Mr. Speaker, amending the Canadian charter of rights and freedoms so as to include the right to enjoyment of property is not a new idea. The entrenchment of a property right was an objective of the former Liberal government of 1968. Indeed, the Prime Minister of the time, Mr. Pierre Elliott Trudeau, who had also been a Minister of Justice, proposed the adoption of a charter designed to ensure the constitutional protection of certain rights including, of course, the right to enjoyment of property.
As you know, that motion was rejected. In 1978, some provinces squarely opposed the idea, which was included in a bill on constitutional reform, Bill C-60. As I recall, those provinces included Manitoba and Prince Edward Island.
In 1980, the federal government proposed a new measure to guarantee the right to enjoyment of property. Again, the provinces strongly opposed the idea. Consequently, I have to tell the hon. member that, if he hopes to see section 7 of the Constitution Act, 1982, amended so as to include such a right, he has a very difficult task ahead of him. To give you an idea of how difficult this would be, assuming it can be done, it is important to look at the technical aspects of the issue for a moment.
First, since the charter is part of the Constitution, it can only be changed by way of an amendment to the Constitution itself. This first requires resolutions from the Senate and the House of Commons, something which is not easily obtained, and, second, resolutions from the legislative assemblies of at least two thirds of the provinces, the latter representing at least 50 per cent of the Canadian population. That also is not going to be easy to get.
This latter condition implies that Ontario or Quebec will have to be one of the provinces that support a draft amendment, since together, they represent more than 50 per cent of the population. Furthermore, the Constitution Act, 1982 provides under section 38(2), I believe, that the resolution must be adopted by a majority of the members of a legislative assembly, as opposed to a majority of the members present at the time of voting, if the proposed amendment derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province. That would be the case here if the Charter were amended to include property rights. As the hon. member can see, his motion is practically dead in the water.
So far, judgments up to the Supreme Court, have failed to establish that property rights should be protected under the 1982 Charter. This was even ruled out in the Irwin Toys Ltd. judgment, an important decision supported by a majority on the Supreme Court, which stated that the intentional exclusion of property rights from section 7 and its replacement by the "security of the person" had a twofold effect. First, one can conclude that on the whole, economic rights, generally designated by the term "property rights", are not covered by section 7. However, that does not mean that no rights with economic overtones could not be covered by the term "security of the person".
In other words, there are some serious reservations because of the potential negative impact. Many groups have expressed their concerns about the possible entrenchment of property rights in the Constitution. I will mention some of their concerns as well as some of their priorities.
Aboriginal people are, for instance, apprehensive about the potential impact on their land claims and property rights. Nowadays this is a sensitive issue, and land claims are sacro-sanct. The unions are worried about a conflict between the rights of workers and the rights of those who own the resources. Environmental groups wonder about the legislative impact if property rights were entrenched in the Constitution, rights that are entirely legitimate.
The provinces should be concerned that entrenchment of property rights would allow the courts to obstruct the application of laws that protect important community interests, including legislation on planning and land use, ownership of moveable goods and real estate, and even legislation on health and safety.
Entrenchment would have clearly unpredictable and even absurd consequences for municipal by-laws on zoning, environmental regulations and spousal property rights in the case of marriage breakdown.
Take, for example, the case of a man and a woman who separate, who get a divorce. The family patrimony act, a provincial statute, provides that in case of marriage dissolution, the house shall be sold and the proceeds of sale divided between the ex-spouses. In the event that the Constitution is amended to include the right to property, as is being proposed by my Reform colleague, that would mean that the ex-spouse who bought the house could contest the provincial legislation under the Canadian Charter simply by saying that his or her right to enjoyment of property is being interfered with. The other spouse would thus be completely deprived of his rights under the provincial legislation. There would be no solution to the dispute. The lack of sense of such an amendment is therefore readily apparent.
The entrenchment of the right to property in the Canadian Charter is also dangerous and represents an intrusion of the federal government into an area of jurisdiction reserved exclusively for the provinces under section 92(13) of the Constitution
Act, 1867, which states that only the provinces may make laws regarding property and civil rights in each province.
Furthermore, how will the courts interpret the right to property, since in Quebec, the civil law governs this right and the courts interpret it from a civil law point of view, while in the other provinces a common law interpretation is used?
In conclusion, I would like to point out that no one can say that this right is less respected in Canada than elsewhere in the world. It is clear that, for the official opposition, the real interest in such an amendment probably stems from considerations of a completely different sort. It is clear that the addition of such a right to legislation transcending the powers of the federal and provincial governments, such as the Charter of Rights, and entrenching enduring values for regulating the life of society constitutes, for the federal government, a powerful means of once again interfering in an exclusively provincial area of jurisdiction.