Document Information

Date: 1981-11-12
By: Eddie Goldenberg, Government of Canada
Citation: Memorandum from Eddie Goldenberg to Roger Tassé incl. Draft Changes to the Constitutional Resolution (12 November 1981).
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Notes: For handwritten notes and comments, please view the PDF

CONFIDENTIAL

November 12, 1981

MEMORANDUM TO MR. ROGER TASSE

Re: Draft changes to the constitutional Resolution

I have the following comments on the drafts which you gave me this morning.

1)         Section 33 (2)

Would a declaration made by a Legislative Assembly be sufficient or would such a declaration be subject to a test in a Court?

What would the effect be of this section on New Brunswick?

2)         Section 38.1

This section refers to the “next conference composed of the Prime Minister of Canada and the first ministers of the provinces convened by the Prime Minister of Canada”.

Is this supposed to mean any federal-provincial conference of first ministers or should it be restricted to a constitutional conference?

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CONFIDENTIAL

3)         Section 36

The draft seems to suggest that section 36 is an alternative to section 38.1. Can it not be an addition so that section 38.1(2) would apply if no agreement is reached at the conference referred to in section 36?

4)         Section 56 (2) (3)

I have no difficulty with the drafting; however, I am concerned about the substance . It seems to me that the whole Act should be proclaimed on the same day otherwise there is an invitation to continuing controversy.

Eddie Goldenberg

November 12, 1981

Section 33

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2, sections 7 to 15 or section 28 of this Charter

(2) 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) of the Charter where the exercise of any of the rights referred to in those subsections would (seriously threaten to) substantially alter the linguistic equilibrium of the population in that province.

(3) The legislature of Quebec may expressly declare in an Act of that legislature that the Act or a provision thereof shall operate notwithstanding paragraph 23(1)(a) of the Charter.

(4) An Act or a provision of an Act in respect of which a declaration is made under subsection (1), (2) or (3) shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(5) A declaration made under subsection (1), (2) or (3) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(6) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

(7) The legislature of a province may re-enact a declaration made under subsection (2).

(8) The legislature of Quebec may re-enact a declaration made under subsection (3).

(9) Subsection (5) applies in respect of a re-enactment made under subsection (6), (7) or (8).

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 assembly 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

Section 39

(c. 1) minority language educational rights;

November 12, 1981

56. (1) Subject to subsections (2) and (3), this Act shall come into force on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) 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.

(3) Section 23 shall come into force in respect of Quebec (without amendment or with such amendment as may be agreed to by the government of Canada and the government of Quebec) on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

Note: If we have more than one commencement date, the consequential amendments will have to be made to 32(2), 36(1), 47 and 52.