| Canadian Charter of Rights and Freedoms |
|---|
| Part of theConstitution 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 |
Section 22 of theCanadian Charter of Rights and Freedoms is one of several sections of theCharter relating to theofficial languages ofCanada. The official languages, undersection 16, areEnglish andFrench. Section 22 is specifically concerned with political rights relating tolanguages besides English and French.
It reads,
22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
Section 22 ensures that political rights regarding the use of other languages besides English and French are not limited by the fact that English and French are the only languages recognized as being official by the other provisions of theCharter. The political rights regarding other languages may exist by virtue ofstatute or simplycustom, and the rights may predate theCharter or may be created after its enactment in 1982. As authorWalter Tarnopolsky noted in 1982, theAboriginal peoples in Canada were the most likely people, and perhaps the only people, to have customary language rights.[1] The section may allow other languages to become official languages in the future, and demonstrates that having constitutional law regarding languages does not mean the law is fixed forever.[2]
That same year, Professor André Tremblay wrote that section 22 would apply to "government services." He also points out that theCharter offers no assurances that these language rights "will be provided indefinitely."[3] If those rights are not constitutionalized, the government in question can presumably abolish them at any time.
ProfessorLeslie Green has argued that section 22 also justifies the English and French language rights. The rights regarding English and French in theCharter are special rights, which raises the question of whether such rights can be justified in ademocracy. However, Green writes that the special rights can be justified if this "leaves speakers of other languages no worse off than they would have been" if the special rights for English and French did not exist. Green points to section 22 as evidence that other languages are not harmed by the rights regarding English and French. Indeed, the fact that theCharter allows for English and French to be used in the government does not harm other languages, because the numbers of English and French Canadians mean that those languages would be used in the government anyway. Still, Green acknowledged that "tolerance" of languages besides English and French could be improved.[4] Justice Bastarache and fellow-experts also relate section 22 to upholding Canadianmulticulturalism.[2]
In 1982, Walter Tarnopolsky speculated that section 22, combined withsection 27 of the Charter, which provides for amulticultural framework for Charter rights, could lead to the creation of newminority languageeducation rights based on those insection 23 of the Charter, but for language groups besides the English and French-speaking populations. However, Tarnopolsky acknowledged that if any such rights are created, it would probably be done by elected governments, and not by the courts.[5]
Writing in 1982, constitutional scholarPeter Hogg remarked that section 22 would apply to rights in a "particular area."[6] Indeed, the governments of theYukon, theNorthwest Territories andNunavut allow Aboriginal languages to be spoken in their legislatures.[7]
However, debates regarding the use of different languages in theParliament of Canada have involved discussion of section 22. In June 2005, a committee ofSenators discussed whether speakingInuktitut, anInuit language, in Parliament would beconstitutional. Concerns were raised about section 133 of theConstitution Act, 1867 and sections 16 and17 of theCharter, and how these sections only recognize English and French as the languages of Parliament. It was in turn argued section 22 was "relevant" to this debate, and that this section stated that the other Charter rights could not diminish rights regarding Inuktitut. SenatorSerge Joyal, in expressing concern that "12 Aboriginal languages will have disappeared" in the year 2020 "because people are not using them," argued that section 22 provided "a foundation in the Constitution" for a "principle" that could be invoked to guard against this. This senator argued that aboriginal languages, by custom, should have rights as to their usage.[7]