Section Sixteen One of the Canadian Charter of Rights and Freedoms
Encyclopedia
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. It was enacted by the Constitution Amendment, 1993 (New Brunswick) and guarantees equality
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
between English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
-speaking and French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
-speaking New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...
ers.
Section 16.1 is not to be confused with subsection 16(1) ("sixteen one"), which is part of section 16
Section Sixteen of the Canadian Charter of Rights and Freedoms
Section Sixteen of the Canadian Charter of Rights and Freedoms is the first of several sections of the Charter dealing with Canada's two official languages, English and French...
and goes back to 1982. Section 16.1 is a separate section; the "point one" numbering simply indicates that at some time (i.e. in 1993) an amendment inserted this new section between two existing sections without renumbering them.
Text
The section reads,Purpose
Section 16.1 makes reference to a need for institutions for both languageLanguage
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
groups, including educational
Education in Canada
Education in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
institutions, and it seemingly gives the provincial government powers to protect the right. This is not completely revolutionary in that this merely entrenches laws already found in An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick
Bill 88
The law recognising the equality of the two linguistic communities of New Brunswick, or the more succinct Law 88, is a law adopted by the Legislative Assembly of New Brunswick, recognising the equality of the Anglophone and Francophone linguistic communities of the province.-Description:On the 17...
(1981), as noted in the 2001 Court of Appeal
Court of Appeal of New Brunswick
The Court of Appeal of New Brunswick is the court of appeal in the province of New Brunswick. There are five Justices, one Chief Justice, any former judge of the Court of Appeal who is a supernumerary judge and any former Chief Justice of New Brunswick who is a judge or a supernumerary judge...
case Charlebois v. Mowat. The section can be seen as providing "collective rights," and one critic charged that a deeper meaning to the section would have to be decided by Canadian courts.
In Charlebois v. Mowat, the court ruled that section 16.1, as well as subsections 16(2) and 18(2)
Section Eighteen of the Canadian Charter of Rights and Freedoms
Section Eighteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 18 requires that all statutes and other records...
, require bilingual municipal laws when the minority language population of a municipality is significant. The ruling was made primarily on the basis of the court's interpretation of subsection 18(2)), but in its ruling the court also stated that section 16.1 is "remedial", meaning that it is supposed to fix historical problems. (A related case later went to the Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
as Charlebois v. Saint John (City)
Charlebois v. Saint John (City)
Charlebois v. Saint John [2005] 3 S.C.R. 563 was a decision by the Supreme Court of Canada on minority language rights in New Brunswick. The Court found no statutory obligation on municipalities for bilingualism in court proceedings.-Background:...
.)
History
An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick was enacted by Premier Richard HatfieldRichard Hatfield
Richard Bennett Hatfield, PC, ONB was a New Brunswick politician and long time Premier of the province .- Early life :...
, in what was called a "separate but equal" approach of providing separate school boards for both linguistic groups. Its principles were incorporated into the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, through section 16.1, in response to a shift in provincial politics in the early 1990s. Whereas in the 1980s all parties had supported the rise of bilingualism in New Brunswick, in 1991 a new party called the Confederation of Regions Party
New Brunswick Confederation of Regions Party
The New Brunswick Confederation of Regions Party was a political party in the Province of New Brunswick, Canada.It was the only branch of the Confederation of Regions Party to win any seats...
, which was opposed to official bilingualism, became the official opposition in the legislature. The legislation was thus constitutionalized by a pro-bilingualism provincial government, to ensure the survival of the language rights.
The constitutionalization of the legislation was originally meant to be accomplished as part of a package of amendments known as the Charlottetown Accord
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...
in 1992. When the Accord was rejected in a national referendum, the amendment was made separately, prompting Professor Peter Russell to refer to this as an "encouraging [sign] that Canadians may be recovering the capacity to accomplish constitutional reform without linking everything together and getting bogged down in the mega constitutional swamp."
Section 43 of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
was the part of the amending formula
Amendments to the Constitution of Canada
Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...
used to add section 16.1 to the Charter. This meant the amendment was approved by the province affected (New Brunswick) and the Canadian Senate
Canadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
and Canadian House of Commons
Canadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
, although constitutional lawyer Deborah Coyne
Deborah Coyne
Deborah Margaret Ryland Coyne, is a Canadian constitutional lawyer, professor and author. Her education includes a Bachelor of Laws degree from Osgoode Hall Law School of York University and a Master of Philosophy from Oxford University in international relations.-Early career:She was a staffer in...
argued that the amendment involved federal jurisdiction and thus seven provinces would be needed. The House of Commons passed the amendment with a vote of 219-2. This attracted some criticism, with columnist William Johnson claiming that Parliament had not fully analyzed the amendment and tried to stifle public discussion. He even suggested that section 16.1 might create two governments for New Brunswick, one in English and one in French. Earlier, this columnist had also charged that enshrining collective rights in the Constitution was "alien to liberalism
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
," and would undermine the individual in favour of a larger group; he also said section 16.1 excluded Aboriginal peoples in New Brunswick
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
and could make them "second-class citizen
Second-class citizen
Second-class citizen is an informal term used to describe a person who is systematically discriminated against within a state or other political jurisdiction, despite their nominal status as a citizen or legal resident there...
s." He compared section 16.1 to how the Meech Lake Accord
Meech Lake Accord
The Meech Lake Accord was a package of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and ten provincial premiers. It was intended to persuade the government of the Province of Quebec to endorse the 1982 Canadian Constitution and increase...
and Charlottetown Accord would have recognized Quebec as a distinct society
Distinct society
Distinct society is a political term especially used during constitutional debate in Canada, in the second half of the 1980s and in the early 1990s, and present in the two failed constitutional amendments, the Meech Lake Accord and the Charlottetown Accord...
. However, Opposition leader Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
, who at that time represented Acadian
Acadian
The Acadians are the descendants of the 17th-century French colonists who settled in Acadia . Acadia was a colony of New France...
s, said that "For me it is a great day. It is an example that we can be together and at the same time be different in Canada." A Montreal Gazette article also approved, calling the New Brunswick government "courageous" because of its resistance to the Confederation of Regions Party, and added that the section provided a "noble, generous vision of Canadian duality and co-existence. Too bad it seems confined to New Brunswick."
The amendment was signed by Prime Minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
Brian Mulroney
Brian Mulroney
Martin Brian Mulroney, was the 18th Prime Minister of Canada from September 17, 1984, to June 25, 1993 and was leader of the Progressive Conservative Party of Canada from 1983 to 1993. His tenure as Prime Minister was marked by the introduction of major economic reforms, such as the Canada-U.S...
, Attorney General Pierre Blais
Pierre Blais
Pierre Blais, PC is a Canadian jurist and former politician and Cabinet minister. He is currently the Chief Justice of the Federal Court of Appeal...
, and Registrar General
Registrar General of Canada
The Registrar General of Canada is responsible for registering all letters patent, commissions, instruments, proclamations, and any other documents that may, from time to time, be issued under the Great Seal of Canada or the Privy Seal of Canada...
Pierre H. Vincent
Pierre H. Vincent
Pierre H. Vincent, PC is a tax lawyer and former Canadian politician.-Member of Parliament:Vincent was first elected to the Canadian House of Commons in the 1984 electoral landslide that brought Brian Mulroney and the Progressive Conservative Party to power...
, under a proclamation of Governor General
Governor General of Canada
The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...
Ray Hnatyshyn
Ray Hnatyshyn
Ramon John Hnatyshyn , commonly known as Ray Hnatyshyn, was a Canadian politician and statesman who served as Governor General of Canada, the 24th since Canadian Confederation....
in Ottawa
Ottawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
on March 12, 1993.
Influence outside New Brunswick
In 2000, an OntarioOntario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
court ruled that the province was legally obligated to keep from closing the Montfort Hospital
Montfort Hospital
The Montfort Hospital is a hospital in Ottawa, Canada. It is noted for being the only fully bilingual hospital in the province of Ontario.The hospital was founded in 1953 by the Filles de la Sagesse Catholic order and was named after one of its founders Saint Louis-Marie Grignion de Montfort. It...
as part of its program of merging many of the hospitals in the Ottawa region. The basis for the decision was the court's conclusion that this was a logical application of an unwritten constitutional principle of minority rights
Minority rights
The term Minority Rights embodies two separate concepts: first, normal individual rights as applied to members of racial, ethnic, class, religious, linguistic or sexual minorities, and second, collective rights accorded to minority groups...
, which had been found by the Supreme Court in the 1998 Reference re Secession of Quebec
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
. Since the Montfort Hospital was the only hospital in the region operating primarily in French, it amounted to a protected parallel service-provider, much as New Brunswick's French-language and English-language school systems are parallel service providers, and therefore as an essential component of the collective rights of Ottawa's Franco-Ontarian
Franco-Ontarian
Franco-Ontarians are French Canadian or francophone residents of the Canadian province of Ontario. They are sometimes known as "Ontarois"....
population. The government of Ontario
Government of Ontario
The Government of Ontario refers to the provincial government of the province of Ontario, Canada. Its powers and structure are set out in the Constitution Act, 1867....
criticized the decision as judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
, and charged that "The divisional court decision has effectively rewritten the constitution to make [Section] 16.1 applicable to Ontario despite the express intention that it apply to New Brunswick alone."
External links
- Full text of the Constitution Amendment, 1993 (New Brunswick)
- Full text of Court of Appeal's Charlebois v. Mowat decision
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages