Section 16 and 16.1 – Official Languages of Canada and of New Brunswick

Provision

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.

Similar Provisions

Subsection 16(1) is repeated in virtually identical terms in the purpose of the federal Official Languages Act at subsection 2(a). Section 2 of the OLA states that one of the purposes of that the Act is to:

  1. ensure respect for 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; […].

The same is true for section 1.1 of the New Brunswick Official Languages Act, which repeats almost textually subsection 16(2) of the Charter by stating that its purpose is:

  1. to ensure respect for English and French as the official languages of New Brunswick;
  2. to ensure that English and French have equality of status and equal rights and privileges as to their use in all institutions of the Province; […]

Section 16.1 is repeated at section 2 of the Act Recognizing the Equality of the Two Official Language Communities in New Brunswick:

  1. The Government of New Brunswick shall ensure protection of the equality of status and the equal rights and privileges of the official linguistic communities and in particular their right to distinct institutions within which cultural, educational and social activities may be carried on.

Purpose

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. This declaration remains at the first paragraph of the Official Languages Act as amended in 2023.

Subsection 16(1) serves as a foundation for the right of federal public servants to work in the official language of their choice (Association des gens de l’air du Québec et al. v. Lang et al., [1978] 2 F.C. 371 on section 2 of the Official Languages Act of 1969; Schreiber v. anada (1999), 69 C.R.R. (2d) 256 (F.C.T.D.) at paragraph 125; Tailleur v. Canada, 2015 FC 1230 at paragraph 38; Canada (Commissioner of Official Languages) v. Office of the Superintendent of Financial Institutions, 2021 FCA 159 [“Dionne”] at paragraph 39).

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 Parliament and the New Brunswick Legislature demonstrated their commitment to official bilingualism within their respective jurisdictions. According to the Supreme Court of Canada in Société de l’Acadie du Nouveau‑Brunswick v. Canada (Prime Minister), 2026 SCC 22 [“Société de l’Acadie”], section 16 is mandatory in nature and “sets out an independent standard whose specific incarnations appear in the provisions that follow, though without exhausting its meaning” (Société de l’Acadie, supra, at paragraph 66).

Analysis

A) Provisions of national scope

1. 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, which deals with the language obligations applicable to the services and communications of federal institutions with the public.

There is no general consensus on the exact scope of application of these words and there is no case-law on it. Some authors (Hogg, Peter W., Constitutional Law of Canada, looseleaf (Toronto: Carswell, 2002) at paragraph 53.6(a); 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 page 484) 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” at subsection 16(1) and the phrase “in respect of all matters within the authority of Parliament” at paragraph 32(1)(a); others submit that sections 16 and 32 cover the same ground (Société des Acadiens, supra, at paragraph 37; Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117 at paragraph 97 and following; Brun, Henri and Guy Tremblay in Droit constitutionnel, 4th ed. (Cowansville: Yvon Blais, 2002) at page 844, in the context of subsection 16(2) and paragraph 32(1)(b)).

Note that section 3 of Canada’s 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 (c.2) the Parliamentary Protective Service, (c.3) the office of the Parliamentary Budget Officer, (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 Legislative Assembly or government of Yukon, the Northwest Territories 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.”

2. The principle of equality

The principle of legislative advancement found at subsection 16(3) of the Charter does not exhaust subsection 16(1), 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 either. 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 (Beaulac, supra, 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, supra, at paragraph 24).

In the Thibodeau v. Air Canada, 2019 CF 1102, decision, the Federal Court concluded that Air Canada had breached its linguistic obligations by not granting equal status to French and English, provided for in subsection 16(1) of the Charter. According to the Court, by displaying, for example, "EXIT" in a larger font than the word "SORTIE", Air Canada gave preponderance to one of the official languages instead of giving them equal status. As for the idea put forward by Air Canada that substantive equality was achieved without there being formal equality, the Court concluded that “different treatment of the two languages may be acceptable if it is necessary in order to achieve substantive equality or meet particular needs, which is not the case here” (Thibodeau, supra, at paragraph 47).

3. The principle of legislative advancement set out in subsection 16(3)

Subsection 16(3) clearly establishes that the provisions of the Charter 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, supra, at paragraph 68; Mercure, supra, at paragraph 46; Beaulac, supra, 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, supra, at paragraph 92).

In the Montfort Hospital decision, supra, 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, subsection 16(3) is not a rights-conferring provision. It is rather, a provision designed to shield from attack legislative action that would otherwise contravene section 15 or exceed the legislative authority of a level of government (Montfort Hospital, supra, at paragraph 72; Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), [2004] 4 FCR 276 at paragraph 42; R. v. MacKenzie, 2004 NSCA 10 at paragraph 56; Moncton, supra, at paragraph 63; Toronto (City) v. Braganza [2011] O.J. No. 5445 at paragraph 67).

The Superior Court of Quebec, for its part, concluded that subsection 16(3) cannot be used to interpret section 133 of the Constitution Act, 1867 “in such a way as to force the state to adopt measures which exceed the required protection by the Constitution to advance linguistic equality” (Lavigne v. Procureure générale du Québec, 2020 QCCS 1126 at paragraph 34 and R.L. c. Procureure générale du Québec, 2020 QCCS 1126 at paragraph 34). Thus, subsection 16(3) cannot be used to expand a constitutional right.

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, supra, at paragraph 22; Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development), 2022 FCA 14 [“Fédération des francophones de la Colombie-Britannique”] at paragraph 127; and R. v. Tompouba, 2024 SCC 16 at paragraph 33).

Section 530 of the Criminal Code is another example of a provision enacted “to advance the equality of status or use of English and French.” This section supplements the constitutional minimum guaranteed through the combined effect of section 133 of the Constitution Act, 1867 and subsection 19(1) of the Charter. It goes beyond the constitutional right to speak in the official language of one’s choice by also giving every accused the right to choose the official language they wish to speak and in which they wish to be understood by the judge or the judge and jury, without the use of interpretation or translation services (Tompouba, supra, at paragraph 34).

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), 2010 ONSC 4566 at paragraph 178).

Subsection 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 17 to 23 of the Charter), section 16 is not subject to the notwithstanding clause entrenched in section 33 (Tompouba, supra, at paragraph 30). This means that neither Parliament nor the legislature of New Brunswick can exclude itself from their application (R. v. Gaudet [2010] N.B.J. No. 25 at paragraph 31).

B) Provisions applicable to New-Brunswick

1. 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, supra, 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, supra, 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, supra, at paragraph 107). In the Supreme Court decision, Charlebois v. Saint John (City), [2005] 3 SCR 563, 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.

The New Brunswick Official Languages Act defines institutions at section 1: “ […] an institution of the Legislative Assembly or the Government of New Brunswick, the courts, any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant-Governor in Council, a department of the Government of New Brunswick, a Crown corporation established by or pursuant to an Act of the Legislature or any other body that is specified by an Act of the Legislature to be an agent of the Crown in right of the Province or to be subject to the direction of the Lieutenant-Governor in Council or a minister of the Crown”.

Subsection 16(2) enshrines a mandatory guarantee of substantive equality for the two official languages within the institutions of New Brunswick, protecting both the ability to use either language and their equality of status, in light of the history of the Francophone community and the constitutional commitment to equality of linguistic communities expressed in section 16.1. Subsection 16(2) enshrines an equality of status that excludes any normative or symbolic hierarchy between the official languages, ensuring that they occupy a truly equal place in public institutions and in the provision of services to the public, without requiring perfect symmetry in their day-to-day use but requiring that public institutions be designed to reflect, in their architecture and their official expression, the equal recognition of both languages (Société de l’Acadie, supra, at paragraphs 87–88).

Subsection 16(2) seeks to prevent the assimilation of the Francophone minority by protecting, beyond the languages themselves, the living character of the official minority language and the sense of belonging of its speakers to New Brunswick society and institutions, recognizing the essential role of language in collective flourishing and full integration into the territory and its institutions (Société de l’Acadie, supra, at paragraph 98). Subsection 16(2) imposes a substantive equality of status between the two official languages in New Brunswick, prohibiting any normative hierarchy that would relegate one to the level of a mere accommodation, requiring their equitable representation and use in institutions — including, concretely, the appointment of a bilingual Lieutenant Governor — in order to ensure Francophones equal consideration, respect and attention (Société de l’Acadie, supra, at paragraphs 100, 114).

2. Subsection 16(3) of the Charter

Subsection 16(3) of the Charter provides that Parliament as well as provincial legislatures may advance the equality of status of English and French. Paragraph 16(3) confirms that meaningful linguistic equality between the two official languages has both symbolic and functional dimensions, and that it requires both equality of status and equality of use, the conjunction “or” emphasizing the duality and complementarity of these aspects as recognized notably by a Federal Court in relation to paragraph 16(1) (Société de l’Acadie, supra, at paragraphs 84–85 referring to Thibodeau, supra, at paragraph 40).

3. Subsection 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), subsection 16.1(1) includes collective rights whose holders are the linguistic communities themselves. Equally, subsection 16.1(2) “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, supra, at paragraphs 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, supra, at paragraph 30). It goes without saying that this interpretative aid only applies to the provisions of the Charter that apply to institutions of New Brunswick.

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, supra, at paragraph 80).

Section 16.1 establishes in New Brunswick a unique constitutional linguistic regime aimed at ensuring the preservation of both official languages and their associated cultures, as well as promoting the vitality and development of the official language communities, within a historical and social context specific to that province. Linguistic rights in New Brunswick have both a remedial and a unifying purpose, and their model of linguistic development, unique in the country, must guide the interpretation of these particular rights (Société de l’Acadie, supra, at paragraphs 42–43).

C) The federal Official Languages Act, an example of its implementation by Parliament of the principle of legislative 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, supra, at paragraph 22).

Certain provisions of the Official Languages Act, several of which were added as part of Bill C-13, which came into force on June 20, 2023, clearly constitute an advancement of language rights as they provide rights that go beyond the language rights provisions found in the Charter. Here are a few examples:

The content is current up until 2026-06-12.