Section 16.1 of the Canadian Charter of Rights and Freedoms

Last updated
The province of New Brunswick (red), where section 16.1 applies. New Brunswick, Canada.svg
The province of New Brunswick (red), where section 16.1 applies.

Section 16.1 of the Canadian Charter of Rights and Freedoms guarantees equality between English-speaking and French-speaking residents of New Brunswick. Enacted in 1993, it is the most recent addition to the Charter.

Contents

Section 16.1 (pronounced "sixteen point one") is not to be confused with subsection 16(1) ("sixteen one"), which is part of section 16 and was part of the original 1982 text. Section 16.1 is a separate section; [1] the "point one" numbering indicates that this new section was added between two existing sections without renumbering them.

Text

The section reads,

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 subsection (1) is affirmed.

Purpose

Section 16.1 makes reference to a need for institutions for both language groups, including educational institutions, and it seemingly gives the provincial government powers to protect the right. [2] 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 (1981), as noted in the 2001 Court of Appeal 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. [3]

In Charlebois v. Mowat, the court ruled that section 16.1, as well as subsections 16(2) and 18(2), 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. [4] (A related case later went to the Supreme Court as Charlebois v. Saint John (City) .)

History

An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick [5] was enacted in 1981 by Premier Richard Hatfield. It provided independent school boards for both linguistic groups. Its principles were later incorporated into the Constitution of 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, which was opposed to official bilingualism, became the official opposition in the legislature. The pro-bilingualism Liberal provincial government proceeded to seek a constitutional amendment mandating bilingualism in New Brunswick to make any future change in New Brunswick's status subject to Federal approval. [6]

The constitutionalization of the legislation was originally meant to be accomplished as part of a package of amendments known as the Charlottetown Accord in 1992. The amendment was made separately once the Accord was rejected in a national referendum, 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." [7]

Section 43 of the Constitution Act, 1982 was the part of the amending formula used to add section 16.1 to the Charter. This meant the amendment was approved by the province affected (New Brunswick) and the Senate of Canada and House of Commons of Canada, although constitutional lawyer Deborah Coyne argued that the amendment involved federal jurisdiction and thus seven provinces would be needed. [3] The House of Commons passed the amendment with a vote of 219-2, on February 1, 1993. [8]

A Montreal Gazette article 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." [9]

It did attract 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. [3] Earlier, this columnist had also charged that enshrining collective rights in the Constitution was "alien to liberalism," and would undermine the individual in favour of a larger group; he also said section 16.1 excluded Aboriginal peoples in New Brunswick and could make them "second-class citizens." He compared section 16.1 to how the Meech Lake Accord and Charlottetown Accord would have recognized Quebec as a distinct society. [10]

However, Opposition leader Jean Chrétien, who at that time represented Acadians, 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." [3]

Proclamation

The Constitution Amendment, 1993 (New Brunswick) was signed by Prime Minister Brian Mulroney, Attorney General Pierre Blais, and Registrar General Pierre H. Vincent, under a proclamation of Governor General Ray Hnatyshyn in Ottawa on 12 March 1993. [11] [12]

Influence outside New Brunswick

Montfort Hospital. Montfort hospital.JPG
Montfort Hospital.

In 2000, an Ontario court ruled that the province was legally obligated to keep from closing the Montfort Hospital 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, which had been found by the Supreme Court in the 1998 Reference re Secession of Quebec . 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 population. The Government of Ontario criticized the decision as judicial activism, 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." [13]

Related Research Articles

<span class="mw-page-title-main">Constitution of Canada</span> Principles, institutions and law of political governance in Canada

The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents are an amalgamation of various codified acts, treaties between the Crown and Indigenous Peoples, uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world.

Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause, sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter.

<i>Canadian Charter of Rights and Freedoms</i> 1982 Canadian constitutional legislation

The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all governments in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the 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, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

The Charter of the French Language, also known in English as Bill 101, Law 101, or Quebec French Preference Law, is a law in the province of Quebec in Canada defining French, the language of the majority of the population, as the official language of the provincial government. It is the central legislative piece in Quebec's language policy, and one of the three statutory documents Quebec society bases its cohesion upon, along with the Quebec Charter of Human Rights and Freedoms and the Civil Code of Quebec. The Charter also protects the Indigenous languages of Quebec.

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 and was defeated.

<span class="mw-page-title-main">Meech Lake Accord</span> Series of proposed amendments to the Constitution of Canada

The Meech Lake Accord was a series of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and all 10 Canadian provincial premiers. It was intended to persuade the government of Quebec to symbolically endorse the 1982 constitutional amendments by providing for some decentralization of the Canadian federation.

The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add a bill of rights to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Constitution Act, 1982.

<span class="mw-page-title-main">Distinct society</span> Term referring to Quebecs status in Canadian constitutional politics

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. "Distinct society" refers to the uniqueness of the province of Quebec within Canada, although here the meaning of "unique" is vague and controversial.

The legal dispute over Quebec's language policy began soon after the enactment of Bill 101, establishing the Charter of the French Language, by the Parliament of Quebec in 1977.

<span class="mw-page-title-main">Official bilingualism in Canada</span> Policy that the English and French languages have equal status and usage in Canadian government

The official languages of Canada are English and French, which "have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada," according to Canada's constitution. "Official bilingualism" is the term used in Canada to collectively describe the policies, constitutional provisions, and laws that ensure legal equality of English and French in the Parliament and courts of Canada, protect the linguistic rights of English- and French-speaking minorities in different provinces, and ensure a level of government services in both languages across Canada.

<span class="mw-page-title-main">Section 16 of the Canadian Charter of Rights and Freedoms</span> Official bilingualism in Canada

Section 16 of the Canadian Charter of Rights and Freedoms is the first of several sections of the Constitution dealing with Canada's two official languages, English and French. Section 16 declares that English and French are the official languages of Canada and of the province of New Brunswick.

Section 23 of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada that guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec. The section may be particularly notable, in that some scholars believe that section 23 "was the only part of the Charter with which Pierre Trudeau was truly concerned." Trudeau was the prime minister who fought for the inclusion of the Charter of Rights in the Constitution of Canada in 1982.

Section 17 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. While the section 17 right to use either language within the Parliament of Canada repeats a right already anchored in section 133 of the Constitution Act, 1867, section 17 also guarantees the right to use both languages in the legislature of New Brunswick, the only officially bilingual province under section 16 of the Charter.

Section 19 of the Canadian Charter of Rights and Freedoms is one of the provisions of the Constitution of Canada that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 19 allows anyone to speak English or French in federal courts. However, only section 133 extends these rights to Quebec courts, while section 19 extends these rights to courts in New Brunswick. New Brunswick is the only officially bilingual province under section 16 of the Charter.

Section 18 of the Canadian Charter of Rights and Freedoms is one of the provisions of the Constitution 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 made by the Parliament of Canada must be available in both official languages. Section 133 places a similar obligation on the legislature of Quebec, and this is reaffirmed by section 21 of the Charter. Section 18 of the Charter places a similar obligation on the legislature of New Brunswick. New Brunswick is the only officially bilingual province under section 16 of the Charter.

<i>Charlebois v Saint John (City of)</i> Supreme Court of Canada case

Charlebois v Saint John (City of) [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.

Because the country contains two major language groups and numerous other linguistic minorities, in Canada official languages policy has always been an important and high-profile area of public policy.

The language policies of Canada's province and territories vary between the provinces and territories of Canada. Although the federal government operates as an officially bilingual institution, providing services in English and French, several provincial governments have also instituted or legislated their own language policies.

In Canada, the term quasi-constitutional is used for laws which remain paramount even when subsequent statutes, which contradict them, are enacted by the same legislature. This is the reverse of the normal practice, under which newer laws trump any contradictory provisions in any older statute.

References

  1. ↑ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 1214
  2. ↑ Deborah Coyne, "New Brunswick amendment has fundamental flaw," The Gazette, Montreal, Quebec: January 13, 1993. pg. B.3.
  3. 1 2 3 4 William Johnson, "Unseemly haste to amend constitution without debate," The Hamilton Spectator. Hamilton, Ontario: February 4, 1993. pg. A.7
  4. ↑ CanLII - 2001 NBCA 117 (CanLII)
  5. ↑ originally SNB 1981, c O-1.1
  6. ↑ Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. (Scarborough, Ontario: Nelson Thomson Learning, 2000), p. 95.
  7. ↑ Russell, Peter. Constitutional Odyssey, 2nd ed. (Toronto: University of Toronto Press, 1993), p. 231.
  8. ↑ "Journals : House of Commons Journals, 34th Parl... - Canadian Parliamentary Historical Resources".
  9. ↑ "New Brunswick leads the way," The Gazette. Montreal, Quebec: December 4, 1992. pg. B.2.
  10. ↑ William Johnson, "New Brunswick amendment tramples individual rights," The Gazette. Montreal, Quebec: January 16, 1993. pg. B.5.
  11. ↑ publications.gc.ca: "Constitution Amendment, 1993 (New Brunswick)"
  12. ↑ solon.org: "Constitution Amendment Proclamation, 1993 (New Brunswick Act)"
  13. ↑ Wills, Terrance. “English will do: Ontario: Franco-Ontarians’ plight not our problem: Harris.” The Gazette. Montreal, Quebec: July 16, 2000, A.1.FRO.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.