Document Information

Date: 1980-09-08
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers, Report of the Continuing Committee of Ministers on the Constitution to First Ministers, Patriation and the Amending Formula, Doc 800-14 (Ottawa: 8-12 September 1980).
Other formats: On order.

DOCUMENT: 800-14
FEDERAL-PROVINCIAL CONFERENCE
OF
FIRST MINISTERS

Report of the Continuing Committee of Ministers
on the Constitution to First Ministers
PATRIATION AND THE AMENDING FORMULA
Ottawa
September 8-12, 1980

PATRIATION AND THE AMENDING FORMULA

A. AMENDING FORMULA

– Ministers generally support the basic elements of an amen-
ding formula proposal submitted by Alberta to the Conference
of First Ministers in February 1979.

-Quebec noted that while willing to consider this subject,
it believed that no decisions should be taken on it until
the discussions on the distribution of powers were successfully
completed.

-The Alberta proposal provides for general amendments to be
made with the assent of Parliament and 2/3 of the provinces
with at least 50% of the population. However, if the amend-
ment is one affecting –
a) the powers of the legislature of a province to make
laws;
b) the rights and privileges granted or secured by the
Constitution to the legislature or government of a
province;
c) the assets or property of a province; or,
d) the natural resources of a province
then up to 3 provinces can dissent from it and the amendment
will not apply to them (this procedure has been termed
“opting-out”).
Ministerial discussions disclosed two issues of substance
with regard to the Alberta formula. These issues are:
– how to deal with amendments which by their nature
must apply across Canada therefore cannot be subject
to opting-out;
– whether constitutional provision should be made for
the financial implications of amendments.
Issues for Consideration by First Ministers
1. Universal Applicability
-It was noted that a number of the items identified under“
section 8 of the Alberta draft and other items, although
relating to the rights and privileges of the legislature
of government of a province, must, by their very nature
apply across the country. The opting-out feature in
section 1(2), therefore, cannot be applied to them.
….2

-2-
Examples of such items are:
– Supreme Court of Canada
– a new upper house
– charter of rights
– use of English or French language
– section l2l
– section 125 – immunity of Crown land and property
from taxation

-with no opting out on items of this nature, the general
amending formula (2/3 of the provinces with 50% of the
population) would apply. It was suggested that:
a) some amendments would be too easy to obtain,
‘ e.g., when considered in relation to entrenched
language rights; –
b) amendments of particular concern to a province
could be made without that province’s approval,
e.g., the right of a province to a number of
members in the House of Commons not less than
the number of Senators representing the province
is of particular concern to Prince Edward Island;
amendments concerning language/culture and dualism
could be passed without Quebec’s assent.

The options considered by Ministers for resolving the problem
of how to deal with items that by their nature do not lend
themselves to the opting out process were:
a) Unanimity – provides inherent protection for »
Quebec and all others;
b) Higher population requirement – for example, 2/3
of the provinces with at least 80% of the popula-
tion of Canada – provides inherent protection for
Quebec and Ontario;
c) Quebec assent requirement – identify particular
linguistic/cultural and dualism items and require1
that Quebec be included among the 2/3 of the
provinces approving such amendments;
d) Assent of province concerned – identify items of
particular concern to a province and require that
that province be among the 2/3 of the provinces
approving such an amendment.
-Ministers suggested that one way of handing this problem
would be to identify all items that could not be subject
to opting out, and to see if they could be categorized
under some or all of the options. It was agreed that this
possible means of solution should be brought to the atten-
tion of First Ministers.
….3

-3-
2. Financial Effects
It was recognized that the formula, which permits provinces
to opt out of amendments, will result in situations-with
potential important financial implications for all governments
Three alternatives for dealing with this problem are suggested
for consideration by First Ministers:
a) add to the formula the principle that if a province
dissents from an amendment, it should not be penalized
financially compared with provinces that have approved
the amendment, or
b) add to the formula the obligation that First Ministers
or Finance Ministers review the financial implications
of any proposed amendment, or
c) make no provision constitutionally; deal with this issue
on a case-by-case basis; leave its solution to the
political process.

B. DELEGATION OF LEGISLATIVE AUTHORITY
-All governments have agreed in principle that delegation of
legislative authority should be provided for in the consti–
tution.
– Quebec, however, noted that it wishes to examine this
proposal more carefully in relation to the amending I
formula proposal which has been developed.
The major elements of such delegation are:
– it would be on a one-to-one basis (from Parliament to
any legislature, or vice versa);
– its scope should include the power to enact specific
laws, or the power to enact laws in relation to any
matters or classes of subjects.
-A best-effort draft is submitted for approval in principle
by First Ministers.
– further technical refinements to this draft may be
necessary;
– two provinces have suggested that the draft be amended
to oblige Parliament to delegate to any other province
what it has agreed to delegate to one.

BEST EFFORTS DRAFT
AMENDMENTS TO THE CONSTITUTIONS OF CANADA

1.(1)Amendments to the Constitution of Canada may from time to
time be made by proclamation issued by the Governor General
under the Great Seal of Canada when so authorized by resolu-
tions of the Senate and House of Commons and the assent by
resolution of the Legislative Assembly in two-thirds of the
provinces representing at least fifty percent of the popula-
tion of Canada according to the latest general census.
(2) Any amendment made under sub-section (l) affecting:
(a) the powers of the legislature of a province to make
laws,
(b) the rights or privileges granted or secured by the
Constitution of Canada to the legislature or the
government of a province,
(c) the assets or property of a province, or
(d) the natural resources of a province,
shall have no effect in any province whose Legislative
Assembly has expressed its dissent thereto by resolution
prior to the issue of the proclamation, until such time
as that Assembly may withdraw its dissent and approve
such amendment by resolution.
2. A proclamation shall not be issued under Section 1 before
the expiry of one year from the adoption of the resolution
initiating the amendment procedure thereunder, unless the
legislative assembly in each province has previously
adopted a resolution of assent or dissent.

3. Amendments to the Constitution.of Canada in relation to any
provision that applies to one or more, but not all, of the
Provinces including any such amendment made to provincial
A boundaries may from time to time be made by proclamation
issued by the Governor General under the Great Seal of
Canada when so authorized by resolutions of the Senate and
House of Commons and the assent by resolution of the Legis-
slative Assembly of each Province to which an amendment
applies.

4.An amendment may be made by proclamation under section 1;
3 or 9 without a resolution of the Senate authorizing the
issue of the prodlamation if within ninety days of the
passage of a resolution by the House of Commons authorizing
its issue the Senate has not passed such a resolution and
at any time after the expiration of the ninety days the
House of Commons again passes the resolution, but any
period when Parliament is prorogued or dissolved shall not
be counted in computing the ninety days.

5. The following rules apply to the procedures for amendment
described in sections l, 3 and 9

1) either of these procedures may be initiated by the
Senate or the House of Commons or the Legislative
Assembly of a Province,
2) a resolution of authorization or assent made for the purposes
of this Part may be revoked at any time before the issue of
a prolamation authorized or assented to by it,
3) a resolution of dissent made for the purposes of this Part
may be revoked at any time before or after the issue of a
proclamation.

6. The Parliament of Canada may exclusively make laws from
time to time amending the Constitution of Canada, in
relation to the executive Government of Canada and the
Senate and House Of Commons.

7. In each Province the Legislature may exclusively make laws
in relation to the amendment from time to time of the
Constitution of the Province.
8. Notwithstanding Sections 6 and 7,the following matters may
be amended only in accordance with the procedure in section I
1) the office of the Queen, of the Governor General and of
the Lieutenant-Governor,
2) the requirements of the Constitution of Canada respecting
yearly sessions of the Parliament of Canada and the Legis
tures,
3) the maximum period fixed by the Constitution of Canada ‘
for the duration of the House of Commons and the ‘
Legislative Assemblies,
4) the powers of the Senate,
5) the number of members by which a Province is entitled to
be represented in the Senate and the residence qualifica–
tions of Senators.
6) the right of a Province to a number of members in the
House of Commons not less than the number of Senators
representing the Province,
7) the principles of Proportionate representation of the
Provinces in the House of Commons prescribed by the
Constitution of Canada, and
8) the use of the English or French language.

9. 1) No amendment to section 1 of this Part, this
section, or to any provision in the Constitution
with respect to the procedure for altering pro-
vincial boundaries shall come into force unless
it is authorized in by resolutions of the Senate
and House of Commons and assented to by resolution
of the Legislative Assemblies of all the provinces.
2) The procedure prescribed in section o of this
Part may not be used to make an amendment when
there is another provision for making such
amendment in the Constitution of Canada but,
“subject to the limitations contained in subsection
(1) of this section that procedure may none-
theless be used to amend any provision for
amending the Constitution.
10. The enactments set out in the Schedule shall continue
as law in Canada and as such shall, together with this
Act, collectively be known as the Constitution of
Canada, and amendments thereto shall henceforth be
made only according to the authority contained therein.

CONFIDENTIAL
BEST EFFORTS DRAFT
DELEGATION OF LEGISLATIVE AUTHORITY

Delegation to Parliament
(1) Notwithstanding anything in the Constitution
of Canada, Parliament may make laws in relation to any
matter or Class of subjects Coming within the
legislative jurisdiction of a province.
Consent of provincial legislature
(2) No law may be enected by Parliament under sub-
section (1) unless, prior to the enactment thereof, the
legislature of at least one province has consented to the
enactment of such a law by Parliament.
Idem
(3) no law enacted under subsection (1) has effect
in any province unless the legislature of that province has
consented to the operation of such e law in that province.
Delegation to legislature of a province
(4) notwithstanding anything in the Constitution of
Canada, the legislature of a province may make laws in the
province in relation to any matter or class of
subjects coming within the legislative jurisdiction of
Parliament.
Consent of Parliament
(5) No law may be enacted by a province under sub-
section (4) unless, prior to the enactment thereof, Parliament
has consented to the enactment of such a law by the legislature
of that province.
Extent of consent
(6) A consent, given under this section may be general
or specific may relate to any law or to the enactment of
laws in relation to any matter of class of subjects and
may include the authority to amend such law or laws.
Enforcement
(7) Parliament or the legislature of a province may
make laws for enforcing any law made by it under this
section.
Revocation of consent
(8) A consent given under this section may at any
time be revoked.
Effect of revocation of consent
(9) where a consent given under subsection (3) is revo
any law made by Parliament to which the consent relates
that is operative in the province in which the consent is
revoked thereupon ceases to have effect in that province.
Idem
(10) Where a consent given under subsection (5) is
revoked, any law made by the legislature of a province
to which the consent relates thereupon ceases to have
effect.
Repeal of law by Parliament
(11) Parliament may repeal any law made by it under
this section, insofar as it is part of the law of one or
more provinces, but the repeal does not affect-the operation
of that law in any province to which the repeal does not
relate.
Repeal of law by provincial legislature
(12) The legislature of a province may appeal any
law made by it under this section.