Section Eighteen of the Canadian Charter of Rights and Freedoms
Encyclopedia
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 language
s, English and French. Like section 133 of the Constitution Act, 1867
, section 18 requires that all statute
s 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.
and fellow-authors wrote of section 18 that it repeats section 133 in necessitating Parliament's statutes being kept in both official languages, and that section 18 "adds that both versions are equally authoritative." They compared this clause to sections 56 and 57 of the Constitution Act, 1982
, which state that English and French versions of the Constitution are equal. Earlier, however, court decisions suggested the equal status of English and French versions was implicit in section 133. Bastarache and his fellow-authors also argued that section 18 implies bilingualism is to be used in the making of the law, and state that failure to satisfy section 18 means any laws are unconstitutional.
a law from one official language to another will have to ensure that the two versions do not contradict one another. Hence, the federal government has tried to ensure laws are written in both English and French to begin with, as opposed to the usual method in which laws written in English would then be translated to French.
If the two versions of a law contradict each other anyway, the equality under section 18 causes courts
to interpret them by means of "cross-interpretation," which means the courts interpret both while referencing the other. An interpretation that most plausibly could apply to both of the two contradictory versions will be adopted. Additionally, the purpose of the law may be considered, so that the version most geared toward the purpose will be applied. In some cases, one version of a law that is more explicit than the other will receive priority.
case Société des Acadiens v. Association of Parents
, Justice Jean Beetz
commented on section 18. He called it one of the few language rights in the Charter, along with section 20
, that is meant to promote discussion that everyone is able to understand. Section 20 addresses public services, while Beetz noted section 18 "provides for bilingualism at the legislative level."
The New Brunswick Court of Appeal considered subsection 18(2), which requires bilingual statutes and records to be kept by the provincial legislature, for the first time in the 2001 case Charlebois v. Mowat. The court extended subsection 18(2)'s requirement to municipal laws, with reference to sections 16 and section 16.1
of the Charter. Although the Supreme Court had said in Quebec (Attorney General) v. Blaikie (No. 2) (1981) that the section 133 requirements of the Quebec legislature do not extend to Quebec municipalities, the New Brunswick court observed section 133 and the Charter are separate laws enacted for different purposes. According to R. v. Beaulac
(1999), the Charter rights should be interpreted more liberally. The Charter rights should support minority language
groups. Legislation was defined as laws applying to people, and municipal laws fit this description. Finally, it was noted that municipalities exist under the authority of the provincial governments, which are bound by the Charter under section 32
. (A related case later went to the Supreme Court
as Charlebois v. Saint John (City)
.)
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...
that addresses rights relating to Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
's two official language
Official language
An official language is a language that is given a special legal status in a particular country, state, or other jurisdiction. Typically a nation's official language will be the one used in that nation's courts, parliament and administration. However, official status can also be used to give a...
s, English and French. Like section 133 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, section 18 requires that all statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s and other records made by the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
must be available in both official languages. Section 133 places a similar obligation on the legislature of Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, and this is reaffirmed by section 21
Section Twenty-one of the Canadian Charter of Rights and Freedoms
Section Twenty-one 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...
of the Charter. Section 18 of the Charter places a similar obligation on the legislature
Legislative Assembly of New Brunswick
The Legislative Assembly of New Brunswick is located in Fredericton. It was established de jure when the colony was created in 1784, but only came in to session in 1786 following the first elections in late 1785. Until 1891, it was the lower house in a bicameral legislature when its upper house...
of 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...
. New Brunswick is the only officially bilingual province under 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...
of the Charter.
Text
Section 18 reads,Application
Justice Michel BastaracheMichel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
and fellow-authors wrote of section 18 that it repeats section 133 in necessitating Parliament's statutes being kept in both official languages, and that section 18 "adds that both versions are equally authoritative." They compared this clause to sections 56 and 57 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...
, which state that English and French versions of the Constitution are equal. Earlier, however, court decisions suggested the equal status of English and French versions was implicit in section 133. Bastarache and his fellow-authors also argued that section 18 implies bilingualism is to be used in the making of the law, and state that failure to satisfy section 18 means any laws are unconstitutional.
Challenges
Section 18 causes a number of challenges in law making. Someone translatingTranslation
Translation is the communication of the meaning of a source-language text by means of an equivalent target-language text. Whereas interpreting undoubtedly antedates writing, translation began only after the appearance of written literature; there exist partial translations of the Sumerian Epic of...
a law from one official language to another will have to ensure that the two versions do not contradict one another. Hence, the federal government has tried to ensure laws are written in both English and French to begin with, as opposed to the usual method in which laws written in English would then be translated to French.
If the two versions of a law contradict each other anyway, the equality under section 18 causes courts
Court system of Canada
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial....
to interpret them by means of "cross-interpretation," which means the courts interpret both while referencing the other. An interpretation that most plausibly could apply to both of the two contradictory versions will be adopted. Additionally, the purpose of the law may be considered, so that the version most geared toward the purpose will be applied. In some cases, one version of a law that is more explicit than the other will receive priority.
Interpretation
In the 1986 Supreme CourtSupreme 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...
case Société des Acadiens v. Association of Parents
Société des Acadiens v. Association of Parents
Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 is an early Supreme Court of Canada decision on minority language rights under section 19 of the Canadian Charter of Rights and Freedoms...
, Justice Jean Beetz
Jean Beetz
Jean-Marie Philémon Joseph Beetz, was a Canadian jurist and puisne justice of the Supreme Court of Canada....
commented on section 18. He called it one of the few language rights in the Charter, along with section 20
Section Twenty of the Canadian Charter of Rights and Freedoms
Section Twenty of the Canadian Charter of Rights and Freedoms is one of the sections of the Charter 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...
, that is meant to promote discussion that everyone is able to understand. Section 20 addresses public services, while Beetz noted section 18 "provides for bilingualism at the legislative level."
The New Brunswick Court of Appeal considered subsection 18(2), which requires bilingual statutes and records to be kept by the provincial legislature, for the first time in the 2001 case Charlebois v. Mowat. The court extended subsection 18(2)'s requirement to municipal laws, with reference to sections 16 and section 16.1
Section Sixteen One of the Canadian Charter of Rights and Freedoms
Section 16.1 of the Canadian Charter of Rights and Freedoms is the newest section of the Charter. It was enacted by the Constitution Amendment, 1993 and guarantees equality between English-speaking and French-speaking New Brunswickers.Section 16.1 is not to be confused with subsection 16 , which...
of the Charter. Although the Supreme Court had said in Quebec (Attorney General) v. Blaikie (No. 2) (1981) that the section 133 requirements of the Quebec legislature do not extend to Quebec municipalities, the New Brunswick court observed section 133 and the Charter are separate laws enacted for different purposes. According to R. v. Beaulac
R. v. Beaulac
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...
(1999), the Charter rights should be interpreted more liberally. The Charter rights should support minority language
Minority language
A minority language is a language spoken by a minority of the population of a territory. Such people are termed linguistic minorities or language minorities.-International politics:...
groups. Legislation was defined as laws applying to people, and municipal laws fit this description. Finally, it was noted that municipalities exist under the authority of the provincial governments, which are bound by the Charter under section 32
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
. (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:...
.)
External links
- Overview of section 18 case law at the Canadian Legal Information Institute.
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages