Section 16 of the Canadian Charter of Rights and Freedoms

Last updated October 25, 2023

A bilingual (English and French) stop sign on Parliament Hill in Ottawa. An example of bilingualism at the federal government level. Bilingualstopsign.jpg — A bilingual (English and French) stop sign on Parliament Hill in Ottawa. An example of bilingualism at the federal government level.

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.

Text

Under the heading "Official Languages of Canada", the section reads:

16. (1) English and French are the official languages of Canada and have the equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
(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.
(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.

Function

This section sets out general principles that are expanded in sections 16.1 to 22. Section 16 itself expands upon language rights in the Constitution Act, 1867 ; whereas section 133 of the Constitution Act, 1867 merely allowed for both languages to be used in the Parliament of Canada and in the Quebec legislature, and in some courts, section 16 goes further by allowing bilingualism in the federal and New Brunswick bureaucracies, and in the New Brunswick legislature.^[1] This was not entirely new, as Canada's Official Languages Act had provided for this at the federal level since 1969, and New Brunswick had similar legislation. Those laws, however, were merely statutes, and section 16 thus made some of their key aspects into constitutional principles.

Judicial interpretation

Subsections 16(1) and 16(2)

It has not been easy to understand how section 16 can be applied. In Société des Acadiens v. Association of Parents (1986), Chief Justice Brian Dickson made reference to the "academic debate about the precise significance of s. 16," and the question of "Whether s. 16 is visionary, declaratory or substantive in nature." He did, however, decide that "at the very least it provides a strong indicator of the purpose of the language guarantees in the Charter [ie., sections 17 to 22]... the federal government of Canada and the government of New Brunswick have demonstrated their commitment to official bilingualism within their respective jurisdictions."

In the same case, Justice Jean Beetz wrote that the political nature of section 16, as opposed to the generous nature of the rights in the rest of the Charter, indicate that courts should be cautious in interpreting section 16 in new ways. Elected governments would play a larger role in determining its scope. Justice Bertha Wilson went on to speculate that section 16 is meant to represent an opportunity for expansion of language rights. Thus, courts must always ask themselves how their rulings fit in with the current state of affairs regarding official languages policy, and how their rulings are consistent with it. While the rights guaranteed under another language provision of the Charter, section 20, are limited, this does not mean that section 16 is limited or cannot have an effect on the growth of language rights. As far as New Brunswick is concerned, she added, bilingualism was considered "crucial" to "social and cultural development," and thus there should be "heightened public expectations" that this could be supported by the Charter.^[2]

In R. v. Beaulac (1999), the Supreme Court rejected some of its earlier conservative interpretations. It ruled that a purposive (generous) interpretation would be appropriate for language rights, since this would help minority language communities (i.e. those who speak English or French in a region where that language is the minority language) achieve equality.

Many Charter cases regarding the use of the English and French languages have not been fought on the grounds of section 16.^[3] For example, Quebec's Bill 101, which limited the use of English, was considered to be invalid in certain respects not because it conflicted with section 16, but because it infringed freedom of expression, which is guaranteed by section 2 of the Charter.^[3]

Likewise, section 16 does not really apply to provinces besides New Brunswick; as the only province that currently considers itself to be officially bilingual, New Brunswick is the only province to have its bilingualism guaranteed by section 16. When Manitoba's laws declaring English to be the only official language of the province were found to be invalid in Re Manitoba Language Rights (1985), this was due to its contradictions with the Manitoba Act .^[3]

Subsection 16(3)

Subsection 16(3) provides that a Parliament or provincial government may strive for progress in official bilingualism. This reflects a 1975 court decision, Jones v. Attorney General of New Brunswick , in which it was found governments may do this.^[2] Thus, the Supreme Court in Société des Acadiens has argued that it is the elected governments and "political compromise", rather than the courts, that will mostly advance language rights.

Justice Wilson added that subsection 16(3) demonstrates that while language rights need to be improved, they should not be eroded once they have been established.^[2]

Related Research Articles

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 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.

The Official Languages Act is a Canadian law that came into force on September 9, 1969, which gives French and English equal status in the government of Canada. This makes them "official" languages, having preferred status in law over all other languages. Although the Official Languages Act is not the only piece of federal language law, it is the legislative keystone of Canada's official bilingualism. It was substantially amended in 1988. Both languages are equal in Canada's government and in all the services it controls, such as the courts.

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.

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.

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.

Section 30 of the Canadian Charter of Rights and Freedoms is a section that, like other provisions within the section 25 to section 31 block, provides a guide as to how Charter rights should be interpreted and applied by Canadian courts. It addresses how the Charter applies in the territories of Canada. In 1982, when it became law, these were the Northwest Territories and the Yukon Territory. The Yukon Territory is now called Yukon, and Nunavut was created from the eastern Northwest Territories to become Canada's third territory in 1999.

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 21 of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16 of the Charter, are English and French. Sections 16 to 20 guarantee a number of rights in regard to the use of these languages in the federal and New Brunswick courts and other government institutions. Thus, section 21 clarifies that language rights regarding English and French in the Constitution of Canada, outside the Charter, remain valid and are not limited by the language rights within the Charter.

Jones v New Brunswick (AG) (1974), [1975] 2 S.C.R. 182 is a leading decision of the Supreme Court of Canada on the protection of language rights under the Canadian Constitution. The Mayor of Moncton, Leonard Jones, challenged the federal Official Languages Act, which made both French and English the official languages of the institutions of the federal government. Jones argued that the subject matter of the law fell outside the constitutional jurisdiction of the federal government.

Section 20 of the Canadian Charter of Rights and Freedoms is one of the sections of the Constitution of Canada dealing with Canada's two official languages, English and French. Along with section 16, section 20 is one of the few sections under the title "Official Languages of Canada" that guarantees bilingualism outside Parliament, legislatures and courts. This also makes it more extensive than language rights in the Constitution Act, 1867. Section 20's specific function is to establish a right to English and French services from the governments of Canada and New Brunswick.

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.

R v Beaulac [1999] 1 S.C.R. 768 is a decision by the Supreme Court of Canada on language rights. Notably, the majority adopted a liberal and purposive interpretation of language rights in the Canadian Charter of Rights and Freedoms, overturning conservative case law such as Société des Acadiens v. Association of Parents (1986). As the majority wrote, "To the extent that Société des Acadiens du Nouveau-Brunswick... stands for a restrictive interpretation of language rights, it is to be rejected."

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.

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.

Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc v Canada, 2008 SCC 15 is a Canadian constitutional law case, dealing with the language standards imposed by section 20(2) of the Charter of Rights and Freedoms on the Royal Canadian Mounted Police pursuant to their duties as New Brunswick's police force.

The Official Languages Act is a law enacted by the Legislative Assembly of New Brunswick which makes New Brunswick the only officially bilingual province of Canada. This law prescribes that English and French are the two official languages of New Brunswick and have equal status in all provincial government institutions. The province of Manitoba was also bilingual when it was created in 1870, but has not maintained this status.

References

↑ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.
1 2 3 Société des Acadiens v. Association of Parents (1986).
1 2 3 Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000, p. 441.

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.

[1] Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.

[Acadiens_v_1986-2] 1 2 3 Société des Acadiens v. Association of Parents (1986).

[Dyck-3] 1 2 3 Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000, p. 441.

[1]

[2]

[3]