Gordon Kirkby

[Constitution Act, 1867, November 19th, 1996]

Mr. Speaker, I am pleased this evening to have the opportunity to speak to Bill C-284, brought forward by the hon. member for Yorkton-Melville. The bill proposes that the Canadian Bill of Rights be changed to provide further protection pursuant to property rights.

The Canadian Bill of Rights is part of Canada's longstanding tradition to human rights. The bill has included provisions protecting property rights since it has been in force. Section 1 of the bill of rights recognizes 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.

Property rights are also protected at the federal level by statute and common law. Federal statutes that regulate the disposition of property have been designed to ensure that people are treated fairly. That is, these laws provide for fair procedures and for fair compensation where property rights are affected.

Property rights are also protected at the provincial level. For example, the Alberta Individual Rights Protection Act protects the ownership of property by a due a process clause. The Quebec Charter of Human Rights and Freedoms provides some protection to the peaceful enjoyment and free disposition of his or her property.

The common law also protects property rights. For example, judges frequently apply the presumption of compensation where someone is deprived of their property.

It is important to remember that the Constitution assigns much of the responsibility for regulating property to the provinces. In fact, section 92(13) of the Constitution Act provides that the provinces have exclusive power to make laws relating to property and civil rights in the province.

That is not to say that the federal government cannot legislate in ways that affect property, but that its jurisdiction is limited in these respects.

On the whole, the average Canadian enjoys a very high level of protection for property rights under the statutes and the common law applicable at the federal level, including already the Canadian Bill of Rights.

I would venture to say this is generally true at the provincial level as well. This protection reflects the value that we as Canadians place on property rights. The right to own things, a home, a car or other possessions, is basic to our way of life. The right to use and dispose of property is also fundamental, although we recognize that these are not unlimited rights, which the hon. member for Yorkton-Melville recognized very explicitly in his speech.

In Canada we place a very high value on property rights, the right to own many of our possessions. The right to use or dispose of the property is also very fundamental to our way of life. These rights we value very highly in this country of ours. These property rights are ingrained in our legal system. They are ingrained in statutes at the federal level. They are ingrained in statutes at the

provincial level. They are ingrained in human rights legislation at the federal level and within the common law.

In fact, a basic premise of our legal system is the right to own and dispose of property. Our laws, whether legislated or judge made, are replete with examples of rules concerning the ownership and use of property.

For example, our laws concerning real property, lands and buildings contain many rules protecting both purchasers and vendors. Thus when I consider the broad range of legislation and judicial precedence that protects property rights, it is not clear to me that the solution offered by the hon. member provides any further protection. Taking that into account, it is important to reflect on what the proposed amendment would actually do.

It singles out property rights from all the other rights in the Canadian Bill of Rights for very special protection. Again, section 1 of the Canadian Bill of Rights recognizes the rights of the individual to life, to liberty, to security of the person and enjoyment of property.

Out of all those very fundamental rights to Canadians, the Reform Party tries to raise property rights up for special protection. It seems that all of these rights are very important. When one considers the right to life and liberty, certainly one would not raise the value of property higher than those very special and important rights to all of Canadians.

I do not understand why we would want to have this particular amendment. It would end up establishing a hierarchy of rights in the Canadian Bill of Rights which would not be appropriate. Each of the rights in the Canadian Bill of Rights is of equal importance. They are all very important. To say that one is more important than the other would not be appropriate.

The Canadian Bill of Rights is historically significant. It represents one of the first steps toward a constitutionally entrenched bill of rights. Just over 20 years after the Canadian Bill of Rights was enacted, we did provide constitutional protections in the form of the Canadian Charter of Rights and Freedoms. Since then our energies have been focused on the charter. In light of that evolution, I do not think we should be revisiting the Canadian Bill of Rights.

As I mentioned earlier, the right to own and dispose of property is not an unlimited right. It is limited by laws that regulate the use of property in the public interest. For example, land use, planning and zoning laws may limit the type of building that can be placed on residential lots. They may limit the type of construction in certain types of business districts.

Environmental laws regulate everything from the disposal of hazardous waste to the removal of trees. There are laws that regulate the ownership of transactions and shares in limited companies. Other laws regulate bankruptcy and the ownership of land by non-Canadians and so on. All of these laws impose real limits on the ownership and use of property.

No one disputes that these are necessary limits in a free and democratic society. When that is realized, it is incumbent on us to think carefully about the implications of amending the property rights protection in a general human rights document.

I am concerned about what effect a general and broad provision on property rights may have on these laws. I am equally concerned that socially important legislation could be challenged in the courts on the basis of such considerations.

The United States has had considerable experience with property rights and we can learn from its experience. Initially constitutional property rights were used in the United States to prevent socially useful legislation such as regulating hours of work. Later on the courts adopted a more enlightened view but still attempts to regulate the environment or trade in endangered birds or land use have been met with court challenges based on conflict with property rights in the American bill of rights. This sort of general provision has complicated the regulation of whole varieties of areas germane to the public interest.

Canadian courts have demonstrated that they will go their own way in interpreting the provisions of the charter and our other human rights laws. However, the proposed amendments would leave us with uncertainty about the meaning of property rights and the effect of the amendment on a wide variety of laws that touch on property in one way or the other.

I certainly have a great deal of sympathy for the purpose behind Bill C-284. Like the hon. member for Yorkton-Melville, I feel very strongly about the importance of property rights in our society and legal system.

Having said that, I would also say that so far as I am concerned we have more than adequate protections in our statute law and common law for property rights. Not only do I not see the necessity for the proposed amendment to the Canadian Bill of Rights but I am also concerned in some respects about its impact.

In light of the American experience I would think it far better that we continue to rely on the very extensive protections of property rights that already exist in our laws. For these reasons I cannot support the bill.

When we look at the history of our nation, the history of the evolution of property rights within the common law system, going back to the system of law evolving in many provinces and in the national government from the common law of England, we have

that basis. The basis is stated in many statutes designed to protect property rights from the actions of government or other individuals. This is both at the federal and provincial levels. At the municipal level these would be covered by provincial statute.

All of these types of protections are offered our citizens as we enjoy property of various types. The protection of our property is important. Our common law and statute law are absolutely replete with examples of how we seek to protect and ensure that our citizens can enjoy their property fully and completely without fetter, without hindrance from other individuals, government and so on.

While the hon. member's bill is well intended, I believe that if we closely examine the protections that are currently available to all citizens of Canada-

[Judges Act, November 19th, 1996]

Madam Speaker, it never ceases to amaze me the nonsense that spews from the mouths of Reformers on occasion. The nonsense has come forward today in relation to this bill, an important bill in a number of respects. The bill would allow one of our eminent jurists to do a very important international duty, to prosecute war crimes at the request of the United Nations.

Canada has always been in the vanguard of justice on the international front. It has always stood for integrity and responsibility in doing our part to ensure that war crimes are punished and that our nation participates in just causes. It is out of respect for the reputation of Canada that Canadians are often asked to participate in such fora.

However, something so good and so noble is being dragged through the gutter by the Reform Party. That ought not to surprise anybody. If anybody is interfering with judicial independence, it is the Reform Party. There is no doubt that Madam Justice Arbour will acquit herself and her country well in her new duties. We feel it appropriate to bring forward the amendments and allow this to happen in accordance with the rules of the United Nations.

Another point has been raised by hon. members of the Reform Party. They have questioned the integrity of the Chief Justice of the Supreme Court. What is being brought forward in this bill is simply an amendment to bring the Judges Act in relations to pensions into equality with public service pensions, members of Parliament pensions and with other pensions. This amendment has been requested for a significant number of years. It has been brought forward along with a number of other amendments to the Judges Act. It is that simple.

The Reform Party questions how many people on the bench are married to other judges. There are four couples that we know of in that circumstance. There may be more but they are not required to report to the Minister of Justice when they fall in love and decide to get married. However, something that is good, something that is

appropriate and something that brings these plans into line with other plans is being questioned and turned into something bad.

This is very symptomatic of all that the Reform Party has stood for and has brought forward. It is to take things that are good and honourable and to turn them into something else. I ask the hon. member, in light of these circumstance, why the Reform Party continues to try and degrade good pieces of legislation which will bring honour to this nation?

[Judges Act, November 19th, 1996]

Madam Speaker, I am pleased to speak on the motion that this House give second reading to and concur in the amendment made by the Senate to Bill C-42, an act to amend the Judges Act and to make consequential amendments to another act.

As hon. members will recall, Bill C-42 received third reading in this Chamber on June 18, 1996. In the Senate the government moved and the Senate agreed to an amendment to one clause of the bill, clause 5, which was passed by this House. It was a provision of general application regarding international activities of federally appointed judges.

The original purpose of the clause was to clarify the terms on which judges could engage in activities abroad, such as technical assistance projects in developing countries. It would have changed the existing law by allowing judges who participated in such activities, with the authorization of Canada, to receive expenses directly from an international organization.

The original clause 5 would also have established a framework within which judges could, with the authorization of Canada, work for an international organization of states or an institution thereof. Such a judge could, with the approval of the governor in council and after consultation with the chairman of the Canadian Judicial Council, request a leave of absence without pay in order to be paid directly by the international organization.

During the consideration of Bill C-42 in the Senate certain concerns were expressed about the implications for judicial independence of certain aspects of clause 5. It became evident that to obtain passage of the bill without further delay, the government had to agree to amend clause 5 to restrict its application to one specific case, that of Madam Justice Louise Arbour.

As hon. members will recall, Madam Justice Arbour of the Ontario Court of Appeal had been appointed by unanimous resolution of the United Nations Security Council following the recommendation of the UN secretary-general to the position of chief prosecutor of the United Nations war crimes tribunals for the former Yugoslavia and Rwanda. For independence reasons the UN insists that the chief prosecutor not receive his or her salary and expenses from a member state but instead directly from the United Nations.

Clause 5, as passed by the House in June, reflected sound policy and practical considerations and fully respected the principle of judicial independence. By moving an amendment to clause 5 in the Senate, the government did not accept that the arguments of those who said that clause 5 as originally worded would have threatened judicial independence.

The government moved its amendment for the sole and simple reason that it saw no other way to proceed quickly with the bill. The Senate's amendment to clause 5 would specifically authorize Madam Justice Arbour alone to take a leave of absence for the purpose of serving as the chief prosecutor of the UN war crimes tribunals for the former Yugoslavia and Rwanda.

It would also permit her to elect to leave without pay and to receive salary and expenses directly from the UN in connection with her service as the chief prosecutor. In other words, by this amendment, clause 5 would cease to be a general amendment to cover the use of Canadian judges for international activities.

I would add that while the Canadian Judicial Council would have preferred to see the passage of clause 5 as originally approved by the House, the council has no objection to the amended version of this clause.

Bill C-42 would permit Madam Justice Arbour to respond to the request of the United Nations secretary-general and the security council to take on an international assignment of enormous importance to the world at large. They are counting on Canada to undertake the necessary measures to allow her to serve in accordance with reasonable and understandable needs of the UN.

Certainly all Canadians can be proud that one of our citizens, one of our judges, is representing this country and indeed the world at large in such an important forum. Therefore, I urge hon. members to approve the Senate's amendment to clause 5 of Bill C-42 as quickly as possible.

All other aspects of Bill C-42 as passed by the House in June remain unchanged. The bill would transfer from cabinet to chief justices the authority to approve judicial leaves of absence of up to six months as recommended by the last two triennial commissions on judges' salaries and benefits and endorsed by the Canadian Judicial Council.

The bill recognizes the importance of the Court Martial Appeal Court of Canada by including the chief justice of that court on the membership of the Canadian Judicial Council and authorizes the payment of a modest accountable representational allowance of up to $5,000 per year to the head of that court.

The chief justices of the courts of appeal of the Yukon and the Northwest Territories would also be granted similar representational allowances.

Bill C-42 would also permit the appointments of up to three additional judges Canada-wide to the provincial courts of appeal which have been experiencing increasing workloads and backlogs over the past number of years.

It is the minister's stated opinion to recommend that two of these new appointments be made to the British Columbia Court of Appeal which needs more judges to deal with its workload and one to the Ontario Court of Appeal to replace Madam Justice Arbour.

Finally, the bill would correct some of the technical errors and clarify some ambiguous language that exists in the Judges Act. Therefore, I call on all hon. members to support these changes to the Judges Act.

[Petitions, November 18th, 1996]

Mr. Speaker, pursuant to Standing Order 36, the petition has been certified correct as to form and content.

The petitioners ask and call on Parliament to refrain from implementing a tax on health and dental benefits and to put a hold on any future consideration of such a tax until a complete review of the tax system and how it impacts on the health of Canadians has been undertaken.

[The Divorce Act, November 4th, 1996]

Mr. Speaker, if I said anything unparliamentary, I withdraw it.

[The Divorce Act, November 4th, 1996]

Mr. Speaker, I wish to thank very sincerely members of the two parties opposite for agreeing to the motion and for the grace with which they done that. With respect to the Reform Party, all I can say is that it is not that the amendment does not do anything, it is that its members probably would not understand the amendment if I explained it to them.

In any event, the purpose of the bill is to enhance maintenance for children. We appreciate, once again, the co-operation of the opposition parties in bringing this amendment forward.

[The Divorce Act, November 4th, 1996]

Mr. Speaker, I believe you will find unanimous consent, after having consulted with the other parties, to introduce the following motion.

I move:

That Bill C-41, in clause 5(2), be amended by replacing lines 13 to 15 on page 8 with "judgment or a written agreement respecting the financial obligations of".

[The Divorce Act, November 4th, 1996]

Briefly, Mr. Speaker, with respect to Motion No. 15, again this amendment is brought forward for the purpose of extending a time period. As I have indicated on previous occasion with respect to a number of amendments that have been brought forward by the Reform Party, it seems that many of these amendments are designed to delay or put off the remedies which are contained in the bill.

It is our view that we must put in timeframes that are consistent with other provisions within other acts, that is to say, to have time periods which reflect the norm for service, for notice and the like rather than extending them and simply inordinately delaying the remedies that are available to the custodial spouse and children.

We should not support this motion because we need to ensure that delays are not inordinate.

[The Divorce Act, November 4th, 1996]

Mr. Speaker, I believe you will find unanimous consent-

[The Divorce Act, November 4th, 1996]

Mr. Speaker, I will respond very briefly to the motion put forward by the Reform Party.

It is interesting to note the consistent theme that runs through the amendments put forward by the Reform Party. First, the motions seek to render ineffective the guidelines that have been put forward for a very distinct and proper purpose, that is, to provide consistency to maintenance awards for children, to provide that the custodial spouse and the children will receive adequate support and the support awards will be consistent within provinces and across the country.

In addition to that theme, hearkening back to a process that is 50 years old, we also see what seems to be another consistent thread. The motions put forward would have the effect of delaying the implementation of the bill. Quite frankly if the suggestion put forward in Motion No. 13 was accepted by the federal government, the process of implementation would be delayed.

Justice delayed is justice denied. The government will do everything in its power to ensure that the guidelines and legislation will be able to go ahead on March 1, 1997.

Members of the Bloc are suggesting that somehow this deals with provincial authority in an inappropriate fashion. Once again I remind the House of my answer to similar statements made by the Bloc Quebecois.

First, this is an area of sole federal jurisdiction. Second, the guidelines which have been put in place are different from province to province, respecting and reflecting the various differences that exist within the provinces. Third, provisions within the bill state that where provincial guidelines are found to be acceptable, they would be allowed to function as the guidelines for the purposes of this bill.

The government is opposed to this motion because it would delay the implementation of the bill. It would like to see the system move ahead so that greater consistency, predictability and the enforceability of awards can all be improved as we work on a system that has been functioning for 50 years and is desperately in need of modernization and update.