Second-Class Rights? Principle and Compromise in the Charter

Abstract

In Societe des Acadiens du Nouveau-Brunswick v. Minority Language School Board No. 50, Beetz J. found two distinct classes of rights in the Charter and proposes a different interpretative policy with respect to each of them. First-class or 'seminal' rights are those founded in principle, while second-class rights are founded only in a political compromise among competing groups. Language rights are treated as political compromise rights.

This new view is a troubling one, not merely because it is, as we shall argue, unsatisfactory as a piece of legal reasoning, but also because the Court's division of the Charter into rights deserving a generous interpretation and those to be interpreted restrictively, is general in character, threatening to affect more than just language rights. We argue that this division between rights cannot be drawn in a plausible way and that it does not support the interpretative consequences which the Court draws from it.