Mr. Ross Belsher (Fraser Valley East):
Mr. Speaker, I also wish to acknowledge the commitment the Hon. Member for Lethbridge-Foothills (Mr. Thacker) has shown to the entrenchment of property rights. It is a commitment that I too share. I am pleased that we have the opportunity today to deal with this matter and to discuss some of the issues. At the same time I must say that I agree that Private Members' Hour does not lend itself to a full examination of the issues. The entrenchment of property rights in the Constitution is a matter of no little significance and of some debate. We should be careful to accord this matter the consideration it warrants and not to foreclose public debate by all the interested parties.
I approach this matter with the basic premise that property rights should be entrenched in the Canadian Charter of Rights and Freedoms along with such other basic rights as the right to life, liberty and security of the person. The point of entrenching property rights in the Constitution, as I see it, is to ensure that the property rights which we now enjoy are not dependent simply on the good will of government. Governments do change, as we all know. Currently there is nothing to prevent a Government in Canada from passing laws which unfairly restrict property rights. By entrenching property rights in the Constitution, we would protect them from the arbitrary
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encroachments of government. Today we enjoy, by virtue of the common law, many property rights protections against the action of other citizens. We can, for instance, sue in the civil courts persons who trespass on our land or who create nuisances which affect our enjoyment of our land. We would, however, be, to a great extent, legally helpless if Government were to pass a law enabling it to affect arbitrarily and detrimentally our use end enjoyment of land. Entrenching property rights in the Constitution would provide protections against such arbitrary and ill-considered government action.
In entrenching property rights in the Constitution, we would be following the lead of several western nations. In the United States, for example, property rights are protected by the United States Bill of Rights. The United States federal Government has been subject to constitutional property rights guarantees for almost 200 years.
In 1791, the Fifth Amendment to the Constitution was passed. It provides that no persons shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Towards the end of the 19th century, but still more than 100 years ago, the United States Constitution was amended to apply property rights guarantees in respect of the state Governments. In 1868, the Fourteenth Amendment to the Constitution was passed. It provides that no state shall "deprive any person of life, liberty or property, without due process of law".
In the United States and other countries, property rights have received constitutional protection because they recognize, as we do, the fundamental importance of these rights to the preservation of democracy. In my view, the concept of property is inseparably linked with freedom. This link has been articulated by the American legal scholar, Charles Reich, from whom I would like to quote. At page 733 of Volume 73 of the Yale Law Journal he wrote:
The institution called property guards the troubled boundary between individual man and the state. It is not the only guardian; many other institutions, laws, and practices serve as well. But in a society that chiefly values material well-being, the power to control a particular portion of that well-being is the very foundation of individuality.
Professor Reich traced further the connection between property and liberty at page 771:
Property is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind. The institution performs many different functions. One of these functions is to draw a boundary between public and private power. Property draws a circle around the activities of each private individual or organization. Within that circle, the owner has a greater degree of freedom than without. Outside, he must justify or explain his actions, and show his authority. Within, he is master, and the state must explain and justify any interference. It is as if property shifted the burden of proof; outside, the individual has the burden; inside, the burden is on Government to demonstrate that something the owner wishes to do should not be done.
Thus, property performs the function of maintaining independence, dignity and pluralism in society by creating zones within which the majority has to yield to the owner.
I think that Hon. Members will agree that Professor Reich very persuasively makes the case for the protection of property rights. On this understanding of the concept of property, the right to own and enjoy property is no less important than the
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right to liberty, which is already protected in the Charter of Rights and Freedoms.
At the same time, I must say that there are other values and rights against which property rights must be balanced. My colleagues have noted that there are many laws created by all levels of Government in Canada which serve important societal interests but which in some way affect the use and ownership of property. Some of the provinces have been reluctant to support the entrenchment of property rights because they are afraid that the result of doing so may be to endanger these laws.
As my colleague, the Hon. Member for Okanagan-Similk-ameen (Mr. King), noted, women's groups are also concerned about the risk that recent family law reform may be invalidated by the courts on the basis of the right to enjoyment of property. Environmentalists are concerned that laws providing for the regulation and control of industrial wastes and emissions may be challenged on the basis that infringe on the industrial land owner's right to use their land. Environmentalists are also concerned that legislation providing for the safeguarding of prime agricultural land might also be at risk if property rights were to be entrenched.
None of these Governments, organizations and individuals are unalterably opposed to the entrenchment of property rights. Rather, they are concerned that we have not had the opportunity to study and consider fully the ramifications and consequences of entrenching property rights. It may be that by taking the time to deal with their apprehensions, we will be able to resolve them in a way which will produce a consensus on this matter and which will facilitate an amendment to the Constitution. In the meantime, there are a number of areas which deserve further consideration. As my colleagues have stressed, the process of constitutional reform takes time-
Topic: PRIVATE MEMBERS' BUSINESS-MOTIONS
Subtopic: CONSTITUTION ACT, 1982 ADVISABILITY OF AMENDING ACT TO INCLUDE PROPERTY RIGHTS