Mr. Speaker, I appreciate the opportunity to speak to this motion. I want to thank the hon. member opposite for bringing this issue to the fore.
He seeks to initiate an amendment to section 7 of the great Canadian Charter of Rights to recognize the right of the individual to the enjoyment of property and the right not to be deprived thereof, except in accordance with the principles of fundamental justice, a right which exists.
I caution the member to recall-he seems to be quite the student of history-that there was another great revolution against the crown of Britain, the American revolution. As a result of that, it also has a constitution. It is a constitution that has created a tremendous problem in its courts with the issue of the entrenchment of property rights.
We have had a pleasant visit this week from the President of the United States. Perhaps it is timely to raise this issue today, even as he departs from our country.
It is probably a good idea to look at what happened down south when we look at the question of the entrenchment of property rights. As I understand it, the courts in the United States have extended property rights beyond traditional forms of property such as land or housing to include such things as social security benefits, drivers' licences and employment with the government; entitlements, I think they are called. These are considered to be forms of property in the United States to which constitutional property rights protections apply.
This is an interesting notion, particularly when one contrasts this with what I think is the traditional view of the Reform Party. If the reform Party in its infancy can have any tradition, surely it is its opposition to the Charter of Rights and Freedoms and its opposition to what it thinks is government involvement in the activities of ordinary citizens.
I would suggest that an amendment to section 7 conflicts with those fundamental beliefs it purports to have. Certainly the American experience raises questions about how Canadian courts would interpret a property rights amendment if such rights were added to the charter.
One wonders what the impact would be. The impact would be an unwarranted interference in the property rights of Canadians. Our American neighbours also had some unfortunate experience with constitutional property rights during the first half of this century. This was under what became known as the doctrine of substantive due process. Under this doctrine the American courts, the United States Supreme Court included, struck down some important social legislation such as laws regulating the maximum hours of work, laws regulating minimum wage and child labour laws.
Child labour laws were struck down because they were seen to be violations of the employer's property rights, or should I say the slave owner's property rights.
The United States Supreme Court ultimately repudiated this approach in the 1930s. Nevertheless the American courts have continued to apply American constitutional protections in a variety of areas.
Canadian courts would be free to follow their own approach to constitutional rights issues and have done so even where provisions in our Constitution and our charter are similar to American constitutional provisions.
Given that we share so much in common with the United States in terms of our legal foundations, I would suggest to the members opposite that it would be well worth studying the American experience.
Undoubtedly this effort would be repaid in the greater understanding that we would develop about the meaning of property rights and their potential impact on our system.
The more one delves into this matter, the more one realizes that it is not easy and it is not clear. Nevertheless, the Reform Party typically puts forward the quick fix, the simple solution to a problem that exists primarily in its mind.
We should start with the simple and basic idea of the right to own and enjoy property. Your home, your property should not arbitrarily be interfered with. How could anyone dispute that?
When we start to examine the concept of property and when we start to see its actual and possible scope, when we begin to understand the range and the extent of laws that regulate or affect property, when we begin to understand all of these concepts, we need to take a step back and look at this in a concerted fashion.
It is one thing to talk about this in general and abstract terms but it is quite another thing when we consider the entrenchment of these kinds of rights in our constitution, an action that would result in power to the courts to review a whole range of laws which in some way may affect ownership or use of property.
Entrenching property rights in the Constitution would require the approval of the majority of the provinces. Given that the Constitution already gives the provinces jurisdiction over property and civil rights within their boundaries, I would assume they would have a rather prominent interest in this and certainly a real and valid one. Given that their agreement would be required for any change to the Constitution, I would argue that this is not the sort of step that could or should be accomplished through unilateral measures.
Students of the Constitution will tell members that this may be the kind of measure that a province could opt out of under the amending formulas set out in section 38 of the Constitution Act of 1982.
The parliamentary record from the debates leading up to the patriation of the Constitution and since that time indicates that some provinces have had concerns about constitutional changes that would constrain their ability to regulate property.
I do not know where the provinces stand on this issue at the present time but I am fairly certain that it is not a priority for them. The party opposite should know very well that reopening the Constitution is not a priority for the vast majority of Canadians at this time.
We have evolved elaborate laws regulating and protecting the ownership and enjoyment of property. Real and personal property laws regulate acquisition and disposition of all kinds of property and they regulate in some cases how property is managed or the use to which it is put.
The point of these laws is not, as the member opposite suggests, to burden individuals, but rather to ensure that these transactions occur in an orderly and fair fashion and to guard against mistakes or fraud in the purchase, sale and management of property.
In Quebec the civil code provides for the disposition of real and personal property and in other provinces statutes and common law deal with the same issues.
These common law rules can be traced back hundreds of years in English law. While we are on that, they can be traced back farther than the Magna Carta.
I cannot stand on this side of the House and not comment on my friend's argument concerning the glorious revolution. I would suggest that the glorious revolution and the Reform Party cannot be seen to be synonymous. The Magna Carta, which really is a predecessor and a direct line to our own charter, provided basic fundamental rights.
The Reform Party today stands in the House and seeks by this amendment to narrow those rights. The present charter for Canada was a part of and proof of the glorious revolution; the glorious revolution in Canada being the revolution that entrenched for us forever basic human rights and other basic civil liberties, my friend says the most important of which is the right to own property.
There are other views on which of these rights is more important. One of those rights is clearly the right of the citizen to live freely in this country.
The glorious revolution, an amendment to entrench property rights in the Constitution. I say that is an attempt by those who
support it to limit the rights of Canadians and to prevent Canadians through their government from protecting themselves.