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Date: 1981-11-03
By: British Columbia
Citation: Federal-Provincial Conference of First Ministers on the Constitution, British Columbia Position, [Draft] Canada Act: An act to give effect to a request by the Senate and House of Commons of Canada (Ottawa: 2-5 November 1981).
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CANADA ACT

An act to give effect to a request by the Senate and House of Commons of Canada

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose.

Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

_{Constitution Act, 1981 enacted}

1. The Constitution Act, 1981 set out in Schedule B to this Act in hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act.

_{Termination of power to legislate for Canada}

2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1981 comes into force shall extend to Canada as part of its law.

_{French version}

3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof.

­_{Short title}

4. This Act may be cited as the Canada Act. [Schedule A to the Canada Act is the French version of that Act.]

SCHEDULE B

CONSTITUTION ACT, 1981

PART I

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

­_{Rights and freedoms in Canada}

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 can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

­_{Fundamental freedoms}

2. 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 communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

Democratic Rights

­_{Democratic rights of citizens}

3. Every citizen of Canada has 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.

­_{Maximum duration of legislative bodies}

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.

­_{Continuation in special circumstances}

(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

­_{Annual sitting of legislative bodies}

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

Mobility Rights

_{­Mobility of citizens}

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

_{­Rights to move and gain livelihood}

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to move to and take up residence in any province and to pursue the gaining of a livelihood in that province.

­_Limitation

(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. and
(c) Any laws [illegible] in a province while the unemployment rate in that province is above the national average rate of unemployment.

Legal Rights

­_{Life, liberty and security of person}

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 procedural fairness.

­_{Search or seizure}

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

­_{Detention or imprisonment}

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

­_{Arrest or detention}

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 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.

­_{Proceedings in criminal and penal matters}

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

­_{Treatment or punishment}

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

­_{Self-crimination}

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in 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 proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Equality Rights

­_{Equality before and under law and equal protection and benefit of law}

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 race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

_{Affirmative action programs}

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

Official Languages of Canada

­_{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.

­_{Proceedings of Parliament}

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

­_{Proceedings of New Brunswick legislature}

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

­_{Parliamentary statutes and records}

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

­_{New Brunswick statutes and records}

(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.

­_{Proceedings in courts established by Parliament}

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.

_{­Proceedings in New Brunswick courts}

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

_{­Communications by public with federal institutions}

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 such language; 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.

­_{Communications by public with New Brunswick institutions}

(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.

_{­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.

­_{Rights and privileges preserved}

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either 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

­_{Language of instruction}

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

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

­_{Continuity of language instruction}

(2) Citizens of Canada of whom any child has received or is receiving 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.

­_{Application where numbers warrant}

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Enforcement

­_{Enforcement of guaranteed rights and freedoms}

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

General

­_{Aboriginal rights and freedoms not affected by Charter}

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(а) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

_{­Other rights and freedoms not affected by Charter}

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

­_{Multicultural heritage}

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

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

­_{Rights respecting certain schools preserved}

29. 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.

­_{Application to territories and territorial authorities}

30. 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.

­_{Legislative powers not extended}

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

Application of Charter

­_{Application of Charter}

32. (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.

­_Exception

(2) Notwithstanding subsection (1), section 15 shall not have effect until the expiration of the three year period that commences on the day fixed under section 59.

Non obstante

32A. ^{[Sections 2 and 7 to 15 of this Part shall]} not apply to an Act of the Parliament of Canada or the legislature of a province which specifically provides that ^{[any or all of these sections does not apply thereto.]}

Citation

_­Citation

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

PART II

EQUALIZATION AND REGIONAL DISPARITIES

­_{Commitment to promote equal opportunities}

34. (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

(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opportunities; and
(c) providing essential public services of reasonable quality to all Canadians.

(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

PART III

PROCEDURE FOR AMENDING CONSTITUTION OF CANADA

35(1) Amendments to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada when so authorized by:

(a) resolutions of the Senate and House of Commons; and

(b) resolutions of the Legislative Assemblies of at least two-thirds of the provinces that have in the aggregate, according to the latest decennial census, at least fifty per cent of the population of all of the provinces

(2) Any amendment made under subsection (1) derogating from the legislative powers, the proprietary rights or any other rights or privileges of the Legislature or government of a province shall require a resolution supported by a vote of a majority of the Members of each of the Senate, of the House of Commons, and of the requisite number of Legislative Assemblies.

(3) Any amendment made under subsection (1) derogating form the legislative powers, the proprietary rights, or any other rights or privileges of the Legislature or government of a Province shall not have effect in any province whose Legislative Assembly has expressed its dissent thereto by resolution supported by a majority of the Members prior to the issue of the proclamation, provided, however, that Legislative Assembly, by resolution supported by a majority of the Members, may subsequently withdraw its dissent and approve the amendment.

36.(1) No proclamation shall issue under subsection 35 before the expiry of one year from the date of the passage of the resolution initiating the amendment procedure, unless the legislative assembly of every province has previously adopted a resolution of assent or dissent.

(2) No proclamation shall issue under section 35 after the expiry of three years from the date of the passage of the resolution initiating the amendment procedure.

(3) Subject to this section, the Government of Canada shall advise the Governor General to issue a proclamation forthwith upon the passage of the requisite resolution under this Part.

37. 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 alteration to boundaries between provinces or the use of the English or the French language within the province may be made only 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 the legislative assembly of every province to which the amendment applies.

38 (1) Notwithstanding sections 37, 43 and 44, an amendment to the Constitution of Canada

(a) adding a province as a province named in subsection 16(2), 17(2), 18(2), 19(2) or 20(2), or

(b) otherwise providing for any or all of the rights guaranteed or obligations imposed by any of those subsections to have application in a province to the extent and under the conditions stated in the amendment, 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 the legislative assembly of the province to which the amendment applies.

(2) The procedure for amendment prescribed by subsection (1) may be initiated only by the legislative assembly of the province to which the amendment applies.

39. An amendment to the Constitution of Canada may be made 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, after the expiration of those one hundred and eighty days, the House of Commons again passes the resolution, but any period when Parliament is dissolved shall not be counted in computing the one hundred and eighty days.

40(1) Subject to subsection 38(2), procedures for amendment may be initiated by the Senate or House of Commons or by the legislative assembly of a province.

(2) A resolution authorizing an amendment may be revoked at any time before the issue of a proclamation.

(3) A resolution of dissent may be revoked at any time before or after the issue of a proclamation.

^[NEW]

^{[in order to make it clear that an opt out equals a dissent]}

(4) A resolution of dissent relating to an amendment revokes a resolution authorizing the amendment.

(5) A resolution authorizing an amendment revokes a resolution of dissent relating to the amendment.

41. Subject to sections 43 and 44, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

42. Subject to section 43, the legislature of each province may exclusively make laws amending the constitution of the province.

43. Amendments to the Constitution of Canada in relation to the following matters may be made only 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 of the legislative assemblies of all the provinces:

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

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this provision comes into force;

(c) subject to sections 37 and 38, the use of the English or French language;

(d) the composition of the Supreme Court of Canada;

(e) an amendment to any provision under which the Constitution of Canada may be amended.

44. Amendments to the Constitution of Canada in relation to the following matters shall be made in accordance with the provisions of subsections 35(1) of this Part and subsections 35(2) and 35(3) shall not apply:

(a) the principle of proportionate representation of the provinces in the House of Commons;

(b) the powers of the Senate and the method of selection of members thereof;

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

(d) the Supreme Court of Canada, except with respect to clause (d) of section 43;

(e) the extension of existing provinces into the Territories;

(f) notwithstanding any other law or practice, the establishment of new provinces;

(g) an amendment to any of the provisions of Part III;

(h) the rights and freedoms of persons included or to be included in the Canadian Charter of Rights and Freedoms.

^{[a Sask “add in” now taken out]}

PART IV

DELEGATION OF LEGISLATIVE AUTHORITY

45. Notwithstanding anything in the Constitution of Canada, Parliament may make laws in relation to a matter coming within the legislative jurisdiction of a province, if prior to the enactment, the Legislature of at least one province has consented to the operation of such a statute in that province.

46. A statute passed pursuant to section 45 shall not have effect in any province unless the Legislature of that province has consented to its operation.

47. The Legislature of a province may make laws in the province in relation to a matter coming within the legislative jurisdiction of Parliament, if, prior to the enactment, Parliament has consented to the enactment of such a statute by the Legislature of that province. 

48. A consent given under this Part may relate to a specific statute or to all laws in relation to a particular matter.

49. A consent given under this Part may be revoked upon giving two years’ notice, and

(a) if the consent was given under section 4[illegible] any law made by Parliament to which the consent relates shall thereupon cease to have effect in the province revoking the consent, but the revocation of the consent does not affect the operation of that law in any other province;

(b) if the consent was given under section 47, any law made by the Legislature of a province to which the consent relates shall thereupon cease to have effect.

PART V

AMENDMENT TO THE CONSTITUTION ACT, 1867

­_{Amendment to Constitution Act, 1867}

50. (1) The Constitution Act, 1867 (formerly named the British North America Act, 1867) is amended by adding thereto, immediately after section 92 thereof, the following heading and section:

“Non-Renewable Natural Resources, Forestry Resources and Electrical Energy

­_{Laws respecting non-renewable natural resources, forestry resources and electrical energy}

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

(a) exploration for non-renewable natural resources in the province;
(b) 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
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

­_{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 from 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.

­_{Authority of Parliament}

(3) Nothing in subsection (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.

_{­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.

_{­“Primary production”}

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

_{­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.”

_­Idem

51. The said Act is further amended by adding thereto the following Schedule:

“THE SIXTH SCHEDULE

Primary Production from Non-Renewable Natural Resources and Forestry Resources

1. For the purposes of section 92A of this Act,

(a) production from a non-renewable natural resource is primary production therefrom if

(i) it is in the form in which it exists upon its recovery or severance from its natural state, or
(ii) 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

(b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood product, or wood pulp, and is not a product manufactured from wood.”

PART VI

GENERAL

_{­Primacy of the Constitution of Canada}

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

_{­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}

53. (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 enactment, 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 substituting 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.

54. 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 provisions of the Constitution of Canada.

55. 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 54, the English and French versions of that portion of the Constitution are equally authoritative.

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

57. 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.

58. This Schedule may be cited as the Constitution Act, 1981, and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1981.

SCHEDULE 1

to the

CONSTITUTION ACT, 1981

MODERNIZATION OF THE CONSTITUTION

SCHEDULE 1

to the

CONSTITUTION ACT, 1981—Concluded