Memo, Differences Between the Old and New Constitutional Resolution (November 1981)

Differences Between the Old and New Constitutional Resolution

I – The Charter of Rights

The Charter of Rights in the new Resolution is the same as in the Resolution previously before Parliament with two exceptions.

Mobility

The new section 6(4) which results from the accord signed by the Prime Minister and nine Premiers provides that despite general mobility rights, provinces with below-average employment may take special measures favoring their own residents who are seeking work.

The Over-ride Clause

There is a new provision in the Charter which enables Parliament or provincial legislatures in certain circumstances to over-ride sections of the Charter. The over-ride clause requires that a law state specifically that all or part of it applies notwithstanding a particular section of the Charter. Such a law automatically expires after five years unless specifically renewed by a legislature. It should be clear that an over-ride is very different from a general opting-out provision. No province can opt out of the Charter of Rights.

The over-ride clause does not apply to Section 28 of the Charter which provides that “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

The concept of an over-ride clause is not new in Canada. Experience has demonstrated that such a clause is rarely used, and, when used, is usually non-controversial. The Alberta Bill of Rights was enacted in 1972 and includes an over-ride clause. The Saskatchewan Human Rights Code of 1979 also has an over-ride provision. Neither has ever been used.

The Canadian Bill of Rights enacted in 1960 by Mr. Diefenbaker also contains an over-ride provision. In twenty years, the only time it has ever been used was in the Public Order Temporary Measures Act enacted in November 1970 after the October Crisis of that year. But the regulations under that Act which derogated from the Canadian Bill of Rights expired less than six months later on April 30, 1971.

The Quebec Charter of Rights and Freedoms adopted in 1975 contains an over-ride clause which has been used several times. However, its use has been non-controversial.

II – Quebec

In order to meet concerns arising out of the Accord, two major changes have been made.

Fiscal Compensation

Section 39 provides that in the case of a constitutional amendment transferring jurisdiction over education and other cultural matters from the provinces to the Federal level, fiscal compensation will be given to any province which opts out of the amendment. This means that Quebec would not be penalized financially for refusing any such amendment to the Constitution.

Minority Language Education Rights

The new Resolution provides that a Canadian citizen educated in Canada in English may send his or her children to school in English in Quebec. In addition, a Canadian citizen who has a child in school in English in Canada may continue to send any of his children to school in English if he or she moves to Quebec. This is what is meant by the Canada Clause.

However, the provisions in Section 23 that a Canadian citizen who was not educated in English in Canada but whose mother tongue is English may send his or her children to school in English in Quebec is made subject to the approval of the Quebec government or legislature. This change meets the request of the Quebec Federal Liberal caucus and the Quebec Liberal Party.

Because many francophones outside of Quebec never had access to French schools because of a lack of facilities, the nine other provinces have agreed that any Canadian citizen whose mother tongue is French will be entitled to send his or her children to school in French.

III – Native Peoples

There is no change in the provision of Section 25 of the Charter of Rights which states that nothing in the Charter shall be construed so as “to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the original peoples of Canada.” This means that the mention of aboriginal rights remains in the new Constitutional Resolution.

However, the old Section 34, which was not part of the Charter of Rights, which recognized and affirmed the aboriginal and treaty rights of the native peoples is not in the new Resolution. Instead, there is a requirement in Section 36 that a constitutional conference be held within a year which “shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of these people to be included in the Constitution of Canada.”

IV – The Amending Formula

The original Resolution provided for continuing discussion among governments on an amending formula during an interim period of two years. The interim period provision of the original Resolution is dropped in the new Resolution.

A new amending formula comes into effect immediately. In essence, it is the formula put forward in April by eight provincial Premiers. The formula contains all of the proposals of the eight Premiers except the provision on financial compensation in the case of opting out and interdelegation of legislative authority.

The amending formula will require the consent of Parliament and of seven provincial legislatures representing at least 50% of the population. If, however, an amendment takes away provincial powers, privileges, or proprietary rights, the amendment will not apply in a province whose legislature has expressed its dissent.

For a few matters, including the monarchy, certain language rights, and the composition of the Supreme Court, the consent of Parliament and all the legislatures will be required for amendment.

In addition, the formula provides for a suspensive veto of 180 days for the Senate. It does not provide for a referendum procedure in the case of deadlock.

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