Document Information

Date: 1980-11-12
By: Department of Justice, Canada
Citation: [Department of Justice?], [Loose Drafts] (12 November 1981).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

November 12, 1981

Compensation

38.1 (1) Where an amendment is made under subsection 37(1) that transfers legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province the legislative assembly of which does not authorize the amendment, taking into account the per capita costs to Canada of exercising those powers in the provinces the legislative assemblies of which have authorized the amendment.

(2) Where an amendment is made under subsection 37(1) that transfers legislative powers other than those referred to in subsection (1) from provincial legislatures to Parliament and the legislative assembly of any province does not authorize the amendment, the issue of whether or not Canada should provide compensation to the province shall be included in the agenda of the next conference composed of the Prime Minister of Canada and the first ministers of the provinces convened by the Prime Minister of Canada.

OR

Section 36

(2.1) The conference convened under subsection (1) shall have included in its agenda an item relating to the issue of whether or not Canada should provide compensation to any province the legislative asembly of which does not authorize an amendment made under subsection 37(1) that transfers legislative powers other than those referred to in subsection 38.1(1) from provincial legislatures to Parliament.

November 12, 1981

Option I – Population Percentage

34. (1) The legislature of a province may expressly declare in an Act of the legislature that the Act or a provision thereof shall operate notwithstanding subsections 6(2) and (3), subsection 23(1) or subsection 23(2) of this Charter, or all those subsections, where

(a) the percentage that the population of the province whose first language learned and still understood is that of the English or French linguistic majority, as determined by the most recent general census, is of the total population of the province, as determined by that census, has decreased by at least five per cent from

(b) the percentage that the linguistic majority population of the province, as determined by the general census of the population of Canada required to be taken in 1981,was of the total population of the province, as determined by that census.

(2) An Act or a provision of an Act in respect of which a declaration is made under subsection (1) shall come into force no earlier than three months after the Act has been assented to.

(3) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration, but only in respect of individuals who have become residents of the province after the Act or provision thereof comes into force.

(4) A declaration made under subsection (1) shall cease to have effect six months after the publication of the results of the next general census, taken no earlier than five years after the previous general census, or on such earlier date as may be specified in the declaration.

(5) The legislature of a province may re-enact a declaration made under subsection (1) where the condition set out in that subsection is met.

(6) Subsection (4) applies in respect of a re-enactment made under subsection (5).

November 12, 1981

Option II – School Population Percentage

34. (1) The legislature of a province may expressly declare in an Act of the legislature that the Act or a provision thereof shall operate notwithstanding subsections 6(2) and (3), subsection 23(1) or subsection 23(2) of this Charter, or all those subsections, where

(a) the percentage that the primary and secondary school population of the province that receives its instruction in the language of the English or French linguistic majority is of the total primary and secondary school population of the province has decreased by at least five per cent from

(b) the percentage that the primary and secondary school population of the province that received its instruction in the language of the English or French majority on January 1, 1982 was of the total primary and secondary school population of the province on that day.

(2) An Act or a provision of an Act in respect of which a declaration is made under subsection (1) shall come into force no earlier than three months after the Act has been assented to.

(3) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration, but only in respect of individuals who have become residents of the province after the Act or provision thereof comes into force.

(4) A declaration made under subsection (1) shall cease to have effect five years after it come into force or on such earlier day as may be specified in the declaration.

(5) The legislature of a province may re-enact a declaration made under subsection (1) where the condition set out in that subsection is met.

(6) Subsection (4) applies in respect of a re-enactment made under subsection (5).

November 12, 1981

Option III – Majority Substantially Altered

34. (1) The legislature of a province may expressly declare in an Act of the legislature that the Act or a provision thereof shall operate notwithstanding subsections 6(2) and (3), subsection 23(1) or subsection 23(2) of this Charter, or all those subsections, where the exercise of any of the rights referred to in those subsections would substantially alter the linguistic equilibrium of the English and French linguistic populations in that province.

(2) An Act or a provision of an Act in respect of which a declaration is made under subsection (1) shall come into force no earlier than three months after the Act has been assented to.

(3) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration, but only in respect of individuals who have become residents of the province after the Act or provision thereof comes into force.

(4) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier day as may be specified in the declaration.

(5) The legislature of a province may re-enact a declaration made under subsection (1) where the condition set out in that subsection is met.

(6) Subsection (4) applies in respect of a re-enactment made under subsection (5).

November 12, 1981

Option IV – Majority Declared by Legislature to be Altered

34. (1) The legislature of a province may expressly declare in an Act of the legislature that the Act or a provision thereof shall operate notwithstanding subsections 6(2) and (3), subsection 23(1) or subsection 23(2) of this Charter, or all those subsections.

(2) A legislature may make a declaration under subsection (1) only if the declaration is approved by the votes of two thirds of its members.

(3) An Act or a provision of an Act in respect of which a declaration is made under subsection (1) shall come into force no earlier than three months after the Act has been assented to.

(4) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration, but only in respect of individuals who have become residents of the province after the Act or provision thereof comes into force.

(5) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier day as may be specified in the declaration.

(6) The legislature of a province may re-enact a declaration made under subsection (1) where the condition set out in that subsection is met.

(7) Subsections (2) and (5) apply in respect of a re-enactment made under subsection (6).

VARIANTE I – POURCENTAGE DE LA POPULATION

34. (1) La législature d’une province peut adopter une loi où il est déclaré que celle-ci ou une de ses dispositions a effet indépendamment des paragraphes 6(2) et (3), du paragraphe 23(1) ou du paragraphe 23(2) de la présente charte ou de tous ces paragraphes dans le cas où le pourcentage, par rapport à la population totale de la province, des habitants dont la première langue apprise et encore comprise est celle de la majorité francophone ou anglophone selon le recensement général le plus récent a diminué d’au moins cinq pour cent selon le recensement général de 1981.

(2) La loi ou la disposition qui fait l’objet de la déclaration ne peut entrer en vigueur qu’à compter de trois mois suivant sa sanction.

(3) La loi ou la disposition qui fait l’objet de la déclaration visée au paragraphe (1) n’a l’effet qu’elle aurait sans l’application de la disposition en cause de la charte qu’à l’égard des individus qui sont venus s’installer dans la province après l’entrée en vigueur de cette loi ou de cette disposition.

(4) La déclaration visée au paragraphe (1) cesse d’avoir effet six mois après la publication des résultats du recensement général qui suit de cinq ans au moins le recensement qui est à l’origine de celle-ci ou à la date antérieure qui est précisée dans la déclaration.

(5) La législature d’une province peut adopter de nouveau une déclaration visée au paragraphe (1) si les conditions énoncées à ce paragraphe continuent à s’appliquer.

(6) Les paragraphes (3) et (4) s’appliquent à toute déclaration adoptée sous le régime du paragraphe (5).