Section Twenty-two of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-two of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter
relating to the official language
s of Canada
. The official languages, under section 16
, are English
and French
. Section 22 is specifically concerned with political rights relating to language
s besides English and French.
or simply custom
, and the rights may predate the Charter or may be created after its enactment in 1982. As author Walter Tarnopolsky
noted in 1982, the Aboriginal peoples in Canada
were the most likely people, and perhaps the only people, to have customary language rights. The section may allow other languages to become official languages in the future, and demonstrates that having constitutional law regarding languages does not mean the law is fixed forever.
That same year, Professor André Tremblay wrote that section 22 would apply to "government services." He also points out that the Charter offers no assurances that these language rights "will be provided indefinitely." If those rights are not constitutionalized, the government in question can presumably abolish them at any time.
Professor Leslie Green
has argued that section 22 also justifies the English and French language rights. The rights regarding English and French in the Charter are special rights, which raises the question of whether such rights can be justified in a democracy
. However, Green writes that the special rights can be justified if this "leaves speakers of other languages no worse off than they would have been" if the special rights for English and French did not exist. Green points to section 22 as evidence that other languages are not harmed by the rights regarding English and French. Indeed, the fact that the Charter allows for English and French to be used in the government does not harm other languages, because the numbers of English and French Canadians mean that those languages would be used in the government anyway. Still, Green acknowledged that "tolerance" of languages besides English and French could be improved. Justice Bastarache and fellow-experts also relate section 22 to upholding Canadian multiculturalism
.
, which provides for a multicultural
framework for Charter rights, could lead to the creation of new minority language
education
rights based on those in section 23 of the Charter
, but for language groups besides the English and French-speaking populations. However, Tarnopolsky acknowledged that if any such rights are created, it would probably be done by elected governments, and not by the courts.
remarked that section 22 would apply to rights in a "particular area." Indeed, the governments of the Yukon
, the Northwest Territories
and Nunavut
allow Aboriginal languages to be spoken in their legislatures.
However, debates regarding the use of different languages in the Parliament of Canada
have involved discussion of section 22. In June 2005, a committee of Senators
discussed whether speaking Inuktitut
, an Inuit
language, in Parliament would be constitution
al. Concerns were raised about section 133 of the Constitution Act, 1867
and sections 16 and 17
of the Charter, and how these sections only recognize English and French as the languages of Parliament. It was in turn argued section 22 was "relevant" to this debate, and that this section stated that the other Charter rights could not diminish rights regarding Inuktitut. Senator Serge Joyal
, in expressing concern that "12 Aboriginal languages will have disappeared" in the year 2020 "because people are not using them," argued that section 22 provided "a foundation in the Constitution" for a "principle" that could be invoked to guard against this. This senator argued that aboriginal languages, by custom, should have rights as to their usage.
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...
relating to the 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 of 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...
. The official languages, 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...
, are 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 22 is specifically concerned with political rights relating to language
Language
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
s besides English and French.
Text
It reads,Function
Section 22 ensures that political rights regarding the use of other languages besides English and French are not limited by the fact that English and French are the only languages recognized as being official by the other provisions of the Charter. The political rights regarding other languages may exist by virtue of statuteStatute
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...
or simply custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
, and the rights may predate the Charter or may be created after its enactment in 1982. As author Walter Tarnopolsky
Walter Tarnopolsky
Justice Walter Surma Tarnopolsky was a Canadian judge, legal scholar, and pioneer in the development of human rights law and civil liberties in Canada.-Background and education:...
noted in 1982, the Aboriginal peoples in Canada
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
were the most likely people, and perhaps the only people, to have customary language rights. The section may allow other languages to become official languages in the future, and demonstrates that having constitutional law regarding languages does not mean the law is fixed forever.
That same year, Professor André Tremblay wrote that section 22 would apply to "government services." He also points out that the Charter offers no assurances that these language rights "will be provided indefinitely." If those rights are not constitutionalized, the government in question can presumably abolish them at any time.
Professor Leslie Green
Leslie Green (philosopher)
Leslie Green is a leading scholar in the analytic philosophy of law, or jurisprudence as it is often called by academic lawyers.Born in Bridge of Weir, Renfrewshire, Scotland, and educated at Queen's University, Canada, and at Nuffield College, Oxford, he completed his dissertation—which...
has argued that section 22 also justifies the English and French language rights. The rights regarding English and French in the Charter are special rights, which raises the question of whether such rights can be justified in a democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
. However, Green writes that the special rights can be justified if this "leaves speakers of other languages no worse off than they would have been" if the special rights for English and French did not exist. Green points to section 22 as evidence that other languages are not harmed by the rights regarding English and French. Indeed, the fact that the Charter allows for English and French to be used in the government does not harm other languages, because the numbers of English and French Canadians mean that those languages would be used in the government anyway. Still, Green acknowledged that "tolerance" of languages besides English and French could be improved. Justice Bastarache and fellow-experts also relate section 22 to upholding Canadian multiculturalism
Multiculturalism
Multiculturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...
.
Education rights
In 1982, Walter Tarnopolsky specuated that section 22, combined with section 27 of the CharterSection Twenty-seven of the Canadian Charter of Rights and Freedoms
Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts...
, which provides for a multicultural
Multiculturalism
Multiculturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...
framework for Charter rights, could lead to the creation of new 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:...
education
Education in Canada
Education in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
rights based on those in section 23 of the Charter
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
, but for language groups besides the English and French-speaking populations. However, Tarnopolsky acknowledged that if any such rights are created, it would probably be done by elected governments, and not by the courts.
Parliament
Writing in 1982, constitutional scholar Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
remarked that section 22 would apply to rights in a "particular area." Indeed, the governments of the Yukon
Yukon
Yukon is the westernmost and smallest of Canada's three federal territories. It was named after the Yukon River. The word Yukon means "Great River" in Gwich’in....
, the Northwest Territories
Northwest Territories
The Northwest Territories is a federal territory of Canada.Located in northern Canada, the territory borders Canada's two other territories, Yukon to the west and Nunavut to the east, and three provinces: British Columbia to the southwest, and Alberta and Saskatchewan to the south...
and Nunavut
Nunavut
Nunavut is the largest and newest federal territory of Canada; it was separated officially from the Northwest Territories on April 1, 1999, via the Nunavut Act and the Nunavut Land Claims Agreement Act, though the actual boundaries had been established in 1993...
allow Aboriginal languages to be spoken in their legislatures.
However, debates regarding the use of different languages in 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...
have involved discussion of section 22. In June 2005, a committee of Senators
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...
discussed whether speaking Inuktitut
Inuktitut
Inuktitut or Eastern Canadian Inuktitut, Eastern Canadian Inuit language is the name of some of the Inuit languages spoken in Canada...
, an Inuit
Inuit
The Inuit are a group of culturally similar indigenous peoples inhabiting the Arctic regions of Canada , Denmark , Russia and the United States . Inuit means “the people” in the Inuktitut language...
language, in Parliament would be constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al. Concerns were raised about 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...
and sections 16 and 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...
of the Charter, and how these sections only recognize English and French as the languages of Parliament. It was in turn argued section 22 was "relevant" to this debate, and that this section stated that the other Charter rights could not diminish rights regarding Inuktitut. Senator Serge Joyal
Serge Joyal
Serge Joyal, PC, OC, OQ is a Canadian Senator. A lawyer by profession, Joyal served as vice-president of the Quebec wing of the Liberal Party of Canada...
, in expressing concern that "12 Aboriginal languages will have disappeared" in the year 2020 "because people are not using them," argued that section 22 provided "a foundation in the Constitution" for a "principle" that could be invoked to guard against this. This senator argued that aboriginal languages, by custom, should have rights as to their usage.