Section Sixteen One of the Canadian Charter of Rights and Freedoms
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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.
Text
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.
Purpose
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.
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.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.
Footnotes
External links
- [Full text of the Constitution Amendment, 1993 (New Brunswick)]
- [Full text of Court of Appeal's Charlebois v. Mowat decision]
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