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 (pronounced "sixteen point one") is not to be confused with subsection 16(1) ("sixteen one"), which is part of section 16 and goes back to 1982. Section 16.1 is a separate section [Hogg, Peter W. "Constitutional Law of Canada." 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 1214] ; the "point one" numbering simply indicates that at some time (i.e. in 1993) an amendment inserted this new section between two existing sections without renumbering them.

Text

The section reads,

cquote|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.

Purpose

Section 16.1 makes reference to a need for "institutions" for both language groups, including educational institutions, and it seemingly gives the provincial government powers to protect the right. [Deborah Coyne, "New Brunswick amendment has fundamental flaw," "The Gazette", Montreal, Quebec: January 13, 1993. pg. B.3.] 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". The section can be seen as providing "collective rights," and one critic charged that a deeper meaning to the section would have to be decided by Canadian courts.William Johnson, "Unseemly haste to amend constitution without debate," "The Hamilton Spectator". Hamilton, Ontario: February 4, 1993. pg. A.7]

In "Charlebois v. Mowat", the court ruled that section 16.1, as well as subsections 16(2) and 18(2), require bilingual municipal laws when the minority language population of a municipality is significant. The ruling was made primarily on the basis of the court's interpretation of subsection 18(2)), but in its ruling the court also stated that section 16.1 is "remedial", meaning that it is supposed to fix historical problems. [ [http://canlii.ca/nb/cas/nbca/2001/2001nbca117.html CanLII - 2001 NBCA 117 (CanLII) ] ] (A related case later went to the Supreme Court as "Charlebois v. Saint John (City)".)

History

"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.]

The constitutionalization of the legislation was originally meant to be accomplished as part of a package of amendments known as the Charlottetown Accord in 1992. When the Accord was rejected in a national referendum, the amendment was made separately, and Professor Peter Russell refers to this as one of the "encouraging signs that Canadians may be recovering the capacity to accomplish constitutional reform without linking everything together and getting bogged down in the mega constitutional swamp." [Russell, Peter. "Constitutional Odyssey," 2nd ed. (Toronto: University of Toronto Press, 1993), p. 231.]

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, although constitutional lawyer Deborah Coyne argued that the amendment involved federal jurisdiction and thus seven provinces would be needed. The House of Commons passed the amendment with a vote of 219-2. This attracted some criticism, with one columnist claiming that Parliament did not fully analyze the amendment and tried to stifle public discussion. He even suggested that section 16.1 might create two governments for New Brunswick, one in English and one in French. Earlier, this columnist had also charged that enshrining collective rights in the Constitution was "alien to liberalism," and would undermine the individual in favour of a larger group; he also said section 16.1 excluded Aboriginal peoples in New Brunswick and could make them "second-class citizens." He compared section 16.1 to how the Meech Lake Accord and Charlottetown Accord would have recognized Quebec as a distinct society. [William Johnson, "New Brunswick amendment tramples individual rights," "The Gazette". Montreal, Quebec: January 16, 1993. pg. B.5.] However, Opposition leader Jean Chrétien, who at that time represented Acadians, said that "For me it is a great day. It is an example that we can be together and at the same time be different in Canada." A "Montreal Gazette" article also approved, calling the New Brunswick government "courageous" because of its resistance to the Confederation of Regions Party, and added that the section provided a "noble, generous vision of Canadian duality and co-existence. Too bad it seems confined to New Brunswick." ["New Brunswick leads the way," "The Gazette". Montreal, Quebec: December 4, 1992. pg. B.2.]

The amendment 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.

Outside New Brunswick

In 2000, an Ontario court ruled that Franco-Ontarians should keep a French-language hospital. This was because of a unwritten principle of minority rights found by the Supreme Court in "Reference re Secession of Quebec" (1998). The government of Ontario criticized the decision as judicial activism, and charged that "The divisional court decision has effectively rewritten the constitution to make [Section] 16.1 applicable to Ontario despite the express intention that it apply to New Brunswick alone." [Wills, Terrance. “English will do: Ontario: Franco-Ontarians’ plight not our problem: Harris.” The Gazette. Montreal, Quebec: July 16, 2000, A.1.FRO.]

References

External links

* [http://collections.ic.gc.ca/aboriginaldocs/stat/pdf/s-constitution-1993a.PDF Full text of the Constitution Amendment, 1993 (New Brunswick)]
* [http://canlii.ca/nb/cas/nbca/2001/2001nbca117.html Full text of Court of Appeal's "Charlebois v. Mowat" decision]
* [http://www.charterofrights.ca/language.php Fundamental Freedoms: The Charter of Rights and Freedoms] - Charter of Rights website with video, audio and the Charter in over 20 languages