Consolidation of Proposed Amendments to the Proposed Resolution Respecting the Constitution of Canada (19 December 1980)

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Date: 1980-12-19
By: Government of Canada
Citation: Consolidation of Proposed Amendments to the Proposed Resolution Respecting the Constitution of Canada (19 December 1980).
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SCHEDULE B

CONSTITUTION ACT, 1981

PART I

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Guarantee of Rights and Freedoms

 “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as are [can be] demonstrably justifiable [ed] in a free and democratic  society.

Fundamental Freedoms

  1. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of information;

(c) freedom of peaceful assembly; and

(d) freedom of association

Democratic Rights

3. Every citizen of Canada has, without unreasonable distinction or limitation, the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search and seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed promptly of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Anyone charged with an offence has the right

(a) to be informed promptly of the specific offence;

(b) to be tired within a reasonable time;

(c) not to be compelled to testify against oneself in proceedings in respect of the charge;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(f) except in the case of an offence under military law, to the benefit of trial by jury where the maximum punishment for the offence of which the person has been charged is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission that at the time of the act or omission did not constitute an offence under Canadian or international law;

(h) not to be tried or punished more than once for an offence of which the person has, in Canada, been finally convicted or acquitted; and

(i) to the benefit of the lesser punishment where the punishment for an offence of which the person has been convicted has been varied between the time of commission and the time of sentencing.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used against that witness in any other proceedings, except a prosecution for perjury or for the giving of contradictory evidence.

14. A party or witness in any proceedings who does not understand or speak the language in which the proceeding are conducted has the right to the assistance of an interpreter.

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on sex, race, national or ethnic origin, colour, religion or age.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of the disadvantaged individuals or groups including those that are disadvantaged because of sex, race, national or ethnic origin, colour, religion or age.

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.

(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.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to extend the status or use of English and French or either of those languages

17. (1) Everyone has the right to use English and French in any debates and other proceedings of Parliament.

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

18. (1) The statues, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by the legislature of New Brunswick.

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where

(a) there is a significant demand for communications with and services from that office in both English and French; or

(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

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.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed before or after the coming into force of this Charter with respect to any language that is not English or French.

Minority Language Educational Rights

23.(1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of that province in which they reside, or

(b) who have received their primary school instruction anywhere in Canada in the language, whether English or French, of the linguistic minority population of the province in which they reside,

have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) Citizens of Canada of whom one child has received primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

(3) The right of citizens of Canada under this section to have their children receive primary and secondary school instruction in the language of the English and French linguistic minority population of a province applied where the number of children of citizens who have such a right is sufficient to warrant the provision out of public funds of minority language instructions.

24. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of

(a) any aboriginal, treaty or other rights or freedoms that may pertain to the aboriginal peoples of Canada including any right or freedom that may have been acquired by virtue of the Royal Proclamation of October 7, 1763; or

(b) any other rights or freedoms that may exist in Canada.

General

25. Where no other effective remedy is provided for by law, anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied has the right (May) to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

26. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians

27. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

28. Nothing in this Charter extends the legislative powers of any body or authority.

Application of Charter

29.(1) This Charter applies

(a) to the Parliament and government of Canada and to all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province and to all matters within the authority of the legislature of each province.

(2) Notwithstanding subsection (1), section 15 shall not have application until three years after this Act, except Part V, comes into force.

Citation

30. This Part may be cited as the Canadian Charter of Rights and Freedoms.

Part II

Equalization and Regional Disparities

 

Commitment to promote equal opportunities.

  1. (1) Without altering the legislative authority of parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to
  2. a) promoting equal opportunities for the well-being of Canadians;
  3. b) furthering economic development to reduce disparity in opportunities; and
  4. c) providing essential public services of reasonable quality to all Canadians

(2) Parliament and the government of Canada are committed to taking such measures as are appropriate to ensure that provinces are able to provide the essential public services referred to in paragraph (1)(c) without imposing an undue burden of provincial taxation.

 

Part III

Constitutional Conferences

Constitutional conferences

  1. Until Part V comes into force, a constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada at least once in every year unless, in any year, a majority of those composing the conference decide that it shall not be held.

 

Part IV

Interim Amending Procedure and Rules for its Replacement

Interim procedure for amending the Constitution of Canada

  1. Until Part V comes into force, an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and by the legislative assembly or government for each province.

Amendment of provisions relating to some but not all provinces

  1. Until Part V comes into force, an amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and by the legislative assembly or government of each province to which the amendment applies.

Rules applicable to amendment procedures Idem

  1. (1) The procedures for amendment described in sections 33 and 34 may be initiated either by the Senate or House of Commons or by the legislative assembly or government of a province.

(2) A resolution made or other authorization given for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.

Limitations on use of interim amending procedure

  1. Sections 33 and 34 do not apply to an amendment to the Constitution of Canada where there is another provision in the Constitution for making the amendment, but the procedure prescribed by section 33 shall be used to amend the Canadian Charter of Rights and Freedoms and any provision for amending the Constitution, including this section, and may be used in making a general consolidation and revision of the Constitution

Coming into force of Part V

  1. Part V shall come into force
  2. a) with or without amendment, on such day as may be fixed by proclamation issued pursuant to the procedure prescribed by section 33, or
  3. b) on the day that is two years after the day this Act, except Part V, comes into force, whichever is the earlier day but, if a referendum is required to be held under subsection 38(3), Part V shall come into force as provided in section 39.

Provincial alternatives procedures

  1. (1) The legislative assemblies of seven or more provinces that have, according to the then latest general census, combined populations of at least eighty per cent of the population of all the provinces may make a single proposal to substitute for paragraph 41(1)(b) such alternative as they consider appropriate.
  2. (1) This amendment would decrease from eight to seven the number of provinces that must agree on an alternative amendment formula in order to bring about a referendum on the amendment procedure. The revised subsection (1) would also necessitate approval of any such alternative by the legislature of a province since the reference to approval by a provincial government would be deleted.

[Pages 16-21 are out of order. The following is page 22, pages 16-21 to follow]

 

Amendments without Senate resolution

  1. (1) An amendment to the Constitution of Canada, may be made by proclamation under subsection 41(1) or section 43, as appropriate, without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the passage by the House of Commons of a resolution authorizing its issue, the Senate has not passed such a resolution and if, at any time after the expiration of those one hundred and eighty days, the House of Commons again passes the resolution.
  2. (1) This amendment would limit the authority of the House of Commons and the provinces to amend the Constitution without Senate approval to amendments other than those relating to important institutions of state. (see subsection 51(1) and the explanatory note thereto.) The revised subsection (1) would also add the words “as appropriate” to indicate that the reference to subsection 41(1) or section 43 is not a simple alternative. Furthermore, the amendment would increase from 90 to 180 days, the period for the Senate consideration of an amendment.

Computation of period

(2) Any period when Parliament is a prorogued or dissolved shall not be counted in computing the one hundred and eighty days period referred to in subsection (1).

(2) Technical. Section 44 would be divided into two subsections to facilitate reading.

Rules applicable to amendment procedures

  1. (1) the procedures for amendment described in subsection 41(1) and section 43 may be initiated either by the Senate or House of Commons or by the legislative assembly of a province.

[Start of page 16]

Procedure for perfecting alternative

  1. (2) One copy of an alternative proposed under subsection (1) may be deposited with the chief Electoral Officer of Canada by each proposing province within two years after this Act, except Part V, comes into force but, prior to the expiration of that period, any province that has deposed a copy may withdraw that copy.

Referendum

(3) Where copies of an alternative have been deposited as provided by subsection (2) and, on that day that is two years after this Act, except Part V, comes into force, at least seven copies remain deposited by provinces that have, according to the then latest general census, combined populations of at least eighty per cent of the population of all the provinces, the government of Canada shall cause a referendum to be held within two years after that day to determine whether

  1. a) paragraph 41(1)(b) or any alternative thereto approved by Parliament and deposited with the Chief Electoral Officer at least ninety days prior to the day on which the referendum is held, or

(b) the alternative proposed by the provinces, shall be adopted.

(3) This amendment would parallel the amendment to subsection (1) by requiring amendment procedure be approved by Parliament rather than the government of Canada. It also contains a change in number from eight to seven consequential on the amendment to subsection (1) and a technical change in terminology for consistency of expression.

 

Coming into force of Part V where Referendum held

  1. Where a referendum is held under subsection 38(1), a proclamation under the Great Seal of Canada shall be issued within six months after the date of the referendum bringing Part V into force with such modification, if any, as are necessary to incorporate the proposal approved by a majority of the persons voting at the referendum and with such other changes as are reasonably consequential on the incorporation of that proposal.

Right to Vote

40 (1) Every citizen of Canada has, without unreasonable distinction or limitation, the right to vote in a referendum held under subsection 38(3).

  1. (1) This is the present subsection 40(2).

Establishment of Referendum Rules Commission

(2) If a referendum is required to be held under subsection 38(3), a referendum Rules Commission shall forthwith be established consisting of

  1. a) the Chief Electoral Officer of Canada, who shall be chairman of the Commission;
  2. b) a person appointed by the Governor General in Council; and
  3. c) a person appointed by the Governor General in Council
  4. i) on the recommendation of the governments of a majority of provinces, or
  5. ii) if the governments of a majority of provinces do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of the first mentioned thirty days period or, if none are so recommended, from among such persons as the Chief Justice considers fit.

(2) New. This subsection would provide for the establishment of an advisory committee, to be called a Referendum Rules Commission, consisting of the Chief Electoral Officer as chairman and two other persons, one to represent the provinces and the other to represent the government of Canada. The present subsection (1), as amended, would become subsection (4)

Duty of Commission

(3) A referendum Rules Commission shall, within sixty days after it is established, by majority decision recommend to Parliament rules for the holding of a referendum under subsection 38(3)

(3) New. The Referendum Rules Commission would be required to recommend rules to Parliament within sixty days after its establishment.

Rules for referendum

(4) Subject to subsection (1) and upon consideration of any recommendations made by a Referendum Rules Commission in accordance with subsection (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under subsection 38(3).

(4) This subsection would amend the present subsection (1) to require Parliament to consider the recommendations of the Referendum Rules Commission before enacting rules for a referendum.

Proclamation

(5) If Parliament does not enact rules applicable to the holding of a referendum within ninety days after receipt of a recommendation from a referendum Rules Commission under subsection (4), a proclamation shall forthwith be issued by the Governor General under the Great Seal of Canada bring the rules recommended by the Commission into force.

(5) New. The rules recommended by a Referendum Rules Commission would come into force on proclamation if Parliament does not enact rules under subsection (4) within ninety days after the receipt of the Report of the Commission

(Query: Is 90 days an appropriate period for action by Parliament?)

Computation of Period

(6). Any period when Parliament is prorogued or dissolved shall not be counted in computing the ninety day period referred to in subsection (4).

(6) New. This provision would exclude from the computation of the time for Parliament to act any period when Parliament is prorogued or dissolved.

Rules to have force of law.

(7) Subject to subsection (1), rules made under this section have the force of law and prevail over other laws made under the Constitution of Canada to the extent of any inconsistency.

(7) New. This subsection states the legal effects of rules made under section 40.

 

Part V

Procedure for Amending Constitution of Canada

General Procedure for amending Constitution of Canada

  1. (1) An amendment to the Constitution of Canada made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
  2. a) Resolutions of the Senate and House of Commons; and
  3. b) Resolutions of the legislative assemblies of at least a majority of the provinces that includes
  4. i) every province that at any time before the issue of the proclamation had, according to any previous general census, a population of at least twenty-five per cent of the population of at least twenty-five per cent of the population of Canada,
  5. ii) two or more of the Atlantic provinces, and

iii) two or more of the Western provinces that have in the aggregate, according to the then latest general census a combined population of at least fifty per cent of the population of all the Western Provinces.

  1. (1) This amendment would delete the requirement that an amendment to the Constitution be approved by provinces having at least fifty per cent of the population of the Atlantic provinces. As amended, subsection 41(1) reflects the Victoria formula. Some minor changes in terminology would also be made in subparagraph (b) (i) and (ii) to remove a possibly ambiguity.

Definitions “Atlantic provinces”

(2) In this section, “Atlantic provinces” means the provinces of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland;

“Western Provinces”

“Western provinces” means the provinces of Manitoba, British Columbia, Saskatchewan and Alberta.

 

Amendment authorized by referendum.

  1. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by a referendum held throughout Canada under subsection (2) at which the making of the amendment has been approved by
  2. a) a majority of persons voting thereat, and
  3. b) a majority of persons voting thereat in each of the provinces, resolutions of the legislative assemblies of which would be sufficient, together with resolutions of the Senate and House of Commons, to authorize the issue of a proclamation under subsection 41(1).
  4. (1) Technical. The position of the underlined words in the English text would be changed to facilitate reading.

Authorization of referendum

(2) A referendum referred to in subsection (1) shall be held where directed by proclamation issued by the Governor General under the Great Seal of Canada, which proclamation may be issued where

  1. a) an amendment to the Constitution of Canada has been authorized under paragraph 41(1)(a) by resolutions of the Senate and House of Commons;
  2. b) the requirements of paragraph 41(1)(b) in respect of the proposed amendment have not been satisfied within twelve months after the passage of the resolutions of the Senate and House of Commons; and
  3. c) the issue of the proclamation has been authorized by the Governor General in Council.

(2) This amendment would make it clear that the referendum procedure is a deadlock breaking mechanism. A referendum could be held where an amendment to the Constitution has been approved by the Senate and House of Commons but, within twelve months after such approval, the provinces have not approved the amendment.

Time limit for referendum

(3) A proclamation issued under subsection (2) in respect of a referendum shall provide for the referendum to be held within two years after the expiration of the twelve month period referred to in paragraph (b) of that subsection.

(3) If a referendum is to be held, it would be required to be held after the expiration of the period for the provincial approval but within three years of approval of the amendment by the Senate and House of Commons.

Amendment of provisions relating to some but not all provinces.

  1. An amendment to the Constitution of Canada in relation to any provision that applied to one or more, but not all, provinces may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolution of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

Amendments without Senate Resolution

  1. (1) An amendment to the Constititon of Canada, other than an amendment in relation to a matter referred to in subsection 51(1), may be made by proclamation under subsection 41(1) or section 43 as appropriate, without a resolution of the Senate authorizing the issue of the proclamation if, within ninety days after the passage by the House of Commons of a resolution authorizing its issue, the Senate has not passed such a resolution and if, at any time after the expiration of those ninety days, the House of Commons again passes the resolution.

44 (1). This amendment would limit the authority of the House of Commons and the provinces to amend the Constitution without Senate approval to amendments other than those relating to important institutions of state. (See subsection 51(1) and the explanatory note thereto.) The revised subsection (1) would also add the words “as appropriate” to indicate that the reference to subsection 41(1) or section 43 is not a simple alternative.

Computation of period

(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the ninety day period referred to in subsection (1).

(2) Technical. Section 44 would be dived into two subsections to facilitate reading.

Rules applicable to amending procedures

  1. (1) The proceduers for amendment described in subsection 41(1) and section 43 may be initiated either by the Senate or House of Commons or by the legislative assembly of a province.

Idem

(2) A resolution made for the purpose of this Part may be revoked at any time before the issue of a proclamation authorized by it.

Right to vote

  1. (1) Every citizen of Canada has, without unreasonable distinction or limitation, the right to vote in a referendum held under section 42.
  2. (1) This is the present subsection 46(2)

Establishment of the Referendum Rules Commission

(2) Where a referendum is to be held under section 42, a Referendum Rules Commission shall forthwith be established consisting of

  1. a) the chief Electoral Officer of Canada, who shall be chairman of the Commission;
  2. b) a person appointed by the Governor General in Council, and;
  3. c) a person appointed by the Governor General in Council
  4. i) on the recommendation of the governments of a majority of provinces, or
  5. ii) if the governments of a majority of provinces do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of the first mentioned thirty day period or, if none are so recommended, from among such persons as the Chief Justice considers fit.

(2) New. This subsection would provide for the establishment of an advisory commission, to be called a Referendum Rules Commission, consisting of the Chief Electoral Officer as chairman and two other persons, one to represent the provinces and the other to represent the government of Canada. The present subsection (1), as amended, would become subsection (4).

Duty of commission

(3) A Referendum Rules Commission shall, within sixty days after it is established, by majority decision recommended to Parliament rules for the holding of a referendum under section 42.

(3) New. The Referendum Rules Commission would be required to recommend rules to Parliament within sixty days after its establishment.

Rules for referendum

(4) Subsect to subsection (1) and upon consideration of any recommendation made by a Referendum Rules Commission in accordance with subsection (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under section 42.

(4) This subsection would amend the present subsection (1) to require Parliament to consider the recommendations of the Referendum Rules Commission before enacting rules for a referendum.

Proclamation

(5) If Parliament does not enact rules applicable to the holding for a referendum within ninety days after receipt of a recommendation from a Referendum Rules Commission under subsection (4), a proclamation shall forthwith be issued by the Governor General under the Great Seal of Canada bring the rules recommended by the Commission into force.

(5) New. The rules recommended by a Referendum Rules Commission would come into force on proclamation if Parliament does not enact rules under subsection (4) within ninety days after the receipt of the Report of the Commission.

Computation of Period

(6) any period when Parliament is prorogued or dissolved shall not be counted in computing the ninety day period referred to in subsection (4).

(6) New. This provision would exclude from the computation of the time for Parliament to act any period when Parliament is prorogued or dissolved.

Rules to have force of law

(7) Subject to subsection (1), rules made under this section have the force of law and prevail over other laws made under the Constitution of Canada to the extent of any inconsistency.

(7) New. This subsection states the legal effect of rules made under section 46.

Limitation on use of general amending procedure

  1. (1) The procedures prescribed by section 41, 41, or 43 do not apply to an amendment to the Constitution of Canada where there is another provision in the Constitution for making the amendment, but the procedures prescribed by section 41 or 42 shall, nevertheless, be sued to amend any provision for amending the Constitution.
  2. Section 47 would be divided into two subsections to make it clear that the general amending procedure or referendum procedure could not be used to amend a provision of the Constitution relating to one or more but not all provinces without the consent of the provinces to which the provision relates. The deletion of the reference to a revision or consolidation would ensure that amendments could not be made in the context of a general revision that could not otherwise be made.

Idem

(2) The procedures prescribed by section 41 or 42 do not apply in respect of an amendment referred to in section 43.

Amendments by the provincial legislatures

  1. Subject to sections 50 and 51, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate or House of Commons.

(Query: Should the words “including this section” be deleted in view of the decision to have only two subsection in section 47.)

  1. This amendment is consequential on the proposed amendment dividing section 50 into two subsections.

Amendments by the provincial legislatures

  1. Subject to sections 50 and 51, the legislature of each province may exclusively make laws amending the constitution of the province.
  2. This amendment is consequential on the proposed amendment dividing section 50 into two subsections.

Matters requiring amendment under general amending procedure

  1. An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with a procedure prescribed by section 41 or 42;

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province; and

(b) the bicameral structure of Parliament

  1. Section 50 would be divided into two sections, section 50 and 51. Section 50 would provide that amendments to the Constitution relating to the important institutions of state, the Queen, the Governor General, the Lieutenant Governors and the bicameral structure of Parliament could be made only pursuant to the general amending procedure or a referendum. Such amendments could only be made with the approval of the Senate.
  2. An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with a procedure prescribed by section 41, as modified by section 44 or by section 42.

(a) The Canadian Charter of Rights and Freedoms;

(b) the commitments relating to equalization and regional disparities set out in section 31;

(c) the powers of the Senate;

(d) the number of members by which a province is entitled to be represented in the Senate, the method of selecting Senators, and the residence qualifications of Senators;

(e) 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; and

(f) the principles of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada.

  1. Section 51 is the present section 50 revised to delete the matters that would be provided for in the proposed section 50, to include in the matters to be amended pursuant to the general amending formula, “the method of selecting Senators” and to provide that amendments referred to in section 51 my by made without the consent of the Senate.

(Note: Sections 50 and 51 are subject to further consultations)

 

Consequential amendments

  1. Class 1 of section 91 and class 1 of section 91 of the Constitution Act, 1867 (formerly names the British North America Act, 1867), the British North America Act (No. 2) Act, 1949, referred to in item 22 of Schedule I of this Act and Parts III and IV of this Act are repealed.
  2. This change in numbering is consequential on an amendment to Schedule I. See item 3 of the Schedule.

 

PART VI

AMENDMENT TO THE CONSTITUTION ACT, 1867

Amendment to Constitution Act, 1867

  1. (1) The Constitution Act, 1867 (formerly names the British North America Act, 1867) is amended by adding thereto, immediately after section 92 thereof, the following heading and section:
  2. This amendment would add to the British North America Act, 1867 a new provision detailing federal and provincial legislative powers in respect of non-renewable natural resources, forestry resources and electrical resources as follows:

 

“Non-renewable Natural Resources, Forestry Resources and Electrical Energy”

Laws Respecting non-renewable resources, forestry resources and electrical energy

92A. (1) In each province the legislature may exclusively make laws in relation to

  • Exploration for non-renewable natural resources in the province;
  • Development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
  • Development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

92A. (1) Subsection (1) would give to the provinces new exclusive legislative authority in respect of certain aspects of the natural resources referred to above.

Export from provinces of resources

(2) In each province the legislature may make laws in relation to the export from the province to another part of Canada of the primary production form non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(2) Subsection (2) would enable the provinces to enact laws in respect of interprovincial trade in production from the resources referred to above with certain specific limitations.

Authority of Parliament

(3) Nothing in sub section (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

(3) Laws of Parliament would prevail over laws made by a province under subsection (2).

 

Taxation of resources

(4) In each province the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect  of

(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and

(b) sites and facilities in the province for the generation of electrical energy  and the production therefrom, whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

(4) This subsection would give to provinces a new taxing power in respect of the natural resources referred to above.

 

Primary production

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule

(5) The Enactment of the definitions in a Schedule would avoid placing unnecessary details in the main body of the British North America Act.

 

Existing powers or rights

(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section

(6) this subsection would ensure that existing provincial powers are preserved.

 

Idem

  1. The said Act is further amended by adding thereto the following Schedule:
  2. The Schedule would contain a definition of primary production.

 

“THE SIXTH SCHEDULE

PRIMARY PRODCTION FROM NON-RENEWABLE RESOURCES AND FORESTRY RESOURCES

 

  1. For the purposes of section 92A of this Act,
  • Production from a non-renewable resource is primary production therefrom if
  • It is in the form in which it exists upon its recovery or severance from its natural state, or
  • It is a product resulting from processing or refining the resource and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude oil; and
  • Production form a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood production or wood pulp, and is not a product manufactured from wood.”

 

PART VII

General

 

Primacy of Constitution of Canada

  1. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provision of the Constitution is, to the extent of the inconsistency, of no force or effect.
  2. Subsection (1) is the present section 25 amended to make it clear that laws inconsistent with any part of the Constitution, not only the Charter, are, to the extent of the inconsistency, of not force of effect. Subsections (2) and (3) are the present subsections 52(1) and (2).

 

Constitution of Canada

(2) The Constitution of Canada includes

(a) the Canada Act;

(b) the Acts and orders referred to in Schedule I; and

(c) any amendment to any Act or order referred to in paragraph (a) or (b).

 

Amendments to Constitution of Canada

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

 

Repeals and New names

  1. (1) The enactments referred to in Column I of Schedule I are hereby repealed, or amended to the extent indicated in Column II thereof, and, unless repealed, shall continue as law in Canada under the names set out in Column III thereof.

 

Consequential amendments

(2) Every enactments, except the Canada Act, that refers to an enactment referred to in Schedule I by the name in Column I thereof is hereby amended by substituted for that name the corresponding name in Column III thereof, and any British North America Act not referred to in Schedule I may be cited as the Constitution Act followed by the year and number, if any, of its enactment.

 

French version of Constitution of Canada

  1. A French version of the portions of the Constitution of Canada referred to in Schedule I shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provision of the Constitution of Canada.

English and French versions

  1. Where any portion of the Constitution of Canada has been or is enacted in English and French or where a French version of any portion of the Constitution is enacted pursuant to section 57, the English and French versions of that portion of the Constitution are equally authoritative
  2. Technical. Cross reference corrected to new numbering.

 

English and French versions

  1. The English and French versions of this Act are equally authoritative.

 

Commencement

  1. Subject to section 61, this Act shall come into force on a day to be fixed by proclamation issued by the Governor General under the Great Seal of Canada.
  2. Technical. Cross reference corrected to new numbering.

 

Exception respecting force amending procedure

  1. Part V shall come into force as provided in Part IV.

 

Short Title and citation

  1. This Schedule may be cited as the Constitution Act, 1980 and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1980.
  2. Technical. English marginal note revised

 

Schedule I to the CONSTITITON ACT, 1980 Modernization of the Constitution

  1. Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the union dated the 23rd day of June, 1870.
  2. The Rupert’s Land Order would be added to the Schedule to make it clear that the Order is part of the Constitution of Canada. The following items would be renumbered accordingly.

 

Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

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