moved:
That, in the opinion of the House, the government should amend Section 7 of the Canadian Charter of Rights and Freedoms to extend property rights to Canadians.
Mr. Speaker, I am pleased to rise in the House today to speak to the motion I originally tabled on April 23 of this year, Motion No. 315, which states:
That, in the opinion of the House, the government should amend Section 7 of the Canadian Charter of Rights and Freedoms to extend property rights to Canadians.
Protecting property rights in Canada's Constitution is an issue that has been highlighted during previous federal election campaigns and has been discussed in the House many times before. It is an important issue for all Canadians and many residents of my riding of Niagara West—Glanbrook, particularly landowners in large rural areas.
The conception of property rights has material and intellectual connotations. The term “property” is complicated and open to interpretation. Consequently, the entrenchment of property rights in the charter could do more than simply protect those who own real property from expropriation without compensation. Every Canadian, therefore, could benefit from this motion.
Sir John A. Macdonald and the Fathers of Confederation clearly understood the importance of absolute property ownership for all Canadians. They wished to entrench in the institution of a self-governing Canada the primacy of property ownership.
Prime Minister John Diefenbaker established the Canadian Bill of Rights, which, for the first time, included: “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof--”.
Motion No. 315 urges the government to recognize the need to enshrine property rights into the charter. The proposed amendment to the Charter of Rights and Freedoms that is contained in this motion recommends that section 7 extend property rights to Canadians, with the intention of giving individual property owners the right to fair compensation for their property and ensures compensation within a reasonable period of time.
The motion speaks specifically to the need to strengthen the protection of property rights. Every person has the right to the enjoyment of his or her property and the right not to be deprived of that property unless the person is: first, accorded a fair hearing; second, is paid fair compensation; third, the amount of that compensation is fixed impartially; and fourth, the compensation is paid within a reasonable amount of time.
At present, our Constitution lacks any provision that protects the property rights of Canadian citizens. There is an undeniable tension between the fact that on one end property rights appear in the Canadian Bill of Rights, 1960, an accepted piece of federal legislation and the charter's predecessor, and on the other hand they are left out of the charter itself. The tension arises in that property rights are included in the Bill of Rights, but our courts emphasize the Canadian Charter of Rights and Freedoms. This emphasis severely circumscribes the rights of Canadians.
Despite important legal precedents, property rights were deliberately omitted from the Charter of Rights and Freedoms. Professor Peter Hogg wrote about this serious omission in his book Constitutional Law of Canada, fourth edition. He stated:
The omission of property rights from s.7 [of the Charter] greatly reduces its scope. It means that s.7 affords no guarantee of compensation or even a fair procedure for the taking of property by government. It means that s.7 affords no guarantee of fair treatment by courts, tribunals or officials with power over the purely economic interests of individuals or corporations.
Some of us may agree that the absence of the right to own and use property from the charter needs to be corrected. Others may doubt this. To those I advance the following.
First, the right to own property, to enjoy one's property, and not to be unfairly deprived of one's own property is the cornerstone of a free and democratic society. Property rights are essential to the Canadian way of life, to political freedom, and to the well functioning economy. These protections in themselves are not enough, but if property rights are essential for the well-being of our economy and our way of life, do they not need to have greater protection than the charter currently affords?
Second, for centuries the right to own and use property has been the necessary prerequisite to political freedom. Indeed, it has long been at the centre of the human rights movement. As John Locke has argued, if the state was to have legitimacy in the eyes of the people, it had to secure these rights.
Finally, earlier drafts of the charter included the protection of property rights. The Canadian charter we have today therefore appears incomplete and it is the charter's silence on property rights that demands to be corrected.
For a country that prides itself on being the champion of human and individual rights, we have shown remarkable tolerance of governments that infringe on property rights of landowners.
Governments at all levels, federal, provincial and municipal too often display a blatant scorn for landowners, especially rural landowners. Whether through zoning laws, heritage regulations and conservation designations, governments can impose restrictions on the rights of property owners.
The idea that the government can rip away one's property is not merely hypothetical. It is not mere hyperbole or speculation. It is a reality and there are abundant examples in different ridings. Our constituents, and every Canadian, deserve better.
Canadian history is regrettably rife with examples of what happens with property rights that are not entrenched in the charter. Absent entrenched property rights in 1999 led to a Manitoba farmer being denied the right to sell his grain to an American customer because the Manitoba court of appeal found that “the right to 'enjoyment of property' is not a constitutionally protected, fundamental part of Canadian society”.
Because of the absence of entrenched property rights 3,200 farm families found themselves displaced in Quebec when a former Liberal federal government decided to expropriate 97,000 acres of Quebec's best farmland to make way for Mirabel Airport. Of those 97,000 acres, only 5,000 were ever used.
With the absence of entrenched property rights the previous Liberal government moved forward with Bill C-68 and was free to ban over 500,000 legally owned, registered firearms and severely restricted the legal ownership of firearms by law-abiding Canadians.
The absence of entrenched property rights in 2002 found mentally disabled Canadian war veterans denied millions of dollars in interest on pension benefits after the Supreme Court ruled that:
Parliament has the right to expropriate property, even without compensation, if it has made its intention clear and, in s. 5.1(4), Parliament’s expropriative intent is clear and unambiguous.
Unfortunately, for the people of Canada these cases are not unique. Examples are abundant on how the current Canadian charter fails to protect one of the most fundamental human rights.
Do such cases comport with the logic of fair practices? No, they do not. However, they are consistent with the law as it currently stands.
If the charter is not amended to strengthen property rights in federal law then the government can continue to take lawfully owned and enjoyed property away from Canadians without due process, and without full and fair compensation.
Farmers and landowners are beginning to conclude that governments conflate private property with public privilege, and that government behaviour and the lack of property rights are the cause of this confusion. Listening to the numerous cases where law ostensibly violates logic, governments at all levels have overstepped the boundaries of reason.
Every Canadian should be protected against arbitrary government intrusions. If it is demonstrated that a government restriction or regulation is indeed for the greater public good, then the landowners should be fairly and appropriately compensated for their loss.
It is time that we entrench property rights in the charter. Canadians deserve a law that will be applied evenly and consistently, not a law that is whimsical and variable.
In my riding of Niagara West—Glanbrook, most residents are property and home owners. Some are new property owners, some have raised their children, and some have called it home for generations. In many cases their land is their livelihood. But as Canadians we only enjoy this land on borrowed time.
Whether it is zoning laws that dictate land use or environmental protection laws that can eliminate property value in an instant, Canadians can find their land taken without any requirement to fair compensation.
Often government restrictions are wrapped in the snow white cloak of the greater social good and so they often enjoy widespread public support. But governments pass laws which affect land use for environmental reasons, social benefit or to contain urban sprawl. However, only recently are landowners stopping to say that the action may have a significant impact on their properties.
The majority of Canadians are mindful of the fact that they are all part of a larger social group. We realize that sometimes the interests of the social group will differ from individual interests. In spite of this and as much as because of this we give governments the power to legislate for the good of all Canadians.
However, when legislation contravenes individuals' interests, the government should mitigate against negative implications, such as jeopardizing property ownership and personal land use.
When the Government of Ontario adopted provincial greenbelt legislation, after modest public consultation, the result was a freeze on future land use. Property owners in my riding saw the value of their land plummet in some cases by approximately half.
These families have survived the challenges of harsh winters, dry summers, tough economies, but a single piece of provincial legislation put at risk the potential of their land, and the future of these landowners and their children.
Do we need property rights to be entrenched in the charter? Clearly, the continued absence of property rights is an assault on Canadian families. At present, these families have no options. They have no recourse in place. Indeed, no Canadian enjoys perfect protection vis-à-vis future legislation that may negatively affect their property values and future financial security.
As parliamentarians, we can help to ensure that every Canadian is provided fair and timely compensation when government legislation negatively affects its citizens. Fair compensation is one means by which property ownership can serve and work together for the greater social good.
Fair compensation recognizes the pride that Canadians take in land ownership and recognizes that property ownership is often the main way that Canadians plan for their future and retirement. Fair compensation would establish the balance necessary to ensure all levels of government respect property ownership.
I do not know how many times a day people call my office and essentially begin a conversation with something such as, “The government should provide better funding for--” and we can all fill in the blanks. They proceed to list their list of pet interests.
Increasingly I am hearing not what government should provide but what it should not be able to take away. They are also becoming concerned that the government has forgotten rural Canadians to the benefit of the environment. Indeed, a petition to amend section 7 garnered substantial signatures from numerous residents in Niagara West—Glanbrook and from across the country.
To press for the entrenchment of property rights in our charter is to press for what so many other countries already recognize. Indeed, the exclusion of property rights from the charter violates the convention. This convention is captured by the 1960 Bill of Rights. The convention is captured in common law. The convention is captured in provincial statute and the convention is captured in the United Nations Declaration of Human Rights.
Article 17 of the 1948 United Nations Declaration of Human Rights reads:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Although Canada ratified the UN Declaration of Human Rights over 50 years ago, Canadians continue to be deprived arbitrarily of their property and we have willfully remained out of step with most other signatories.
While Canada is a world leader on so many fronts, it pains me to say that we are far behind other democracies when it comes to the issue of property rights. Other democracies have long taken a lead in property rights legislation, including the United States, Germany, Italy and Finland. Great Britain first introduced property rights in the Magna Carta of 1215. Even Communist China has put forward property rights in its constitution. So why not Canada?
We are a country that stands up for human rights around the world. As parliamentarians we must stand up for the rights of our respective constituents and for all Canadians. Several Canadian provinces, including British Columbia, New Brunswick and Ontario have also initiated resolutions that support stronger protection for property rights. Why should we not do the same? We should not stand by while Canadians suffer the effects of intrusive legislation and sometimes questionable public policy.
Rural property owners have organized themselves into very vocal and active lobby groups, a trend that is spreading across the country. Rural landowners are leading strong grassroots movements in defence of their property rights.
Indeed, just this morning, my office received calls from landowner groups from across the country. Their key message was that they are fed up with undue government interference and want their property rights respected and protected. This is what we hope to accomplish by entrenching property rights in the charter.
The right to own and enjoy property can be a divisive issue. But it does not need to be. Though the role of government in the context of private property is one factor that distinguishes us, the property rights are also at the heart of what makes for a vibrant and healthy society.