Section Sixteen One of the Canadian Charter of Rights and Freedoms
Section Sixteen One of the Canadian Charter of Rights and Freedoms is the newest section of the
Charter. It was enacted by the
Constitution Amendment, 1993 (New Brunswick) and guarantees
equality between
English-speaking and
French-speaking
New Brunswickers.
Section 16.1 is not to be confused with
subsection 16(1), which is part of
section 16 and goes back to 1982. Indeed, constitutional scholar
Peter Hogg treats section 16.1 as a separate section.
[Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 1214.]The section reads,
16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to subsection (1) is affirmed.Section 16.1 makes reference to a need for
institutions for both
language groups, including
educational intitutions, and it seemingly gives the provincial government powers to protect the right. This is not completely revolutionary in that this merely entrenches laws already found in
An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick (1981), as noted in the 2001
Court of Appeal case
Charlebois v. Mowat.
In said case, the court considered the argument that section 16.1, as well as subsections 16(2) and
18(2), require bilingual
municipal laws, particularly when the minority language population of a municipality is significant. The Court found such bilingualism is required (although primarily by subsection 18(2)), and also defined section 16.1 as "remedial", meaning that it is supposed to fix historical problems.
[http://canlii.ca/nb/cas/nbca/2001/2001nbca117.html] The case has not been ruled on by the
Supreme Court.
An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick was enacted by Premier
Richard Hatfield, in what was called a "separate but equal" approach of providing separate
school boards for both linguistic groups. Its principles were incorporated into the
Constitution of Canada, through section 16.1, in response to a shift in provincial politics in the early
1990s. Whereas all parties had supported the rise of bilingualism in New Brunswick, in 1991 a new party called the
Confederation of Regions Party gained a presence in the legislature, with a philosophy that was opposed to bilingualism. The legislation was thus constitutionalized by a pro-bilingualism provincial government, to ensure the survival of the language rights.
[Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. (Scarborough, Ontario: Nelson Thomson Learning, 2000), p. 95.]Section 43 of the
Constitution Act, 1982 was the part of the
amending formula used to add section 16.1 to the
Charter. This meant the amendment was approved by the province affected (New Brunswick) and the
Canadian Senate and
Canadian House of Commons. The amendment then was signed by
Prime Minister Brian Mulroney,
Attorney General Pierre Blais, and
Registrar General Pierre H. Vincent, under a proclamation of
Governor General Ray Hnatyshyn in
Ottawa on March 12, 1993.
*
Full text of the Constitution Amendment, 1993 (New Brunswick)*
Full text of Court of Appeal's Charlebois v. Mowat decision
