Document Information
Date: 1980-11-16
By: Department of Justice, Canada
Citation: [Department of Justice?], [Loose Drafts] (16 November 1981).
Other formats: Click here to view the original document (PDF).
Note: This document is discussed in an article that has been recently submitted to a peer-review journal.
November 16, 1981
Fiscal compensation
Section 38.1
38.1 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 to which the amendment does not apply, taking into account the per capita costs to Canada of exercising those powers in the provinces to which the amendment applies.
Explanatory note
– When a province opts out of an amendment to the constitution transferring to Parliament a provincial legislative power, relating to education or culture, there would be a constitutional guarantee that the province “opting out” will receive a reasonable financial compensation. –
– The “reasonable compensation” will take into account the per capita costs to the government of Canada of exercising the transferred power in the provinces wherein the amendment applies.
– The compensation question will no doubt in practice be a question that would be part and parcel of the federal-provincial negotiations that would lead to a constitutional amendment.
– A financial compensation is not constitutionally guaranteed in the case of an amendment transferring a provincial legislative power to Parliament that does not relate to education or other cultural matters, but such a compensation could be agreed to by Canada.
Opting in for Québec on Section 23 (1)(a) – mother tongue test
Section 56.2
56.2 (1) Paragraph 23(1) (a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada declaring that paragraph to be in force in respect of Quebec.
(2) A proclamation under subsection (1) shall be issued only where authorized by a resolution of the legislative assembly of Quebec.
(3) This section may be repealed on the day paragraph 23 (1) (a) comes into force in respect of Quebec and this Act amended and renumbered, consequential upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.
Explanatory note
– The Canada clause (23 (1) (b)), the “mother tongue” clause (S.23 (1) (a)) and the continuity of education right (23(2)) would come in force in all provinces on proclamation – except in the case of Manitoba (which has a separate proclamation provision) and Quebec, where S.23 (1) (a) (mother tongue test) would apply only at the request of the Quebec Legislative Assembly.
Note: We would add “Subject to section 56.2″ to section 56 if this provision were added.
If we have more than one commencement date, consequential amendments will have to be made to 32(2), 36(2), 47 and 52. (Perhaps the substitution of “Part VI” for “this Act”.)
Proclamation of Section 23 in Manitoba
Section 56.1
56.1 (1) In recognition of the agreement of the government of Manitoba on November 5, 1981 that section 23 is to apply to Manitoba subject to the approval of the legislative assembly of
that province, section 23 shall come into force in respect of Manitoba on a day to be fixed by
proclamation issued by the Queen or the Governor General under the Great Seal of Canada, which day shall be no earlier than the day on which the legislative assembly of that province signifies its approval.
(1.1) Notwithstanding subsection (1), a proclamation may be issued by the Governor
General under the Great Seal of Canada proclaiming section 23 in force in respect of
Manitoba if, within three months after this Part comes into force, no resolution has been adopted by the legislative assembly of that province opposing the coming into force of section 23 in respect of that province]
(2) This section may be repealed on the day section 23 comes into force in respect of Manitoba and this Act amended and renumbered, consequential upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.
Explanatory note
– At the First Ministers conference Manitoba accepted to be bound by S.23 conditional on its acceptance by the Manitoba Legislative Assembly.
– The section recites these facts and provides for separate proclamation of the Section in Manitoba after the Manitoba Legislative Assembly has approved.
– In practice, there may well be no delay in the coming in force of Section 23 in Manitoba, if the legislature acts before patriation of the constitution is effected.
– If, as is very unlikely, the Manitoba Legislative Assembly were to refuse to pass a resolution adopting S.23, the Section could not be proclaimed in force in Manitoba, except as provided in subsection (1.1)
– Subsection (1.1) would require the Manitoba Legislative Assembly to act within 3 months of the proclamation of the constitution Act, if it wished to prevent the coming into force of Section 23 in the province.
Note: Add “subject to section 56.1” to Section 56.
Consequential amendments to 32(2), 36(2), 47 and 52 (Perhaps changing “this Act” to Part VI”).
Procedure for amendment to Section 23
Section 39
(c. 1) minority language educational rights;
– If all provinces are bound by Section 23, an amendment can be made to that Section only pursuant to S. 39(c) which provides for the unanimity rule.
– If there is an “opting in” clause for Quebec in respect of S. 23(1) (a) and until the whole of Section 23 is proclaimed in Manitoba, the unanimity rule would not apply. The rule that would apply is to be found in S. 41. It provides that an amendment to a provision that applies to one, more than one but not all provinces (in this case, S. 23), can be made with the consent of the province to which the amendment applies.
– This change would ensure that an amendment can be made only with the consent of all provinces even though all of them are not bound by the section.
Override in the case of massive migration
33.1 (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 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 population of the province, 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 population of the province whose first language learned and still understood is that of the English or French linguistic majority population of the province, as determined by the general census 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 after the declaration is made 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).
Explanatory Note
– This Section would give a province (like Québec) the power to take corrective action should there be a massive migration into the province which substantially alters the balance between the French and English in the province which exists according to the 1981 general census.
– A drop (e.g. 5%) in the percent population of the linguistic majority of the province (with 1981 as the permanent base year) is the test to decide if there was “massive migration” in the province.
– Where this happens, the province may “non obstante” mobility rights (S. 6(2) and (3)) and/or language education rights (S. 23).
– There is a 5 year renewable sunset provision on any such “non obstante but the “non obstante” can only be renewed where the 5% variation continues.
– The derogation affects only citizens that take up residence in the province after a date set out in the provincial legislation which comes in force no earlier than 3 months after the passing of the provincial Act containing the “non obstante” clause.
– The section could come into force for all provinces at once, or could initially apply only to Québec, with other provinces having a year in which to opt in.
Section 56.3
56.3 (1) Section 33.1 shall come into force in respect of Quebec pursuant to section 56.
(2) Section 33.1 shall come into force in respect of a province other than Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada declaring that section to be in force in respect of that province.
(3) A proclamation under subsection (2) shall be issued only where authorized prior to the expiration of one year after this Part comes into force by a resolution of the legislative assembly of the province to which the proclamation relates.
(4) This section is repealed one year after this Part comes into force and this Act may be amended and renumbered, consequential upon the repeal of this section, by proclamation issued by the Governor General under the Great Seal of Canada.
(5) Upon the repeal of this section, an amendment may be made to section 33.1, by proclamation issued by the Governor General under the Great Seal of Canada, specifying that that section applies to Quebec and any other province in respect of which a proclamation has been issued under subsection (2).
Note: We would add “Subject to section 56.3” to section 56 if this provision were added.
If we have more than one commencement date, consequential amendments must be made to 32(2), 36(2), 47 and 52. Perhaps the substitution of “Part VI” for “this Act”,