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Charter - Language Rights [s.16-23] (2). Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister)
In Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister) (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a NB Court of Appeal ruling that allowed a Crown appeal, this from a NB Queen's Bench ruling that 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".
Here the court summarizes this ruling, considers the interpretation of Charter language rights and applies their analysis to the case facts:I. Overview
[1] Canada’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.
[2] Language 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.
[3] Nowhere 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.
[4] The 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.
[5] Following 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.
[6] It 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.
[7] For 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.
[8] Section 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.
[9] The appropriate remedy is to issue a declaration affirming that the appointment of a Lieutenant Governor in New Brunswick who does not have the ability to understand, communicate in and perform their functions in both official languages infringes s. 16(2) of the Charter.
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B. Interpretation of Charter Provisions
[21] As 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.
[22] The 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.
[23] The 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.
[24] This 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 CanLII 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.
[25] In 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.
[26] I 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.
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[48] 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 (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).
[49] In R. v. Beaulac, 1999 CanLII 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).
[50] 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 (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).
[51] Language 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 CanLII 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 CanLII 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 CanLII 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.
[52] The 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 CanLII 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).
[53] In 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.
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(5) Application
[101] In 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.
[102] As 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.
[103] The 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.
[104] In 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.
[105] In 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 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at p. 373; Reference re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158; Reference re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 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.
[106] The 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.
[107] Second, 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”.
[108] It 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.
[109] In a unipersonal institution like that of Lieutenant Governor, the configuration of the office means that the person called upon to hold it cannot delegate any of their specific authority to their staff. 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.
[110] As 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.
[111] In 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.
[112] This 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.
[113] Consequently, 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”.
[114] By 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.
[115] It 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.
[116] A 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.
[117] With 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 CanLII 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.
[118] The 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. . R. v. Tayo Tompouba
In R. v. Tayo Tompouba (SCC, 2024) the Supreme Court of Canada allowed an appeal from a BC Court of Appeal which "erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C. [SS: 'Language of Accused'], that his fundamental right to be tried in the official language of his choice had in fact been violated".
Here the court discusses Charter and other constitutional language provisions:[28] This appeal relates to institutional judicial bilingualism, which ensures equal access to the courts for members of Canada’s linguistic communities (see Beaulac, at para. 28; Bessette, at para. 20). The inextricable link between institutional judicial bilingualism and the protection of linguistic minorities, as well as the importance of these two concepts, are reflected in Canada’s constitutional fabric (see Conseil scolaire francophone de la Colombie‑Britannique, at para. 12, per Wagner C.J., and at paras. 188‑89, per Brown and Rowe JJ., dissenting; J. D. Richard, “Le bilinguisme judiciaire au Canada” (2001), 42 C. de D. 389, at p. 395).
[29] First of all, the Constitution Act, 1867 sets out limited positive rights that protect the use of English and French in certain federal and Quebec institutions, including judicial institutions:133 Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. [30] In addition, echoing s. 133 of the Constitution Act, 1867 and strengthening the constitutional protection provided to linguistic minorities across the country, ss. 16 to 20 of the Canadian Charter of Rights and Freedoms set out a series of legal guarantees that ensure institutional bilingualism at the federal level. These guarantees are not subject to the notwithstanding clause in s. 33 of the Charter (see R. J. Sharpe and K. Roach, The Charter of Rights and Freedoms (7th ed. 2021), at pp. 433‑34).
[31] In this case, it is ss. 16 and 19 of the Charter that should be focused on specifically. After stating, in the first subsection, that English and French are the official languages of Canada and that these two languages have “equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada”, s. 16 specifies, in the third subsection, that Parliament and the legislatures remain free at all times “to advance the equality of status or use of English and French”. As for s. 19, it specifically guarantees, in the first subsection, the right to use either English or French in, or in any pleading in or process issuing from, any federally established court (see Sharpe and Roach, at p. 433).
[32] The combined effect of s. 133 of the Constitution Act, 1867 and s. 19(1) of the Charter is to guarantee to every person the right to speak in the official language of their choice in judicial proceedings at the federal level and in Quebec (Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 CanLII 66 (SCC), [1986] 1 S.C.R. 549, at pp. 574‑75; R. v. Mercure, 1988 CanLII 107 (SCC), [1988] 1 S.C.R. 234, at p. 297‑98, per Estey J., dissenting; Hogg and Wright, at § 56:9; Sharpe and Roach, at p. 433). This guarantee is a “constitutional minimum” that can be supplemented by federal and provincial legislation in order to advance the equality of status and use of English and French by conferring additional linguistic guarantees (see s. 16(1) and (3) of the Charter; Jones v. Attorney General of New Brunswick, 1974 CanLII 164 (SCC), [1975] 2 S.C.R. 182, at pp. 192‑93; MacDonald, at p. 496; Reference re Manitoba Language Rights, 1992 CanLII 115 (SCC), [1992] 1 S.C.R. 212, at pp. 222‑23; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774, at para. 56; Sharpe and Roach, at p. 432).
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