AND THE CONSTITUTION
Law and Government Division
PROPOSALS TO ENTRENCH
PROPERTY RIGHTS IN THE CONSTITUTION (1968-1983)
FOR ENTRENCHMENT OF PROPERTY RIGHTS
PROPERTY RIGHTS AND THE CONSTITUTION
As part of the constitutional
package announced in September 1991, the federal government proposed that
the Canadian Charter of Rights and Freedoms be amended to guarantee
property rights. This paper provides background information as to why
these rights were not earlier included in the Charter. The paper also
addresses what is meant by the term "property rights" and the
question of how the courts might interpret the term "property"
for purposes of the relevant provision if it were included in the Charter.
Finally, the paper canvasses possible arguments for and against the proposed
PROPOSALS TO ENTRENCH
PROPERTY RIGHTS IN THE CONSTITUTION (1968-1983)
The entrenchment of property
rights in the Constitution appears to have been the policy of the former
Liberal government since 1968. In that year, as Minister of Justice, Pierre
Trudeau proposed the passage of a charter that would give constitutional
protection to certain rights, including the "enjoyment of property."
In 1969, as Prime Minister, Mr. Trudeau again proposed entrenchment of
a charter of rights which would have guaranteed the right of an individual
to use and enjoy property, with the assurance that there would be no deprivation
of property except in accordance with proper legal procedures.
After the failure of the Victoria Conference
in 1971, constitutional reform was not a major issue again until the late
1970s. In 1978, Bill C-60, the Constitutional Amendment Bill, contained
a guarantee of:
the right of the individual to the use
and enjoyment of property, and the right not to be deprived thereof
except in accordance with law.
The bill was intended to
be a stimulus to constitutional debate and negotiation, and it was hoped
that a charter containing the foregoing guarantee of property rights would
eventually be ratified by the provinces and included in the Constitution.
Some provinces, in particular Manitoba and Prince Edward Island, were
quite opposed to such a proposal. They feared that provincial legislation
regulating land ownership and use could be nullified by such a constitutional
guarantee. The federal government took the position that this guarantee
was considerably weaker than other proposals since it only required that
a deprivation be "in accordance with law," a formulation which
respected provincial jurisdiction over "property and civil rights."
The federal government re-drafted
the property rights guarantee for the 1980 First Ministers Conference.
In order to allay provincial fears, the proposed Charter of Rights contained
the following section:
9.(1) Everyone has the
right to the use and enjoyment of property, individually or in association
with others, and the right not to be deprived thereof except in accordance
with law and for reasonable compensation.
(2) Nothing in this
section precludes the enactment of or renders invalid laws controlling
or restricting the use of property in the public interest or securing
against property the payment of taxes or duties or other levies or
A number of provinces still
strenuously opposed this guarantee. While there was opposition to the
whole concept of a Charter of Rights among the provinces, the actual content
of the proposed Charter was of less concern, with the exception of the
property rights guarantee. Accordingly, this guarantee was omitted from
the Charter contained in the proposed resolution of October 1980. In the
absence of a consensus on this issue, the government was prepared to defer
it to the "second round" of constitutional reform, when it could
be incorporated pursuant to the amending formula in the new Constitution.
During the proceedings of
the Special Joint Committee on the Constitution of Canada in 1981, the
Progressive Conservative Party proposed an amendment to s. 7 of the Charter,
the guarantee of basic legal rights, which would have added the underlined
Everyone has the right
to life, liberty, security of the person and enjoyment of property
and the right not to be deprived thereof except in accordance
with the principles of fundamental justice.
Through acting Minister
of Justice Robert Kaplan, the government first indicated a willingness
to agree to this amendment. Further representations from some provinces,
however, particularly Prince Edward Island, and the New Democratic Partys
refusal to agree to a guarantee of property rights unless consideration
was given to incorporation of a number of other economic and social rights,
appear to have convinced Justice Minister Chrétien to adhere to the original
plan, and the Conservative amendment was defeated.
After the proclamation of
the Charter of Rights and Freedoms in April 1982, the issue lay
dormant for a year, at least at the federal level. In September 1982,
the British Columbia Legislature had unanimously passed a resolution seeking
an amendment of s. 7 of the Charter similar to that proposed by the federal
Conservative Party. Further, at a First Ministers Conference called
in March 1983 to deal with aboriginal rights, some premiers indicated
a willingness to support a property rights amendment. Accordingly, on
21 April 1983, Prime Minister Trudeau stated in the House of Commons that
if the opposition parties agreed to limit debate to one day, the government
would introduce a resolution entrenching in s. 7 the right to enjoy property.
This resolution, with the required support of seven provinces having at
least 50% of Canadas population, could have amended the Charter.
The Conservative Party agreed
with this proposal. The New Democratic Party, however, wanted more detailed
consideration of the matter. It did not oppose a property rights guarantee
per se, but wanted the matter referred to a parliamentary committee
which could report after hearing from concerned members of the public
and representatives of the provinces. Representatives of the NDP were
concerned about such matters as: the effect of a guarantee on provincial
legislation regulating non-resident ownership of land; the ability of
governments to legislate on and control unique types of "property,"
such as data bank information; legislation providing mortgage relief;
legislation preserving farmland and recreational land; legislation regulating
businesses, such as legislation setting a minimum wage; and legislation
dealing with the division of matrimonial property.
While negotiations were
proceeding to try to accommodate the concerns of the NDP, the Conservative
Party introduced, in the form of a non-confidence motion, a resolution
containing a proposed amendment to s. 7 of the Charter. This move brought
the process to a halt. The government, not surprisingly, would not vote
in favour of a non-confidence motion. (In any event, even if it had done
so, the motions success would have dissolved Parliament, precluding
passage of the resolution in the Senate.) This ensured defeat of the proposed
amendment. Further, since the rules of the House forbade the reconsideration
in the same session of a question that had been negatived, such an amendment
could not be considered again until the next session of Parliament. Effectively,
the Conservative motion prevented further consideration of a property
rights amendment in the first session of the 32nd Parliament.
The Conservative motion could have been withdrawn with the unanimous consent
of the House, but the NDP refused to agree. On 2 May 1983, the motion
was defeated. In the second session of the 32nd Parliament,
which began in December 1983 and concluded in June 1984, the issue of
a property rights amendment did not arise.
In one significant development
after 1983, on 15 October 1987, Mr. John Reimer M.P. introduced a motion
in the House of Commons to amend the Constitution Act, 1982 so
as to include property rights within the Canadian Charter of Rights
and Freedoms. Mr. Reimers motion was amended so that it expressed
support in principle for a property rights amendment, rather than proposing
such a specific amendment itself. The motion, as amended, was adopted
by a 108 to 16 vote, and thus became a resolution of the House, as follows:
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.(1)
FOR ENTRENCHMENT OF PROPERTY RIGHTS
Since the Charter is part
of the Constitution, it can be repealed or amended only by the process
of constitutional amendment. This is explicit in s. 52(3) of the Constitution
Act, 1982, which provides that "Amendments to the Constitution
of Canada shall be made only in accordance with the authority contained
in the Constitution of Canada." The Constitution of Canada is defined
in s.52(2) as including "this Act," and Part I of "this
Act" is the Charter. Amending the Charter to include a reference
to property rights in s. 7 would have to be authorized in accordance with
the general amending procedure established by s. 38(1) of the Constitution
Act, 1982. This requires authorization by (a) resolutions of the Senate
and House of Commons, and (b) resolutions of legislative assemblies of
at least two-thirds of the provinces having in aggregate at least 50%
of the population of all the provinces. The 50% population requirement
means that the agreeing provinces must include Ontario or Quebec, since
the combined population of those two provinces is more than 50% of the
population of Canada. Section 38(2) requires a resolution supported by
a majority of the members of the legislature, rather than a majority of
those present and voting, if the proposed amendment "derogates from
the legislative powers, the proprietary rights or any other rights or
privileges of the legislature or government of a province." A property
rights amendment to the Charter would be such an amendment. Section 38(3)
permits the legislative assembly of a province to "opt out"
by passing a resolution of dissent to an amendment of the kind described
as s. 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.
The procedures for amendment
"may be initiated either by the Senate or the House of Commons or
by the legislative assembly of a province" (s. 46(1)). Once the authority
for an amendment has been provided by the requisite number of resolutions
of assent, s. 38(1) provides that the formal act of amendment is accomplished
by a "proclamation issued by the Governor General under the Great
Seal of Canada." Section 39 imposes time limits on the issue of this
proclamation. Under s. 39(1), 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
each legislative assembly sufficient time to consider the proposal. Under
s. 39(2), the proclamation is not to be issued after three years have
elapsed from the adoption of the resolution initiating the amendment procedure.
In its constitutional package
announced in September 1991, the federal government simply proposed that
the Canadian Charter of Rights and Freedoms be amended to guarantee
property rights. This was the only reference made to property rights.
No indication was given as to how "property" would be defined
if such rights were entrenched in the Charter. Similarly, no definition
of "property" had been included in earlier proposals to entrench
property rights in the Charter, neither at the time of the committee hearing
on the Constitution in 1981 nor later in the House of Commons.
If property rights were
entrenched in the Charter but the term "property" were left
undefined, Canadian courts would be given wide latitude to define the
term for purposes of the provision. For example, they might define "property"
to include only traditional types of property, such as tangible assets
like real property, chattels, and traditionally recognized property such
as stocks and debentures. Alternatively, the courts might choose a less
traditional interpretation, so as to include the so-called "new property"
i.e., various forms of government benefits, such as welfare payments,
old age benefits, unemployment compensation, etc. This is the way the
term has been interpreted in the United States.
The Fifth Amendment to the
U.S. Constitution, passed in 1791, provides that no person 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. The courts
in the United States have interpreted "property" within the
meaning of this constitutional provision to include the traditional types
of property, such as tangible assets like real property and chattels,
and also intangible assets, such as patents and copyright. The courts
have gone even further to include the so-called "new property,"
comprising various forms of government benefits.
The American judicial position
with respect to "new property" has been summarized as follows:
While the government
is not required to give a benefit such as welfare or public housing,
if it does distribute these benefits, it must do so in accordance
with constitutional principles, which require procedural fairness
principles to be followed. Thus, once a system has been established
which creates a claim for entitlement for an individual, then the
due process clause will apply. A claim for entitlement arises if the
law establishes the criteria for continued receipt of benefits, and
the individual appears to meet the criteria. If in fact the law creates
no claim to future payments, then an individual has no claim. There
is no distinction between privileges and rights.(2)
In short, in the United
States, where a right to property is entrenched in the Constitution, the
meaning of "property" has evolved through judicial interpretation.
When property rights are now referred to in the context of the U.S. Constitution,
it is no longer sufficient to focus simply on the right to own or occupy
land, or to possess or use chattels. One must take into consideration
such matters as the social security system established by government,
and intangibles such as copyrights, patents and trademarks. Also, once
the government has established a system that creates a claim of entitlement
for an individual, the due process clause will apply should the government
decide to discontinue the entitlement.
One can only speculate on
how Canadian courts would define "property" if this were left
undefined. If it were interpreted both in the traditional sense and also
to include certain government benefits, as is done in the United States,
the entrenched property rights would have the potential to benefit those
who did not own real property. Courts might be involved in determining
whether government benefits were essential to the security of the person
and whether appropriate procedural safeguards had been observed in the
course of denying or depriving an individual of entitlements.
A number of arguments have
been put forward in favour of the constitutional protection of property
First of all, there is the
historical precedent. Property rights have played a central role in the
evolution of Canadian society and indeed are an essential part of British
parliamentary democracy. These rights can be traced back to the year 1215,
when the Magna Carta was signed. The right to own property was
also included in the English Bill of Rights in 1689. In 1948, Canada
signed the United Nations Universal Declaration of Human Rights,
Article 17 of which reads:
Everyone has the right
to own property alone as well as in association with others.
No one shall be arbitrarily
deprived of his property.
Property rights are also
recognized in the 1960 Canadian Bill of Rights, which affirms the
right of the individual to the enjoyment of property and the right not
to be deprived thereof except by due process of law. Clearly then, it
is arguable that our Constitution should be brought into line with these
The Supreme Court of Canada,
in the case of Harrison v. Carswell,(3)
commented upon property rights in Canadian law as follows:
has traditionally recognized, as a fundamental freedom, the right
of the individual to the enjoyment of property and the right not to
be deprived thereof, of any interest therein, save by due process
Section 26 of the Charter
The guarantee in this
Charter of certain rights and freedoms shall not be construed as denying
the existence of any other rights and freedoms that exist in Canada.
Case law has construed this
section to mean that the common law protection of property rights is at
least not threatened by the Charter.(5)
Only the inclusion of property in the Charter, however, would enable an
individual whose property rights had been infringed to have recourse to
the enforcement section of the Charter. Subsection 24(1) states in part
that "[a]nyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court ... to obtain such
remedy as the court considers appropriate and just in the circumstances."
It should be noted as well
that the notion of property rights appears to enjoy public support. A
poll commissioned by the Canadian Real Estate Board in 1987 found that
81% of Canadians considered it either "very" or "fairly"
important that the Constitution be amended so as to include property rights.
Various national organizations, such as the Canadian Bar Association,
the Canadian Chamber of Commerce, and the Canadian Real Estate Association,
have also stressed the need to include property rights in our Constitution.
In entrenching property
rights, Canada would be following the lead of a number of other democratic
countries, including the United States, West Germany, Italy and Finland.
In the United States, as noted above, the Fifth Amendment to the U.S.
Constitution provides that no person 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. In 1868, the Fourteenth
Amendment to the U.S. Constitution was passed, stipulating that no state
shall deprive any person of life, liberty or property, without due process
of law. Thus, in the United States and in a number of other countries
where property rights have received constitutional protection, their fundamental
importance to the preservation of democracy is recognized.
It has been argued that
consistency demands that those fundamental rights now guaranteed by our
Constitution life, liberty and security of the person be
given their natural and essential correlate, the enjoyment of property.
Some argue that to omit and deny the right to property is to diminish
and indeed render meaningless the right to life, liberty and security
of the person at present guaranteed by the Charter. Property and the right
to enjoy it are essential features of a democratic society. The right
to own and enjoy property of all types allows Canadians, whether self-employed
or wage-earners, to enjoy the fruits of their endeavours.
One of the concerns voiced
about the inclusion of property rights in the Charter relates to the complicated
matter of the definition of the term "property." Through time,
the term has evolved to mean much more than real property. The fact that
the term will have to be interpreted by the courts, which may interpret
it very broadly, is, however, not a good reason for excluding property
rights from the Charter.
Finally, the inclusion of
property rights protection in the Charter would mean that the government
could not disregard these rights unless it could justify its actions and
satisfy the onus set forth in s. 1 of the Charter, which stipulates that:
The Canadian Charter
of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.
By virtue of this section,
a person who felt that his or her property rights had been infringed by
legislation would have to establish a prima facie case; once this
had been established, the onus would shift to the enacting body to demonstrate
that the legislation was a reasonable limit upon rights and freedoms,
and was justified in a free and democratic society.
The above discussion reflects
the arguments in favour of entrenching property rights in our Constitution.
There are, however, serious concerns about the possible adverse consequences
of such entrenchment.
Critics warn that entrenchment
might have unintended consequences, affecting such things as municipal
zoning rules, Native land claims, pollution regulations and a spouses
right to property on the dissolution of a marriage. Others are concerned
about how property rights might be interpreted by the courts, if no definition
of "property" were included in the Charter.
For instance, the Canadian
Advisory Council on the Status of Women dealt with the matter of the entrenchment
of property rights in a resolution dated 27 September 1983. The resolution
read in part as follows:
Whereas on March 29,
1983, an amendment to Article 7 of the Canadian Charter of Rights
and Freedoms, concerning property rights, was introduced in the
House of Commons and was defeated;...
Whereas the aim of the
amendment of March 29, 1983 was to protect property rights in the
traditional sense of the word, meaning primarily real property;
Whereas Canadian women
in general, are not owners of real property and, furthermore, own
relatively little property of any kind;
Whereas the probable
consequences of such an amendment have not been sufficiently studied
Whereas such an amendment
could have grave consequences on the rights which women have already
obtained, such as the right to division of the matrimonial home;
Whereas any increased
protection of property in the Canadian Constitution must also protect
new types of property, which are often social rights and benefits
such as rent control, pensions and labour standards;
The CACSW recommends
to the federal government that no new amendment be introduced in the
House of Commons before an in-depth study can be made to establish
the consequences of such a measure on the lives of Canadian women.
We also ask that any such measure be submitted to the general public
so that Canadian women be given the chance to voice their opinion
on the matter.(6)
A number of other groups
have also indicated their concerns about the possible inclusion of property
rights in the Constitution. For example, Native groups are worried about
how their land claims and land entitlement would be affected. Labour groups
have expressed concerns about how the rights of workers might conflict
with the rights of those who own property. Environmental groups have concerns
about the kinds of laws that could be passed if property rights were entrenched.
In addition, a number of
provinces are concerned that the constitutional entrenchment of property
rights would enable the courts to interfere with laws that protect important
societal interests. They cite, for example, land use planning and municipal
laws, real and personal property laws, environmental laws, and health
and safety laws. They ask whether an entrenched right to property might
affect the ability of the provinces to control the use of privately owned
lands, to protect the environment, or to protect communities.
In September 1991, a Report
on the Constitution by the Special Committee of the Legislative assembly
of Prince Edward Island specifically recommended that property rights
not be included under the Charter because of that provinces need
to protect and preserve its shoreline and its agricultural land.
Insofar as the provinces
are concerned, it should be borne in mind that a province that feared
its legislation might infringe upon a property rights guarantee (or whose
legislation was found to do so) could always invoke s. 33 of the Charter
and declare that its legislation would operate notwithstanding a Charter
guarantee of property rights.
This paper has presented
a number of possible arguments for and against the inclusion of property
rights in the Canadian Charter of Rights and Freedoms. As noted
in the paper, it is unknown how Canadian courts would define "property"
for this purpose. It is clear, however, that the entrenchment of property
rights in the Charter would do more than simply protect those who own
real property from expropriation without compensation. If "property"
were interpreted by the courts more broadly than in the traditional sense,
the entrenchment of property rights could also have positive effects for
those persons who do not own real property. If the interpretation of the
term "property" is to include what is known as the so-called
"new property" of government benefits, as is the interpretation
of the term in the United States, presumably recipients of such government
benefits could not be deprived of them without a fair hearing.
The entrenchment of property
rights in the Charter would also entitle those whose property rights were
infringed to use the remedy section of the Charter (s. 24(1)). This provision,
combined with the safeguards provided by s. 1 of the Charter, would protect
property rights from arbitrary interference.
Canada, House of Commons, Debates, 2 May 1988, p. 15044.
Jean McBean, "The Implications of Entrenching Property Rights in
Section 7 of the Charter of Rights," Alberta Law Review, 1988,
Vol. 26, p. 548-583, at p. 581.
(1975), 62 D.L.R. (3d) 68.
Ibid., p. 83
The Queen in Right of New Brunswick v. Fishermans Wharf
Ltd., (1982), 135 D.L.R. (3d) 307, affd. on other grounds, (1983),
144 D.L.R. (3d) 21.
As cited in Canada, House of Commons, Debates, 1 February 1985,