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 that I tabled on April 23. Motion No. 315 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.
Let me begin by saying that this is not a new concept. I know that there have been many members before me who have worked on this, either through private members' legislation or additional motions. I know that the member for Yorkton—Melville has done much work in this area and I am grateful to him.
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”.
As justice minister, Pierre Trudeau proposed the passage of a charter that would give constitutional protection to certain rights, including the enjoyment of property. As Prime Minister he again proposed entrenchment of the Charter of Rights, which would have guaranteed the right of an individual to use and to enjoy property. While the Charter of Rights and Freedoms became a reality, the inclusion of property rights did not make the final cut.
I am particularly happy to be able to move this important motion during the 25th anniversary of the Canadian Charter of Rights and Freedoms. As Canadians, we celebrate the charter. The charter, which is embodied in the Constitution of Canada, enshrines our rights and freedoms. We value these freedoms. We value the political rights guaranteed in the charter. We value the civil rights ensured by the charter.
It is for these reasons that we rightfully celebrate the charter, as it marks the progress we have made as a country, but as we celebrate this milestone for the charter and reflect on its meaning for Canadians, both collectively and individually, we should also ask whether there are areas that we can enhance to strengthen this living document.
To be certain, the charter guarantees specific political and civil rights of Canadians from policies or actions of all levels of government. It nobly seeks to unify Canadians around a set of principles that embody these rights. But in seeking to unify Canadians, the drafters of the charter also glossed over those fundamental rights that were excluded, rights of Canadians that also deserve to be guaranteed and protected.
The absence of property rights in the charter is one area where we as parliamentarians may wish to focus our attention when thinking of whether there are ways that we can enhance this document.
My Motion No. 315 urges the government to recognize the need to entrench property rights in the charter. The motion would amend section 7 of the Charter of Rights and Freedoms to extend property rights to Canadians, with the intention of giving individual property owners the right to a fair compensation for their property, and to ensure compensation within a reasonable time period.
I believe in the rights of Canadians and specifically the need to strengthen the protection of property rights. Every person has the right to enjoyment of their own property and the right not to be deprived of that property unless the person, first, is 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 time period.
Exclusion of property rights from our charter violates convention, convention as captured in the 1960 bill of rights, convention as captured in common law, convention as captured in provincial statute, and convention as captured in the United Nations declaration of human rights. The importance of protecting property rights has long been recognized in Canada and around the world.
I know that my Liberal and NDP colleagues share an understandable and healthy respect for the United Nations and hold it in high regard, so they might wish to recall that article 17 of the 1948 United Nations declaration on human rights states:
(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 five decades ago, Canadians continue to be deprived arbitrarily of their property, and we have wilfully remained out of step with most other signatories.
Other democracies have taken a lead in property rights legislation, including the United States, Germany, Italy and Finland. Several Canadian provinces, including British Columbia, New Brunswick, and previously Ontario, also have at various times indicated resolutions that support stronger protection for property rights.
Great Britain first introduced property rights in the Magna Carta of 1215. I know that the opposition loves to try to chastise the government when it comes to questions of rights. If all my colleagues are firm in their commitment to the rights of Canadians, they should support and embrace this motion. No document more ardently seeks to defend Canadian rights than the Bill of Rights.
In 1960 Prime Minister John Diefenbaker brought in the Canadian Bill of Rights. Part I of the bill reads:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;...
I know that all members of the House support such a principle as outlined in the Bill of Rights as it applies to property rights. There is, however, an arguable weakness in the bill. There is a flaw. While it mentions property rights, a guarantee of protection and compensation in those cases where private property has been expropriated is not explicit.
Such ambiguity dilutes the level of protection for property rights. Because it is a regular statute, it could be overridden by a new federal statute. Without the explicit mention of compensation, a new federal statute could rather easily restrict the right of Canadians to fair and prompt compensation.
Motion No. 315 would correct this by entitling Canadians to fair and prompt compensation in circumstances where it is necessary for an individual to surrender property to the government.
The Bill of Rights remains in place today, but our courts tend to refer to the Canadian Charter of Rights and Freedoms. While both have positively contributed to Canada and its people in the past, the emphasis on the charter severely circumscribes the rights of some Canadians.
Nowhere was this more clearly evident than in a ruling by the Manitoba Court of Appeal on February 4, 1999. The court ruled against a Manitoba resident's right to sell his own grain grown on his own land. The ruling stated that section 1 of the Canadian Bill of Rights, which protects property rights through a due process clause, was not replicated in the charter, and the right to “enjoyment of property” is not a constitutionally protected fundamental part of Canadian society.
No Canadian would become aware of this lack of protection for property rights, however, until it is too late, that is, until the government arbitrarily expropriates the property of a law-abiding, taxpaying Canadian without any compensatory measures.
This happens already with farmland, for example, where government may force farm families out of production for government purposes. For example, approximately 97,000 acres of Quebec's best farmland was expropriated. In spite of the fact that 3,200 farm families were displaced, only 5,000 acres were ever used for the airport operation.
The essence of this ruling is echoed by Professor Peter Hogg, a pre-eminent scholar of Canadian constitutional law. In Constitutional Law of Canada, Professor Hogg writes:
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 of 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.
Further to this, he writes:
The product is a section 7 in which liberty must be interpreted as not including property, as not including freedom of contract, and in short, as not including economic liberty.
My motion would provide Canadian citizens with the protection they require but would not interfere with government's ability to continue its work. Canadians deserve to be reassured that the federal government respects their fundamental rights to own and enjoy property.
This motion, therefore, is an effort to continue the crusade started by our forefathers and the drafters of the 1960 Bill of Rights.
Motion No. 315 is consistent with our government's clear and unwavering commitment to introduce measures to promote rights in this country. Whether working to correct historical injustices like the Chinese head tax or dealing with the aboriginal residential school legacy, whether working to protect the rights of women and children from acts of criminality or endeavouring to extend to Canadians the right to vote for the representatives of the Senate in Canada, this is what our Conservative government has been doing.
Motion No. 315 is also consistent with the earlier efforts of former prime minister Pierre Trudeau. He was an ardent advocate for improved protection of property rights. He first argued this case in a 1968 paper entitled, “A Canadian Charter of Human Rights”, tabled when he was the minister of justice.
He reiterated the case in his 1969 paper, “The Constitution of the People of Canada”, and once again in 1978, when he introduced Bill C-60, the constitutional amendment bill. He attempted twice more to extend the scope of the charter to include property rights.
With such longstanding and diverse support, moving forward with such a motion as Motion No. 315 seems long overdue. Accordingly, I wish to urge the government and all of my colleagues to support the motion so that we can have measurable advancement on the promotion of Canadian rights.
Why would we seek to deny Canadians' intrinsic rights?
One concern that has been expressed about the inclusion of property rights in the charter is related to the complicated matter of the definition of the term “property rights”, but protecting property is not just a conservative or a liberal value but a Canadian value, a value that every party can support. Through time, the term “property”, not unlike the charter itself as a living document, has evolved to mean much more than simply real property.
However, the fact that the term will have to be interpreted by the courts, which may interpret it very broadly, is not a good reason for excluding property rights from the charter.
If property were interpreted by the courts more broadly than in the traditional sense, the entrenchment of property rights also could have positive effects for those persons who do not own real property at this point.
The entrenchment of property rights in the charter could do more than simply protect those who own real property from expropriation without compensation.
In other words, if we were to ask who benefits from this motion, the answer is clearly every Canadian.
Property is not just land and buildings. It may extend to all forms of personal material properly. Merely in order to preserve one's right to own property at some point in the future, government must restrain itself in the present. The right to own property is as much about potential ownership as actual ownership.
The best any government can do is work toward equality of opportunity. The right to own and enjoy property is pivotal to all other rights.
The idea captured in this motion embodies the principles of fairness and justice that Canadians hold dear. Our country was founded on these principles and values.
The prospect of new property in its various forms drew our ancestors to this country to settle land, in both the east and the west. They wanted to protect the property that they worked so hard to attain. Canadians are no different today. Our charter should reflect the right to own property and the right to not be deprived of it without due process of law and compensation that is both just and timely.
Whether it is the farmer who fears losing his or her livelihood due to greenbelt expansion, families who must be uprooted to accommodate a much needed mid-peninsula corridor in my riding, or the senior citizens who have worked hard and saved well to pay off their home only to be forced out because it is located near an endangered species habitat, every Canadian who owns and enjoys property should not be arbitrarily deprived of that property. That is precisely what this motion seeks to ensure by amending section 7 of the charter.
The 25th anniversary of the charter provides an opportunity to highlight all its merits and to see how we can improve the charter. I believe the inclusion of property rights is an important step in this direction.
All party support of this motion would demonstrate our commitment to enhancing the property rights of Canadians. The House has heard various debates over the protection of property rights. Indeed, the House has even witnessed widespread cross-party support for the enhancement and promotion of property rights on various occasions.
On one occasion, the Deputy Speaker of the House stated: “We must entrench the right to property in our Constitution. The right to hold and enjoy property provides one of the checks and balances against undue concentration of power in government at any level”.
We cannot emphasize enough the importance of property rights.
It is not hard to find examples in this country of the government unjustly expropriating property or forcing people to sell land and other material without compensation, without other options, and indeed, without any form of recourse to the courts. It is simply misleading to suggest that we have adequate protection of property.
Only when these rights to property are enshrined in the charter will our rights and freedoms no longer be in jeopardy. It is for this reason that I ask all members of the House from all parties to support the inclusion of property rights for Canadians in the charter.
To say yes to Motion No. 315 is to say yes to all Canadians.