Section 15 of the Canadian Charter of Rights and Freedoms
Section 15 of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. Rights under section 15 include racial equality, sexual equality, mental disability, physical disability. In its jurisprudence, it has been a source of gay rights in Canada; these rights are guaranteed to "every individual", that is, every natural person. This wording excludes "legal persons" such as corporations, contrasting other sections that use the word "everyone", where "legal persons" were meant to be included. Section 15 has been in force since 1985. Under the heading of "Equality Rights" this section states: The Canadian Bill of Rights of 1960 had guaranteed the "right of the individual to equality before the law and the protection of the law."
Equal protection of the law is a right, guaranteed by the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution since 1868. Section 15 itself dates back to the earliest draft of the Charter, published in October 1980, but it was worded differently, it read, During the drafting, the guarantee to "everyone" was dropped in favour of "every individual," with the intent that corporations could not invoke equality rights. In addition, while the original version spoke of equality before the law and equal protection of the law, the section enacted included guarantees of equality under the law and equal benefit of the law; the reason for these additions was to encourage a generous reading of section 15. In the Bill of Rights cases Attorney General of Canada v. Lavell and Bliss v. Canada, Supreme Court Justice Roland Ritchie had said only the application, not the outcome, of the law must be equal, thereby necessitating an explicit guarantee of equality under the law. Though the Charter itself came into effect on April 17, 1982, section 15 was not brought into force until April 17, 1985, in accordance with section 32 of the Charter.
The reason for this was so that provincial and federal governments would have enough time to review their legislation and make the appropriate changes to any discriminatory laws. According to the Supreme Court of Canada's Section 15 jurisprudence, the equality guarantees of section 15 are aimed at preventing the "violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudices, to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society capable and deserving of concern and consideration." To that end, the Charter recognizes four dimensions including substantive equality. Equality before the law is equality in the administration of justice, where all individuals are subject to the same criminal laws in the same manner by law enforcement and the courts. Equality under the law is equality in the substance of the law, where the content of the law is equal and fair to everyone so that everyone experiences the same result.
Equal benefit of the law ensures. Equal protection of the law ensure that the protections imposed by law will be proportionate so that the human dignity of every person is safeguarded by the law. Unlike formal equality, which overlooks personal differences, substantive equality is concerned with the impact of the law on different groups of individuals. Substantive equality requires. In any challenge of section 15 the burden of proof is always on the claimant; the Supreme Court of Canada has endorsed a purposive interpretation of Section 15. After Law v. Canada the question of whether dignity was affected was key to a section 15 analysis. In R. v. Kapp, the problems with the dignity analysis were recognized and the dignity analysis was jettisoned; the Court established a two-part test based on the one found in Andrews v. Law Society of British Columbia: Does the law create a distinction based on an enumerated or analogous ground? Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
In Quebec v. A a majority of the Court found that perpetuating prejudice or stereotyping did not form an additional requirement in the second part of the test; the majority itself split on the correct way to apply the second part of the test, leaving the present state of the law on Section 15 unclear. The concept of enumerated or analogous grounds originated in the essential 1989 Andrews case to refer to personal characteristics that, when being the basis of discrimination, show the discrimination is unconstitutional under section 15. There are nine enumerated grounds explicitly mentioned in section 15, although they are not numbered. In practice, the enumerated grounds have been given broad interpretations. For example, discrimination on the basis of pregnancy has been ruled to be sex discrimination; as section 15's words "in particular" hint that the explicitly named grounds do not exhaust the scope of section 15, additional grounds can be considered if it can be shown that the group or individual's equality rights were denied in comparison with another group that shares all of the same characteristics except for the p
Constitution of Canada
The Constitution of Canada is the supreme law in Canada. Canada is one of the oldest constitutional democracies in the world; the constitution outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada. The composition of the Constitution of Canada is defined in subsection 52 of the Constitution Act, 1982, as consisting of the Canada Act 1982, all acts and orders referred to in the schedule, any amendments to these documents; the Supreme Court of Canada has held that the list is not exhaustive and includes a number of pre-confederation acts and unwritten components as well. See list of Canadian constitutional documents for details; the first semblance of a constitution for Canada was the Royal Proclamation of 1763. The act renamed the northeasterly portion of the former French province of New France as Province of Quebec coextensive with the southern third of contemporary Quebec; the proclamation, which established an appointed colonial government, was the constitution of Quebec until 1774, when the British parliament passed the Quebec Act, which expanded the province's boundaries to the Ohio and Mississippi Rivers, one of the grievances listed in the United States Declaration of Independence.
The Quebec Act replaced the French criminal law presumption of guilty until proven innocent with the English criminal law presumption of innocent until proven guilty. The Treaty of Paris of 1783 ended the American War of Independence and sent a wave of British loyalist refugees northward to Quebec and Nova Scotia. In 1784, the two provinces were divided; the winter of 1837–38 saw rebellion in both of the Canadas, with the result they were rejoined as the Province of Canada in 1841. This was reversed by the British North America Act in 1867. On 1 July 1867, there were four provinces in confederation as "One dominion under the name of Canada": Canada West, Canada East, Nova Scotia, New Brunswick. Title to the Northwest Territories was transferred by the Hudson’s Bay Company in 1870 and the province of Manitoba was in the same year the first created out of it. British Columbia joined confederation in 1871, followed by Prince Edward Island in 1873; the Yukon Territory was created by Parliament in 1898, followed by Alberta and Saskatchewan in 1905.
The Dominion of Newfoundland, Britain's oldest colony in the Americas, joined Canada as a province in 1949. Nunavut was created in 1999. An Imperial Conference in 1926 that included the leaders of all Dominions and representatives from India, led to the eventual enactment of the Statute of Westminster 1931; the statute, an essential transitory step from the British Empire to the Commonwealth of Nations, provided that all existing Dominions became sovereign of the United Kingdom and all new Dominions would be sovereign upon the grant of Dominion status. Newfoundland never ratified the statute, so it was still subject to imperial authority when its entire system of government and economy collapsed in the mid-1930s. Canada did ratify the statute, but had requested an exception because the Canadian federal and provincial governments could not agree on an amending formula for the Canadian constitution, it would be another 50 years. In the interim, the British parliament periodically passed enabling acts with respect to amendments to Canada's constitution.
The patriation of the Canadian constitution was achieved in 1982 when the British parliament, with the assent of the Canadian parliament, passed the Canada Act 1982, which included in its schedules the Constitution Act, 1982, the United Kingdom thus formally absolving itself of any remaining responsibility for, or jurisdiction over, Canada. In a formal ceremony on Parliament Hill in Ottawa, Queen Elizabeth II proclaimed both acts as law on 17 April 1982. Constitution Act, 1982, included the Canadian Charter of Freedoms. Prior to the charter, there were various statutes which protected an assortment of civil rights and obligations, but nothing was enshrined in the constitution until 1982; the charter has thus placed a strong focus upon individual and collective rights of the people of Canada. Enactment of the Charter of Rights and Freedoms has fundamentally changed much of Canadian constitutional law; the act codified many oral constitutional conventions and made amendment of the constitution more difficult.
The Canadian federal constitution could be amended by solitary act of the Canadian or British parliaments, by formal or informal agreement between the federal and provincial governments, or simply by adoption as ordinary custom of an oral convention or unwritten tradition, perceived to be the best way to do something. Since the act, amendments must now conform to certain specified provisions in the written portion of the Canadian constitution; this was an Act of the British parliament called the British North America Act 1867. It outlined Canada's system of govern
Section 16.1 of the Canadian Charter of Rights and Freedoms
Section 16.1 of the Canadian Charter of Rights and Freedoms is the newest section of the Charter. It was enacted by the Constitution Amendment, 1993 and guarantees equality between English-speaking and French-speaking New Brunswickers. Section 16.1 is not to be confused with subsection 16, part of section 16 and goes back to 1982. Section 16.1 is a separate section. The section reads, Section 16.1 makes reference to a need for institutions for both language groups, including educational institutions, it gives the provincial government powers to protect the right. This is not revolutionary in that this entrenches laws found in An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, as noted in the 2001 Court of Appeal case Charlebois v. Mowat; the section can be seen as providing "collective rights," and one critic charged that a deeper meaning to the section would have to be decided by Canadian courts. In Charlebois v. Mowat, the court ruled that section 16.1, as well as subsections 16 and 18, require bilingual municipal laws when the minority language population of a municipality is significant.
The ruling was made on the basis of the court's interpretation of subsection 18), but in its ruling the court stated that section 16.1 is "remedial", meaning that it is supposed to fix historical problems. An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick was enacted in 1981 by Premier Richard Hatfield, it provided independent 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, opposed to official bilingualism, became 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.
The constitutionalization of the legislation was 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 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 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; the House of Commons passed the amendment with a vote of 219-2, on February 1, 1993. A Montreal Gazette article approved, calling the New Brunswick government "courageous" because of its resistance to the Confederation of Regions Party, added that the section provided a "noble, generous vision of Canadian duality and co-existence.
Too bad it seems confined to New Brunswick."It did attract some criticism, with columnist William Johnson claiming that Parliament had not analyzed the amendment and tried to stifle public discussion. He suggested that section 16.1 might create two governments for New Brunswick, one in English and one in French. Earlier, this columnist had charged that enshrining collective rights in the Constitution was "alien to liberalism," and would undermine the individual in favour of a larger group, 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." The Constitution Amendment, 1993 was signed by Prime Minister Brian Mulroney, Attorney General Pierre Blais, Registrar General Pierre H. Vincent, under a proclamation of Governor General Ray Hnatyshyn in Ottawa on 12 March 1993.
In 2000, an Ontario court ruled that the province was obligated to keep from closing the Montfort Hospital as part of its program of merging many of the hospitals in the Ottawa region. The basis for the decision was the court's conclusion that this was a logical application of an unwritten constitutional principle of minority rights, found by the Supreme Court in the 1998 Reference re Secession of Quebec. Since the Montfort Hospital was the only hospital in the region operating in French, it amounted to a protected parallel service-provider, much as New Brunswick's French-language and English-language school systems are parallel service providers, therefore as an essential component of the collective rights of Ottawa's Franco-Ontarian population; the Government of Ontario criticized the decision as judicial activism, charged that "The divisional court decision has rewritten the
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, Canada's head of government. The current, 23rd, Prime Minister of Canada is the Liberal Party's Justin Trudeau, following the 2015 Canadian federal election. Canadian prime ministers are styled as The Right Honourable, a privilege maintained for life; the Prime Minister of Canada is in charge of the Prime Minister's Office. The Prime Minister chooses the ministers that make up the Cabinet; the two groups, with the authority of the Parliament of Canada, manage the Government of Canada and the Canadian Armed Forces. The Cabinet and the Prime Minister appoint members of the Senate of Canada, the judges of the Supreme Court of Canada and federal courts, the leaders and boards, as required under law, of various Crown Corporations, selects the Governor General of Canada. Under the Canadian constitution, all of the power to exercise these activities is vested in the Monarchy of Canada, but in practice the Canadian monarch or their representative, the Governor General of Canada approves them and their role is ceremonial, their powers are only exercised under the advice of the Prime Minister.
Not outlined in any constitutional document, the office exists only as per long-established convention that stipulates the monarch's representative, the governor general, must select as prime minister the person most to command the confidence of the elected House of Commons. The position of prime minister is not outlined in any Canadian constitutional document and is mentioned only in passing in the Constitution Act, 1982, the Letters Patent, 1947 issued by King George VI; the office and its functions are instead governed by constitutional conventions and modelled on the same office in the United Kingdom. The prime minister, along with the other ministers in cabinet, is appointed by the governor general on behalf of the monarch. However, by the conventions of responsible government, designed to maintain administrative stability, the governor general will call to form a government the individual most to receive the support, or confidence, of a majority of the directly elected members of the House of Commons.
While there is no legal requirement for the prime minister to be a member of parliament, for practical and political reasons the prime minister is expected to win a seat promptly. However, in rare circumstances individuals who are not sitting members of the House of Commons have been appointed to the position of prime minister. Two former prime ministers—Sir John Joseph Caldwell Abbott and Sir Mackenzie Bowell—served in the 1890s while members of the Senate. Both, in their roles as Government Leader in the Senate, succeeded prime ministers who had died in office—John A. Macdonald in 1891 and John Sparrow David Thompson in 1894; that convention has since evolved toward the appointment of an interim leader from the commons in such a scenario. Prime ministers who are not Members of Parliament upon their appointment have since been expected to seek election to the commons as soon as possible. For example, William Lyon Mackenzie King, after losing his seat in the 1925 federal election "governed from the hallway" before winning a by-election a few weeks later.
John Turner replaced Pierre Trudeau as leader of the Liberal Party in 1984 and subsequently was appointed prime minister while not holding a seat in the House of Commons. Turner was the last serving prime minister to not hold a commons seat. Should a serving prime minister today lose his or her seat in the legislature, or should a new prime minister be appointed without holding a seat, the typical process that follows is that a junior member in the governing political party will resign to allow the prime minister to run in the resulting by-election. A safe seat is chosen. However, if the governing party selects a new leader shortly before an election is due, that new leader is not a member of the legislature, he or she will await the upcoming election before running for a seat in parliament. In a poll conducted by Ipsos-Reid following the first prorogation of the 40th parliament on December 4, 2008, it was found that 51% of the sample group thought the prime minister was directly elected by Canadians.
The Canadian prime minister serves at Her Majesty's pleasure, meaning the post does not have a fixed term. Once appointed and sworn in by the governor general, the prime minister remains in office until he or she resigns, is dismissed, or dies; the lifespan of parliament was limited by the constitution to five years, though the governor general may still, on the advice of the prime minister, dissolve parliament and issue the writs of election prior to the date mandated by the Canada Elections Act. As of 2007, with an amendment to the Elections Act, Section 56.1 was changed
Section 2 of the Canadian Charter of Rights and Freedoms
Section 2 of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts; the fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association. Section 1 of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by section 33, the "notwithstanding clause", of the Charter; as a part of the Charter and of the larger Constitution Act, 1982, section 2 took legal effect on April 17, 1982. However, many of its rights have roots in Canada in the 1960 Canadian Bill of Rights, in traditions under a theorized Implied Bill of Rights.
Many of these exemptions, such as freedom of expression, have been at the centre of federalistic disputes. Under the heading of "Fundamental Freedoms" the section states: 2. Everyone has the following fundamental freedoms: freedom of religion. According to Beverley McLachlin, freedom of religion in Canada may have originated as early as 1759, when French Canadian Roman Catholics were allowed rights of worship by their British conquerors; the Constitution Act, 1867 provided for denominational school rights. Discussions of church-state relations took place in the Guibord case of 1874. In 1955, the Supreme Court ruled in Chaput v Romain, regarding Jehovah's Witnesses, that different religions have rights, based upon tradition and the rule of law. Religious freedom was included in the Canadian Bill of Rights. However, its effectiveness was limited; when Sunday closing laws compelling respect for the Christian Sabbath were challenged in R v Robertson and Rosetanni, Justice Ritchie of the Supreme Court found that non-Christians lost money when denied rights to work on Sunday and were otherwise free to believe in and observe their own religions.
Freedom of religion under section 2 of the Charter was first considered by the Supreme Court in R v Big M Drug Mart Ltd. In that case, Chief Justice Brian Dickson wrote that this freedom at least includes freedom of religious speech, including "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs and without fear of hindrance or reprisal, the right to manifest religious belief by worship and practice or by teaching and dissemination." Freedom of religion would prohibit imposing religious requirements. The immediate consequence of section 2, in this case, was the abolishment of federal Sunday closing laws. In Syndicat Northcrest v Amselem, the Supreme Court drew up a definition of freedom of religion under the Quebec Charter of Human Rights and Freedoms, mindful of the overlap with section 2; the majority found freedom of religion encompasses a right to religious practices if the individual has a sincere belief that the practice is connected to religion.
It would not matter. If courts can believe an individual is telling the truth in saying a practice is connected to religion, the courts ask whether the infringement of freedom of religion is severe enough to trigger section 2; the Court said religious beliefs are vacillating, so courts trying to determine an individual belief should be mindful that beliefs may change. Following this test in Multani v Commission scolaire Marguerite‑Bourgeoys, the Court found freedom of religion should protect a non-violent Sikh student's right to wear a kirpan in school. In R v NS, the Supreme Court sought to find a middle ground on the issue of whether a witness can wear a face-covering niqāb while testifying in a criminal trial; the court found that the right to religious freedom must be balanced against the right of the accused to a fair trial. In addition to freedom of religion, section 2 guarantees freedom of conscience. Professor Peter Hogg speculated this would include a right to atheism, despite the preamble to the Canadian Charter of Rights and Freedoms, which recognizes the "supremacy of God".
The right has not spawned a great deal of case law, although Justice Bertha Wilson did rely on it in her opinion in R v Morgentaler. Finding laws against abortion to be a breach of the rights to liberty and security of the person under section 7 of the Charter, Wilson argued this infringement could not be justified as being consistent with fundamental justice; the legal protections found under fundamental justice could be defined as including other rights under the Charter, in particular abortion laws breached freedom of conscience. As she wrote, the "decision whether or not to terminate a pregnancy is a moral decision, a matter of conscience", she said, "onscientious beliefs which are not religiously motivated are protected by freedom of conscience in s. 2." No other judges joined Wilson's opinion. Jean Chrétien, the attorney general during negotiations of the Charter recalled in his memoirs that freedom of conscience was nearly exclude
Section 7 of the Canadian Charter of Rights and Freedoms
Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice; this Charter provision provides both procedural rights. It has broad application beyond protecting due process in administrative proceedings and in the adjudicative context, has in certain circumstances touched upon major national policy issues such as entitlement to social assistance and public health care; as such, it has proven to be a controversial provision in the Charter. Under the heading of "Legal Rights", the section states: 7. Everyone has the right to life and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The wording of section 7 says that it applies to "everyone". This includes all people including non-citizens, it does not, apply to corporations. Section 7 rights can be violated by the conduct of a party other than a Canadian government body; the government need only be a participant or complicit in the conduct threatening the right, where the violation must be a reasonably foreseeable consequence of the government actions. Section 7 has not been interpreted to convey positive rights nor has it been interpreted to impose any positive obligations upon the government. However, the Supreme Court of Canada has not ruled out these alternatives. First, there is the right to life, which stands as the basic right to be alive. Life has been discussed by the Supreme Court in the 1993 case Rodriguez v British Columbia. In that case, the Court denied that the section 7 right to bodily control could trump the right to life and thereby justify assisted suicide; as the Court wrote, it was a common societal belief that "human life is sacred or inviolable", therefore security of the person itself could not include a right to suicide.
However, the Supreme Court under Chief Justice Beverley McLachlin has unanimously reversed this decision in Carter v Canada. The Criminal Code provision imposing a blanket ban on assisted suicide was struck down for overbreadth, as it impacted those with the capacity to provide legitimate consent. Bill C-14 was passed in June 2016 in response to this decision. Secondly, there is the right to liberty, which protects an individual's freedom to act without physical restraint. However, the right has been extended to include the power to make important personal choices; the court described it as " the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal". That is, the concept extends beyond physical restraint by the government as it goes to the core of the human experience; the right to choice is an individual right only, as opposed to being a family right or a union right, however the rights are between you and the government and not between you and a member of your family.
In the 1995 Supreme Court decision B v Children’s Aid Society, in which two parents attempted to block a certain treatment for their child on religious grounds, it was argued that the personal choice aspect of liberty guaranteed family privacy. This argument drew from American case law, but the Supreme Court pointed out section 7 of the Charter contains individual rights, hence there cannot be family rights. Still, mindful that there was still choices involved in the family situation, the Supreme Court split on whether liberty rights were infringed. In I. L. W. U. v. The Queen, the Supreme Court stressed the individual nature of section 7 to deny unions had a right to strike as part of the members' liberty; the Court stressed that strikes were socioeconomic matters that did not involve the justice system, section 7 was concentrated on the justice system. Various liberties not covered by the section 7 right to liberty include religious liberty and liberty of speech, because these are more guaranteed under section 2, the liberty to vote, as this is more guaranteed by section 3, the liberty to move within and enter Canada, as this is more guaranteed by section 6.
Third, there is the right to security of the person, which consists of rights to privacy of the body and its health and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm to the mental state of the individual; this right has generated significant case law, as abortion in Canada was legalized in R v Morgentaler after the Supreme Court found the Therapeutic Abortion Committees breached women's security of person by threatening their health. Some judges felt control of the body was a right within security of the person, breached by the abortion law. However, in R v Levkovic, 2013 SCC 25, the Supreme Court found that "security of the person" could not be used to justify a mother's failure to report a stillbirth. In Operation Dismantle v The Queen, cruise missile testing was unsuccessfully challenged as violating security of the person for risking nuclear war. In Chaoulli v Quebec, the majority of Supreme Court justices declared Quebec's ban on private hea
Section 17 of the Canadian Charter of Rights and Freedoms
Section 17 of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages and French. While the section 17 right to use either language within the Parliament of Canada repeats a right anchored in section 133 of the Constitution Act, 1867, section 17 guarantees the right to use both languages in the legislature of New Brunswick, the only bilingual province under section 16 of the Charter. Section 17 reads, As noted in the Supreme Court decision New Brunswick Broadcasting Co. v. Nova Scotia, the stated application of section 17 is to "Parliament." This wording is an anomaly because technically Parliament is just an institution that enacts statutes. The rights held under section 17, in contrast are not held against the statutes of Parliament but rather apply to the debates that occur within Parliamentary institutions, such as the House of Commons of Canada and Senate of Canada; this section, as it applies to Parliament, extends to Parliamentary committees, thus any witness has a right to use either English or French if he or she appears before a committee.
Justice Michel Bastarache and his fellow-writers agree that section 17 applies to "other activities of Parliament," including Parliamentary committees, but argue that bilingualism in Parliamentary committees had been allowed for years prior to the Charter and interpreters had been provided. As noted, the section extends these constitutional rights to New Brunswick. However, similar statutory rights in New Brunswick had been in place when the Charter came to force. Namely, they were in the Official Languages of New Brunswick Act. Section 17 thus constitutionalized the rights. In the 1986 Supreme Court case Société des Acadiens v. Association of Parents, Justice Jean Beetz found that section 17 was so similar to section 133 of the Constitution Act, 1867 that section 17 would not represent any change in regard to rights that had belonged under section 133. Thus, section 133 case law would influence section 17 case law. Justice Bertha Wilson, commenting on section 17's parallel with section 133 of the Constitution Act, 1867 said that it could represent mere "constitutional continuity."
However, she did acknowledge that section 17 being exempt from the notwithstanding clause, the amending formula making Canada's language rights impossible to amend without the support from all provinces as well as the federal government, reveal language rights to be "a response to the peculiar facts of Canada's history." At any rate, Beetz found that in Parliament, while section 17 guarantees a right for a person to speak in either French or English, depending on his or her preference, this does not extend to guaranteeing a right for the person's speech to be translated so all can understand it. This line of thinking regarding section 133 appeared in the Supreme Court case MacDonald v. City of Montreal. In MacDonald, Jones v. Attorney General of New Brunswick was cited as finding that section 133 did not effectively establish a sophisticated official bilingualism for Canada. While rights to biligualism in legislative bodies might allow for some members to understand each other if they happened to know the language being used, there was no guarantee for this.
Moreover, courts should interpret these rights conservatively. According to MacDonald, having translators in Parliament is thus not mandatory under section 133, since there is no guarantee everyone will be able to understand an MP when he or she chooses to speak in English or French; these rights are thus negative rights only. An unconstitutional action would be for Parliament or a legislature to force a person to leave for speaking in English or French. Overview of section 17 case law at the Canadian Legal Information Institute. Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video and the Charter in over 20 languages