Mr. Speaker, I have the pleasure today of debating my colleague's motion, which proposes that the government amend section 7 of the Canadian Charter of Rights and Freedoms to extend property rights to Canadians. Specifically, the motion wishes to strengthen the protection of property rights. My colleague stated that everyone has the right to enjoy their property and the right to not be deprived of their property without having the opportunity to be heard at an impartial hearing.
For all those listening, although this motion seems to meet a logical need, it is important to clarify something with regard to the protection of property rights. This is not the first time that such a motion has been put forward in the House and I think it necessary that all my fellow citizens have a proper understanding of why this motion is difficult to implement and has often been rejected.
In Canada's case, the federal government is governed by principles of common law which, among other things, prohibit expropriation without compensation, even though the criteria for compensation are not defined. However, in Quebec, the Civil Code clearly indicates that “no owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in consideration of a just and prior indemnity”.
My colleague's motion proposes to amend the Canadian Charter of Rights and Freedoms to formally include property rights as a protected right. I maintain that this is a rather cumbersome process for various legal reasons.
My colleagues know that the Charter is an integral part of the Constitution. Consequently, it can only be amended or altered by a constitutional amendment. Based on this, a charter amendment that would permit section 7 to include a reference to property rights would have to be made in accordance with the general amending procedure established in section 38(1) of the Constitution Act, 1982 that Quebec did not sign.
In layman's terms, for those who are not familiar with constitutional rules, the enshrinement of property rights in section 7, as moved in the motion by my colleague, would necessarily require the following conditions to be met: resolutions from the Senate and the House of Commons, and resolutions from the legislative assemblies of at least two thirds of the provinces, the latter representing at least 50% of the Canadian population.
The second condition means that either Ontario or Quebec would have to be one of the provinces supporting such an amendment, since, together, they represent more than 50% of the population of Canada.
In addition to these complications, there is subsection 38(3), which permits the legislative assembly of a province to opt out by passing a resolution of dissent to an amendment of the kind described in section 38(2) “prior to the issue of the proclamation to which the amendment relates.” A maximum of three provinces could opt out of such an amendment by passing resolutions of dissent. If there were more than three dissenting provinces, the amendment would not have the required support of two-thirds of the provinces and would therefore be defeated.
I want to come back to subsection 38(1), whereby once the authority for an amendment has been provided by the requisite number of resolutions of assent, the formal act of amendment is accomplished by a “proclamation issued by the Governor General under the Great Seal of Canada”. Under section 39, the proclamation is not to be issued until a full year has elapsed from the adoption of “the resolution initiating the amendment procedure,” unless before that time all provinces have adopted resolutions of assent or dissent.
The intent here is to allow the legislative assembly of each province sufficient time to consider the proposal. Under section 39(2), the proclamation is not to be issued if three years have elapsed from the adoption of the resolution initiating the amendment procedure.
As you can see by this brief explanation of procedure, the road to passing the motion is long and unpredictable. However, it is not just the legal aspect that poses a problem.
I would like to remind my colleagues and all of my fellow citizens that past attempts to change property rights often failed at the provincial approval stage. Let us not forget that during the first ministers' conference in 1980, before the Canadian Charter of Rights and Freedoms, the federal government introduced a proposal to guarantee property rights. Some provinces vehemently opposed the proposal. In 1978, Bill C-60, which would have guaranteed the right to own property and not to be deprived of it except in accordance with the law, met with similar opposition.
In 1983, after the Canadian Charter of Rights and Freedoms, the Liberal government tried to reach an agreement with the opposition parties to introduce a resolution to enshrine property rights in article 7. Once again, the attempt failed.
The next significant development occurred in 1987, when the following motion was adopted: “That in the opinion of this House, the Constitution Act, 1982 should be amended in order to recognize the right to enjoyment of property, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice, and in keeping with the tradition of the usual federal-provincial consultative process”.
Now, let us leave aside the legal and historical facts and examine the logic underlying this motion.
Obviously, my colleagues and I agree that property rights are important, particularly because they provide security and predictability. As I said earlier, Quebec already has a framework for property rights and the deprivation thereof because it has a unique civil law system that balances property rights and the needs of the community, all without constitutional entrenchment. This indicates that Quebec does not really need the Canadian Constitution to provide a framework for property rights. In fact, Quebec has still not ratified the 1982 Constitution.
The question is what is behind this motion. This is not the first time Conservative or Alliance or even Reform members have introduced such a proposal.
Setting aside partisan or ideological considerations, let us imagine for a moment that this motion is adopted. What will become of municipal zoning by-laws, aboriginal land claims, environmental regulations and spousal property rights in case of marriage breakdown? The list goes on and on.
These are just some of the current rules that would have to be reviewed if property rights were included in the Charter. We can assume that these rights might impede the application of laws that create social cohesion and protect important social interests. We have only to think of the legislation governing land use planning, ownership of real property, the environment, and health and safety.
Nevertheless, the Bloc Québécois is willing to do its part and suggests that the federal government introduce rules, as Quebec has done in the Civil Code, on fair compensation for people who have been deprived of their property rights on the grounds of public convenience. Simple and accessible, the principle of full, fair, fast compensation likely could have changed many things and avoided any problems without requiring that these rights be entrenched in the Constitution. My colleagues will no doubt remember the whole saga around the expropriation of farmland in Mirabel to build the airport.
I will conclude by saying that for all the legal, historical and practical reasons I have mentioned, the Bloc Québécois will vote against my colleague's motion. This motion could have too many unforeseen consequences.