Section 16 and 16.1 – Official languages of Canada
Official languages of Canada
16.(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
Official languages of New Brunswick
(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
Advancement of status and use
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
English and french linguistic communities in New Brunswick
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 such distinct educational and cultural institutions as are necessary for the preservation and promotion of those communities.
Role of the legislature and government of New Brunswick
(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.
Subsection 16(1) is repeated in virtually identical terms in paragraph 2(a) of the federal Official Languages Act (1988). Section 2 of the Official Languages Act states the purpose of the Act as follows:
- ensure respect to English and French as the official Languages of Canada and ensure equality of status and equal rights and privileges as to their use by federal institutions;
- support the development of English and French linguistic minority communities and
- set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Subsection 16.1(1) is repeated at section 2 of the Act Recognizing the Equality of the Two Official Language Communities in New Brunswick.
Subsection 16(1) elevates to the level of constitutional principle the declaration of the equality of status of the official languages contained in section 2 of the Official Languages Act of 1969 and found also at section 2 of the Official Languages Act (1988) which repealed and replaced the 1969 Act.
Subsection 16(1) serves as a basis for the right of federal public servants to work in the official language of their choice (Association des gens de l’air du Québec v. Hon. Otto Lang,  2 F.C. 371, Schreiber v. Canada (1999), 69 C.R.R. (2d) 256 (F.C.T.D.) at paragraph 125, Tailleur v. Canada, 2015 FC 1230 at paragraph 38).
Subsections 16.1(1) and (2) came into force on March 12, 1993 and entrench certain principles expressed in the Act Recognizing the Equality of the Two Language Communities in New Brunswick, which was promulgated in 1981.
Despite academic debate about the precise significance of section 16, at the very least it provides a strong indicator of the purpose of the language guarantees in the Charter. By adopting the special constitutional language protection in the Charter, the federal government and the government of New Brunswick demonstrated their commitment to official bilingualism within their respective jurisdictions. Regardless of whether it is visionary or declaratory or more in the nature of a substantive provision, section 16 is an important tool in the interpretation of the other language provisions of the Charter (R. v. Mercure,  1 S.C.R. 234 at paragraph 46, Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education,  1 S.C.R. 549 at paragraph 21).
1. General provisions
(i) Scope of the words “institutions of the Parliament and government of Canada” in subsection 16(1) of the Charter
Subsection 16(1) uses the terms “institutions of the Parliament and government of Canada”. The same wording is used in subsection 20(1) of the Charter.
There is no general consensus on the exact scope of application of these words and there is no case-law on it. Some authors (Constitutional Law, Language Rights in Canada) have expressed the opinion that their scope is more restricted than what is covered by subsection 32(1) of the Charter, because of the use of the term “institution”; others submit that sections 16 and 32 cover the same ground (Société des Acadiens et Acadiennes du Nouveau-Brunswick v. Canada, 2005 FC 1172 at paragraph 37, Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117 at paragraph 97 et seq, Droit constitutionnel at page 844, in the context of subsection 16(2) and paragraph 32(1)(b)).
Note that section 3 of the Official Languages Act defines “federal institution” for the purposes of the Act: “Federal institutions” includes any of the following institutions of the Parliament or government of Canada: (a) the Senate (b) the House of Commons (c) the Library of Parliament (c.1) the office of the Senate Ethics Officer and the office of the Ethics Commissioner (d) any federal courts (e) any board, commission or council, or other board or office, established to perform a governmental function by or pursuant to an Act of Parliament or by or under the authority of the Governor in Council (f) a department of the Government of Canada (g) a Crown corporation established by or pursuant to an Act of Parliament, and (h) any other body that is specified by an Act of Parliament to be an agent of her Majesty in right of Canada or to be subject to the direction of the Governor in Council or a Minister of the Crown, but does not include (i) any institution of the Council or government of the Northwest Territories or of the Legislative Assembly or government of Yukon or Nunavut, or (j) any Indian band, band council or other body established to perform a governmental function in relation to an Indian band or other group of aboriginal people.
(ii) The principle of equality
The principle of advancement found at subsection 16(3) of the Charter does not exhaust section 16, which formally recognizes the principle of equality of the two official languages of Canada. It does not limit the scope of section 2 of the Official Languages Act. Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. The Supreme Court has recognized that substantive equality is the correct norm to apply in Canadian law (R. v. Beaulac,  1 S.C.R. 768 at paragraph 22).
The idea that subsection 16(3) of the Charter limits the scope of subsection 16(1) must also be rejected. Subsection 16(1) affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides, in particular, that language rights that are institutionally based require government action for their implementation. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation (Beaulac at paragraph 24).
(iii) Legislative advancement
Subsection 16(3) clearly establishes that the provisions of the Constitution do not limit the powers of Parliament (or of a legislature) to advance the equality of status and use of English and French.
The principle of advancement or progression establishes the principle enunciated in the Jones case according to which the Constitution guarantees a “floor” and not a “ceiling” (Société des Acadiens at paragraph 68, Mercure at paragraph 46, Beaulac at paragraph 22, Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505 (OCA) (“ Montfort Hospital”) at paragraph 92). This principle reflects an aspirational element of advancement toward substantive equality. This aspirational element is not without significance when it comes to interpreting legislation (Montfort Hospital at paragraph 92).
In the Montfort Hospital decision however, the Ontario Court of Appeal rejects the argument that subsection 16(3) of the Charter includes a “ratchet” principle that would provide constitutional protection for measures taken to advance linguistic equality. The Court concludes that subsection 16(3) protects but does not constitutionalize measures taken to advance linguistic equality. According to the Court, 16(3) is not a rights-conferring provision. It is rather, a provision designed to shield from attack government action that would otherwise contravene section 15 or exceed the legislative authority of a level of government (Montfort Hospital at paragraph 72, Forum des maires de la Péninsule acadienne v. Canada (Canadian Food Inspection Agency) 2004 FCA 263 at paragraph 42, R. v. MacKenzie, 2004 NSCA 10 at paragraph 56, Moncton at paragraph 63; Toronto (City) v. Braganza  O.J. No. 5445 at paragraph 67).
The Official Languages Act constitutes an example of the advancement of language rights through legislative means provided for in subsection 16(3) of the Charter (Beaulac at paragraph 22).
A municipal By-law, requiring all new exterior commercial signs within a township to be in English and French, also constitutes an example of the use of subsection 16(3) of the Charter to build on the language rights contained in the Constitution in order to further a pressing and substantial objective, namely the advancement of the equality of the status or use of the French language (Galganov v. Russell (Township, 2012 ONCA 409 at paragraph 178).
Section 16(3) protects against potential challenges to government measures that might otherwise be ruled contrary to subsection 15(1). Like other provisions that guarantee language rights, sections 16 and 20 are not subject to the notwithstanding clause entrenched in section 33. This means that neither Parliament nor the legislature of New Brunswick can exclude itself from their application (R. v. Gaudet  N.B.J. No. 25 (“ Gaudet 2010”) at paragraph 31).
2. Provisions applicable to New Brunswick
(i) Subsection 16(2) of the Charter
Subsection 16(2) constitutionalizes the principle of equality of status of English and French and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick (Moncton at paragraph 63).
Based on the analysis made in Beaulac, the principle of equality found in subsection 16(2) of the Charter must be interpreted according to its true meaning, i.e., substantive equality is the applicable norm. Substantive equality means that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State. The Supreme Court has rejected the idea that subsection 16(3) limits the scope of the equality principle found at subsection 16(2) (Moncton at paragraph 77).
The New Brunswick Court of Appeal concluded that the criteria used to identify the structures or functions of governmental entities within the meaning of paragraph 32(1)(b) of the Charter can be used to interpret the expression “institutions of the legislature and government” as used in subsection 16(2) of the Charter. Applying these principles, the Court concluded that, on the basis of a broad, generous and purposive interpretation of subsection 16(2), municipalities of New Brunswick are institutions of the government (Moncton at paragraph 107). In the Supreme Court decision, City of Saint-John, (Charlebois v. Saint John (City), 2005 SCC 74) Justice Charron for the majority stated at paragraph 15 that this conclusion is obiter dictum. She added that this question has not been determined by the Supreme Court and she noted that she expressed no opinion on whether or not this interpretation was correct.
Specific reference to the institutions of New Brunswick in subsection 16(2) of the Charter confirms that the Provincial Court is not an institution of Parliament or government of Canada within the meaning of subsection 16(1) (Mackenzie at paragraph 46).
(ii) Subsection 16(3) of the Charter
Section 16(3) of the Charter provides that Parliament as well as provincial legislatures may advance the equality of status of English and French. The Official Languages Act of New Brunswick flows from the authority conferred upon the Legislature of New Brunswick by subsection 16(3) (R. v. Losier,  N.B.J. No. 240 at paragraph 24).
(iii) Section 16.1 of the Charter
Section 16.1 of the Charter constitutionalizes the principles of An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick. The equality provided under section 16.1 is based, not on the equality of the languages as provided for in subsection 16(2), but on the equality of New Brunswick's English linguistic community and French linguistic community. Unlike subsection 16(2), this provision therefore includes collective rights whose holders are the linguistic communities themselves. Equally, section 16.1 expressly acknowledges the role of the legislature and government to preserve and promote the equality of official language communities. As a result, it is a unique set of constitutional provisions quite peculiar to New Brunswick which places the province on a unique plane among Canadian provinces (Moncton at paragraph 63 and 79).
Section 16.1 of the Charter bears witness to the commitment of the framers to the equality of the two official language communities. It is a valuable indicator of the very purpose of language guarantees as well as an interpretive aid for the other provisions of the Charter (Gaudet 2010 at paragraph 30).
The interpretation of section 16.1 is related to the interpretation of subsection 16(2) of the Charter. The conclusions set out by the Supreme Court in Beaulac as to the nature and scope of the principle of equality are applicable to section 16.1. The purpose of this provision is to maintain the two official languages, as well as the cultures that they represent, and to encourage the flourishing and development of the two official language communities. The principle of the equality of the two language communities is a dynamic concept. It implies provincial government intervention which requires, at a minimum, that the two communities receive equal treatment but that in some situations where it would be necessary to achieve equality, that the minority language community be treated differently in order to fulfill both the collective and individual dimensions of a substantive equality of status (Moncton at paragraph 80).
3. The Official Languages Act, 1988 an example of use by Parliament of the principle of advancement
The Official Languages Act of 1988 constitutes an example of the advancement of language rights through legislative means provided for in subsection 16(3) of the Charter. (Beaulac at paragraph 22)
Certain provisions of the Official Languages Act clearly constitute an advancement of language rights as they provide rights that are specifically covered in the language rights provisions found in the Charter. Here are a few examples:
- Part IX of the Official Languages Act focuses on the Commissioner of Official Languages. The Commissioner has a general mandate to promote the equality of the two official languages and the power to carry out investigations on federal institutions. When investigating complaints, the Commissioner has the duty to verify that the spirit of the law and the intention of Parliament have been respected; the Commissioner cannot limit him or herself to a technical and legalistic approach (St-Onge v. Canada,  3 F.C. 287 (F.C.A.) at paragraph 26).
- Part V of the Official Languages Act deals with the language of work in federal institutions. Section 35 provides that, in certain prescribed regions, federal institutions have a duty to ensure that the work environment is conducive to the effective use of English and French. In other regions or parts of Canada where one official language predominates, the treatment of both official languages in the work environments of the institution must be reasonably comparable to the treatment of both official languages in parts or regions of Canada where the other official language predominates (Schreiber at paragraph 115).
- Section 91 of the Act provides that nothing in Part IV (communications with and services to the public) and Part V (language of work) authorizes the application of official language requirements to any particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken. Case law has established that linguistic requirements cannot be imposed in an arbitrary or frivolous manner (Canada (Attorney General) v. Viola,  1 F.C. 373 (F.C.A.) at page 388, Professional Institute of the Public Service v. Canada,  2 F.C. 90 (FCTD) at paragraph 79, Rogers v. Canada (Minister of National Defence), (2001), 201 F.T.R. 41 at paragraph 27).
- Part VI of the Act deals with the participation of English-speaking and French-speaking Canadians, and section 39 provides that
“the federal government is committed to ensuring that [they] have equal opportunities to obtain employment and advancement in federal institutions.”The provision also sets out the federal government’s commitment to ensuring that
“the composition of the work-force of federal institutions tends to reflect the presence of both official language communities of Canada, taking into account the characteristics of individual institutions, including their mandate, the public they serve and their locations”. However, the government
“must walk a very tight line, as subsection 39(3) states that the principles of section 39 may not be construed as abrogating or derogating from the principle of selection according to merit”(Professional Institute of the Public Service at paragraph 35).
- Part VII of the Act deals with advancement of English and French. Subsection 41(1) sets out the Government of Canada’s commitment to enhance the vitality of the English and French minority communities in Canada and support and assist in their development as well to foster the full recognition and use of both English and French in Canadian society. Subsection 41(2) imposes on federal institutions the duty to take positive measures to implement this commitment. Part VII also gives the Minister of Canadian Heritage the mission to take measures to advance the equality of status and use of English and French in Canadian society.
Table of secondary material
- Brun, Henri and Guy Tremblay in Droit constitutionnel, 4th ed. (Cowansville: Yvon Blais, 2002) at 844 [“Droit constitutionnel”].
- Hogg, Peter W., Constitutional Law of Canada, looseleaf (Toronto: Carswell, 2002) at paragraph 53.6(a) [“ Constitutional Law”].
- Vaz, Nicole and Pierre Foucher, “The right to receive public services in either official language” in Michel Bastarache, ed., Language Rights in Canada, 3rd ed. (Montréal: Yvon Blais, 20113) at 484 [“ Language Rights in Canada”]
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