Section 16.1 of the Canadian Charter of Rights and Freedoms

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Canadian Charter
of Rights and Freedoms
Part of the Constitution Act, 1982
Preamble
Guarantee of Rights and Freedoms
1
Fundamental Freedoms
2
Democratic Rights
3, 4, 5
Mobility Rights
6
Legal Rights
7, 8, 9, 10, 11, 12, 13, 14
Equality Rights
15
Official Languages of Canada
16, 16.1, 17, 18, 19, 20, 21, 22
Minority Language Education Rights
23
Enforcement
24
General
25, 26, 27, 28, 29, 30, 31
Application
32, 33
Citation
34
The province of New Brunswick (red), where section 16.1 applies.

Section 16.1 of the Canadian Charter of Rights and Freedoms guarantees equality between English-speaking and French-speaking residents of New Brunswick. Enacted in 1993, it is the most recent addition to the Charter.

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 was part of the original 1982 text. Section 16.1 is a separate section;[1]
the "point one" numbering indicates that this new section was added between two existing sections without renumbering them.

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

collective rights," and one critic charged that a deeper meaning to the section would have to be decided by Canadian courts.[3]

In Charlebois v. Mowat, the court ruled that section 16.1, as well as subsections 16(2) and

Charlebois v. Saint John (City)
.)

History

An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick

school boards for both linguistic groups. Its principles were later incorporated into the Constitution of Canada
, through section 16.1, in response to a shift in provincial politics in the early 1990s.

Whereas in the 1980s all parties had supported the rise of bilingualism in New Brunswick, in 1991 a new party called the

official opposition in the legislature. The pro-bilingualism Liberal provincial government proceeded to seek a constitutional amendment mandating bilingualism in New Brunswick to make any future change in New Brunswick's status subject to Federal approval.[6]

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. The amendment was made separately once the Accord was rejected in a national referendum, prompting Professor Peter Russell to refer to this as an "encouraging [sign] that Canadians may be recovering the capacity to accomplish constitutional reform without linking everything together and getting bogged down in the mega constitutional swamp."[7]

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 Senate of Canada and House of Commons of Canada, although constitutional lawyer Deborah Coyne argued that the amendment involved federal jurisdiction and thus seven provinces would be needed.[3] The House of Commons passed the amendment with a vote of 219-2, on February 1, 1993.[8]

A

Montreal Gazette article 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."[9]

It did attract some criticism, with columnist William Johnson claiming that Parliament had not fully analyzed 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.

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.[10]

However, Opposition leader

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."[3]

Proclamation

The Constitution Amendment, 1993 (New Brunswick) was signed by

Attorney General Pierre Blais, and Registrar General Pierre H. Vincent, under a proclamation of Governor General Ray Hnatyshyn in Ottawa on 12 March 1993.[11][12]

Influence outside New Brunswick

Montfort Hospital.

In 2000, an

Franco-Ontarian population. 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."[13]

References

  1. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 1214
  2. ^ Deborah Coyne, "New Brunswick amendment has fundamental flaw," The Gazette, Montreal, Quebec: January 13, 1993. pg. B.3.
  3. ^ a b c d William Johnson, "Unseemly haste to amend constitution without debate," The Hamilton Spectator. Hamilton, Ontario: February 4, 1993. pg. A.7
  4. ^ CanLII - 2001 NBCA 117 (CanLII)
  5. ^ originally SNB 1981, c O-1.1
  6. ^ Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. (Scarborough, Ontario: Nelson Thomson Learning, 2000), p. 95.
  7. ^ Russell, Peter. Constitutional Odyssey, 2nd ed. (Toronto: University of Toronto Press, 1993), p. 231.
  8. ^ "Journals : House of Commons Journals, 34th Parl... - Canadian Parliamentary Historical Resources".
  9. ^ "New Brunswick leads the way," The Gazette. Montreal, Quebec: December 4, 1992. pg. B.2.
  10. ^ William Johnson, "New Brunswick amendment tramples individual rights," The Gazette. Montreal, Quebec: January 16, 1993. pg. B.5.
  11. ^ publications.gc.ca: "Constitution Amendment, 1993 (New Brunswick)"
  12. ^ solon.org: "Constitution Amendment Proclamation, 1993 (New Brunswick Act)"
  13. ^ Wills, Terrance. “English will do: Ontario: Franco-Ontarians’ plight not our problem: Harris.” The Gazette. Montreal, Quebec: July 16, 2000, A.1.FRO.

External links

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