Section Seventeen of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Seventeen 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. 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
.
and Canadian Senate
.
This section, as it applies to Parliament, extends to Parliamentary committees, and thus any witness has a right to use either English or French if he or she appears before a committee. Justice Michel Bastarache
and his fellow-writers agree that section 17 applies to "other activities of Parliament," including Parliamentary committees, but argue that bilingualism in Parliamentary committees had been allowed for years prior to the Charter and interpreters had been provided.
As noted, the section also extends these constitutional rights to New Brunswick. However, similar statutory rights in New Brunswick had already been in place when the Charter came to force. Namely, they were in the Official Languages of New Brunswick Act. Section 17 thus constitutionalized the rights.
case Société des Acadiens v. Association of Parents
, Justice Jean Beetz
found that section 17 was so similar to section 133 of the Constitution Act, 1867 (section 17 was based on section 133) that section 17 would not represent any change in regard to rights that had belonged under section 133. Thus, section 133 case law would influence section 17 case law. Justice Bertha Wilson
, commenting on section 17's parallel with section 133 of the Constitution Act, 1867, also said that it could represent mere "constitutional continuity." However, she did acknowledge that section 17 being exempt from the notwithstanding clause
, and the amending formula
making Canada's language rights impossible to amend without the support from all provinces as well as the federal government, reveal language rights to be "a response to the peculiar facts of Canada's history." At any rate, Beetz found that in Parliament, while section 17 guarantees a right for a person to speak in either French or English, depending on his or her preference, this does not extend to guaranteeing a right for the person's speech to be translated so all can understand it; the same line of reasoning had been used for section 133.
This line of thinking regarding section 133 also appeared in the Supreme Court case MacDonald v. City of Montreal (1986). In MacDonald, Jones v. Attorney General of New Brunswick
(1975) was cited as finding that section 133 did not really effectively establish a sophisticated official bilingualism for Canada. While rights to biligualism in legislative bodies might allow for some members to understand each other if they happened to know the language being used, there was no guarantee for this. Moreover, courts should interpret these rights conservatively since they are a political matter. According to MacDonald, having translators in Parliament is thus not mandatory under section 133, since there is no guarantee everyone will be able to understand an MP when he or she chooses to speak in English or French. These rights are thus negative rights
only. An unconstitutional action would be for Parliament or a legislature to force a person to leave for speaking in English or French.
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. While the section 17 right to use either language within 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...
repeats a right already anchored in 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 17 also guarantees the right to use both languages in 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...
, the only officially bilingual province under section 16 of the Charter
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...
.
Text
Section 17 reads,Application
As noted in the Supreme Court decision New Brunswick Broadcasting Co. v. Nova Scotia (1993), the stated application of section 17 is to "Parliament." This wording is an anomaly because technically Parliament is just an institution that enacts statutes. The rights held under section 17, in contrast, presumably are not held against the statutes of Parliament but rather apply to the debates that occur within Parliamentary institutions, such as the Canadian House of CommonsCanadian 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...
and 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...
.
This section, as it applies to Parliament, extends to Parliamentary committees, and thus any witness has a right to use either English or French if he or she appears before a committee. Justice Michel Bastarache
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
and his fellow-writers agree that section 17 applies to "other activities of Parliament," including Parliamentary committees, but argue that bilingualism in Parliamentary committees had been allowed for years prior to the Charter and interpreters had been provided.
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....
found that section 17 was so similar to section 133 of the Constitution Act, 1867 (section 17 was based on section 133) that section 17 would not represent any change in regard to rights that had belonged under section 133. Thus, section 133 case law would influence section 17 case law. Justice Bertha Wilson
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
, commenting on section 17's parallel with section 133 of the Constitution Act, 1867, also said that it could represent mere "constitutional continuity." However, she did acknowledge that section 17 being exempt from the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
, and 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 :...
making Canada's language rights impossible to amend without the support from all provinces as well as the federal government, reveal language rights to be "a response to the peculiar facts of Canada's history." At any rate, Beetz found that in Parliament, while section 17 guarantees a right for a person to speak in either French or English, depending on his or her preference, this does not extend to guaranteeing a right for the person's speech to be translated so all can understand it; the same line of reasoning had been used for section 133.
This line of thinking regarding section 133 also appeared in the Supreme Court case MacDonald v. City of Montreal (1986). In MacDonald, Jones v. Attorney General of New Brunswick
Jones v. Attorney General of New Brunswick
Jones v. New Brunswick , [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...
(1975) was cited as finding that section 133 did not really effectively establish a sophisticated official bilingualism for Canada. While rights to biligualism in legislative bodies might allow for some members to understand each other if they happened to know the language being used, there was no guarantee for this. Moreover, courts should interpret these rights conservatively since they are a political matter. According to MacDonald, having translators in Parliament is thus not mandatory under section 133, since there is no guarantee everyone will be able to understand an MP when he or she chooses to speak in English or French. These rights are thus negative rights
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
only. An unconstitutional action would be for Parliament or a legislature to force a person to leave for speaking in English or French.
External links
- Overview of section 17 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