive equality. Applied to the rights guaranteed in ss. 17(2) to 20(2), this standard translates into positive obligations on the state to organize its institutions so that English and French can be used in a meaningfully equivalent manner. Given the provision’s wording and purpose, the context of the scheme of which it forms a part, and the need for coherence in interpreting the Charter, s. 16(2) does not operate as a residual or catch-all guarantee of equality of status. It does not confer an unbounded and standalone substantive right that could independently ground a Charter claim.

Section 16.1 cannot have the effect of imposing a condition of appointment to the office of Lieutenant Governor because it was not added to the Constitution under the amending provision that allows amendments to the office of the Lieutenant Governor of a province. It was added to the Charter in 1993 through a bilateral constitutional amendment made pursuant to s. 43(b) of the Constitution Act, 1982 by Parliament and the Legislative Assembly of New Brunswick. That provision allows Parliament and a provincial legislative assembly acting together to make any amendment to any provision of the Constitution that relates to the use of English or French within a province. Contrarily, any amendment to the Constitution in relation to the office of the Lieutenant Governor of a province requires the unanimous consent of Parliament and all 10 provinces under s. 41(a) of the Constitution Act, 1982.

Section 18(2) applies to the legislature and imposes a duty to publish statutes and other legislative papers in both official languages. Section 18(2) must be read together with s. 17(2), which guarantees the right of any person, including the Lieutenant Governor, taking part in legislative proceedings to use the official language of their choice. Just as the Constitution does not require every member of the Legislative Assembly to be capable of understanding both language versions of a bill for it to be validly passed, neither does a Lieutenant Governor’s ability to understand only one language version of a bill impair the validity of royal assent. Given that both language versions of a statute are equally authoritative under s. 18(2), the Lieutenant Governor may grant royal assent on her consideration of either version.

Section 20(2) entrenches the right to communicate with, and to receive services from, any office of an institution of the legislature or government in the official language of one’s choice. This does not grant members of the public a right to communicate with or receive services from the Lieutenant Governor personally in the official language of their choice, nor does it require the Lieutenant Governor to be personally bilingual. Since s. 16(2) is a statement of principle that informs the interpretation of s. 20(2), “institution” under this provision bears the same meaning and any obligation arising under it therefore falls on the public-facing organization headed by the Lieutenant Governor, and not the Lieutenant Governor personally. The historical and philosophical background behind the inclusion of s. 20(2) in the Charter demonstrates that it does not entitle a member of the public to speak with or receive services from any particular individual within any relevant organization. Indeed, achieving the standard of substantive equality under s. 16(2) will likely require that, depending on the language requested by the member of the public, different individuals within an organization will provide the same services or communicate about the same matter.

Interpreting the Charter as requiring the Lieutenant Governor of New Brunswick to be personally bilingual would have far-reaching implications. The underlying reasoning would extend a similar constitutional requirement of personal bilingualism to public office holders of comparable symbolic importance, such as the Premier of New Brunswick and provincial ministers. Such a conclusion under s. 16(2) implies that s. 16(1), which applies to the institutions of Parliament and the federal government, requires a personally bilingual Governor General of Canada. The same reasoning could extend to other federal public offices holders, including the Prime Minister and Cabinet ministers. This could clash with conventions of responsible government and thereby undermine the structure of parliamentary democracy and the government’s democratic legitimacy. Such a fundamental change could only have been made in the clearest of terms, and not by mere implication from the Charter.

The proposed interpretation is also unworkable, in that it fails to identify any standard in the Constitution for determining what meets a requirement of personal bilingualism. It is unclear what standard is sufficient if the Lieutenant Governor is required to be bilingual in order to: personify the equality of English and French; foster the Francophone minority’s sense of belonging to New Brunswick society; provide a unifying symbol for both linguistic communities; and prevent a language speaker from viewing their language as subordinated to the other. The effect of the proposed interpretation would be to artificially constitutionalize, and thereby subject to judicial scrutiny, the personal language competencies of New Brunswick’s Lieutenant Governor and potentially of other important officers of state. This is an issue that should not be before the courts, because it exceeds their institutional competence, adjudicative role, and constitutional function.

Cases Cited

By Wagner C.J.

Referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 66 (SCC), [1986] 1 S.C.R. 549; Charlebois v. Moncton (City), 2001 NBCA 117, 242 N.B.R. (2d) 259; Liquidators of the Maritime Bank of Canada v. Receiver‐General of New Brunswick, [1892] A.C. 437; Ex parte Renaud (1873), 1873 23 (NB SC), 14 N.B.R. 273, aff’d Maher v. Town of Portland(1874), [1896] Wheeler’s Confederation Laws of Canada 338; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Taylor v. Newfoundland and Labrador, 2026 SCC 5; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Tayo Tompouba, 2024 SCC 16; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194; R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Canada (Attorney General) v. Power, 2024 SCC 26; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 119 (SCC), [1993] 1 S.C.R. 839; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208; Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350; Air Canada v. Joyal (1982), 1982 3079 (QC CA), 134 D.L.R. (3d) 410; Association des Gens de l’Air du Québec Inc. v. Lang, 1978 2029 (FCA), [1978] 2 F.C. 371; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; Thibodeau v. Air Canada, 2019 FC 1102, 443 C.R.R. (2d) 206; Thibodeau v. Canada (Senate), 2019 FC 1474; Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; Assn. des Parents Francophones (Colombie-Britannique) v. British Columbia (1996), 1996 1455 (BC SC), 27 B.C.L.R. (3d) 83; Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721; Mahe v. Alberta, 1990 133 (SCC), [1990] 1 S.C.R. 342; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319; Reference re Prov. Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158; Reference re Bill 30, An Act to amend the Education Act (Ont.), 1987 65 (SCC), [1987] 1 S.C.R. 1148; Motard v. Attorney General of Canada, 2019 QCCA 1826; Reference re Resolution to amend the Constitution, 1981 25 (SCC), [1981] 1 S.C.R. 753; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44.

By Rowe J. (dissenting)

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319; Reference re Prov. Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158; Taylor v. Newfoundland and Labrador, 2026 SCC 5; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; British Columbia (Attorney General) v. Canada (Attorney General), 1994 81 (SCC), [1994] 2 S.C.R. 41; Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Charlebois v. Moncton (City), 2001 NBCA 117, 242 N.B.R. (2d) 259; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; Edwards v. Attorney-General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845; R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712; Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 119 (SCC), [1993] 1 S.C.R. 839; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 66 (SCC), [1986] 1 S.C.R. 549; R. v. Mercure, 1988 107 (SCC), [1988] 1 S.C.R. 234; Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217; Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194; R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541; Girouard v. Canada (Attorney General), 2020 FCA 129, [2020] 4 F.C.R. 557; Attorney General of Quebec v. Blaikie, 1979 21 (SCC), [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, 1981 14 (SCC), [1981] 1 S.C.R. 312; Quebec (Attorney General) v. Brunet, 1990 126 (SCC), [1990] 1 S.C.R. 260.

Statutes and Regulations Cited

Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, S.N.B. 1981, c. O-1.1.

Canadian Charter of Rights and Freedoms, ss. 3, 6, 7 to 14, 15, 16 to 23, 24(1).

Constitution Act, 1867, ss. 23, 55, 58, 64, 88, 90, 93, 133.

Constitution Act, 1982, ss. 35(1), 41, 43, 52(1).

Constitution Amendment Proclamation, 1993 (New Brunswick Act), SI/93-54.

Executive Council Act, R.S.N.B. 2011, c. 152.

Federal Courts Act, R.S.C. 1985, c. F-7.

Interpretation Act, R.S.N.B. 1973, c. I-13, s. 38 “Legislature”.

Official Languages Act, S.C. 1968-69, c. 54, ss. 2, 3, 5, 7, 9, 10, 11, 36(3).

Official Languages of New Brunswick Act, S.N.B. 1969, c. 14, ss. 2, 4, 5 to 7, 9, 11, 13, 14, 15.

Authors Cited

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Brun, Henri, Guy Tremblay and Eugénie Brouillet. Droit constitutionnel, 6th ed. Cowansville, Que.: Yvon Blais, 2014.

Canada. Department of Justice. Memorandum on the Office of Lieutenant-Governor of a Province: Its Constitutional Character and Functions (With Appendices), by James McLeod Hendry. Ottawa, 1955.

Canada. House of Commons. House of Commons Debates, vol. VIII, 1st Sess., 28th Parl., May 16, 1969, p. 8787.

Canada. Royal Commission on Bilingualism and Biculturalism. Report of the Royal Commission on Bilingualism and Biculturalism, Book I, The Official Languages. Ottawa, 1967.

Conrad, Margaret. A Concise History of Canada, 2nd ed. New York: Cambridge University Press, 2022.

Cote, J. E. “The Reception of English Law” (1977), 15 Alta. L. Rev. 29.

Côté, Pierre-André, and Mathieu Devinat. Interprétation des lois, 5th ed. Montréal: Thémis, 2021.

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Doucet, Michel. Les droits linguistiques au Nouveau-Brunswick: À la recherche de l’égalité réelle!. Lévis: Éditions de la Francophonie, 2017.

Doucet, Michel. “Pourquoi une langue mérite-t-elle une protection constitutionnelle ou législative?” (2009), 11 R.C.L.F. 55.

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Foucher, Pierre, and Gérard Snow. “Le régime juridique des langues dans l’administration publique au Nouveau-Brunswick” (1983), 24 C. de D. 81.

Girard, Philip, Jim Phillips and R. Blake Brown. A History of Law in Canada, vol. 1, Beginnings to 1866. Toronto: University of Toronto Press, 2018.

Grand Robert de la langue française (electronic version), “statut”.

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Klinck, Jennifer, et al. “Le droit à la prestation des services publics dans les langues officielles”, in Michel Bastarache and Michel Doucet, eds., Les droits linguistiques au Canada, 3rd ed. Cowansville, Que.: Yvon Blais, 2013, 451.

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APPEAL from a judgment of the New Brunswick Court of Appeal (Richard C.J. and Quigg and LeBlanc JJ.A.), 2024 NBCA 70, 494 D.L.R. (4th) 1, [2024] N.B.J. No. 145 (Lexis), 2024 CarswellNB 255 (WL), setting aside a decision of DeWare C.J., 2022 NBQB 85, 471 D.L.R. (4th) 305, 83 C.P.C. (8th) 319, 508 C.R.R. (2d) 78, [2022] N.B.J. No. 74 (Lexis), 2022 CarswellNB 153 (WL). Appeal allowed, Karakatsanis, Rowe and Jamal JJ. dissenting.

Gabriel Poliquin, Érik Labelle Eastaugh and Charles R. Daoust, for the appellant.

Lindy Rouillard-Labbé and Bernard Letarte, for the respondents.

Isabel Lavoie Daigle, K.C., and Rose Campbell, for the intervener Attorney General of New Brunswick.

Simon Bouthillier, for the intervener Fédération des communautés francophones et acadienne du Canada.

Isabelle Hardy, Alex-Ann Rousseau and Élie Ducharme, for the intervener Commissioner of Official Languages of Canada.

Jennifer Klinck, René Arseneault, Darius Bossé and Juliette Vani, for the intervener Association des juristes d’expression française du Nouveau-Brunswick.

Michael Shortt and Paolina Tosheva, for the intervener St. John’s International Airport Authority.

Nicolas M. Rouleau, for the intervener Michel Thibodeau.

English version of the judgment of Wagner C.J. and Côté, Martin, Kasirer, O’Bonsawin and Moreau JJ. delivered by

The Chief Justice —

I. Overview

1Canada’s constitutional history attests to the importance that our country attaches to the protection and promotion of the official languages. Even more so since the enactment of the Canadian Charter of Rights and Freedoms, bilingualism has become an organizing principle of the Canadian legal order.

2Language rights are an expression of essential guarantees relating to personal identity, collective dignity and the equal participation of the official language communities in the democratic life of the country. As this Court has repeatedly recognized, these rights serve remedial, preventive and unifying purposes; they are intended to remedy historical inequalities, prevent the assimilation of linguistic minorities and ensure their preservation and development in Canada.

3Nowhere do these principles take on greater meaning than in New Brunswick, Canada’s only officially bilingual province, where the equality of English and French, as well as the equality of the official language communities, is expressly enshrined in the Constitution. The second subsections of ss. 16 to 20 of the Charter, together with s. 16.1, express that province’s special commitment to substantive equality between its two official languages and between the communities that use them. This equality is reflected in concrete terms in the presence of both official languages in the province’s institutions.

4The case before us raises a novel question in Canadian constitutional law: whether the appointment of a unilingual person to the position of Lieutenant Governor in New Brunswick violates the constitutional guarantees of linguistic equality applicable to that province.

5Following the death of Lieutenant Governor Jocelyne Roy-Vienneau on August 2, 2019, the Governor General, on the recommendation of the Prime Minister of Canada, appointed Brenda Louise Murphy as the 32nd Lieutenant Governor of New Brunswick. At the time of her appointment, Ms. Murphy did not speak French, and she did not become bilingual during her term of office.

6It is important to emphasize that this appeal is not about Ms. Murphy’s skills and qualifications or about the significant contributions she made to the well-being of New Brunswick’s citizens. As the application judge rightly noted, Lieutenant Governor Murphy was deeply invested in her community. Through her work, she contributed to the advancement of gender equality, to various social justice initiatives, to the fight against discrimination based on sexual orientation, and to poverty reduction. Her skills and accomplishments are in no way being called into question and have been acknowledged by all parties. The appeal relates only to the question of the language skills required of a person who is called upon to play this very special role in New Brunswick.

7For the reasons that follow, I would allow the appeal. In my view, s. 16(2) of the Charter enshrines a mandatory guarantee of substantive equality for the two official languages in New Brunswick’s institutions. Interpreted through the purposive approach applicable to Charter provisions, and in light of its remedial purpose, this provision must be read by reference to the particular history of the Francophone community in New Brunswick and the constitutional commitment to the equality of the official language communities expressed in s. 16.1. Section 16(2) protects both the possibility of using either official language in the province’s institutions and the equality of status of these two languages. This equality cannot be preserved when the position of Lieutenant Governor of the province, a unipersonal and highly symbolic institution, is held by a unilingual person, a situation that necessarily gives predominance to the majority language, English.

8Section 16(2) therefore imposes language requirements on the person holding this office that limit the exercise of the power of appointment provided for in s. 58 of the Constitution Act, 1867.

9The 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.

II. Background

A. Facts

10On August 2, 2019, the Lieutenant Governor of New Brunswick, the Honourable Jocelyne Roy-Vienneau, died prematurely while in office. On September 4, 2019, on the recommendation of the Prime Minister of Canada, the Governor General in Council made an order in council appointing Brenda Louise Murphy as the 32nd Lieutenant Governor of New Brunswick. This power of appointment is conferred by s. 58 of the Constitution Act, 1867.

11At the time of her appointment, Ms. Murphy was not bilingual, and she did not become so during her term of office, despite the efforts made in this regard. Her term of office ended on January 22, 2025. The new Lieutenant Governor, the Honourable Louise Imbeault, is bilingual.

12Shortly after Ms. Murphy’s appointment, the appellant, the Société de l’Acadie du Nouveau-Brunswick, filed an application with the New Brunswick Court of Queen’s Bench to challenge the appointment on the ground that the choice of a unilingual person for the office of Lieutenant Governor of New Brunswick violated the constitutional language guarantees applicable to that province. In that application, the appellant sought, among other things, declaratory relief with respect to the language guarantees set out in ss. 16(2), 16.1, 18(2) and 20(2) of the Charter as well as the nullification of the Prime Minister’s advice to the Governor General recommending Ms. Murphy’s appointment. It also asked that the order in council making the appointment be declared unlawful and of no effect and that both the order in council and the Lieutenant Governor’s appointment be quashed.

B. Judicial History

(1) New Brunswick Court of Queen’s Bench, 2022 NBQB 85, 471 D.L.R. (4th) 305 (DeWare C.J.)

13The application judge concluded that the recommendation made by the Prime Minister to the Governor General in Council regarding the appointment of the Lieutenant Governor of New Brunswick was a measure that could be judicially reviewed. She found that the issue of the constitutionality of that recommendation fell within the courts’ jurisdiction over the protection of language rights.

14On the merits, the judge held that ss. 16(2), 16.1 and 20(2) of the Charter impose an obligation of personal bilingualism on the holder of the position of Lieutenant Governor of New Brunswick. She adopted a broad view of the concept of “institution” and emphasized the special nature of this office, which represents an essential and symbolic constitutional function in the province. In her opinion, the effective implementation of the language guarantees set out in s. 16(2), as well as the protection of the equality of the official language communities enshrined in s. 16.1, requires that the person holding the office be able to perform their role in both official languages. However, the judge refused to quash the challenged appointment because of the significant institutional consequences of doing so, and she left it to the government to make the appropriate decisions.

(2) New Brunswick Court of Appeal, 2024 NBCA 70, 494 D.L.R. (4th) 2 (Richard C.J. and Quigg and LeBlanc JJ.A.)

15The Court of Appeal allowed the Attorney General of Canada’s appeal. While it confirmed that the issue was justiciable, it rejected the application judge’s interpretation of the scope of the constitutional language guarantees. It stated that the recognition of some institutional bilingualism does not limit the discretionary power of appointment provided for in s. 58 of the Constitution Act, 1867. Relying on the case law concerning the nature and responsibilities of the position of Lieutenant Governor, it noted that this is an office that, while closely tied to the person holding it, is nevertheless distinguishable from that person for the purposes of constitutional analysis.

16The Court of Appeal then considered the relevant provisions of the Charter. It held that s. 20(2) does not confer a right to communicate directly in either of the official languages with the Lieutenant Governor, finding that such personal interactions are not “services provided” by a provincial institution within the meaning of this provision.

17As for s. 16(2), the Court of Appeal found that it cannot be interpreted as requiring the Lieutenant Governor to be personally bilingual. This provision establishes that the two official languages have equality of status and equal rights and privileges as to their use in all institutions; respect for this status and these rights and privileges does not depend on the Lieutenant Governor’s personal language skills. A contrary interpretation would have the effect of distorting the constitutional provisions whose purpose is to ensure institutional, not personal, bilingualism.

18Lastly, the Court of Appeal held that s. 16.1, which enshrines the equality of New Brunswick’s linguistic communities, does not apply to state institutions themselves and thus cannot require the holder of the office of Lieutenant Governor to be personally bilingual. It also rejected the argument based on s. 18(2) and found that the Lieutenant Governor’s unilingualism does not compromise either the integrity or the validity of royal assent.

III. Issues

19This appeal raises two questions:

1. Do the language guarantees applicable to New Brunswick that are enshrined in the Charter require the Lieutenant Governor of that province to be bilingual?

2. If so, what is the appropriate remedy?

IV. Analysis

A. Standard of Review

20Section 58 of the Constitution Act, 1867 gives the Governor General in Council a discretionary power of appointment. This power is exercised through orders in council made on the recommendation of the Privy Council. Like any administrative act, an order in council may be subjected to judicial scrutiny. That being said, the appellant did not apply to the courts for judicial review of the federal government’s administrative decision pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7. Rather, it filed an application with the New Brunswick Court of Queen’s Bench seeking an order quashing the order in council and Lieutenant Governor Murphy’s appointment for being inconsistent with the provisions of the Constitution. The parties did not in fact treat the case as a judicial review of the reasonableness of the order in council, but rather as an application relating to a question of law, that is, the question of whether the enactment of ss. 16(2), 18(2) and 20(2) of the Charter in 1982, or of s. 16.1 in 1993, imposed bilingualism as a condition of eligibility for the office of Lieutenant Governor of New Brunswick. More specifically, the appellant is asking whether the Charter’s language guarantees applicable to New Brunswick, properly interpreted, require that the person appointed be able to perform their functions in both of the province’s official languages. As the parties agree, this is a question of law reviewable on the standard of correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8).

B. Interpretation of Charter Provisions

21As I said, this case raises the question of whether the appointment in New Brunswick of a unilingual Lieutenant Governor who is unable to perform all the functions of their office in both official languages is consistent with the language rights entrenched in the Charter with respect to that province.

22The appellant argues before this Court, as it did in the courts below, that ss. 16(2), 16.1, 18(2) and 20(2) of the Charter limit the discretionary power to appoint a representative of the Sovereign in that province, a power provided for in s. 58 of the Constitution Act, 1867.

23The Attorney General of Canada (“respondent”) argues, for his part, that no provision of the Charter or the Constitution Act, 1867 requires that the Lieutenant Governor personally be proficient in both official languages. According to him, the provisions relied upon by the appellant apply to the institution of Lieutenant Governor, not to the person holding this office. The purpose of these provisions is to constitutionalize the province’s policy of institutional bilingualism and to require the implementation of rights relating to the use of both languages in the provision of public services in all institutions of the legislature and government of New Brunswick. This policy does not, however, require any particular person to be bilingual. As for s. 58 of the Constitution Act, 1867, it does not require bilingualism as a prerequisite to the appointment of a Lieutenant Governor. In the respondent’s opinion, it therefore appears that the framers did not intend, when the Charter was enacted, to require that the person appointed to the position of Lieutenant Governor in New Brunswick be bilingual.

24This Court has rarely had occasion to consider the Charter provisions that, through their combined effect, constitutionalize institutional bilingualism in the province of New Brunswick (see Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 66 (SCC), [1986] 1 S.C.R. 549). Nor has there been much interpretation of these provisions by the New Brunswick Court of Appeal (see Charlebois v. Moncton (City), 2001 NBCA 117, 242 N.B.R. (2d) 259). The question of the harmonious interpretation of s. 58 of the Constitution Act, 1867 and the Charter provisions relied upon is an entirely novel one.

25In light of the principles for interpreting language rights developed in our jurisprudence, the Court is called upon to determine the content and scope of these provisions and to assess how these requirements materialize within a unique institution in the province, that of Lieutenant Governor. This interpretation must reflect the particular features of the language regime in New Brunswick and the interests it is meant to protect, in light of the history of that province and the commitment made by its political authorities to the protection of its Francophone minority.

26I believe that s. 16(2) of the Charter is a sufficient basis on which to decide the case. This provision requires, in my view, that the person appointed as Lieutenant Governor have the ability to understand both official languages and to communicate in these languages when performing their functions. This institution, unique in that it is unipersonal, cannot be embodied by a person who is unable to speak both English and French without violating the principle of substantive equality of the official languages that governs New Brunswick’s distinctive constitutionalized language regime.

27My analysis will proceed in five parts. First, I will review the Lieutenant Governor’s role in our constitutional architecture. Second, I will outline the history of language rights in New Brunswick. This part will provide context for the exercise of interpreting language rights in that province. Third, I will review the methodology used for interpreting language rights. Fourth, I will determine the nature, content and scope of s. 16(2) of the Charter, paying particular attention to the interests that this provision is meant to protect. Fifth and last, I will consider how s. 16(2) applies in the specific case of the Lieutenant Governor of New Brunswick.

(1) Role of the Lieutenant Governor

28Section 58 of the Constitution Act, 1867 provides that the Governor General in Council has the power to appoint, for each province, “an Officer, styled the Lieutenant Governor”. Although this power is discretionary, it is exercised in accordance with the convention whereby the Governor General in Council follows the Prime Minister’s advice in making appointments (see, generally, A. F. Marshall, “Crown”, in Canadian Encyclopedic Digest (4th ed. (loose-leaf), at § 45). Section 58 does not make this power of appointment subject to any particular requirement.

29The Lieutenant Governor is the Crown’s representative in the province and, as such, embodies the Crown and exercises the powers, prerogatives, immunities and capacities granted to it in right of the province (J. McL. Hendry, Memorandum on the Office of Lieutenant-Governor of a Province: Its Constitutional Character and Functions (With Appendices) (1955), at p. 19; J. T. Saywell, The Office of Lieutenant-Governor: A Study in Canadian Government and Politics (1957)). This constitutional status was decisively affirmed by the Judicial Committee of the Privy Council in Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437, which established that, for the purposes of provincial government, the Lieutenant Governor is a representative of the Sovereign and not merely an officer of the federal government.

30The office of Lieutenant Governor has a dual character. The Lieutenant Governor is, on the one hand, a representative of the Crown in right of the province and a constituent element of the legislature and, on the other, a provincial authority appointed by the federal government, through the constitutional mechanism for designating the Crown’s representatives in the provinces. In the context of responsible government, the Lieutenant Governor must almost always act on the advice of the Premier of the province and the ministers who have the confidence of the elected assembly, as most political power remains in the hands of democratically elected authorities. However, the Lieutenant Governor retains reserve powers, which must be exercised with exceptional discretion, when it is necessary to resolve a parliamentary crisis of confidence (P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 9:3). One of the Lieutenant Governor’s essential responsibilities is to give royal assent to laws passed by the provincial legislature, and this assent normally cannot be denied.

31Finally, the Lieutenant Governor performs an important ceremonial and social role. Through their participation in the public life of the province, they embody the continuity of the state and the relationship between institutions and citizens. The Lieutenant Governor thus performs a symbolic function, both as a constituent element of the provincial legislature and as a representative of the Crown in right of the province, thereby providing a link between the Crown and Canadian society.

(2) Constitutional Protection of Language Rights in New Brunswick

32The interpretation of language rights in New Brunswick cannot be undertaken in a factual vacuum. It must be contextualized by reference to the history of that province’s Francophone minority.

33In 1604, French colonists began settling in the region that is now the Maritimes, which they called Acadia. This territory quickly became the subject of conflict between the French living there and English settlers in New England. Following the Treaty of Utrecht in 1713, France ceded the territory of Acadia to Great Britain, which there imposed British law and English as the language of administration (J. E. Cote, “The Reception of English Law” (1977), 15 Alta. L. Rev. 29, at pp. 36 and 41).

34After refusing to swear allegiance to the British Crown, a large portion of the Acadian population was deported from Acadian territory to the British colonies of North America from 1755 to 1763, in what is today called the “Great Upheaval”. More than 10,000 Acadians were forced to leave their villages and families and abandon their culture (P. Girard, J. Phillips and R. B. Brown, A History of Law in Canada, vol. 1, Beginnings to 1866 (2018), at pp. 229-30). Thousands of them perished from illness, in shipwrecks or in their places of refuge. This event resulted in significant trauma to the Francophone community in the Maritimes, but it also laid the foundations of the Acadian identity.

35Following the Seven Years’ War, many of them gradually returned and settled in the northern and eastern regions of what is now New Brunswick. However, they remained politically marginalized. When the province was created in 1784, no protection was granted to the French language or the Acadian culture (M. Bastarache and A. Boudreau Ouellet, “Droits linguistiques et culturels des Acadiens et des Acadiennes de 1713 à nos jours”, in J. Daigle, ed., L’Acadie des Maritimes: études thématiques des débuts à nos jours (1993), 385, at p. 395). This institutional invisibility persisted after Confederation (G. Migneault, “La progression des droits linguistiques au Nouveau-Brunswick dans une perspective historique globale” (2007), 52 McGill L.J. 83, at pp. 87-97). The Constitution Act, 1867 did not extend the language guarantees set out in s. 133 to New Brunswick, despite the presence of a significant Francophone minority. Similarly, Catholic schools, which were predominantly French-language schools, did not enjoy the constitutional protection conferred by s. 93, since they were treated as non-denominational public schools by the law preceding the province’s entry into Confederation (see, in this regard, Ex parte Renaud (1873), 1873 23 (NB SC), 14 N.B.R. 273, reasons approved by the Judicial Committee of the Privy Council in Maher v. Town of Portland (1874), [1896] Wheeler’s Confederation Laws of Canada 338).

36New Brunswick thus carried out an institutional assimilation of the Francophone minority: the administration and courts functioned in English only, while education in French remained limited (see Bastarache and Boudreau Ouellet, at pp. 419-21). The French language was therefore excluded from New Brunswick’s institutions. Francophones were minoritized, since they did not enjoy the same language rights as members of the majority group. In this context, institutions played a role as vectors of social and linguistic inequality. This non-recognition was combined with the economic precarity experienced by the Francophone minority, which made up nearly a third of the province’s population.

37The 1960s marked a turning point in New Brunswick’s linguistic landscape and were the backdrop for intense advocacy by the Francophone minority to ensure the substantive and institutional equality of the two official language communities. In 1963, the federal government created the Royal Commission on Bilingualism and Biculturalism and gave it a mandate to inquire into the state of bilingualism and relations between Anglophones and Francophones in Canada and to recommend steps for ensuring their linguistic and cultural equality. In one of its reports, published in 1967, the Commission recommended, among other things, that New Brunswick recognize English and French as the province’s official languages (Report of the Royal Commission on Bilingualism and Biculturalism, Book I, The Official Languages (1967), at p. 97).

38It was in this context that, in 1969, the province enacted the Official Languages of New Brunswick Act, S.N.B. 1969, c. 14, which recognized the equality of status and equal rights and privileges of both languages in the entire field of provincial jurisdiction, following the lead of the Parliament of Canada, which passed its first Official Languages Act, S.C. 1968-69, c. 54, the same year. New Brunswick thus became the first and only bilingual province in Canada. In 1981, the province enacted the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, S.N.B. 1981, c. O-1.1. That statute officially recognized the existence and equality of the province’s two official language communities.

39During the same period, New Brunswick also did away with bilingual schools and districts and adopted a system based on a duality of distinct school systems, each homogeneous in its own language. This arrangement, which was put in place even before s. 23 of the Charter was enacted, still structures its entire educational system today (M. Doucet, Les droits linguistiques au Nouveau-Brunswick: À la recherche de l’égalité réelle! (2017), at p. 425).

40In 1982, when the Constitution was repatriated, New Brunswick became the only province in Canada whose institutions are subject to specific language guarantees set out in ss. 16(2), 17(2), 18(2), 19(2) and 20(2) of the Charter, which reflect its commitment to linguistic equality and institutional bilingualism. These provisions read as follows:

16 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.

16 Le français et l’anglais sont les langues officielles du Nouveau-Brunswick; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau-Brunswick.

17 Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

17 Chacun a le droit d’employer le français ou l’anglais dans les débats et travaux de la Législature du Nouveau-Brunswick.

18 The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

18 Les lois, les archives, les comptes rendus et les procès-verbaux de la Législature du Nouveau-Brunswick sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur.

19 Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

19 Chacun a le droit d’employer le français ou l’anglais dans toutes les affaires dont sont saisis les tribunaux du Nouveau-Brunswick et dans tous les actes de procédure qui en découlent.

20 Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

20 Le public a, au Nouveau-Brunswick, droit à l’emploi du français ou de l’anglais pour communiquer avec tout bureau des institutions de la législature ou du gouvernement ou pour en recevoir les services.

41Section 16(2) enshrines the equality of the province’s official languages, which, through its combined effect with the other provisions, establishes a complete regime of institutional bilingualism. In 1993, on the initiative of the New Brunswick government and in accordance with the amending procedure set out in s. 43 of the Constitution Act, 1982, s. 16.1 was entrenched in the Charter. This unique provision recognizes the equality of the English and French linguistic communities in the province:

16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

16.1(1) La communauté linguistique française et la communauté linguistique anglaise du Nouveau-Brunswick ont un statut et des droits et privilèges égaux, notamment le droit à des institutions d’enseignement distinctes et aux institutions culturelles distinctes nécessaires à leur protection et à leur promotion.

(2) Le rôle de la législature et du gouvernement du Nouveau-Brunswick de protéger et de promouvoir le statut, les droits et les privilèges visés au paragraphe (1) est confirmé.

42This section establishes in New Brunswick, with respect to language rights, a constitutional regime that is entirely unique in the country. Its purpose is to ensure the preservation of the two official languages and the cultures associated with them while promoting the vitality and development of the official language communities (M. Doucet, M. Bastarache and M. Rioux, “Les droits linguistiques: fondements et interprétation”, in M. Bastarache and M. Doucet, eds., Les droits linguistiques au Canada (3rd ed. 2013), 1, at pp. 30-52). This provision, whose entrenchment in the Constitution was validated by a referendum (see Migneault, at p. 121), reiterates the principle of equality and the legislature’s commitment in this regard already expressed in the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick.

43Language rights in New Brunswick therefore serve a remedial purpose, since they break with the inequality of status of the official languages that had characterized social, political and legal relations in that province since the British conquest. They also serve a unifying purpose, because they form the basis for an egalitarian relationship between the official language communities and represent the province’s commitment to building a multicultural society that cares about the vitality of the minority language community. This model of linguistic development differs from that of all other Canadian provinces. Its uniqueness must be taken into account when interpreting these particular language rights.

(3) Methodology for Interpreting Language Rights

44The principles for interpreting language rights are not in dispute in this case. However, it is important to outline them again given that the Court is being called upon here to interpret certain provisions of the Charter for the first time.

45Since its earliest judgments on the matter, this Court has adopted a decidedly purposive methodology for interpreting the Charter (Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103). This approach, centred on the purpose of the Charter and of its provisions, has remained consistent for more than four decades (Taylor v. Newfoundland and Labrador, 2026 SCC 5, at para. 71). Purposive interpretation is based on the “obvious” fact that the Charter is, on its face, a purposive document (Hunter, at p. 156). The true meaning of a Charter provision is therefore ascertained “by an analysis of the purpose of such a guarantee” (Big M Drug Mart Ltd., at p. 344 (emphasis in original)). This purpose is determined “by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter” (ibid.).

46Thus, the overall purpose of the Charter and the text, history and context of a provision together serve to clarify the precise purpose of the provision, that is, the interests and values that it fundamentally protects (Taylor, at paras. 77-84). These interests and values are the cornerstone and ultimate objective of the methodology for interpreting the Charter (para. 85). Naturally, reading the text is the starting point of the interpretive exercise (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 8). However, the text is not the aim of a purposive interpretation, but rather serves as a “key indicator of the interests” protected by the provision (Taylor, at para. 79). It also assists in determining the provision’s true purpose so as to ensure that the ultimate interpretation does not overshoot the provision (para. 79; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 16-17; Big M Drug Mart Ltd., at p. 344). Once the text and other indicators of purpose have been considered by the interpreter, it will be possible for the interpreter to “ascertai[n] what interests that provision protects, and why it does so”, and to conclude its purposive interpretation by giving the provision the meaning that can best provide “the most generous protection it can support to safeguard its interests” (Taylor, at paras. 83 and 85; see also Big M Drug Mart Ltd., at p. 344; Hunter, at pp. 155-56).

47Moreover, while a right’s history and origins may shed light on the interests and values it protects, they cannot freeze its constitutional meaning or limit its implementation to what was initially conceived by its drafters (Taylor, at para. 80). Constitutional interpretation continues to evolve, focusing on the present-day advancement of the interests protected by the provision. An analysis that gave decisive weight to the original intent would risk unduly narrowing the scope of the rights in question.

48Like all other rights guaranteed by the Charter, language rights must be given a broad and liberal purposive interpretation, rather than a formalistic one, that seeks to further their purpose and the “cardinal values” underlying them (Société des Acadiens (1986), at p. 560; see also R. v. Tayo Tompouba, 2024 SCC 16, at para. 27; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, at para. 31).

49In R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, this Court instructed that language rights, whether constitutional or statutory in nature, must always be interpreted in a manner consistent with the preservation and development of official language communities (para. 24; see also Tayo Tompouba, at para. 27; see Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 27; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, at para. 23; DesRochers, at para. 31). The fact that such rights result from a political compromise does not affect their nature, and the strict construction that for a time characterized language rights has been definitively rejected (Beaulac, at para. 25; Arsenault-Cameron, at para. 27; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 27). It follows that decisions rendered during the time when the Court viewed language rights as the expression of a political compromise must “be considered in light of the subsequent cases” in which it favoured a liberal and generous interpretation of language rights, an interpretation firmly focused on the interests they are meant to protect (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 18).

50The interpretation of language rights must reflect their dual nature — both individual and collective — and must strive for the substantive equality of the languages and the communities they represent (Beaulac, at para. 24; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at paras. 2-3; Conseil scolaire francophone, at para. 90). This standard of equality does not have a lesser meaning in matters of language (Beaulac, at para. 22). When applied to language rights, this conception sometimes requires different treatment and positive action to ensure that neither a language nor the community it represents is relegated to an inferior position. Consequently, the exercise of language rights must never be viewed as exceptional or as being in the nature of a request for accommodation (Beaulac, at para. 24).

51Language rights serve a threefold purpose: preventive, remedial and unifying (see generally Conseil scolaire francophone, at para. 15). Their interpretation must take into account the historical wrongs that made their entrenchment necessary, and it must be anchored in the social, demographic and historical realities specific to each province (para. 4; Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357; Big M Drug Mart Ltd., at p. 344; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 25; Canada (Attorney General) v. Power, 2024 SCC 26, at para. 26; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 119 (SCC), [1993] 1 S.C.R. 839, at pp. 850-51; Arsenault-Cameron, at para. 27; Doucet-Boudreau, at para. 27). To this end, it will sometimes be necessary for “different interpretative approaches . . . to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province” (Reference re Public Schools Act (Man.), at p. 851; see also Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712, at pp. 777-78; Solski, at para. 7; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208, at para. 26). These teachings have particular resonance in New Brunswick, the only bilingual province in Canada where specific rights have been entrenched in the Constitution.

52The language protections constitutionalized in the Charter must also be read in light of the other provisions to which they are related. For this reason, the Charter “must be construed as a system where ‘[e]very component contributes to the meaning as a whole, and the whole gives meaning to its parts’” (Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350, at p. 365, quoting P.-A. Côté, The Interpretation of Legislation in Canada (1984), at p. 236; see also Taylor, at para. 81). The sections of the Charter must therefore be interpreted by reference to the other sections in order to preserve its underlying values and internal coherence (Taylor, at para. 81).

53In the context of this appeal, these principles of interpretation structure the analysis of the particular language rights invoked by the appellant. They require that the constitutional provisions specific to the province of New Brunswick be interpreted on the basis of the interests they are meant to protect and in keeping with the history of that province’s language regime. In light of this analytical framework, the true scope of the provisions relied upon must now be determined.

(4) Interpretation of Section 16(2) of the Charter

54The appellant submits that the appointment of a unilingual Lieutenant Governor in New Brunswick violates the guarantee of equality of status of the official languages conferred in s. 16(2) of the Charter. It maintains that equality of status has an expressive dimension that is not realized when the unipersonal institution of Lieutenant Governor is embodied by a unilingual person. Since several of the Lieutenant Governor’s functions cannot be delegated and carry significant institutional responsibility, the appellant argues that the Court of Appeal erred in unduly limiting the scope of this section and that it failed to take into account the unique nature of the institution of Lieutenant Governor.

55The respondent counters that s. 16(2) is concerned solely with institutional bilingualism, and thus the administrative organization of institutions, and not with the office holders’ personal skills. He emphasizes the distinction between the “office” and the “institution”, saying that the Charter imposes only an obligation to provide services, not a personal language requirement. According to the respondent, the appellant’s interpretation thus disregards the ordinary meaning of the word “institution”, which refers to an administrative structure and not to an individual, even if the individual holds a constitutional office.

56This Court has never had occasion to rule on the interpretation of s. 16(2) of the Charter.

57Writing for the majority in Beaulac, Bastarache J. noted that s. 16 “formally recognizes the principle of equality of the two official languages of Canada” (para. 22). He noted in this regard that “[l]anguage rights are not negative rights, or passive rights” (para. 20), and that “[e]quality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning” (para. 22). However, Beaulac provides little guidance on the nature, content and scope of s. 16(2).

58In Charlebois, the New Brunswick Court of Appeal, referring mainly to Beaulac, provided some additional guidance. According to the court, s. 16(2) enshrines a principle of substantive equality of the official languages in New Brunswick’s institutions (paras. 63-77). The court stated that the provincial language regime is institutional, not personal, bilingualism: it aims for the use of both languages by public institutions in the provision of services (para. 10). The court also emphasized that this substantive equality may require government action for its implementation (para. 113).

(a) Declaratory or Mandatory Nature of Section 16(2)

59Before considering the precise content of this provision, I think it is necessary to dispel any ambiguity regarding whether s. 16(2) is declaratory or mandatory.

60There has been some debate about the scope of s. 16 in the academic literature and jurisprudence. According to one school of thought, s. 16 is a provision that is purely symbolic, declaratory in nature and not capable of grounding a claim for relief. On this view, this provision merely sets out an introductory principle for the regime of language rights in the Charter and should be understood in light of the provisions that follow it and set out specific modalities for the achievement of linguistic equality (B. B. Pelletier, “Les pouvoirs de légiférer en matière de langue après la ‘Loi constitutionnelle de 1982’” (1984), 25 C. de D. 227, at pp. 253-69; J. E. Magnet, Official languages of Canada: Perspectives from law, policy and the future (1995), at p. 101). This position is similar to the one taken by the New Brunswick Court of Appeal, which stated in its reasons that s. 16(2) “is somewhat a magnifying lens of substantive equality through which existing language rights must be considered and analyzed” (para. 114). This is also the position favoured by the respondent.

61In contrast, a second school of thought maintains that this section sets out the fundamental, autonomous and binding principle of Canadian language policy and creates specific obligations for the government in order to ensure the equality of the official languages in its institutions (J. Klinck et al., “Le droit à la prestation des services publics dans les langues officielles”, in Bastarache and Doucet, Les droits linguistiques au Canada, 451, at pp. 519-25; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at paras. XI.24-XI.27; A. Tremblay, “Les droits linguistiques (Articles 16 à 22)”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 15-1, at pp. 15-1 to 15-11; L. Huppé, “Droit Constitutionnel — Article 16 de la Charte des Droits et Libertés — Égalité de Statut des Langues Officielles — Une Intention ou une Obligation?: Société des Acadiens c. Association of Parents” (1988), 67 Can. Bar Rev. 128, at p. 135). In other words, on this view, s. 16 is “the cornerstone or pivot of all language provisions” at the federal level and in New Brunswick (A. Tremblay, “The Language Rights (Ss. 16 to 23)”, in W. S. Tarnopolsky and G. A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (1982), 443, at p. 450).

62Contrary to the conclusion reached by the Court of Appeal and my colleague Rowe J., I am of the view that s. 16 is not simply a magnifying lens through which the other specific language rights in the Charter must be analyzed. Rather, this provision has its own independent mandatory scope. Nothing in the architecture of the Charter serves to establish a hierarchy among the various language guarantees or supports the view that some are mandatory while others are merely declaratory. Such a reading needlessly fragments the constitutional language regime and risks depriving s. 16 of the structuring effect conferred on it by the framers. Rather, s. 16 is part of a coherent set of guarantees whose purpose is to ensure the stability and predictability of the language regime of Canada and New Brunswick, not an ancillary mechanism intended to magnify rights already set out elsewhere in the Charter.

63As authors Brun, Tremblay and Brouillet point out, the debate surrounding the mandatory or declaratory nature of equality of status and use must be understood in light of its historical context (para. XI.24; Klinck et al., at pp. 519-25). This debate is rooted in part in the interpretation given by some courts to s. 2 of the Official Languages Act of 1969, which was drafted in terms analogous to those of s. 16 of the Charter. In cases dealing with the use of French as a language of work, those courts had found that the provision was merely declaratory in nature and devoid of any real effect (see Air Canada v. Joyal (1982), 1982 3079 (QC CA), 134 D.L.R. (3d) 410 (Que. C.A.); Association des Gens de l’Air du Québec Inc. v. Lang, 1978 2029 (FCA), [1978] 2 F.C. 371 (C.A.)).

64However, as Professors Brun, Tremblay and Brouillet note, the limits applicable to the former Official Languages Act of 1969 no longer apply when s. 16 of the Charter is being interpreted (para. XI.24). First, the constitutional nature of s. 16 means that it has supra-legislative authority which exceeds that of ordinary laws, giving it a normative force that cannot be neutralized by traditional rules of interpretation. Thus, s. 16 appears not as an isolated objective, but as a component of a broader structural reconfiguration (Huppé, at p. 135).

65Second, unlike s. 2 of the 1969 Official Languages Act, the application of s. 16 of the Charter is squarely within the purview of the courts under s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982, and this allows for judicial review of measures that are contrary to linguistic equality. As authors Foucher and Snow note, the s. 24(1) remedy would be illusory if the guarantees in s. 16 had no real import (P. Foucher and G. Snow, “Le régime juridique des langues dans l’administration publique au Nouveau-Brunswick” (1983), 24 C. de D. 81, at p. 92).

66Furthermore, it would be difficult to conclude that s. 16(1) and s. 16(2) of the Charter form only a preamble whose content is exhausted by the provisions that follow. As Professors Brun, Tremblay and Brouillet point out, the scope of ss. 17 to 23 of the Charter is too narrow to lessen the generality of the terms of s. 16 (para. XI.25). Like s. 7 of the Charter, which introduces legal rights without being coextensive with ss. 8 to 14, s. 16 sets out an independent standard whose specific incarnations appear in the provisions that follow, though without exhausting its meaning (see G. C. N. Webber, “The Promise of Canada’s Official-Languages Declaration”, in J. E. Magnet, ed., Official Languages of Canada: New Essays (2008), 131; Huppé, at p. 137; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at pp. 502-3; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 354). In other words, ss. 17 to 23 of the Charter are specific incarnations of the equality of status of the official languages and of the rights and privileges as to their use in all institutions of the legislature and government of New Brunswick that is guaranteed by s. 16, but they do not exhaust its scope.

67Likewise, the fact that s. 16(2) does not specify who holds the enunciated rights does not deprive it of all normative force. It is true that this provision does not confer rights on a specific person, but rather states that the official languages have equality of status and equal rights and privileges. This formulation contrasts with the one used for most rights and freedoms guaranteed by the Charter that expressly identify the holders, whether for fundamental freedoms, the right to life, liberty and security of the person and legal rights (ss. 7 to 10 and 12 to 14 (“[e]veryone”)), the right to equality (s. 15 (“[e]very individual”)), mobility rights and democratic rights (ss. 3 and 6 (“[e]very citizen”)) or minority language educational rights (s. 23 (“[c]itizens of Canada”)). However, as Professor Webber rightly points out, the absence of an expressly named right holder is not unknown in our Constitution (p. 148). For example, the provisions on sittings of Parliament and on its maximum duration of five years do not identify any individualized beneficiary. The same is true of the existing Aboriginal and treaty rights of Indigenous peoples, which are “recognized and affirmed” in s. 35(1) of the Constitution Act, 1982. The absence of a holder cannot, as my colleague suggests, justify a purely interpretive reading of this provision.

68Similarly, the broad and abstract nature of the language of s. 16(2), just like the absence of internal limits or explicit criteria allowing its implications to be predicted, is consistent with the existence of something other than a strictly interpretive function. Our constitutional provisions are often drafted in general and abstract terms, as this Court in fact noted in Hunter with respect to s. 8 (p. 154; Brun, Tremblay and Brouillet, at para. XII-3.2). Section 7, and specifically its second part concerning the “principles of fundamental justice”, does not provide any more criteria than s. 16(2) does for determining its precise content or circumscribing its scope. This flexibility in the text is precisely what allows the Charter to grow and develop in line with the various social and political realities it may be faced with over time (Hunter, at p. 155). As recognized by Professors Hogg and Wright, “[a] constitution differs from an ordinary statute in that a constitution is expressed in language sufficiently broad to accommodate a wide and unpredictable range of facts” (§ 36:18). This is why the Court has consistently stated that interpreting the Charter’s provisions requires identifying the purpose of the right in question, and not limiting oneself to just reading its text, in order to delineate its contours (Taylor, at para. 85). The guidance needed for this analysis must be sought beyond just the wording. In short, the open-ended drafting style used for constitutional provisions is not a reason to restrict the mandatory nature of a Charter right.

69Finally, it should be borne in mind that this decision is firmly grounded in the particular historical and social context of New Brunswick. This is the same context that, as I have explained, led to the inclusion in the Charter of specific provisions on language rights in New Brunswick. While the wording of the provisions specific to New Brunswick (Charter, ss. 16(2), 17(2), 18(2), 19(2) and 20(2)) is similar to the wording used in the corollary provisions applicable to the institutions of the Parliament and government of Canada (ss. 16(1), 17(1), 18(1), 19(1) and 20(1)), it does not necessarily follow that these provisions must be given the same interpretation. As this Court noted recently in Taylor, “the purpose of a right or freedom is to protect the interests and values embodied by the individual Charter provision” (para. 73). In this regard, “[t]he historical origins of the right in question provide [an] interpretive source of purpose” (para. 80). The interpretive exercise we have conducted in these reasons is anchored in the specific context of the history of the protection of language rights in New Brunswick and cannot necessarily be transposed to the interpretation of the provisions concerning the institutions of the Parliament and government of Canada. This question does not need to be resolved for the purposes of this case.

(b) Interpretation

70Having found that s. 16(2) is mandatory in nature, I must now determine exactly what this provision requires, in light of its text, its context and the general purposes of language rights.

(i) Text

71Section 16(2) provides that the language regime in New Brunswick is institutional bilingualism. However, in my view, the case should not be decided simply by asking whether the Lieutenant Governor can be characterized as an institution within the meaning of this provision. The office of Lieutenant Governor is distinctive, because the Lieutenant Governor embodies in a single person both the legislative and executive powers of the province. I believe that it is important to understand the provision’s underlying purposes and give meaning to its express wording in order to determine whether this provision requires the holder of this office to have particular language abilities.

72The application judge did not really undertake an interpretive exercise with respect to s. 16(2). Rather, she found that ss. 16(2), 17(2), 18(2), (19(2) and 20(2) of the Charter enshrine institutional bilingualism in New Brunswick and that the appointment of a unilingual Lieutenant Governor is contrary to the spirit of these provisions (para. 53). The Court of Appeal adopted a more formalistic approach centred around the grammatical structure of the text and the presence of the words “use”, “institution” and “in”, but without focusing on the remedial purpose of the s. 16(2) guarantee or its function in the province’s unique language regime (paras. 111-12).

73Before this Court, the appellant emphasizes the scope of the word “status”, which breaks with the status quo ante, the prior state of affairs, for the French language in the province. It submits that true institutional bilingualism requires concrete measures to ensure that the unipersonal institution of Lieutenant Governor can translate into substantive equality for the two official languages.

74The respondent argues, on the contrary, that s. 16(2) imposes only institutional bilingualism and cannot be interpreted as requiring any particular person to be bilingual. Like the Court of Appeal, he relies on the presence of the words “use” and “institution”, as well as the preposition “in” (or its equivalent “dans” in French), in order to limit the guarantee to the modalities of official language use within the Lieutenant Governor’s administrative apparatus and to assert that this guarantee does not extend to the person holding the office.

75The first step in the interpretive process is to look at the text of the provision, since the text of the Charter is the first indicator of its scope:

16 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.

16 Le français et l’anglais sont les langues officielles du Nouveau-Brunswick; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau-Brunswick.

76Section 16(2) gives the two official languages equality of “status” and “equal rights and privileges” as to their “use” in all institutions of the legislature and government of New Brunswick.

77It is apparent from reading s. 16(2) that it has three complementary components: (1) the constitutional recognition of English and French as the province’s official languages, (2) the granting to these languages of equality of status and equal rights and privileges, which apply (3) to their use in all institutions of the legislature and government. The question is therefore not whether this equality extends to institutions, since the text is explicit in this regard, but rather how the true scope of these components is to be understood.

78As noted by the interveners the Fédération des communautés francophones et acadienne du Canada, the Association des juristes d’expression française du Nouveau-Brunswick and the Commissioner of Official Languages, the ordinary meaning of the text reveals at once that the equality of both official languages in the province’s institutions has two dimensions, functional and symbolic.

79The first dimension of institutional equality — the functional dimension —which is characterized by the presence of the words “equal rights and privileges as to their use”, is about the concrete modalities of official language use in the institutions in question. It ensures that English and French speakers in New Brunswick have the right to access public services of equal quality in their language. In practice, it enables them to consult laws in either language and to communicate with provincial institutions and obtain public services of equal quality in the language of their choice. It also guarantees the use of English or French in courts established by the province. These guarantees find specific expression in ss. 17(2), 18(2), 19(2) and 20(2) of the Charter, which dictate the modalities of equality of use in specific institutional contexts.

80The symbolic dimension of this equality, on the other hand, touches on the recognized place of the official languages in the province’s institutional order. It results from the presence of the word “status” in the text of s. 16(2), which appears separately from the concepts of rights and privileges, and which generally refers to the position that a reality occupies within a given set of realities (Le Grand Robert de la langue française (electronic version), sub verbo “statut”). The emphasis placed on the equality of status of the official languages is even clearer in the English version of the text than in the French version, since the former states that the official languages “have equality of status and equal rights and privileges as to their use” (in French, “ont un statut et des droits et privilèges égaux quant à leur usage”).

81By focusing on the syntactic structure of s. 16(2), the Court of Appeal overlooked this symbolic dimension. In its view, because the use of both official languages “in” institutions does not depend on a particular person’s language skills, the Lieutenant Governor’s failure to be proficient in one of the official languages does not compromise the equality of the languages (paras. 111-12).

82The respondent essentially adopts this reasoning. In his opinion, the wording of s. 16(2) cannot realistically be interpreted as stating that English and French “have equality of status and equal rights and privileges as to their use in [the person appointed to the office of Lieutenant Governor of New Brunswick]” (R.F., at para. 49 (emphasis in original; text in brackets in original)). According to the respondent, this literal reading of s. 16(2) confirms that the framers never intended to impose bilingualism on an identifiable person.

83While this reading correctly underscores the fact that s. 16(2) does not impose generalized individual bilingualism, it tends to reduce institutional equality to just the provision of services in both official languages and to deprive the word “status” of any normative force. This interpretation does not fully account for the framers’ choice to add this word separately, in addition to the words “rights and privileges”. However, it is important to adopt an interpretation that gives meaningful effect to each of the words used, without subtracting from or adding to them (see P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at paras. 1012-13). The presence of the word “status” must mean something and cannot, in my opinion, be fully understood by considering only the practical modalities of language use in a public institution.

84Section 16(3) further confirms that the equality in question has not only a functional dimension but also a symbolic dimension:

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

(3) La présente charte ne limite pas le pouvoir du Parlement et des législatures de favoriser la progression vers l’égalité de statut ou d’usage du français et de l’anglais.

85By authorizing Parliament and the legislatures to “advance the equality of status or use”, it recognizes that linguistic equality has complementary dimensions that are also capable of evolving. The use of the conjunction “or” in s. 16(3) emphasizes the duality between equality of status and equality of use. This provision also confirms that achieving substantive linguistic equality between the two official languages requires both equality of use of the languages and equality of status. This was the interpretation that the Federal Court adopted of s. 16(1), which is drafted in nearly the same terms as s. 16(2), when it stated that “the equality of the official languages has four components. Section 16 of the Charter and section 2 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) provide for the equality of status between French and English, as well as the equality of the rights and privileges with regard to their use” (Thibodeau v. Air Canada, 2019 FC 1102, 443 C.R.R. (2d) 206, at para. 40).

86Equality of status may be compromised even when certain rights or privileges concerning the use of a language are respected. The jurisprudence of the Federal Court provides concrete illustrations of this. In a case dealing with, among other things, the difference in size between the words “exit” and “warning” and the French words “sortie” and “avis” displayed in certain aircraft, the Federal Court found that this visual asymmetry created an inequality of status between the languages because it tended to affirm the predominance of one over the other even though equality of use was respected through the bilingual posting of safety notices (Thibodeau v. Air Canada, at para. 49). Similarly, the court held that a bilingual sign placed above a unilingual English inscription did not achieve substantive equality, since English was still predominant despite the physical presence of both languages (Thibodeau v. Canada (Senate), 2019 FC 1474, at para. 53).

87Understood in this way, equality of status means that there is no normative or symbolic hierarchy created between the official languages within an institution. This commitment ensures that the two official languages have a truly equal place in public institutions and in the provision of services to the public. As this Court has noted, respect for language rights in a context of institutional bilingualism must not be regarded as a duty to accommodate, but as an expression of true equality (Beaulac, at para. 39).

88Obviously, s. 16(2) does not guarantee perfect symmetry in the day-to-day use of the official languages in an institution. Such an interpretation would go beyond the scope of the recognized rights and be disconnected from the demographic reality of New Brunswick. However, this guarantee requires that public institutions be designed to reflect, in their architecture and their official expression, equal recognition of both official languages.

89New Brunswick’s language regime remains institutional bilingualism. As a general rule, it does not require individual bilingualism. However, where an institution is unipersonal, where some of the institution’s constitutive functions cannot be delegated and where it publicly expresses itself through the person embodying it, equality of status cannot be achieved in the institution unless that person is able to understand and speak each of the two official languages.

(ii) Other Provisions of the Charter

90The equality of the linguistic communities recognized in s. 16.1 confirms and clarifies the scope of the equality of status guaranteed in New Brunswick by s. 16(2) and reinforces the symbolic dimension of institutional bilingualism. This provision is a separate constitutional guarantee that commits the legislature and government of New Brunswick to ensuring the preservation and promotion of the equality of status of the official language communities. The addition of s. 16.1 in 1993 cannot be ignored in interpreting s. 16(2), because “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text” (Reference re Senate Reform, at para. 26). In the present case, s. 16.1 provides a telling indication of the purpose of the language guarantees (Charlebois (N.B.C.A.), at para. 78).

91By constitutionalizing the principle of equality of the two linguistic communities, a principle already recognized in 1981 through the enactment of the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, the framers sought to make it an essential element of the province’s identity and to clearly affirm their commitment to fully achieving this equality. As the New Brunswick Court of Appeal noted in Charlebois, “[t]he constitutional principle of the equality of official languages and the equality of the two official linguistic communities and of their right to distinct institutions is the linchpin of New Brunswick’s language guarantees regime” (para. 62).

92Unlike s. 16(2) of the Charter, s. 16.1 is based on the equality of the province’s English and French linguistic communities, rather than on the equality of the languages. It has three complementary dimensions. First, s. 16.1 affirms the equality of status of the province’s English and French linguistic communities and confers equal rights and privileges on them. Second, without limiting the more general scope of the declaration of equality, the provision specifies that the rights of these communities include the right to distinct educational institutions and such distinct cultural institutions as are necessary for their preservation and promotion. The list of institutions is not a closed one, and it may include any institution that is needed to achieve the standard of equality contemplated in the first component. Third, s. 16.1 imposes a positive obligation on the “legislature” and “government” to implement measures that are necessary to meet the commitment to the equality of the linguistic communities.

93Section 16.1 sheds light on the purpose of s. 16(2) by reaffirming the commitment of governments to fight against the assimilation of Francophone communities and to promote their cultural vitality in New Brunswick. Section 16.1 supports the proper understanding of the standard of equality of status set out in s. 16(2). Section 16.1 reminds us that language rights are not meant to be a response to a request for accommodation and are not merely rights to communicate in the official language of one’s choice, but are aimed at the preservation, promotion and development of minority language communities. This provision confirms that the equality of status provided for in s. 16(2) cannot be interpreted narrowly or in a purely functional manner.

94This provision also illustrates the distinctiveness of the New Brunswick context. As I have already said, the interpretation of language rights must take into account the social, demographic and historical realities specific to each province. In the case of New Brunswick, the existence in the Charter of operational provisions specific to the province reminds us that these provisions are the result of intense political advocacy by the Francophone minority. Those efforts twice led to the constitutional entrenchment of provisions to guarantee the equality of the languages and of the linguistic communities they protect. These provisions are the expression of a lasting social pact between the linguistic communities, a pact that governments cannot evade and that reflects both the tensions of the past and the foundation for future relations. Linguistic equality thus takes on particular resonance in that province, and any interpretive analysis must be anchored in this reality.

(iii) Purposes of Language Rights

95This interpretation of the text and context of the provision is consistent with the broader purposes of the Charter itself in matters of language rights.

96In the New Brunswick context, the proclamation of equality of status between the official languages serves an important remedial purpose. It breaks with an institutional history in which French had no place in the legislature and in public institutions and could never be used in government services. It recognizes the symbolic dimension of state institutions as vectors of recognition and exclusion. The Royal Commission on Bilingualism and Biculturalism, in its report, described the influence exerted by the government on the linguistic assimilation of minorities as follows:

When . . . the language of the minority . . . receive[s] little or no recognition in a given region, the minority reluctantly falls into line. It is especially in these situations that governments exert an influence on language: they bring all their weight to bear on the side of the majority language, thereby hastening the linguistic assimilation of the minority.

It is not easy to measure this influence; in fact, it can seem minimal if each contact is considered separately. For a Francophone to be forced to exchange a few words in English, if he can, with a postal clerk or a railway employee may seem of no great concrete importance. But if we add up the number of times a citizen must use language when dealing with the various agencies of government — if we consider the decisive role language plays in the schools, if we think of the influence of the mass media controlled by the state — then we must conclude that the influence of public authorities on the use of language is deep and strong. [paras. 260-61]

97The proclamation of equality of status also serves a unifying purpose by establishing the bases for a genuine partnership between the two official languages and the communities that speak them. It thus expresses the reciprocal commitment of New Brunswick’s two official language communities to a relationship founded on cooperation and tolerance (see generally Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at para. 25, quoting Assn. des Parents Francophones (Colombie-Britannique) v. British Columbia (1996), 1996 1455 (BC SC), 27 B.C.L.R. (3d) 83 (S.C.), at para. 24). It reminds us that language rights do not belong only to members of the linguistic minority, but also to all New Brunswickers as a shared societal project and part of the province’s heritage (W. J. Newman, “Understanding Language Rights, Equality and the Charter: Towards a Comprehensive Theory of Constitutional Interpretation” (2003-2004), 15 N.J.C.L. 363). Protecting the official languages helps to preserve the rich social fabric of the province as a bilingual and multicultural society.

98Section 16(2) also serves a preventive purpose, since it reflects the province’s desire to preserve the living character of the minority official language and ensure that it is passed down to future generations, in order to prevent the assimilation and acculturation of the minority group. This interpretation takes into account the collective nature of language rights, which protect not only an individual’s right to speak their language but, more broadly, the development of the community that speaks and shares it (M. Doucet, “Pourquoi une langue mérite-t-elle une protection constitutionnelle ou législative?” (2009), 11 R.C.L.F. 55, at p. 67). While the standard of equality contemplated in s. 16(2) protects languages, this provision more concretely protects the Francophone minority’s sense of belonging to New Brunswick society (see D. Greschner, “The Purpose of Canadian Equality Rights” (2002), 6 Rev. Const. Stud. 291). It also takes into account the essential role that language plays in building a person’s sense of belonging to the land where they live and its public institutions. Speakers from the linguistic minority might not feel like full members of the province if their language were not recognized and did not occupy an important place in its institutions. Indeed, the Royal Commission on Bilingualism and Biculturalism pointed out this identity-related dimension in its 1967 report, stressing the role of institutional bilingualism in strengthening the sense of belonging:

Neither Francophone nor Anglophone can feel that he lives in a bilingual country where the two official languages are treated as equal, if his own language does not occupy an honourable place, in law and in practice, in the federal government and the central administration of the country, in the army, and in the image which Canada projects abroad.

These are the minimum requirements to be respected. Some at first glance appear quite distant from the citizen’s daily concerns; for example, most Canadians will never attend the debates in Parliament or be involved in a case before the Supreme Court; many will have no contact with the army or with the embassies. However, it would be quite wrong to consider that these institutions do not personally concern every Canadian. For there are such things as the sense of belonging, and of needing to identify with the most prestigious or simply the most visible institutions of the society to which one belongs. Beyond simple allegiance to one’s country, there is the dimension of identification. To ensure this sense of identification, each of the two official languages must have its due place in the principal institutions of the federal government. [paras. 272-73]

99As this Court has stated, language rights cannot be dissociated from the essential role that language plays in the identity and dignity of the communities they protect (Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721, at p. 744; Mahe v. Alberta, 1990 133 (SCC), [1990] 1 S.C.R. 342, at p. 362; see Ford, at pp. 748-49). In Mahe, this Court recognized that “[l]anguage is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it” (p. 362). Equality of status is therefore intended to prevent public institutions from reproducing, even implicitly, a linguistic hierarchy incompatible with the constitutional recognition of both official languages. Its purpose is to ensure that a person or community does not feel less recognized or valued, either linguistically or culturally, as a full member of society on the basis of the official language used (M. Doucet, “Le concept de l’égalité dans l’arrêt Lalonde et al. c. Commission de restructuration des services de santé” (2002), 4 R.C.L.F. 273, at p. 293).

100Consequently, no normative hierarchy can be established between the official languages in the public institutions of the province of New Brunswick without violating the equality of status explicitly protected by s. 16(2). This equality precludes one language from being regarded as the main language of operation and the other as an ancillary language used simply as a form of accommodation. Both languages must be represented and used equitably in these institutions so that speakers of the minority official language are treated with the same consideration as their English-speaking fellow citizens and are fully recognized by the state to which they belong.

(5) Application

101In light of this interpretation, the specific question raised in this appeal must now be addressed. This application calls for a delicate assessment of what the equality of status of the official languages requires in the specific context of New Brunswick.

102As I have noted, New Brunswick’s constitutional language policy is aimed at the bilingualism of institutions, not the bilingualism of the people working in them. However, where the institution in question is constitutionally inseparable from its sole office holder, where it has a uniquely symbolic role in the province and where its functions cannot be performed by anyone else, 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. In my view, the Lieutenant Governor of New Brunswick is one such institution.

103The respondent raises two arguments to counter this conclusion. First, as a preliminary argument, the respondent submits that if the framers had intended to impose language requirements on the person holding the position of Lieutenant Governor, they would have done so unequivocally in the Constitution. According to the respondent, the silence of s. 58 of the Constitution Act, 1867 in this regard is telling. Pursuant to the general principle that one part of the Constitution cannot abrogate or diminish another part of it, much more explicit wording was required, failing which any interpretation affirming language requirements under the Charter could potentially modify or remove the Governor General’s discretionary power of appointment.

104In my opinion, the respondent is mistaken. It is true that s. 58 of the Constitution Act, 1867 confers a broad discretionary power on the Governor General in Council and does not make the appointment of the Lieutenant Governor subject to any particular selection criterion. By way of example, this discretion stands in contrast to s. 23 of the Constitution Act, 1867, which expressly sets out the qualifications needed to be appointed a senator, including being a landowner and at least 30 years old. This absence of more specific criteria does not mean, however, that the Constitution cannot require bilingualism as a condition of appointment. This Court’s task is to interpret the purpose of a provision as revealed by the current text of the Constitution, which includes the Constitution Act, 1867 and the Constitution Act, 1982.

105In this regard, the exercise of the power of appointment is subject to the requirements of the Charter, and interpreting such a constraint does not, contrary to what the respondent argues, abrogate the discretionary power provided for in s. 58 of the Constitution Act, 1867. It is important to distinguish between removing a power or jurisdiction conferred by the Constitution and limiting its exercise, which is permitted where the power infringes guaranteed rights (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, at p. 373; Reference re Prov. Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158; Reference re Bill 30, An Act to amend the Education Act (Ont.), 1987 65 (SCC), [1987] 1 S.C.R. 1148, at p. 1197). In New Brunswick Broadcasting, McLachlin J., as she then was, stated that the Charter cannot deprive a body of its constitutional prerogatives, while also affirming that the Charter applies to the “fruit” of the exercise of a power when it affects individual rights (p. 392). Here, a harmonious reading of s. 16(2) of the Charter does not have the effect of abrogating or diminishing s. 58 of the Constitution Act, 1867, but it acts rather as a constitutional constraint that clarifies the conditions for exercising the power of appointment.

106The recognition of a linguistic obligation under the Charter is also not an amendment to the “office” of Lieutenant Governor within the meaning of s. 41 of the Constitution Act, 1982. This provision states that a constitutional amendment in relation to the office of Lieutenant Governor requires the unanimous consent of the Senate and House of Commons and the legislative assembly of each province. As the Court of Appeal found, s. 41 protects the institution of the monarchy and is concerned with the essential attributes of the viceregal role, that is, the powers, status and functions vested in the Lieutenant Governor (C.A. reasons, at para. 44; see Motard v. Attorney General of Canada, 2019 QCCA 1826, at para. 92). In this case, the recognition of an obligation of personal bilingualism under the Charter does not affect the Lieutenant Governor’s role, status or constitutional powers. It changes only the language requirements that must be met by the person called upon to hold this office. Such an obligation does not transform the nature of the power of appointment exercised under s. 58 of the Constitution Act, 1867 and is not a constitutional amendment within the meaning of s. 41 of the Constitution Act, 1982.

107Second, the respondent argues that s. 16(2) applies exclusively to the institution and not to the “office” of Lieutenant Governor. The “office” refers to the Lieutenant Governor’s specific role and mandate of representing the Crown in the province, while the institution refers to the administrative organization that surrounds and supports the office holder in the performance of their functions. The “office” therefore has only one holder, whereas the institution is made up of multiple individuals. The institution’s functions, to which the requirements of s. 16(2) apply, are not those of the “office”.

108It is recognized that, in most institutions, the office can be distinguished from the administrative organization that supports the office holder. The administrative structure of institutions allows them to ensure that both official languages have some presence in their internal operations and that services are provided in these two languages, in order to safeguard the languages’ equality of status, even if not everyone who works for these institutions is bilingual. The equality of status of the official languages can therefore be assured structurally. However, this distinction between office and institution becomes theoretical when the institution is embodied by a single person.

109In 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. 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.

110As part of their responsibilities related to the legislative process, the Lieutenant Governor must, among other things, personally call together, prorogue and dissolve the Legislative Assembly, give royal assent to bills and deliver the throne speech. The Lieutenant Governor must also perform certain executive tasks alone, such as appointing the Premier and members of the Executive Council and accepting a government’s resignation. The Lieutenant Governor may also refuse to dissolve the Assembly or to assent to legislation. While the use of these reserve powers is exceptional, their existence remains fundamental, and their exercise can be entrusted only to the Lieutenant Governor. Finally, the Lieutenant Governor presides over official ceremonies and plays a role in representing the Crown at certain events. Again, while staff may provide support, the Lieutenant Governor remains the only public figure called upon to embody the state.

111In this unique situation, the distinctions drawn between the office and the institution become theoretical as far as equality of status is concerned. If the institution that symbolizes the Crown is embodied by a person who is unable to function in one of the official languages, this necessarily affects the representation of that language by the institution. This ceremonial and symbolic dimension contributes significantly to the perception that citizens have of the state in New Brunswick. As the Federal Court noted, “that which has an intrinsic value for a minority group does not necessarily have the same meaning in the eyes of a majority whose language rights are not threatened” (Thibodeau v. Canada (Senate), at para. 51). The appointment of a unilingual person to this office has the effect of relegating the official language in which that person is not proficient to a secondary status and of undermining, through the symbolic effect of the appointment itself, the rights of the province’s Francophones. This reality is all the clearer when one considers the history of the relationship between the Crown and the Francophone Acadian population. History attests to Canada’s repeated transgressions against the Francophone minority of that province, which was deported and discriminated against and whose interests, culture and language were long neglected by state institutions. The appointment of a unilingual person to the position of Lieutenant Governor may make Francophones feel that their language — and hence their identity — is not recognized in public institutions and may revive, in their eyes, the persistent sense of exclusion that the Constitution specifically sought to remedy.

112This inequality of status manifests itself concretely when the Lieutenant Governor is unable to understand part of the throne speech they give in French or the French-language bills to which they assent, or to interact with members of the French linguistic community during ceremonial activities or public events.

113Consequently, to ensure that the equality of status of the official languages is respected, the person called upon to hold this office must be functionally bilingual, that is, able to understand, communicate in and perform their functions in both official languages, for otherwise one of the two languages is relegated to a subordinate role within the very institution that embodies the legislative and executive powers of the province. The interpretation proposed by the respondent neutralizes in practice any expressive or symbolic dimension that the text explicitly affirms through the word “status”.

114By enshrining the equality of status of the languages, s. 16(2) represents a commitment to the substantive equality of the official languages in New Brunswick, requiring the state not only to actively promote this equality but also to refrain from doing anything that might compromise its symbolic or practical significance. This means that, to be effective, this requirement will sometimes have to be reflected in the actual composition of the province’s institutions. The appointment of a unilingual Lieutenant Governor undermines this equality by symbolizing, in the eyes of citizens, the subordination of one official language to the other. The requirement of personal bilingualism for this office does not result from a linguistic preference, but from the constitutional respect required by New Brunswick’s linguistic duality. To reject this requirement would be to reduce institutional bilingualism to an administrative formality or a response to a request for accommodation, despite the fact that it is at the very heart of the province’s constitutional identity. Substantive equality requires that the Francophone population of New Brunswick be given equal consideration, respect and concern.

115It follows that s. 16(2) of the Charter imposes language requirements applicable to the exercise of the power of appointment provided for in s. 58 of the Constitution Act, 1867, namely that the person appointed to the position of Lieutenant Governor of New Brunswick be functionally bilingual. The appointment of a unilingual Lieutenant Governor is inconsistent with this guarantee and violates the equality of status of the official languages in New Brunswick’s institutions. Accordingly, I conclude that the challenged appointment infringes s. 16(2) of the Charter.

116A few words should be said about the similarities raised by the respondent between the office of Lieutenant Governor and, among others, the offices of Premier, minister and Attorney General, as well as the requirements that s. 16(2) might impose on them. According to the respondent, these offices are also held by a single person, involve social functions and are supported by “institutions”, such as the Executive Council Office and the various departments. If the Court were to find that there is an obligation of individual bilingualism, this obligation would also apply to the holders of these offices.

117With respect, not only is this reasoning not relevant to the resolution of the issue in this appeal, but there is no basis on which to find that it is correct. First of all, unlike the Lieutenant Governor, whose appointment by the Governor General in Council is provided for in s. 58 of the Constitution Act, 1867, the appointment of the Premier of a province is based on the exercise of the Lieutenant Governor’s personal prerogative, guided by the constitutional convention requiring the appointment of the leader of the political party having a majority of seats in the Legislative Assembly (Hogg and Wright, at § 9:4). The Premier, once appointed, must choose ministers and recommend their appointment to the Lieutenant Governor. The exercise of the prerogative is then subject to the constitutional convention requiring the Lieutenant Governor to appoint the recommended individuals (§ 9:4). There is no provision equivalent to s. 58 of the Constitution Act, 1867 governing the exercise of the Lieutenant Governor’s prerogative to appoint the Premier and ministers. The powers exercised by the Lieutenant Governor under these constitutional conventions differ in their origin and nature from the powers exercised under the Constitution (Reference re Resolution to amend the Constitution, 1981 25 (SCC), [1981] 1 S.C.R. 753, at pp. 878-79). There is nothing to suggest that the prerogative or constitutional conventions relating to the appointment of the Premier and ministers are subject to the same language requirements as the power of appointment set out in s. 58 of the Constitution Act, 1867, and the Court does not have to address this question in order to decide this case.

118The respondent’s reasoning also disregards another fundamental difference between the appointment of the Premier and ministers and the appointment of the Lieutenant Governor of a province, namely the exercise by voters of their democratic right to vote. The appointment of a Premier and ministers is the culmination of the democratic process. By casting their ballots, voters have an opportunity, at regular intervals, to express their preferences regarding the qualifications, linguistic or otherwise, that they want those who represent them to have. The appointment of a Premier and ministers is thus largely dictated by the result of this democratic process. In contrast, the choice of a Lieutenant Governor is based on the exercise of a discretionary power held by the Governor General in Council, exercised on the recommendation of the Prime Minister. The symbolic dimension of the choice of holder of this position is therefore not the same; the Lieutenant Governor is a head of state who is appointed, not democratically elected. The distinct role and symbolic dimension of this office justify a unique interpretation of the constitutional requirements attached to it.

V. Remedy

119An order in council is a legal instrument that results from a decision made by the Governor in Council. When it formalizes an appointment, an order in council has [translation] “a more specific, non-statutory scope” (Brun, Tremblay and Brouillet, at para. I.109). An order in council making an appointment is therefore not a law, because it does not establish “binding rules of general application” relating to “the rights and obligations of the individuals to whom they apply” (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 64). It is simply a manifestation of the exercise of a particular power of appointment codified in the Constitution, and it grants the appointed person specific powers and privileges associated with the office of Lieutenant Governor.

120In the case of a government act and not a law, the appropriate remedy for an infringement of Charter rights is in theory based on s. 24(1) (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61; R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531, at para. 62; see also R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 14; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 67; K. Roach, “Enforcement of the Charter — Sections 24(1) and 52(1)”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (6th ed. 2025), 1221, at § 22.04[1]). Section 24(1) allows anyone whose rights have been infringed to obtain such remedy as the court considers appropriate and just in the circumstances. The court’s determination of an appropriate and just remedy is based on its “careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles” (Doucet-Boudreau, at para. 52).

121The appellant has shown that the appointment of a unilingual Lieutenant Governor in New Brunswick infringes the rights guaranteed to it by s. 16(2) of the Charter. However, the appellant has not established, or even argued, that the federal government’s decision reflected an unreasonable balancing of the rights or freedoms protected by the Charter and the legitimate objectives pursued by the Governor in Council in appointing Lieutenant Governor Murphy (Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395). As described above, the appellant chose instead to argue its case from the standpoint of a declaration dealing with the pure question of law of the interaction between ss. 16 to 20 of the Charter and s. 58 of the Constitution Act, 1867. In these circumstances, the specific remedy of quashing the order in council making the appointment is not appropriate.

122The appropriate remedy is a declaration. The jurisprudence recognizes the special value of a declaration in constitutional cases. In Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, this Court noted that such a remedy, even without a coercive order, is an effective measure because it clarifies the legal situation and requires the authorities to comply with the law, while leaving them the measure of discretion they need to determine the most appropriate means of implementation (para. 46). This flexibility is of particular importance where the remedy affects the functioning of a constitutional institution whose responsibilities are closely linked to the continuity of the state, as is the case here.

123For these reasons, the appeal is allowed. The judgment of the New Brunswick Court of Appeal is set aside, and the judgment of the New Brunswick Court of Queen’s Bench is restored in part. The Court declares that the appointment of a Lieutenant Governor in New Brunswick who does not have the ability to understand both official languages and to communicate in these languages when performing their functions infringes s. 16(2) of the Charter. It is understood that neither the order in council making the appointment nor the acts of Lieutenant Governor Murphy are invalidated by this decision.

The reasons of Karakatsanis, Rowe and Jamal JJ. were delivered by

Rowe J. —

124The issue on this appeal is not whether it is desirable for the Lieutenant Governor of New Brunswick to be personally bilingual. Rather, it is whether the language rights guaranteed by the Canadian Charter of Rights and Freedoms require it. Having regard to the purposes of those provisions, and the interests they were intended to protect, I conclude that they do not.

125New Brunswick is Canada’s only constitutionally bilingual province. Sections 16(2) to 20(2) of the Charter entrench language guarantees that reflect New Brunswick’s linguistic duality, further the vitality of both official language communities, and redress injustices suffered by the Francophone community. These guarantees fulfil these purposes by establishing a constitutional regime of institutional bilingualism that provides equal and meaningful access to provincial institutions for Francophone and Anglophone New Brunswickers.

126The appellant’s submission that the Charter requires the Lieutenant Governor of New Brunswick to be personally bilingual is untenable because no such requirement arises from any provision of the Charter. No provision constitutionalizes linguistic qualifications for public office or imposes a regime of personal bilingualism.

127On the appellant’s reasoning, the same requirement of personal bilingualism would extend to other public officers, such as New Brunswick’s Premier and cabinet ministers. And since a parallel Charter language scheme applies federally, the appellant’s reasoning would also apply to the Prime Minister of Canada and to federal cabinet ministers. There is no basis to conclude that the entrenchment of language rights was intended to produce consequences so far removed from the Charter’s scheme of institutional bilingualism.

128As the New Brunswick Court of Appeal observed below, this appeal highlights a tension between an ideal and a constitutional imperative (2024 NBCA 70, 494 D.L.R. (4th) 1, at para. 1). The appointment of a bilingual Lieutenant Governor in Canada’s only officially bilingual province may carry important symbolic value. However, abstract ideals cannot ground an interpretation of the Charter that expands constitutional protection to interests its provisions were never intended to protect. That approach would amount to amending the Constitution under the guise of interpreting it.

129Constitutional imperatives must not be conflated with political and policy considerations. The wisdom of appointing a unilingual Lieutenant Governor is a matter for the executive branch, which makes the appointment. By contrast, the courts’ only role is to determine whether the appointment was made legally.

130I conclude that the appointment of the Hon. Brenda Murphy as Lieutenant Governor of New Brunswick by the Governor General in Council, on the advice of the Prime Minister of Canada, was lawfully made. Accordingly, I would dismiss the appeal.

I. Issue

131On September 4, 2019, the Governor General in Council appointed Brenda Murphy as Lieutenant Governor of New Brunswick. She served in that role from September 8, 2019, to January 22, 2025. The parties agree that, throughout her tenure, she was not bilingual. The appellant, the Société de l’Acadie du Nouveau-Brunswick, brought an application for judicial review of her appointment. It maintains on appeal that the Charter’s language rights require a personally bilingual Lieutenant Governor of New Brunswick.

132Like all provincial lieutenant governors, Ms. Murphy was appointed by the Governor General in Council by Instrument under the Great Seal of Canada, pursuant to s. 58 of the Constitution Act, 1867. As a matter of constitutional convention, this power is exercised on the advice of the Prime Minister of Canada.

133The appellant argues that any or all of ss. 16(2), 16.1, 18(2) and 20(2) of the Charter require the Lieutenant Governor of New Brunswick to carry out her functions in both of the province’s official languages. In turn, the Governor General in Council is required to appoint only a bilingual individual as Lieutenant Governor.

134Were the appellant’s interpretation of these Charter provisions correct, s. 58 of the Constitution Act, 1867 would have to be read in conjunction with them, such that the appointment power could be exercised only in a manner consistent with that interpretation (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, at pp. 390-93; Reference re Prov. Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158, at p. 179). The consequence of the appellant’s contention would be that the entrenchment of Charter language rights narrowed the authority of the Governor General in Council under s. 58 of the Constitution Act, 1867 as to who may be appointed as Lieutenant Governor of New Brunswick. Should the appointment of the Hon. Brenda Murphy be found to have been ultra vires the Governor General in Council’s power of appointment, it would not have been lawfully made.

135The Attorney General of Canada, representing the Governor General in Council and the Prime Minister of Canada, responds that ss. 16(2) to 20(2) of the Charter enshrine a regime of institutional, not personal, bilingualism in New Brunswick. As such, these provisions do not require that the Lieutenant Governor be personally bilingual and do not in that way limit the Governor General in Council’s appointment power under s. 58 of the Constitution Act, 1867.

136For the reasons that follow, I agree with the Attorney General of Canada. None of ss. 16(2), 16.1, 18(2) or 20(2) of the Charter limits the power of appointment provided for in s. 58 of the Constitution Act, 1867 so as to require the appointment of a personally bilingual Lieutenant Governor.

II. The Role of the Lieutenant Governor of New Brunswick

137The Lieutenant Governor of New Brunswick is the representative of the King of Canada in right of the province of New Brunswick. As such, she carries out the monarch’s constitutional and ceremonial duties as head of state in the province. In her legislative and executive capacities, the Lieutenant Governor is part of both the legislature and government of New Brunswick.

138Acting by and with the advice and consent of the Legislative Assembly, she exercises legislative power at the provincial level as a component of the Legislature of New Brunswick (see Constitution Act, 1867, ss. 55, 88 and 90; Royal Commission to Thomas Carleton, August 16, 1784, and Royal Instructions to Thomas Carleton, August 18, 1784, Art. 12, reproduced in Collections of the New Brunswick Historical Society (1905), No. 6, at pp. 394-438; Interpretation Act, R.S.N.B. 1973, c. I-13, s. 38 “Legislature”). Her constitutional functions in relation to the legislature include opening, proroguing, and dissolving the Legislative Assembly; delivering the Speech from the Throne; and granting Royal Assent to bills.

139Acting by and with the advice of the Executive Council of New Brunswick (i.e., the provincial Cabinet), she exercises executive power at the provincial level. She is thus part of the executive government of New Brunswick (see Constitution Act, 1867, ss. 58 and 64; Royal Commission to Thomas Carleton, August 16, 1784, and Royal Instructions to Thomas Carleton, August 18, 1784, Art. 2; Executive Council Act, R.S.N.B. 2011, c. 152). In this capacity, she exercises the royal prerogative with respect to provincial matters; appoints the cabinet, provincial judges and other provincial officers; approves Orders-in-Council; and signs letters patent, commissions and other executive instruments.

140As the representative of the monarch, a significant aspect of the vice-regal role is symbolic and ceremonial. For this reason, in addition to her constitutional functions, the Lieutenant Governor ordinarily undertakes a number of social and community functions.

141The Lieutenant Governor is supported in her duties by a government unit, the Office of the Lieutenant Governor.

III. The Methodology for Ascertaining the Scope of Charter Rights

142It is a settled principle of constitutional interpretation that the rights and freedoms guaranteed by the Charter must be given a large and liberal interpretation aimed at fulfilling the purpose of each guarantee, while neither overshooting nor undershooting that purpose (see Taylor v. Newfoundland and Labrador, 2026 SCC 5, at paras. 72 and 83-84). Dickson C.J. set out the methodology for carrying out this purposive approach in the seminal cases of Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295 (both decided prior to his appointment as Chief Justice), as well as R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 (see M. Rowe, “The Wisdom of Brian Dickson” (2025), 88:1 Sask. L. Rev. 49, at pp. 51-54). The legitimacy of constitutional interpretation rests on adherence to a principled and consistent methodology (M. Rowe and M. Collins, “Methodology and the Constitution” (2021), 42 Windsor Rev. Legal Soc. Issues 1).

143Dickson C.J. explained that a right must be understood by reference to its underlying purpose. In other words, it must be interpreted in light of the nature of the interests it is meant to protect (Hunter, at p. 157; see also Big M, at p. 344). The purpose of a specific provision can be identified by reference to “the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter” (Big M, at p. 344; see also Taylor, at para. 76).

144Regarding the “larger objects of the Charter”, Dickson C.J. in Oakes explained that the Charter’s overarching objective is posited in its first provision: “. . . Canadian society is to be free and democratic” (p. 136). The Charter’s objects are therefore “the values and principles essential to a free and democratic society” (ibid.). This accords with the nature of the Charter as a liberal instrument that constitutionally embeds the rights fundamental to a liberal democratic society. In Dickson C.J.’s view, such values and principles include “respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society” (ibid.).

145The “language chosen to articulate” a right or freedom — that is, the text of the Charter — provides the starting point of the interpretive inquiry into the interests that are the objects of the constitutional guarantee (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at paras. 8-9; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, at para. 36; British Columbia (Attorney General) v. Canada (Attorney General), 1994 81 (SCC), [1994] 2 S.C.R. 41, at p. 88). While the text of the provision “is not the sole consideration” in a purposive interpretation, it is “the first indicator of [its] purpose” (9147-0732 Québec inc., at para. 11; see also Taylor, at para. 79). That is because “constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text” (para. 9 (emphasis in original)).

146The “historical origins of the concepts enshrined” direct us to consider the philosophy and evolution of those concepts and the objects of the constitutional protection as they were understood at the time the Charter was enacted. This is not an original intent approach (seeHunter, at p. 155). Rather, it serves “to recall that the Charter was not enacted in a vacuum” and that the rights and freedoms it enshrines must therefore be understood “in [their] proper linguistic, philosophic and historical contexts” (Big M, at p. 344). While rights are not “frozen”, they are “rooted in and hence to some extent defined by historical and existing practices”; “[w]hat must be sought is the broader philosophy underlying the historical development of the right” (Reference re Prov. Electoral Boundaries (Sask.), at p. 181; see also Taylor, at para. 80).

147In this appeal, it is particularly relevant to the historical origin of the Charter’s language rights that the framers drew on the work of the Royal Commission on Bilingualism and Biculturalism. The Commission, commonly known as the Laurendeau-Dunton Commission after its joint chairs, was established in 1963 to consider the place of Francophones and the status of French in Canada’s society. It released its final report in six books between 1967 and 1970. The framers also drew on the federal Official Languages Act, S.C. 1968-69, c. 54, and New Brunswick’s Official Languages of New Brunswick Act, S.N.B. 1969, c. 14, which were themselves enacted partly in response to the Laurendeau-Dunton Commission’s work.

148When applicable, the interpreting court must have regard to the other rights and freedoms “with which [the right] is associated within the text of the Charter” (Big M, at p. 344; see also Taylor, at para. 81). This reflects that the Charter possesses an “internal coherence” and must be “construed as a system where ‘[e]very component contributes to the meaning as a whole, and the whole gives meaning to its parts’” (Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350, at p. 365, cited in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 80). This principle has particular salience in the present appeal (see Charlebois v. Moncton (City), 2001 NBCA 117, 242 N.B.R. (2d) 259, at paras. 59-60). Each of the provisions the appellant relies on forms part of a coherent scheme within the Charter, located in ss. 16 to 22 under the heading “Official Languages of Canada”.

149Nonetheless, each provision of the Charter protects discrete interests. In order to heed Dickson C.J.’s admonition “not to overshoot the actual purpose of the right or freedom” (Big M, at p. 344), nor to undershoot it, purposive interpretation must not lose sight of the specific interests intended to be given constitutional protection (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 17; 9147-0732 Québec inc., at para. 10; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at paras. 53 and 55; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144, at paras. 21 and 126; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at paras. 17-18 and 40). Therefore, interpreting a Charter provision is “an exercise in ascertaining what interests that provision protects, and why it does so” (Taylor, at para. 85). Such interests embody enduring constitutional values. The interests protected by the Charter do not change, even though the circumstances requiring their protection change over time.

150The purpose of the provision is its compass. It directs the provision’s application in new contexts and allows it to apply to the different manners in which these same interests manifest themselves over time. It is by this approach that the “living tree” of the constitution flourishes (Edwards v. Attorney-General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136) and that the Charter is “capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers” (Hunter, at p. 155).

151A corollary and foundational principle of constitutional interpretation is that courts are not free to invent new obligations foreign to the purpose of the provision at issue (Blais, at para. 40; 9147-0732 Québec inc., at para. 10; Taylor, at para. 84; Caron, at para. 37). However virtuous and desirable a policy outcome might be in the consideration of a reviewing court, the court may not ascribe to a constitutional provision whatever desired meaning would achieve that outcome:

Although it is recognized that through judicial interpretation the courts are called upon to play an important creative and necessary role, which indeed enables the law to change and adapt constantly to our society, nevertheless such interpretation must be strictly limited and circumscribed by the guidelines laid down by the Constitution . . . . Thus while, as this Court has repeatedly said, we must adopt a large and liberal interpretation of the Charter, this does not in any way mean that its provisions can be given whatever interpretation might be deemed useful or convenient.

(B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, at para. 15, per Lamer C.J., concurring)

152As this Court has repeatedly emphasized, the Charter is not “an empty vessel to be filled with whatever meaning we might wish from time to time” (Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, at p. 394; 9147-0732 Québec inc., at para. 9; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845, at para. 65; Caron, at para. 36; Children’s Aid Society, at para. 15). Its interpretation is “constrained by the language, structure, and history of the constitutional text” (Reference re Public Service Employee Relations Act (Alta.), at p. 394; Caron, at para. 36; 9147-0732 Québec inc., at para. 9). Therefore, the Court “must generously interpret constitutional linguistic rights, not create them” (Caron, at para. 38). Indeed, “Charter rights . . . must be interpreted liberally within the limits that their purposes allow” (Poulin, at para. 54 (emphasis added)).

153The appellant fails to have regard to these principles. Implicitly, it rejects them. It does not ground its argument in a purposive interpretation of any one of ss. 16(2), 16.1, 18(2) and 20(2), but instead appeals to its own overarching ideal of official bilingualism. Based on that ideal, it calls on this Court to find, somewhere within one of these four provisions, a requirement that the Lieutenant Governor of New Brunswick be bilingual. This is a methodologically untenable proposition, based on identifying a result, then constructing a rationalization for it.

154As Cromwell and Karakatsanis JJ. made clear in Caron — holding that the province of Alberta is not subject to an entrenched constitutional guarantee of legislative bilingualism — the laudable goal of language protection and promotion cannot create constitutional requirements that the Constitution itself does not contain (at para. 6):

We therefore cannot . . . resolve the tension arising from the interplay of fundamental constitutional principles, as the appellants ask us to do, by resorting to broad and uncontroversial generalities, or by infusing vague phrases with improbable meanings. Rather, we must examine the text, context and purpose of our Constitution to see whether there is a constitutional constraint on the power of the province of Alberta to decide in what language or languages it will enact its legislation.

155Purposively interpreted, no provision of the Constitution constrains the power to appoint the Lieutenant Governor of New Brunswick in the manner proposed by the appellant. The appellant’s arguments as to the desirability of a bilingual Lieutenant Governor are policy considerations that should be directed to those who make this discretionary decision. As the respondent states, “[i]t falls to the relevant political actors to weigh these considerations, explain their decision, and bear the consequences in the political sphere” (R.F., at para. 31). The appellant seeks to transform a policy question into a legal one and, thereby, to transfer decision-making authority from the Governor General in Council to the courts.

IV. The Purpose and Scheme of Language Rights Under Sections 16(2) to 22 of the Charter

A. Language Rights Must Be Interpreted Purposively

156The purposive approach to Charter interpretation set out in Big M, under which each provision is given a large and liberal interpretation aimed at fulfilling its purpose, applies with equal force to language rights as it does to other Charter rights. In R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, the Court rejected any lesser, restrained interpretation of language guarantees; as Bastarache J. explained, “[l]anguage rights must in all cases be interpreted purposively” (para. 25 (emphasis in original); see also Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 27; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 27).

157The Court in Beaulac also emphasized a further feature of language rights that bears on their interpretation: they are “not negative rights, or passive rights; they can only be enjoyed if the means are provided” (para. 20). Accordingly, unlike other rights which tend to constrain the exercise of state powers, language rights impose obligations on the “[s]tate to take positive steps to implement [them]” (ibid.).

B. The Larger Purpose of Language Rights

158This Court has previously addressed the larger purpose of language rights. In Beaulac, it held that language rights must be interpreted “in a manner consistent with the preservation and development of official language communities in Canada” (para. 25; see also Caron, at para. 35). In Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712, the Court explained that language is more than a medium of expression; it is a means by which a people expresses its cultural identity (see also Reference re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721, at p. 744; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 14). It follows that preserving the two official language communities entails preserving not only their languages, but also their distinctiveness, each with its own identity and culture. Language rights achieve this purpose by enabling Francophones and Anglophones to live, learn and take part in civic life, each in their own language and without “forcing a single citizen, Francophone or Anglophone, to learn the other official language” (Laurendeau-Dunton Commission, Report of the Royal Commission on Bilingualism and Biculturalism, Book I, The Official Languages (1967), at p. 93).

159Language rights should also be construed remedially, in light of the injustices that led to their entrenchment (Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 119 (SCC), [1993] 1 S.C.R. 839, at p. 850; Arsenault-Cameron, at para. 27; Doucet-Boudreau, at para. 27). Language rights must be understood within the context of Canada’s history as a country founded on linguistic duality and committed today to the protection of its minorities (Caron, at para. 5). As Dickson C.J. explained in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 66 (SCC), [1986] 1 S.C.R. 549, “[l]inguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history. The constitutional language protections reflect continued and renewed efforts in the direction of bilingualism” (p. 564, dissenting, but cited approvingly in R. v. Mercure, 1988 107 (SCC), [1988] 1 S.C.R. 234, at p. 269; see also Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, at paras. 79-81).

160Language rights in New Brunswick are intended to remedy the legacy of assimilation that has marked the history of its Francophone minority following the cession of Acadia to Great Britain in 1713, as the Chief Justice explains (paras. 32-43). That legacy is particularly marked by the Grand Dérangement, during which thousands of Acadians were deported from their homeland, and by centuries of attempts at assimilation through institutions of the state (see M. Conrad, A Concise History of Canada (2nd ed. 2022), at pp. 113-16; M. Bastarache and A. Boudreau Ouellet, “Droits linguistiques et culturels des Acadiens et des Acadiennes de 1713 à nos jours”, in J. Daigle, ed., L’Acadie des Maritimes: études thématiques des débuts à nos jours (1993), 385, at pp. 385-408 and 418-25). In that historical context, the constitutional entrenchment of language rights in 1982 aimed to “break with the inequality of status of the official languages that had characterized social, political and legal relations in that province since the British conquest” (Reasons of the Chief Justice, at para. 43). I endorse the Chief Justice’s account in these matters.

C. The Scheme of Sections 16(2) to 22

161Sections 16(2) and (3), 16.1, 17(2), 18(2), 19(2), 20(2), 21 and 22, which are all located under the heading “Official Languages of Canada”, form a scheme of constitutionally protected, institutionally based language rights in New Brunswick. Together, they amount to a regime of institutional bilingualism, in which specified activities of the state are to be carried out in both languages and in which individuals have the choice to use English or French in their dealings with certain government institutions. With the exception of s. 16.1, this scheme largely parallels the guarantees applicable to federal institutions under ss. 16(1) to 20(1).

162Section 16(2) has two components. First, it states that French and English are the official languages of New Brunswick. Second, it states that both official languages shall have equal status, rights, and privileges as to their use in the institutions of the legislature and government of New Brunswick. Section 16(1) provides the same, but in relation to federal institutions.

163Sections 17(2) and 18(2) apply to the legislature. The former entrenches the right to use either official language in legislative proceedings. The latter imposes on the legislature a duty to publish statutes and other legislative papers in both official languages. Section 19(2) applies to the courts of New Brunswick and entrenches the right to use either official language in judicial proceedings. Sections 17(1), 18(1) and 19(1) impose the same obligations at the federal level.

164Section 20 entrenches the right to communicate with, and to receive services from, any office of an institution of the legislature or government in the official language of one’s choice. The two subsections of s. 20 impose differing obligations on New Brunswick and federal institutions. Section 20(2) provides for “complete institutional bilingualism” in New Brunswick (Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383, at para. 1). Section 20(1) provides, at the federal level, different obligations based on the territorial concentration of the official language group and the nature of the office in question.

165Section 16.1 is a later addition to the Charter. It came into force on March 12, 1993, as a result of an amendment made under the “bilateral” procedure set out in s. 43(b) of the Constitution Act, 1982, through the joint consent of the Legislature of New Brunswick and the Parliament of Canada. It stands out among the other sections of the scheme in that it entrenches collective rights for New Brunswick’s official language communities, rather than individual rights. It provides for the equality of status, rights, and privileges of New Brunswick’s English and French linguistic communities and entrenches their right to distinct educational and cultural institutions as are necessary for their preservation and promotion. Section 16.1(2) imposes on the legislature and government of New Brunswick a duty to actively preserve and promote these collective rights.

166Finally, ss. 21 and 22 do not create rights but, rather, provide that the language rights entrenched in ss. 16 to 20 do not abrogate or derogate from any pre-existing language rights arising from other parts of the Constitution, law, or custom.

V. The Interpretation of Sections 16(2), 16.1, 18(2) and 20(2)

A. Section 16(2) Does Not Require a Personally Bilingual Lieutenant Governor

167The appellant submits that s. 16(2) enshrines a principle of official bilingualism in New Brunswick, that the Lieutenant Governor constitutes a unipersonal or monocratic institution in which the office and the office holder are one and the same, and that the “institution” of the Lieutenant Governor can therefore only be officially bilingual if the office holder is also bilingual. Therefore, the appointment of a unilingual Lieutenant Governor would result in an inequality of status between French and English within the “institution” of the Lieutenant Governor.

168In my respectful view, this argument cannot succeed. First, because it misrepresents the nature of the regime of institutional bilingualism established by the Charter. Institutional bilingualism places obligations on the state to ensure that Francophones and Anglophones have equal access to provincial institutions. It does not impose personal bilingualism on the state’s representatives. Second, s. 16(2) is a statement of principle which has symbolic and interpretive force. It sets a standard of substantive equality for the interpretation and realisation of language rights. Finally, as a statement of principle, s. 16(2) does not confer an unbounded and standalone substantive right which could independently ground a Charter claim.

(1) Section 16(2) Introduces a Scheme of Institutional Bilingualism

169Section 16(2) introduces the Charter’s scheme of institutional bilingualism, which confers rights on individuals to use English or French in their dealings with government institutions and imposes corresponding obligations on those institutions to carry out certain functions in both languages. These rights are exercised with respect to institutions, not individuals. A purposive interpretation of s. 16(2) confirms that this scheme does not impose obligations of personal bilingualism; individuals, including the Lieutenant Governor, are not “institutions” within the meaning of the provision. The relevant “institution” here is not the Lieutenant Governor personally, but the government unit that she heads: the Office of the Lieutenant Governor.

170The text of s. 16(2) is the starting point and outer bounds of the interpretive inquiry. Section 16(2) provides:

Official languages of New Brunswick

Langues officielles du Nouveau-Brunswick

(2) 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.

(2) Le français et l’anglais sont les langues officielles du Nouveau-Brunswick; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau-Brunswick.

171As demonstrated by the syntax, particularly the placement of the semi-colon in the French text, and as recognized in jurisprudence, s. 16(2) has two components: a declaration of New Brunswick’s official languages, and a statement of those languages’ equality of status, rights and privileges as to their use in the institutions of New Brunswick’s legislature and government.

172The first component, declaring that English and French are the official languages of New Brunswick, has an important symbolic value. It reflects the Laurendeau-Dunton Commission’s recommendation that the Constitution be amended to “state clearly that English and French are the two official languages of Canada” as a “solemn recognition of their importance” (pp. 134-36). Section 16(2) provides that solemn recognition by declaring New Brunswick’s official bilingualism, thereby reinforcing both linguistic communities’ sense of legitimacy (P. Foucher, “Les articles 16 à 22 de la Charte”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (6th ed. 2025), 1125, at § 20.04).

173However, this declaration does not itself create substantive rights or obligations (Société des Acadiens (1986), at pp. 618-19, per Wilson J., dissenting; Foucher, at § 20.04; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 56:14; J. E. Magnet, Official languages of Canada: Perspectives from law, policy and the future (1995), at p. 101; A. Tremblay and M. Bastarache, “Language Rights (Sections 16-22)”, in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 653, at p. 660).

174Recognizing that this declaration is of a symbolic nature does not minimize its value. As the Laurendeau-Dunton Commission stated, prior to the Charter, constitutional recognition of French and English as Canada’s official languages was only implied (see Constitution Act, 1867, s. 133). The Commission explained: “We feel it very important, if the idea of equality [of French and English] is to be admitted throughout the country, that there be no ambiguity on this essential point” (p. 136). Section 16(2) ensures there is no such ambiguity with regard to New Brunswick.

175The second component of s. 16(2) indicates that the official languages regime is institutional. The English text provides for the equality of status, rights and privileges of French and English “as to their use in all institutions of the legislature and government of New Brunswick”; the French text similarly refers to “un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau-Brunswick”.

176The ordinary and grammatical meaning of the text indicates that the reference to “institutions” is a reference to organizations, not individuals. First, because that is the meaning of “institution” in both English and French. In English, “institution” means “[a]n organization or association established for a social purpose, typically educational, charitable, or scholarly in nature. . . . [A]lso more generally: any social or political organization of considerable size or influence” (Oxford English Dictionary (online) (emphasis added)). In French, [translation] “[i]nstitutions” similarly means “all social forms or organizations established by law or custom” (Le Robert (online) (emphasis added)).

177Second, the text provides that the equality of status, rights and privileges of French and English pertains to their “use in all institutions” (in the English version) and to their “usage dans les institutions” (in the French version). The use of the prepositions “in” and “dans” grammatically accords with use within an organization. By contrast, it does not make grammatical sense to read s. 16(2) as providing for the equality of French and English with respect to “their use in” or “leur usage dans” an individual. Therefore, the meaning of s. 16(2) is not that the Charter language rights regime obliges individuals to be proficient in both languages; rather, it is directed at the equality of languages with regard to the institutions of the state as organizations.

178The historical and philosophical origins of s. 16(2) also indicate that it is not directed at the language skills of any individual and that a single individual does not constitute an “institution”.

179As I have explained, the official languages regime under the Charter was greatly influenced by the Laurendeau-Dunton Commission. The Commission explained that a bilingual state is one “characterized by a wide variety of bilingual institutions, designed to guarantee that citizens are not disadvantaged because they belong to a minority linguistic group” and that “[s]uch institutions may include the legislature, the courts, the civil service, and the schools” (p. 12 (emphasis added)). The Commission did not reference any individuals as “institutions”, including those holding prominent or symbolic public offices.

180Similarly, in emphasizing that, to “develop the Canadian Confederation on the basis of an equal partnership”, “bilingualism [is] essential . . . in the institutions shared by all Canadians”, the Commission recommended the declaration of French and English as the official languages of “such basic institutions as Parliament and the Supreme Court” and the “bodies and agencies deriving from Parliament and the federal government” (pp. 91-92 (emphasis added)). The Commission’s emphasis was on bilingualism in institutions qua institutions, rather than the language skills of the head of an institution or any particular public office holder (at p. xxviii):

. . . the bilingual nature of an institution, a province, or a country is a totally different matter [from individual bilingualism]. A bilingual country is not one where all the inhabitants necessarily have to speak two languages . . . . The same is true for a bilingual province or a bilingual institution. . . .

Naturally a bilingual institution . . . can function efficiently only if there are a sufficient number of bilingual people to maintain contact between the two language groups.

181Following the Commission’s first report, Parliament enacted the Official Languages Act in 1969. Section 2 of that Act provided for the “equality of status and equal rights and privileges as to their use in all the institutions of the Parliament and Government of Canada”. It imposed obligations on administrative bodies and Crown corporations (ss. 3 and 7), judicial and quasi-judicial bodies (ss. 5, 7 and 11), government departments and agencies (ss. 9 and 10), and stated that a reference to an institution included a reference to the Canadian Forces and the Royal Canadian Mounted Police (s. 36(3)). Nothing in that statute indicated that the Act would treat an individual as an institution, including for the purposes of s. 2. Instead, the Official Languages Act provided for institutional bilingualism: the institutions themselves were, subject to certain limits, obliged to create mechanisms for carrying out functions or offering services in both languages. As Gérard Pelletier, Secretary of State for Canada, explained in debating the Official Languages Act, it “concerns not individual bilingualism, but institutional bilingualism; that is, the use of the two languages by government services in their dealings with the public” (House of Commons Debates, vol. VIII, 1st Sess., 28th Parl., May 16, 1969, at p. 8787).

182Similarly, the Official Languages of New Brunswick Act, which was enacted following the Commission’s report, imposed obligations on a range of institutions, including the Legislative Assembly (s. 4), departments and agencies of the Province (s. 9), Crown corporations (s. 9), schools (s. 13), and the courts (s. 14). It specifically contemplated the possibility that individual public employees would not be able to provide services in both official languages; arrangements could be made instead to provide services in the requested language (s. 11). As the Commission noted, “[b]eing an officially bilingual province entails establishing in the provincial administration certain services in the minority language” which “does not mean that all members of the staff must be bilingual” (pp. 102 and 113).

183The Charter carried forward this approach of institutional bilingualism. Section 2 of the federal Official Languages Act and s. 2 of the Official Languages of New Brunswick Act were the source for s. 16(1) and (2), as demonstrated by the similarity in language (Tremblay and Bastarache, at pp. 658-59; see also Beaulac, at para. 24). No part of the regime, including s. 16(2), places obligations on individuals; the Charter instead requires state organizations to be capable of undertaking their functions in French and English. The structure of s. 16(2) gives effect to the institutional bilingualism approach recommended by the Laurendeau-Dunton Commission: Francophones and Anglophones must be equal in dealing with a state institution, rather than with each of its individual members or employees, and those members and employees are not required to be personally bilingual. As Daigle C.J., for the New Brunswick Court of Appeal, explained in Charlebois (at para. 10):

The bilingualism regime established by law in New Brunswick is not personal bilingualism as its purpose is not to ensure that individuals will be proficient in both official languages. Rather, it establishes institutional bilingualism aiming for the use of both languages by the province and some of its institutions in the provision of public services. Under such a regime, individuals have the choice to use either English or French in their dealings with government institutions.

184Therefore, the Lieutenant Governor is not herself an “institution” within the meaning of s. 16(2). The Charter language rights regime of institutional bilingualism does not impose obligations on her personally, but on the relevant government organization. That “institution” is the government unit that she heads, the Office of the Lieutenant Governor, composed of those who support her in the performance of her duties.

(2) Section 16(2) Sets a Standard of Substantive Equality

185In addition to introducing the scheme of institutional bilingualism, s. 16(2) serves an interpretative function for the specific guarantees of ss. 17(2) to 20(2) by enshrining a “principle of substantive equality of official languages” (Charlebois, at para. 93). By affirming that English and French have “equal rights and privileges” and “equality of status” with respect to their use in New Brunswick’s institutions, s. 16(2) provides a statement of purpose of the Charter’s language rights scheme in New Brunswick (para. 68). This serves as “an important interpretive aid in construing the other language provisions of the Charter” (Société des Acadiens (1986), at p. 565, per Dickson C.J., dissenting).

186First, the component of s. 16(2) that provides for the “equal rights and privileges as to” the use of English and French in “in all institutions of the legislature and government” requires that, in the operation of ss. 17(2) to 20(2), both languages be treated in a functionally equivalent manner within the relevant institution. As the Chief Justice explains, this aspect of s. 16(2) concerns a “functional dimension” of equality that relates to “the concrete modalities of official language use in the institutions in question” (para. 79). It requires the state to set up its institutional infrastructure so that both languages are available for official use.

187This functional dimension is given practical effect by ss. 17(2) to 20(2), which specify the institutional contexts in which both languages must operate on an equal footing: legislative debates, statutes and legislative records, the courts, and communications with and services from government and legislative offices. These sections “go beyond general principles to specific modalities for the achievement of equality of status in language” (Société des Acadiens (1986), at p. 565, per Dickson C.J., dissenting). They translate the promise of “equal rights and privileges as to their use” in s. 16(2) into defined institutional obligations.

188Second, the component of s. 16(2) that provides for “equality of status . . . in all institutions” means that “[s]ubstantive equality, as opposed to formal equality, is to be the norm” (DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, at para. 31 (emphasis added); see also Beaulac, at para. 24). “Equality of status” expresses the normative principle underlying language rights: English and French are not official languages in name only, but rather are constitutionally placed on an equal footing. In order to achieve such equality of status between English and French, it is insufficient to ask only whether both languages are treated identically in a functional sense. What matters is whether the existing institutional arrangements provide “equal access . . . of equal quality for members of both official language communities”, responsive to the two “linguistic and cultural identit[ies]” (Beaulac, at paras. 22 and 45 (emphasis added)).

189As Bastarache J. explained in Beaulac, s. 16(2) “affirms the substantive equality of those constitutional language rights that are in existence at a given time” (para. 24). “Equality of status” reflects the purpose of language rights: to preserve and promote the two official language groups, enable them to thrive as distinct communities that contribute to the vitality of New Brunswick, and remedy inequalities in their treatment. It follows that equality of status requires ss. 17(2) to 20(2) to be interpreted not merely to ensure equal treatment in a functional sense, but against the standard of substantive equality. This is so that the requirements of language rights not merely amount to “something in the nature of a request for an accommodation” (Beaulac, at para. 24).

190This dimension of s. 16(2) operates as a guiding principle that informs how language rights are to be understood and applied. As the Court of Appeal put it below, s. 16(2) is a “lens of substantive equality through which existing language rights must be considered and analyzed” (para. 114). It sets substantive equality as the applicable standard for interpreting the Charter scheme of institutional bilingualism (Charlebois, at paras. 69 and 73-74; Beaulac, at para. 24; see also DesRochers, at para. 31). When applied to the rights guaranteed in ss. 17(2) to 20(2), this standard translates into positive obligations on the state to organize its institutions so that English and French can be used in a meaningfully equivalent manner (Beaulac, at para. 24). As a result, achieving substantive equality may require differential or enhanced measures, particularly where one official language community is historically or numerically disadvantaged (DesRochers, at paras. 46 and 51).

191These two components of s. 16(2) establish the governing standard for interpreting ss. 17(2) to 20(2). “Equal rights and privileges” ensures the guarantees under ss. 17(2) to 20(2) are provided equally to French and English speakers, and “equality of status” requires that this access be meaningful, including in terms of quality, with neither language relegated to a lesser status (see Beaulac, at para. 22). It is in this way that s. 16(2) has a “structuring effect” within the scheme of language rights (Reasons of the Chief Justice, at para. 62).

192Section 16(2) is the statement of purpose of the Charter’s language rights scheme in New Brunswick, which serves as an interpretative aid in construing ss. 17(2) to 20(2). It must be understood “[w]ith regard to existing rights” (Beaulac, at para. 22). It cannot independently ground a personal bilingualism requirement for the Lieutenant Governor.

(3) Section 16(2) Does Not Provide a Freestanding Right to Equality of Status

193Given my conclusions above, it follows that s. 16(2) does not provide a freestanding, substantive right to the “equality of status” of French and English in institutions of the government and legislature. Other elements of s. 16(2) support this conclusion.

194First, the text of s. 16(2) does not identify a rights-holder. By contrast, the subsequent provisions of the language rights scheme, save s. 18(2), are expressly rights-conferring: both “linguistic communit[ies] . . . have . . . the right” (s. 16.1(1)); “[e]veryone has the right” to use either language in the legislature (s. 17(2)); “[e]ither English or French may be used by any person” in the courts (s. 19(2)); and “[a]ny member of the public in New Brunswick has the right” to communicate and receive services in either language (s. 20(2)). The exception, s. 18(2), imposes a clear and specific obligation — that materials of the legislature “shall be printed and published” in both languages — which does not require a rights-holder, consistent with the language of its progenitor, s. 133 of the Constitution Act, 1867.

195Second, the “equality of status” language of s. 16(2) is contained in the same sentence as the declaration that “English and French are the official languages of New Brunswick”. That declaration is a recognition that does not create substantive rights or obligations (Foucher, at § 20.04; Hogg and Wright, at § 56:14). Section 16(2) must be interpreted as a whole; it would be incongruous for one part of the provision to be declaratory while another would give rise to a broad and substantive right. The “symbolic dimension” (Reasons of the Chief Justice, at para. 81) of a provision cannot create substantive requirements.

196Third, interpreting s. 16(2) as conferring a substantive right to “equality of status . . . in all institutions” would produce an unbounded and unpredictable guarantee. The provision contains no internal limits or standards by which the public or government could predict its implications. Its broad and abstract language accords with an interpretive, not substantive, function. There is no basis on which to understand the framers of the Charter as having intended to create such an amorphous and, as a result, uncertain and unpredictable constitutional right.

197Fourth, a substantive and freestanding right of equal status under s. 16 would be irreconcilable with s. 20(1) of the Charter, which provides rights to varying levels of services and communications from federal institutions in French and English. Section 16(1) is worded identically to s. 16(2) but applies federally. It follows that the interpretation given to “equality of status and equal rights and privileges as to their use in all institutions” under s. 16(2) would apply in a parallel way to the institutions of the Parliament and government of Canada under s. 16(1). This is supported by the fact that language rights serve the same purposes of promotion and preservation for minority language communities across Canada as they do in New Brunswick. Yet, s. 20(1) is internally limited: the obligation it imposes depends on the territorial concentration of the language group and on the nature of the affected office. No such limits would apply to a substantive s. 16(1) right. The result would be incoherent. Claimants with limited or no entitlement under s. 20(1) could instead invoke a broad and residual right under s. 16(1) and bypass the explicit limits of s. 20(1).

198Fifth, reading s. 16(2) as a standalone source of substantive rights would render ss. 17(2) to 20(2) redundant. Each of these provisions provides a specific guarantee aimed at ensuring the equality of status and use of New Brunswick’s official languages in the institutions of the province. Treating s. 16(2) as an overarching, substantive right would collapse these carefully delineated guarantees, contrary to the principles of interpretation that each word is to have meaning (R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541) and that the language scheme of the Charter must be interpreted coherently as a whole (see Health Services, at para. 80).

199In this respect, the analogy drawn by several interveners between s. 16(2) and s. 7 of the Charter is misplaced. Section 7 expressly identifies a rights-holder (“[e]veryone has the right to life, liberty and security of the person”), incorporates internal limitations such that it is not rendered a guarantee of indeterminate breadth (everyone has “the right not to be deprived thereof except in accordance with the principles of fundamental justice”), and does not contain a purely declaratory statement. Section 16(2) shares none of these features.

200Finally, such an approach is inconsistent with the Court’s explanation in Beaulac that s. 16(1), and therefore s. 16(2), “affirms the substantive equality of those constitutional language rights that are in existence at a given time” (para. 24 (emphasis added)). This confirms the interpretative nature of s. 16(2), which operates with respect to existing rights, rather than creating additional ones.

201Given the wording and purpose of s. 16(2), the context of the scheme of which it forms a part, and the need for coherence in interpreting the Charter, s. 16(2) “is a provision that is declaratory or interpretive in nature” (Girouard v. Canada (Attorney General), 2020 FCA 129, [2020] 4 F.C.R. 557, at para. 103). It cannot be relied on “to add rights and fill what could be perceived as gaps in the range of the rights protected” by the Charter (ibid.). It does not operate as a residual or catch-all guarantee of equal status. This accords with my conclusion that s. 16(2) cannot ground a requirement that the Lieutenant Governor of New Brunswick be bilingual.

B. Section 16.1 Does Not Require a Personally Bilingual Lieutenant Governor

202The appellant argues that s. 16.1 of the Charter requires the appointment of a bilingual Lieutenant Governor, so as to not undermine the guarantee under that provision of the equal status, rights and privileges of New Brunswick’s two official language communities. However, s. 16.1 cannot have such an effect because it was not added to the Constitution under the amending provision that allows amendments to “the office of . . . the Lieutenant Governor of a province” (Constitution Act, 1982, s. 41(a)).

203Section 16.1 is a unique provision within the constitutional scheme for the protection of language rights in New Brunswick. It reads as follows:

English and French linguistic communities in New Brunswick

16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

Communautés linguistiques française et anglaise du Nouveau-Brunswick

16.1 (1) La communauté linguistique française et la communauté linguistique anglaise du Nouveau-Brunswick ont un statut et des droits et privilèges égaux, notamment le droit à des institutions d’enseignement distinctes et aux institutions culturelles distinctes nécessaires à leur protection et à leur promotion.

Role of the legislature and government of New Brunswick

Rôle de la législature et du gouvernement du Nouveau-Brunswick

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

(2) Le rôle de la législature et du gouvernement du Nouveau-Brunswick de protéger et de promouvoir le statut, les droits et les privilèges visés au paragraphe (1) est confirmé.

204Section 16.1 constitutionalizes principles of the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, S.N.B. 1981, c. O-1.1, enacted in 1981. It embodies the constitutional commitment made by the government and legislature of New Brunswick to preserve and promote the equality of the province’s two official language communities (Charlebois, at paras. 62, 78 and 80). As such, it has become what the intervener the Attorney General of New Brunswick describes as [translation] “one of the great animating principles of political life in New Brunswick”, which is “at the heart of all decisions made by the New Brunswick government” (I.F., at para. 1).

205Unlike the provisions of the scheme enacted in 1982, s. 16.1 applies only to New Brunswick. In this respect, “it is a unique set of constitutional provisions quite peculiar to New Brunswick which places the province on a unique plane among Canadian provinces” (Charlebois, at para. 79). The provision does not protect individual rights but rather “collective rights whose holders are the linguistic communities themselves” (para. 63). It guarantees, in particular, the right of both linguistic communities to distinct educational and cultural institutions — institutions which bear no obvious connection to the Lieutenant Governor or to her Office.

206The constitutional significance of this provision, which this Court has not yet been called on to consider, warrants caution in its interpretation. The Attorney General of New Brunswick urges this Court to say no more about s. 16.1 than is necessary to resolve the appellant’s claim. In my view, it is unnecessary to undertake a purposive interpretation of s. 16.1 to conclude that it cannot have the effect that the appellant ascribes to it. The provision cannot be interpreted as imposing a condition of appointment for the office of Lieutenant Governor without exceeding the authority under which it was enacted.

207Section 16.1 was added to the Charter in 1993 through a bilateral constitutional amendment made pursuant to s. 43(b) of the Constitution Act, 1982 by Parliament and the Legislative Assembly of New Brunswick (Constitution Amendment Proclamation, 1993 (New Brunswick Act), SI/93-54). That provision allows Parliament and a provincial legislative assembly acting together to make “any amendment to any provision that relates to the use of the English or the French language within a province”.

208Contrarily, any amendment to the Constitution in relation to “the office of . . . the Lieutenant Governor of a province” requires the unanimous consent of Parliament and all 10 provinces under s. 41(a) of the Constitution Act, 1982.

209It follows that s. 16.1 cannot have the effect of imposing a new condition of appointment to the office of Lieutenant Governor. Even if such a condition had been intended by the entrenchment of s. 16.1, a proposition with which I disagree, this change could not have been made validly under the amending procedure set out in s. 43(b).

C. Section 18(2) Does Not Require a Personally Bilingual Lieutenant Governor

210The appellant contends that, as s. 18(2) of the Charter requires a bill to be passed and enacted by the New Brunswick Legislature in both official languages, royal assent can only be given by a person who is able to understand the bill in both language versions. For that reason, a unilingual Lieutenant Governor could not validly grant royal assent and would thus be unable to discharge her functions. Like both courts below, I see this proposition as ill-founded.

211Section 18(2) reads as follows:

New Brunswick statutes and records

Documents de la Législature du Nouveau-Brunswick

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

(2) Les lois, les archives, les comptes rendus et les procès-verbaux de la Législature du Nouveau-Brunswick sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur.

212The Court of Appeal of New Brunswick concluded in Charlebois that the purpose of s. 18(2) is “to ensure equal access to Anglophones and Francophones to the statutes of [their] province” and thereby remedy the history of legislative unilingualism which existed in New Brunswick prior to 1969 (para. 94).

213Section 18(2) extends to New Brunswick, and builds upon, the requirements set out in s. 133 of the Constitution Act, 1867, which mandate that the statutes, records, and journals of the Parliament of Canada and the Québec legislature be printed and published in both French and English (see Société des Acadiens (1986), at p. 573; Charlebois, at para. 40; Foucher, § 20.07). In so doing, it constitutionally entrenches requirements which the Legislature of New Brunswick had already imposed on itself through ss. 5 to 7 and 15 of the Official Languages of New Brunswick Act. This was also a recommendation of the Laurendeau-Dunton Commission (p. 135).

214This Court has interpreted s. 133 of the Constitution Act, 1867 as requiring, by implication, that bills not only be printed and published but also passed and enacted in both official languages (Attorney General of Quebec v. Blaikie, 1979 21 (SCC), [1979] 2 S.C.R. 1016, at p. 1022). Subsequent decisions have held that this requirement extends to regulations and orders of a legislative nature made by the Governor in Council or by a Minister of the Crown (Attorney General of Quebec v. Blaikie, 1981 14 (SCC), [1981] 1 S.C.R. 312; Reference re Manitoba Language Rights; Quebec (Attorney General) v. Brunet, 1990 126 (SCC), [1990] 1 S.C.R. 260). Section 18(2) imposes similar requirements. Its language closely mirrors that of s. 133, and this interpretation is consistent with its purpose.

215The appellant submits that royal assent, being part of the enactment process, must be granted in both official languages for a bill to be enacted in compliance with s. 18(2). However, s. 18(2) must be read together with s. 17(2), as both provisions deal with complementary aspects of parliamentary bilingualism in the New Brunswick Legislature (Charlebois, at para. 61).

216Section 17(2) provides: “Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.” This provision guarantees the right of any person taking part in legislative debates or proceedings to use the official language of their choice. The primary holders of this right are the members of the Legislative Assembly, but the use of the word “[e]veryone” makes clear that it can also extend to other persons, such as witnesses appearing before legislative committees. A fortiori, the right must apply to the Lieutenant Governor, who is a component of the Legislature of New Brunswick and takes part in its proceedings, in granting royal assent and in the opening of the Assembly.

217As confirmed by s. 17(2), the Constitution does not require every member of the Legislative Assembly to understand both language versions of a bill in order to vote on it. Bills are often passed with the participation of members who have read and understood only one language version. Indeed, there is no requirement for a member of the Assembly to read or fully understand a bill to take part in the legislative process. None of this affects the validity of a bill’s enactment.

218The same applies to the Lieutenant Governor. Just as the Constitution does not require every member of the Legislative Assembly to be capable of understanding both language versions of a bill for it to be validly passed, neither does a Lieutenant Governor’s ability to understand only one language version of a bill impair the validity of royal assent. Given that both language versions of a statute are equally authoritative under s. 18(2), she may grant royal assent on her consideration of either version.

219Further, the appellant’s argument rests on a misunderstanding of the Lieutenant Governor’s legislative function. It is not the Lieutenant Governor’s role to verify that both language versions of a bill are consistent with each other. Nor can the validity of an Act of the Legislature be questioned based on whether or not the Lieutenant Governor, or any individual member of the Assembly, carefully read and understood a bill. This is reinforced by the fact that royal assent is ordinarily granted as a matter of constitutional convention.

220I conclude that nothing in s. 18(2) of the Charter requires the Lieutenant Governor to be bilingual in order to discharge her constitutional functions as a component of the Legislature.

D. Section 20(2) Does Not Require a Personally Bilingual Lieutenant Governor

221The appellant further contends that s. 20(2) grants any member of the public the right to communicate personally with the Lieutenant Governor, and to receive services personally from the Lieutenant Governor, in the official language of their choice.

222The respondent accepts that the Office of the Lieutenant Governor — that is, the government unit the Lieutenant Governor heads — is subject to s. 20(2). However, the respondent disputes that this provision requires the Lieutenant Governor to be personally bilingual. In the respondent’s view, functions such as reading correspondence to the Lieutenant Governor, issuing congratulatory messages, maintaining the Lieutenant Governor’s website, and providing tours of Government House can all be carried out in both official languages through the staff of the Office.

223I agree with the respondent. Section 20(2) neither confers a right to communicate personally with the Lieutenant Governor nor imposes a corresponding obligation of personal bilingualism. Rather, any obligation arising under s. 20(2) falls on the relevant institution; here, that institution is the government unit constituting the Office of the Lieutenant Governor, and not the Lieutenant Governor personally.

224Section 20(2) provides:

Communications by public with New Brunswick institutions

Communications entre les administrés et les institutions du Nouveau-Brunswick

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

(2) Le public a, au Nouveau-Brunswick, droit à l’emploi du français ou de l’anglais pour communiquer avec tout bureau des institutions de la législature ou du gouvernement ou pour en recevoir les services.

225The starting point of interpreting s. 20(2) is the text. As I have explained above, “institutions” in s. 16(2) refers to organizations, not any individual. Since s. 16(2) is a statement of principle that informs the interpretation of ss. 17(2) to 20(2), “institution” under s. 20(2) bears the same meaning. This supports that s. 20(2), as it applies here, governs communications with, and services provided by, the public-facing organization headed by the Lieutenant Governor.

226That s. 20(2) does not impose a personal obligation of bilingualism on the Lieutenant Governor also reflects the historical and philosophical background behind its inclusion in the Charter. In 1967, the Laurendeau-Dunton Commission recognized the cumulative impact of citizens’ everyday interactions with state institutions on the vitality of official language communities. As the Commission reflected in its first report (at pp. 89-90):

When it becomes usual for the language of the minority to receive little or no recognition in a given region, the minority reluctantly falls into line. It is especially in these situations that governments exert an influence on language: they bring all their weight to bear on the side of the majority language, thereby hastening the linguistic assimilation of the minority.

. . . For a Francophone to be forced to exchange a few words in English, if he can, with a postal clerk or a railway employee may seem of no great concrete importance. But if we add up the number of times a citizen must use language when dealing with the various agencies of government . . . then we must conclude that the influence of public authorities on the use of language is deep and strong.

227The converse is also true: enabling members of a minority language community to interact in their own language with certain organizations of the state can meaningfully contribute to that community’s preservation and development.

228The Commission therefore recommended that the federal “administration in Ottawa must be able to communicate adequately with the public in both languages” and that “[f]ederal government offices . . . must be able to deal with people in either French or English” (p. 93). Further, that provinces with a sufficiently large minority language population, including New Brunswick, “grant its minority the right to deal with the government in the official-minority language and to receive an answer from the provincial offices in this language” (p. 102).

229These recommendations were reflected in the federal Official Languages Act and the provincial Official Languages of New Brunswick Act, respectively. Both statutes, on whose provisions s. 20(1) and s. 20(2) of the Charter were modelled, established regimes of institutional bilingualism governing communication and services with the public. Neither framework required that every individual within the state’s service-providing bodies be bilingual; rather, each obligated the relevant organization to provide services in English and French. The federal act imposed a duty on government departments, agencies, and administrative bodies to ensure members of the public could obtain services and communicate with them in either official language, subject to certain limitations (ss. 9 and 10). Similarly, the provincial act required public employees responsible for public services to provide, “or make provision” for providing, those services in either official language upon request (s. 11).

230Section 20 adopts this same institutional approach by providing for rights to communicate with and receive services from the “office of an institution”. As I have explained above, s. 20(1), which addresses federal institutions, imposes obligations that vary with the territorial concentration of the official language group and the nature of the affected office. Section 20(2), which addresses New Brunswick’s institutions, imposes a uniform approach — what Bastarache J. in Société des Acadiens (2008) described as “complete institutional bilingualism” (para. 1). Importantly, and as Bastarache J.’s statement demonstrates, both subsections operate at the institutional level: the member of the public’s right gives rise to obligations on state organizations, not any particular individual within those organizations.

231This institutional mechanism informs the scope of the rights to “communicate with” and “receive available services from” an enumerated institution under s. 20(2). These rights do not entitle a member of the public to speak with or receive services from any particular individual within the organization. Indeed, achieving the standard of substantive equality under s. 16(2) will very likely require that, depending on the language requested by the member of the public, different individuals within an organization will provide the same services or communicate about the same matter.

232The respondent offers a persuasive example. When a member of the public seeks to communicate with or receive a service from a government department, the minister who heads that department is not personally required to speak both languages. Rather, the institution may discharge its constitutional obligations through its employees or others acting on its behalf (see Société des Acadiens (2008), at para. 18).

233This example illustrates a further principle relevant to ss. 17(2) to 20(2), read in light of the guarantee of substantive equality in s. 16(2). The appellant submits that functions such as reading the Speech from the Throne require a personally bilingual Lieutenant Governor. While I am not persuaded of this proposition in any case, given that the communication is directed at parliamentarians rather than the public and that s. 17(2) provides English or French may be used in the legislature, the example raises the point that not all services and communications can be provided simultaneously in both official languages. Even a speech delivered bilingually could not be fully understood by a unilingual Francophone or Anglophone. In such circumstances, substantive equality may be achieved through interpretation or translation. Whether a right under ss. 17(2) to 20(2) is infringed is a contextual question that is not determinable in the abstract (see DesRochers, at paras. 51 and 53-54).

234Section 20(2) therefore does not grant members of the public a right to communicate with or receive services from the Lieutenant Governor personally in the official language of their choice, and does not require the Lieutenant Governor to be personally bilingual.

VI. The Appellant’s Interpretation Would Have Far-Reaching Implications That Could Not Have Been Intended

235Interpreting the Charter as requiring the Lieutenant Governor of New Brunswick to be personally bilingual, whether to perform the functions of her office or to ensure the “equality of status” of English and French within provincial institutions, would have far-reaching implications for other public offices.

236On the appellant’s reasoning, the same requirement would extend to other public office holders who perform a function captured under ss. 17 to 20 or those of comparable symbolic importance — particularly those who could, on the appellant’s interpretation, be described as “unipersonal institutions”.

237This logic leads inevitably to a constitutional requirement of personal bilingualism for the Premier of New Brunswick and provincial ministers. 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.

238Nor would these implications be confined to New Brunswick. Section 16(1), which applies to the institutions of Parliament and the federal government, mirrors s. 16(2). A conclusion that s. 16(2) requires a personally bilingual Lieutenant Governor of New Brunswick implies that s. 16(1) requires a personally bilingual Governor General of Canada. The same reasoning could extend to other federal public offices holders, including the Prime Minister and Cabinet ministers.

239This reasoning raises further serious constitutional concerns. In the case of the Premier, the Prime Minister, and Cabinet ministers, a Charter requirement that the office holder be bilingual could clash with the conventions of responsible government. By convention, the governor appoints as first minister the member who commands the confidence of a majority of the elected Legislative Assembly, in New Brunswick, or of the House of Commons, at the federal level. A constitutionally mandated condition of personal bilingualism on appointment would constrain this convention, undermining the structure of our parliamentary democracy and the government’s democratic legitimacy. Such a fundamental change to the rules of our parliamentary democracy could only have been made in the clearest of terms, and not by mere implication from the Charter.

240These outcomes are far removed from the scheme of institutional bilingualism established by ss. 16 to 20 of the Charter. There is no basis on which to conclude that the entrenchment of language rights in the Charter was intended to produce these consequences.

VII. The Proposed Obligation of Personal Bilingualism Is an Indeterminate Standard

241In addition to the foregoing, the appellant’s proposed interpretation is unworkable. It fails to identify any standard in the Constitution for determining what constitutes sufficient competence in each language to meet a requirement of personal bilingualism. As the Laurendeau-Dunton Commission noted, the concept of a “bilingual” individual is inherently indeterminate (at p. xxviii):

In practice, people who are considered bilingual know, more or less, two languages. We know that complete bilingualism — the equal command of two languages — is rare and perhaps impossible. Generally, the bilingual people one meets combine a knowledge of their mother tongue with a more or less extensive and active knowledge of the second language.

We therefore have to be cautious [in using the term]. [Emphasis deleted.]

242This issue of indeterminacy is particularly acute if the requirement of bilingualism is grounded in a general right of “equality of status” that is untethered from the specific institutional functions set out in ss. 17 to 20. Under those provisions, where questions of proficiency arise, they are tied to the context of the claim and the specific obligations imposed by the Charter. However, it is unclear what standard is sufficient if the Lieutenant Governor is required to be bilingual in order to: personify the equality of English and French; foster the Francophone minority’s sense of belonging to New Brunswick society; provide a unifying symbol for both linguistic communities; and prevent a language speaker from viewing their language as subordinated to the other. Neither “equality of status” under s. 16(2) nor the appellant’s arguments provide a basis on which to meaningfully assess the required level of language proficiency to meet this ideal.

243The effect of the appellant’s submissions would be to artificially constitutionalize, and thereby subject to judicial scrutiny, an issue that should not be before the courts, because it exceeds their institutional competence, adjudicative role, and constitutional function — namely, the personal language proficiency of New Brunswick’s Lieutenant Governor and, as I have explained above, potentially the personal language competencies of other important officers of state.

VIII. Conclusion

244For the foregoing reasons, I conclude that none of ss. 16(2), 16.1, 18(2) or 20(2) of the Charter, purposively interpreted, requires that the Lieutenant Governor of New Brunswick be personally bilingual.

245Accordingly, I conclude that the appointment of the Hon. Brenda Murphy as Lieutenant Governor of New Brunswick was lawfully made and I would dismiss the appeal.