PHOTO: University of Ottawa
Here, DeWare CJ declared that the appointment of a unilingual Anglophone Lieutenant-Governor for the bilingual province of New Brunswick was unconstitutional as it violated a variety of New-Brunswick-specific provisions of the Charter of Rights and Freedoms. This appointment was made by the Governor General of Canada, on the advice of the Prime Minister.
The relevant Charter provisions are these:
16(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.
…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. 16.1(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.
…20(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.
Of these provisions, DeWare CJ said, in general terms:
New Brunswick is the only province in Canada where the equality of the two linguistic communities has been recognized in the federal constitution. The arguments advanced in this case as to the necessity that the Lieutenant-Governor, as head of state of the Province of New Brunswick be bilingual, are unique to the New Brunswick experience. The inclusion of these constitutional protections serves to insulate the francophone minority from the natural human tendency to default to the language favoured by the majority, which in the case of New Brunswick is English (at para. 48).
The equality of linguistic communities which these provisions seek to protect is violated — rendered “meaningless” (at para. 62) — by the appointment of a Lieutenant-Governor who is unable to speak both official languages. As DeWare CJ explained:
There are two significant components to the role of the Lieutenant-Governor. There is the important role as head of state which calls upon the Lieutenant-Governor to sign all laws, deliver the government’s speech from the Throne, and perform other essential functions at the direction of the executive arm of government. In addition to these responsibilities of the Lieutenant-Governor set out in the Constitution Act, 1867, there is the important social and community functions undertaken by a Lieutenant-Governor. It is during the discharge of these tasks that a Lieutenant-Governor is most frequently interacting with the citizens of the province. It will be understandably difficult, if not impossible, for a unilingual anglophone Lieutenant-Governor to converse and interact with francophone citizens. In such situations, should the French speaking New Brunswicker wish to speak directly to the head of state, she will need to speak in English, if she is able, otherwise, the French speaking citizen will need to speak to the Lieutenant-Governor with the assistance of an interpreter or a bilingual staff member. A unilingual Lieutenant-Governor will experience significant difficulties in delivering a speech from the Throne with equal attention given to both official languages. Can such a situation really be deemed to represent equality of the linguistic communities pursuant to the Charter? In my view, it cannot (at para. 58).
In order to get to the merits, DeWare CJ had to establish that the matter was justiciable. There is a strand of Canadian case law which suggests that powers located in the Constitution Act, 1867 may be immune from judicial scrutiny: this is well established in respect of parliamentary privilege, where the courts have no jurisdiction to entertain claims of Charter breaches (Duffy v. Canada (Senate), 2020 ONCA 536, at para. 113); and in some cases involving the review of executive powers granted by specific provisions of the Constitution Act, 1867, the matters have been treated as non-justiciable (see Samson v. Canada (Attorney General) (1998), 165 DLR (4th) 342 (FCTD), at paras. 5-6 (no review of the purely political decision to appoint senators); Galati v. Canada (Governor General), 2015 FC 91,  4 FCR 3, at para. 56 (no review of the Governor General’s decision to assent to legislation); see also Conacher v. Canada (Prime Minister), 2010 FCA 131,  4 FCR 22).
But there was no question of parliamentary privilege applying here, and this case had an important feature missing from Samson, namely a properly pleaded Charter violation. As DeWare CJ observed (rightly so, I think), “it now appears settled law that all government action, including the exercise of prerogative powers, are reviewable by the courts when Charter rights are appropriately invoked” (at para. 29), regardless of the source of the power. Where “the issues raised involve the consideration of Charter rights … the Court not only may consider the questions, it has a duty to do so (at para. 33). Interestingly, in coming to this conclusion, DeWare CJ relied solely on Canadian authority and found it unnecessary to consider the analysis of the UK Supreme Court in the Case of Prorogations (at para. 32).
Having determined that the matter was justiciable and that the appointment of a unilingual Lieutenant-Governor in New Brunswick violated the Charter, DeWare CJ had to consider the appropriate remedy. Here, she was alert to the risk of legal and administrative chaos if the appointment were invalidated ab initio (at para. 71): “Such a situation would create a legislative and constitutional crisis within the Province of New Brunswick which is not necessary to adequately vindicate the infringed language rights in question” (at para. 73).
Advocates of a pure theory of nullity should look away now. With those considerations in mind, DeWare CJ declared that the appointment was unlawful but left it at that:
The Applicant has been successful in asking this Court to conclude that the unique constitutional protections afforded to the citizens of New Brunswick require that the position of a Lieutenant-Governor, and solely the position of a Lieutenant-Governor, be held by a bilingual individual. As the Court has now provided the requested “opinion” on the issue, it is appropriate to leave a determination on necessary next steps in the hands of the federal government for it to “consider what actions to take” (Canada v. Khadr). The conclusion of this Court vindicates the language rights and freedoms invoked by the Applicant and will undoubtedly have an impact on the nomination of all future Lieutenant-Governors in the Province of New Brunswick. However, this Court must continue to respect its role within the separation of powers of the three branches of government. In fashioning an appropriate remedy, it is important that this Court not stray into discussions over the implementation of the decision which best rests with the executive arm of government. Finally, the remedy suggested by this Court must avoid imposing substantial hardships which are unrelated to confirming the language rights at the heart of the application (at para. 72)
This is best described as a prospective declaration of invalidity, which I think is a novelty in Canadian public law (though I have not researched the point).
If one subscribes to a pure theory of nullity, then this sort of remedial creativity is impossible, of course. Yet, courts faced with legal or administrative chaos have long engaged in creative thinking about remedies to avoid visiting unpalatable consequences upon the citizenry. Suspended declarations of invalidity have become commonplace in Canada’s Charter era, in order to allow legislative responses to declarations of invalidity. Here, however, the cause and solution to the Charter breach lie in the executive branch, so a suspended declaration to allow for a legislative response would not have made any sense. DeWare CJ’s prospective declaration of invalidity achieved the same end. I for one am happy to see an additional tool in the remedial armoury.
Indeed, there may be something to be said for prospective declarations of invalidity in general. One of the difficulties with suspended declarations is that rights infringements continue in the period of the suspension (subject to the possibility of a constitutional exemption being granted), which may in addition be extended to allow the legislature extra time to respond (often on flimsy evidential bases). A prospective declaration avoids this difficulty, and leaves it up to the legislature to decide how quickly to respond to the declaration, or to not respond at all.
For now, the Lieutenant-Governor remains in office. I assume that the prospective declaration has been stayed pending appeal, which is, of course, another means of maintaining legal certainty.
Those interested in knowing more about this case can listen to a panel discussion organized last year by the Centre for Public Law.
UPDATE: The perils of posting on a Friday…Whatever about the novelty of prospective relief as an administrative law matter, Sujit Choudhry rightly points out that prospective remedies in constitutional law were thoroughly canvassed by the Supreme Court in Canada (Attorney General) v. Hislop, 2007 SCC 10. LeBel and Rothstein JJ’s analysis rewards re-reading:
The determination of whether to limit the retroactive effect of a s. 52(1) remedy and grant a purely prospective remedy will be largely determined by whether the Court is operating inside or outside the Blackstonian paradigm. When the Court is declaring the law as it has existed, then the Blackstonian approach is appropriate and retroactive relief should be granted. On the other hand, when a court is developing new law within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment.
…Change in the law occurs in many ways. “Clear break with the past” catches some of its diversity. It can be best identified with those situations where, in Canadian law, the Supreme Court departs from its own jurisprudence by expressly overruling or implicitly repudiating a prior decision. Such clear situations would justify recourse to prospective remedies in a proper context. But other forms of substantial change may be as relevant, especially in constitutional adjudication, where courts must give content to broad, but previously undefined, rights, principles or norms. The definition of a yet undetermined standard or the recognition that a situation is now covered by a constitutional guarantee also often expresses a substantial change in the law. The right may have been there, but it finds an expression in a new or newly recognized technological or social environment. Such a legal response to these developments properly grounds the use of prospective remedies, when the appropriate circumstances are met. A substantial change in the law is necessary, not sufficient, to justify purely prospective remedies. Hence, we must now turn to what else must be considered once legal change has been established. Although the list of such factors should not be considered as closed, some of them appear more clearly compelling. They may include reasonable or in good faith reliance by governments (Miron, at para. 173; Mackin v. New Brunswick (Minister of Finance),  1 S.C.R. 405, 2002 SCC 13, at para. 78), or the fairness of the limitation of the retroactivity of the remedy to the litigants. Courts ought also consider whether a retroactive remedy would unduly interfere with the constitutional role of legislatures and democratic governments in the allocation of public resources (Benner, at para. 103; Schachter, at p. 710)…Fully retroactive remedies might prove highly disruptive in respect of government action, which, on the basis of settled or broadly held views of the law as it stood, framed budgets or attempted to design social programs. Persons and public authorities could then become liable under a new legal norm. Neither governments nor citizens could be reasonably assured of the legal consequences of their actions at the time they are taken (at paras. 93, 99-101).