Section 22 of the Canadian Charter of Rights and Freedoms

Section Twenty-two of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16, are English and French. Section 22 is specifically concerned with political rights relating to languages besides English and French.

Text

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.

Function

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 the Charter. The political rights regarding other languages may exist by virtue of statute or simply custom, and the rights may predate the Charter or may be created after its enactment in 1982. As author Walter Tarnopolsky noted in 1982, the Aboriginal peoples in Canada were the most likely people, and perhaps the only people, to have customary language rights.

That same year, Professor Andre Tremblay wrote that section 22 would apply to "government services." He also points out that the Charter offers no assurances that these language rights "will be provided indefinitely." If those rights are not constitutionalized, the government in question can presumably abolish them at any time.

Education rights

In 1982, Walter Tarnopolsky specuated that section 22, combined with section 27 of the Charter, which provides for a multicultural framework for Charter rights, could lead to the creation of new minority language education rights based on those in section 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.

Parliament

Writing in 1982, constitutional scholar Peter Hogg remarked that section 22 would apply to rights in a "particular area." Indeed, the governments of the Yukon, the Northwest Territories and Nunavut allow Aboriginal languages to be spoken in their legislatures.

However, debates regarding the use of different languages in the Parliament of Canada have involved discussion of section 22. In June 2005, a committee of Senators discussed whether speaking Inuktitut, an Inuit language, in Parliament would be constitutional. Concerns were raised about section 133 of the Constitution Act, 1867 and sections 16 and 17 of the Charter, 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. Senator Serge 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 aborignal languages, by custom, should have rights as to their usage.

History

The Victoria Charter, a proposed Canadian Constitution in 1971 that was never enacted, had also enshrined language rights for English-speaking and French-speaking Canadians. It also included article 19, which like section 22 had stated that

Nothing in this Part shall be construed as derogating from or diminishing any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Part with respect to any language that is not English or French.