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

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...

dealing with 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

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...

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...

. Section 16 declares that English and French are the official languages of Canada and of the province 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...

Text

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

Function

This section sets out general principles that are expanded in sections 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...

to 22

Section Twenty-two of the Canadian Charter of Rights and Freedoms

Section Twenty-two 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, are English and French...

. Section 16 itself expands upon language rights in 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...

; whereas section 133 of the Constitution Act, 1867 merely allowed for both languages to be used in Parliament and in the 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....

legislature, and in some courts, section 16 goes further by allowing bilingualism in the federal and New Brunswick bureaucracies

Bureaucracy

A bureaucracy is an organization of non-elected officials of a governmental or organization who implement the rules, laws, and functions of their institution, and are occasionally characterized by officialism and red tape.-Weberian bureaucracy:...

, and in the New Brunswick legislature. This was not entirely new, as Canada's Official Languages Act

Official Languages Act (Canada)

The Official Languages Act is a Canadian law that came into force on September 9, 1969, which gives English and French equal status in the government of Canada. This makes them "official" languages, having preferred status in law over all other languages...

had provided for this at the federal level since 1969, and New Brunswick had similar legislation. Those laws, however, were merely 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 section 16 thus made some of their key aspects into constitutional principles.

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

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...

(1986), Chief Justice

Chief Justice of Canada

The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...

Brian Dickson

Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...

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

Section Seventeen of the Canadian Charter of Rights and Freedoms

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 languages, English and French...

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

Jean Beetz

Jean-Marie Philémon Joseph Beetz, was a Canadian jurist and puisne justice of the Supreme Court of Canada....

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

Bertha Wilson

Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...

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

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...

, 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.

In 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 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

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:...

communities (ie., 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. 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

Section Two of the Canadian Charter of Rights and Freedoms

Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...

of the Charter.

Likewise, section 16 does not really apply to provinces

Provinces and territories of Canada

The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...

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

Manitoba

Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...

'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

Manitoba Act

The Manitoba Act, originally titled An Act to amend and continue the Act 32 and 33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba, is an act of the Parliament of Canada that is defined by the Constitution Act, 1982 as forming a part of the...

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

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...

, in which it was found governments may do this. 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.

Text

Function

Subsections 16(1) and 16(2)

Subsection 16(3)

See also