Section 21 – Continuation of existing constitutional provisions

Provision

Continuation of existing constitutional provisions

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

Similar provisions

Not applicable.

Purpose

The purpose of section 21 of the Canadian Charter of Rights and Freedoms is to protect the language rights already recognized by other provisions of the Constitution. In particular, the Constitution provides that everyone has the right to use English or French in the legislative assembly and before the courts of Manitoba and Quebec provinces, and that the Acts of those provinces must be enacted in both languages.

Analysis

The language rights created by the Constitution Act, 1867 and the Manitoba Act, 1870 are not altered by the language rights provisions of the Canadian Charter of Rights and Freedoms. (McDonnell at p.94; Lavigne at para. 2)

There is a difference between the expression “that exists or is continued by virtue of any other provision of the Constitution of Canada” in section 21 and the expression “by or under the Constitution of Canada” in section 29 of the Canadian Charter of Rights and Freedoms which states that “Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools”. The words as used in section 29 were intended to cover not only constitutional guarantees of rights and privileges in respect of denominational, separate or dissentient schools, but also those provided by a law enacted pursuant to constitution authority. (Re: An Act to Amend the Education Act at p.572)

Table of Cases

McDonnell v. Federation des Franco-Colombiens (1985), 69 B.C.L.R. 87 (B.C.C.C.) [“McDonnell”]

Reference re: An Act to Amend the Education Act (1986), 53 O.R. (2d) 513 (O.C.A.) Reference re: An Act to Amend the Education Act”]

R. v. Kapp, [2008] 2 S.C.R. 483, at para. 87 (Per Bastarache J. concurring in the result).

Lavigne v. Canada Post Corporation, 2009 QCCA 776 at para. 2 [« Lavigne »]

Court decisions rendered since the last update:

None