Section 16.1 of The Canadian Charter of Rights and Freedoms - History

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 in the 1980s all parties had supported the rise of bilingualism in New Brunswick, in 1991 a new party called the Confederation of Regions Party, which was opposed to official bilingualism, became the official opposition in the legislature. The legislation was thus constitutionalized by a pro-bilingualism provincial government, to ensure the survival of the language rights.

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, prompting Professor Peter Russell to refer to this as an "encouraging that Canadians may be recovering the capacity to accomplish constitutional reform without linking everything together and getting bogged down in the mega constitutional swamp."

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 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. 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. 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."

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.