Rules that Would Violate Your Freedoms or Rights were they Laws: the Constitution Act, 1982
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This page last updated on July 10, 1998.
The Constitution Act, 1982 was originally enacted as Schedule B to a British statute: the Canada Act 1982 (U.K.), 1982, c. 11. Arguably, with respect to freedom, the most important Parts of the Constitution Act, 1982 are Parts I (which is titled "Canadian Charter of Rights and Freedoms", hereinafter referred to simply as the "Charter") and VII.
Subsection 52(1) in Part VII states that: "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" (my emphasis). Thus, all other statutes, to be valid, must be consistent with the constitution, and must be made pursuant only to the legislative powers allocated to the federal Parliament and provincial Legislatures, respectively (with respect to the division of legislative powers, see the Constitution Act, 1867). Subsection 52(2) explains of what statutes the constitution of Canada is, in large part, comprised.
Generally speaking, the Charter makes a distinction between the meaning of the term "freedom" and the meaning of the term "right". The term "freedom" refers to non-interference by the state: freedoms are restrictions that are placed upon the state with respect to the use of force. For example, by providing that one has a freedom of expression (for example), the Charter is providing a guarantee (qualified sections 1 and 33 of the Charter) that the state will not use or threaten to use force against a person who expresses oneself. In contrast, the term "right" refers to obligations of the state. For example, the Charter gives everyone who has been arrested or detained the right to be informed promptly of the reasons for their arrest or detention: there is an obligation on the state to give information to the person who has been arrested or detained. That said, I would submit that those who drafted the Charter were clumsy in their use of the terms "freedom" and "right". For example, section 9 states that "Everyone has the right not to be arbitrarily detained or imprisoned". I would submit that this is a sloppy way of saying that everyone is free from arbitrary detention and imprisonment by the state. Nonetheless, the point should be relatively clear that the terms freedom and right have different meanings within the context of the Charter.
Among the most frequently referred-to rights and freedoms are those which occur under the headings "Fundamental Freedoms", "Legal Rights", and "Equality Rights". Under the heading "Fundamental Freedoms", section 2 of the Charter lists what are most clearly defined as "freedoms" guaranteed by the Charter. Included, in some shape or form, are freedoms of religion, expression, assembly, and association. Under the heading "Legal Rights", in sections 7 to 14, are listed the so-called rights (some of which, I would argue are actually freedoms) which most frequently come into play in criminal settings (e.g., the right to a lawyer; the so-called "right" not to be subjected to cruel and unusual punishment, which I would argue is actually a freedom from cruel and unusual punishment). Finally, under the heading "Equality Rights" is section 15 which essentially states, in subsection 15(1) that a law may not discriminate on the grounds of certain characteristics (e.g., sex, age, race) but states, in subsection 15(2), that a law may discriminate on those grounds if the purpose of the discrimination is to "ameliorate the conditions of disadvantaged individuals". Thus, the Charter effectively entrenches the view that there is "bad" sexism and "good" sexism, "bad" racism" and "good" racism, et cetera: everyone is equal, but some people are more equal than others.
The freedoms and rights set-out in the Charter are not unconditionally guaranteed. Specifically, the Charter has been designed so that both the Parliament/Legislatures and the courts may deny society the freedoms and rights listed in sections 2 and 7 through 15. Section 33 of the Charter, often referred to as the "notwithstanding clause", allows the federal Parliament and the provincial Legislatures to make laws that violate the freedoms and rights set out in sections 2 and 7 through 15: the Parliament or Legislature (as the case may be) is merely required to declare that the law will operate notwithstanding (i.e., despite) the fact that it violates one or more of our freedoms or rights. That said, the notwithstanding clause has rarely been used by governments in Canada. The most noteworthy exception is Quebec. In 1982, Quebec's Parti Quebecois government passed Bill 62, entitled "An Act respecting the constitution Act, 1982" (S.Q. 1982, c. 21). The effect of Bill 62 was to insert a standard form notwithstanding clause with respect to all of sections 2 and 7 though 15 in all of the province's statutes. And, even after the lapse of the five year period for the override (see section 33), the Liberal government in Quebec used the provisions of section 33 to protect the constitutionality of French-only language laws.
Section 1 of the Charter, which appears under the heading "Guarantee of Rights and Freedoms", has been the means used by the courts to declare a law constitutional even when it violates one or more of the freedoms and rights set-out in the Charter. The court has been able to uphold such laws because section 1, in effect, states that our rights and freedoms are subject to such limits as are justified in a "free and democratic society". I know of no case in which a judge has defined the phrase "free and democratic society". Instead, judges refer to what, for example, might be found or expected in a free and democratic society. In my respectful opinion, this approach does little to distinguish a free and democratic society from those which are not "free and democratic". The approach has an effect similar to that which results from stating that "All Chevy's are four wheeled vehicles" - whether or not all four-wheeled vehicles are Chevy's is left unanswered. But the absence of a stated definition for the phrase "free and democratic society" has not stopped our judges from deciding that certain violations of our freedoms and rights are justified in such a society (whatever each one of them might think it is). The effect has been that the scope of our rights and freedoms is being determined in accordance with the subjective opinions of the judges of our courts (none of whom we elect).
General Index to the Constitution Act, 1982
PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Guarantee of Rights and Freedoms
Fundamental Freedoms
PART II: RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
PART III: EQUALIZATION AND REGIONAL DISPARITIES
PART IV: CONSTITUTIONAL CONFERENCE
PART IV.1: CONSTITUTIONAL CONFERENCES
PART V: PROCEDURE FOR AMENDING CONSTITUTION OF CANADA
PART VI: AMENDMENT TO THE CONSTITUTION ACT, 1867
Constitution Act, 1982(1)
Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law:
Guarantee of Rights and Freedoms
1. Rights and freedoms in Canada. -- 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.
2. Fundamental Freedoms. -- 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 means of communication.
(c) freedom of peaceful assembly; and
(d) freedom of association.
3. Democratic rights of citizens. -- 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.
4. (1) Maximum duration of legislative bodies. -- 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.
(2) Continuation in special circumstances. -- 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.
5. Annual sitting of legislative bodies. -- There shall be a sitting of Parliament and of each legislature at least once every twelve months.
6. (1) Mobility of citizens. -- Every citizen of Canada has the right to enter, remain in, and leave Canada.
(2) Rights to move and gain livelihood. -- Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in an province; and(b) to pursue the gaining of livelihood in any province.
(3) Limitation. -- 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 present or previous residence; and(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Affirmative action programs. -- Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
7. Life, liberty and security of person. -- 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 fundamental justice.
8. Search or seizure. -- Everyone has the right to be secure against unreasonable search or seizure.
9. Detention or imprisonment. -- Everyone has the right not to be arbitrarily detained or imprisoned.
10. Arrest or detention. -- Everyone has the right on arrest or detention
(a) to be informed promptly of the reason 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.
11. Proceedings in criminal and penal matters. -- 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 a 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 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 punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Treatment or punishment. -- Everyone has the right not to be subjected to any cruel or unusual treatment or punishment.
13. Self-crimination. -- 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. Interpreter. -- 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.
15. (1) Equality before and under law and equal protection and benefit of law. -- Every individual is equal before the 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.
(2) Affirmative action programs. -- 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 or race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
16. (1) Official Languages of Canada. -- English and French are the official languages of Canada and have equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
(2) Official Languages of New Brunswick. -- English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to the use in all institutions of the legislature and government of New Brunswick.
(3) Advancement of status and use. -- Nothing in this Charter limits the authority of Parliament of a legislature to advance the equality of status or use of English and French.
16.1 (1) English and French linguistic communities in New Brunswick. -- The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
(2) Role of the legislature and government of new Brunswick. -- The role of the legislature and the government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.
17. (1) Proceedings of Parliament. -- Everyone has the right to use English or French in any debates or other proceedings of Parliament.(7)
(2) Proceedings of New Brunswick legislature. -- Everyone has the right to use English or French in any debate and other proceeding of the legislature of New Brunswick.
18. (1) Parliamentary statutes and records. -- The Statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
(2) New Brunswick statutes and records. -- The Statutes, records and journals of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.
19. (1) Proceedings in courts established by Parliament. -- 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.
(2) Proceedings in New Brunswick courts. -- 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.
20. (1) Communications by public with federal institutions. -- Any member of the public of 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 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.
(2) Communications by public with New Brunswick institutions. -- 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.
21. Continuation of existing constitutional provisions. -- 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.
22. Rights and privileges preserved. -- 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
23. (1) Language of instruction. -- 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.
(2) Continuity of language instruction. -- 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.
(3) Application where numbers warrant. -- 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 children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
24. (1) Enforcement of guaranteed rights and freedoms. -- 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) Exclusion of evidence bringing administration of justice into disrepute. -- 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.
25. Aboriginal rights and freedoms not affected by Charter. -- 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
(a) 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.
26. Other rights and freedoms not affected by Charter. -- The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights and freedoms that exist in Canada.
27. Multicultural heritage. -- This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
28. Rights guaranteed equally to both sexes. -- Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
29. Rights respecting certain schools preserved. -- 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.
30. Application to territories and territorial authorities. -- 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.
31. Legislative powers not extended. -- Nothing in this Charter extends the legislative powers of any body or authority.
32. (1) Application of Charter. -- This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and(b) to the legislatures and governments of each province in respect of all matters within the authority of the legislature of each province.
(2) Exception. -- Notwithstanding subsection (1), section 5 shall not have effect until three years after this section comes into force.
33. (1) Exception where express declaration. -- 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 or section 7 to 15 of this Charter.
(2) Operation of exception. -- 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.
(3) Five year limitation. -- A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Re-enactment. -- Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Five year limitation. -- Subsection (3) applies in respect of re-enactment made under subsection (4).
34. Citation. -- This Part may be cited as the Canadian Charter of Rights and Freedoms.
35. (1) Recognition of existing aboriginal and treaty rights. -- The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) Definition of "aboriginal peoples of Canada". -- In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada.
(3) Land claims agreements. -- For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Aboriginal and treaty rights are guaranteed equally to both sexes. -- Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
35.1. Commitment to participation in constitutional conference. -- The government of Canada and the provincial governments are committed to the principal that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
36. (1) Commitment to promote equal opportunities. -- 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 the economic development to reduce disparity in opportunities; and
(c) providing essential public services of reasonable quality to all Canadians.
(2) Commitment respecting public services. -- 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.
37. [Repealed.]
37.1 [Repealed.]
38. (1) General procedure for amending Constitution of Canada. -- An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and the 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 then latest general census, at least fifty per cent of the population of the provinces.
(2) Majority of members. -- An amendment made under subsection (1) that derogates 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 majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
(3) Expression of dissent. -- An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.
(4) Revocation of dissent. -- A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.
39. (1) Restriction on proclamation. -- A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.
(2) Idem. -- A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.
40. Compensation. -- Where an amendment is made under subsection 38(1) that transfers provincial 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.
41. Amendment by unanimous consent. -- An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assemblies of each province:
(a) the office of the Queen, the Governor General and 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 Part comes into force;
(c) subject to section 43, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) an amendment to this Part.
42. (1) Amendment by general procedure. -- An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces;
(2) Exception. -- Subsections 38(2) to 38(4) do not apply in respect of amendments in relation to matters referred to in subsection (1).
43. Amendment of provisions relating to some but not all provinces. -- An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all provinces, including
(a) any alteration to boundaries between provinces, and(b) any amendment to any provisions that relate to the use of the English or the French language within a province
may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
44. Amendments by Parliament. -- Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to executive government of Canada or the Senate and House of Commons.
45. Amendments by provincial legislatures. -- Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.
46. (1) Initiation of amendment procedures. -- The procedures for amendment under sections 38, 41, 42, and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of province.
(2) Revocation of amendment procedures. -- A resolution of assent for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.
47. (1) Amendments without Senate resolution. -- An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42, or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.
(2) Computation of period. -- Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).
48. Advice to issue proclamation. -- The Queen's Privy Council for Canada hall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolution required for an amendment made by proclamation under this part.
49. Constitutional conference. -- A constitutional conference of the Prime Minister of Canada and the first ministers shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.
50. Amendment to Constitution Act, 1867. -- 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
92A. (1) Laws respecting non-renewable natural resources, forestry resources and electrical energy. -- 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 resources 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.(2) Export from provinces of resources. -- 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.
(3) Authority of Parliament. -- 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.
(4) Taxation of resources. -- 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.
(5) "Primary production". -- The expression "primary production" has the meaning assigned by the Sixth Schedule.
(6) Existing powers or rights. -- Nothing in subsections (1) to (5) derogates from any power or rights that a legislature or government of a province had immediately before the coming into force of this section."
51. Idem. -- The said Act is further amended by adding thereto the following Schedule:
"THE SIXTH SCHEDULE
Primary Production from Non-Renewable Natural
Resources and Forestry Resources1. 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 synthetic equivalent of crude oil; and
(b) production from a forestry resource is primary production therefrom if it consists of saw logs, poles, lumber, wood chips, sawdust or other primary wood product or wood pulp, and is not a product manufactured from wood."
52. (1) Primacy of Constitution of Canada. -- 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.
(2) Constitution of Canada. -- The Constitution of Canada includes
(a) the Canada Act, 1982, including this Act;(b) the Acts and orders referred to in the Schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
(3) Amendments to Constitution of Canada. -- Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.
53. (1) Repeals and new names. -- The enactments referred to in Column I of the schedule are hereby repealed or amended to be extent indicated in Column II thereof, and unless repealed, shall continue as law in Canada under the names set out in Column III thereof.
(2) Consequential amendments. -- Every enactment, except the Canada Act, 1982, that refers to an enactment referred to in the schedule 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 the schedule may be cited as the Constitution Act followed by the year and number, if any, of its enactment.
54. Repeal and consequential amendments. -- Part IV is repealed on the day that is one year after this Part comes into force, and this section may be repealed and this Act renumbered, consequentially upon the repeal of Part IV and this section, by proclamation issued by the Governor General under the Great Seal of Canada.
54.1 [Repealed.]
55. French version of Constitution of Canada. -- A French version of the portions of the Constitution of Canada referred to in the schedule 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 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.
56. English and French versions of certain constitutional texts. -- 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 55, the English and French versions of that portion of the Constitution are equally authoritative.
57. English and French versions of this Act. -- The English and French versions of this Act are equally authoritative.
58. Commencement. -- Subject to section 59, 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.
59. (1) Commencement of paragraph 23(1)(a) in respect of Quebec. -- 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.
(2) Authorization of Quebec. -- A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.
(3) Repeal of this section. -- 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, consequentially up the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.
60. Short title and citations. -- This Act may be cited as the Constitution Act, 1982, and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1982.
61. References. -- A reference to the "Constitution Acts, 1867 to 1982" shall be deemed be to include a reference to the "Constitution Amendment Proclamation, 1983".
to the
Constitution Act, 1982
Modernization of the Constitution
(1) The Constitution Act, 1982 was enacted as Schedule B to a British statute, the Canada Act, 1982, (U.K.) 1982 c. 11, which came into force on April 17, 1982.