Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 44 (23 January 1981)
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Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 44 (23 January 1981).
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HOUSE OF COMMONS
Issue No. 44
Friday, January 23, 1981
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980
The Honourable Robert P. Kaplan, Acting Minister of Justice
WITNESSES: (See back cover)
First Session of the
Thirty-second Parliament, 1980-81
SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
Mr. Bossy replaced Miss Campbell (South West Nova);
Mr. Robinson (Burnaby) replaced Mr. Ittinuar;
Mr. Gustafson replaced Mr. Fraser.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Wood replaced Senator Austin.
MINUTES OF PROCEEDINGS
FRIDAY, JANUARY 23, 1981 (79)
The Special Joint Committee on the Constitution of Canada met this day at 9:39 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Cottreau, Hays, Lapointe, Lucier, Petten, Rousseau, Tremblay, Wood and Yuzyk.
Representing the House of Commons: Messrs. Beatty, Bockstael, Bossy, Corbin, Epp, Fraser, Gingras, Gustafson, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom and Robinson (Burnaby).
Other Member present: Mr. Rose.
In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Appearing: The Honourable Robert P. Kaplan, Acting Minister of Justice.
Witnesses: From the Department of Justice: Mr. Roger Tassé, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
The Committee resumed consideration of the motion of Mr. lttinuar,—That Clause 6 of the proposed Constitution Act, 1980 be amended by (a) striking out the word “and” at the end of paragraph 6(3)(a) on page 4; and (b) striking out line 23 on page 4 and substituting the following:
(c) any laws or practices that are reasonably justifiable for the purpose of mitigating any environmental or social impact of any activity on the community, culture, economy or society of any ofthe aboriginal peoples of Canada.”
The amendment was allowed to stand.
Clause 6 was allowed to stand.
On Clause 7 of the proposed Constitution Act, 1980.
Mr. Robinson (Burnaby), moved.—That Clause 7 of the proposed Constitution Act, 1980 be amended by striking out line 24 on page 4 and substituting the following:
“7. Every individual has the right to life, liberty”
After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 20.
Mr. Beatty moved,—That Clause 7 of the proposed Constitution Act, 1980 be amended by striking out lines 24 to 27 on page 4 and substituting the following:
“7. 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 principles of natural justice.”
After debate, at 11:05 o’clock a.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Friday, January 23, 1981
The Joint Chairman (Mr. Joyal): Order, please. May I request the honourable members to take their seats so that we can resume consideration of the amendment moved by Mr. Ittinuar on behalf of the NDP Party; but before I invite honourable John Fraser, who was on my list of speakers last night on the proposed motion, I would like to draw the attention of the honourable members to, and I do not want to use a political word, a package of amendments that have been circulated and those amendments deal with Clause 6 of course, Clause 7 of the proposed motion, Clause 8, Clause 9 and Clause 10.
On Clause 6—Rights ofcitizerts to move.
The Joint Chairman (Mr. Joyal): So I think that it will make the work of honourable members much easier by having made available to them all the amendments so that they could have quick reference to what is coming up. They can study them and think them over and when the Chair calls the amendments it is much easier to have them at hand than to wait for them to be distributed.
So on the proposed motion of Mr. Ittinuar I would like to invite honourable John Fraser who indicated to me last night that he wanted to speak, unless honourable James McGrath at this point wants to make some comments.
Mr. Fraser: Mr. Chairman . . .
The Joint Chairman (Mr. Joyal): Honourable Fraser?
Mr. Fraser: I had a discussion a few minutes ago with my colleague, Mr. Epp, and he indicated to me that there may be some accord between ourselves and our colleagues in the New Democratic Party to let that clause stand because I think our people are looking at the wording, and I see Mr. Ittinuar agreeing with me, so through you, Mr. Chairman, and with Mr. Ittinuar’s agreement we could let it stand for now.
Mr. Nystrom: Just on a point of order, Mr. Chairman, is Mr. Fraser referring to the entire Clause 6 or just the amendment moved by Mr. Ittinuar?
Mr. McGrath: No, we are referring to the amendment and 1 perhaps would like to—that is subject to confirmation by my colleague who is now engaged in a telephone conversation, but certainly on Mt. Ittinuar’s amendment we would like time.
Mr. Fraser: Mr. Chairman, I wonder could we just let it stand at the moment.
Mr. McGrath: If there is agreement to letting it stand, we could go on to Clause 7.
The Joint Chairman (Mr. Joyal): Maybe we could have an indication for how long we should stand the Clause. Should we stand the Clause until we have completed the other clauses or if we have to come back, on maybe Monday evening. Give me an indication, generally. I cannot stand a clause for standing a clause. I have to know when I will have to call back the clause. That is why I invite you to give me more information on your proposal.
Mr. McGrath: I say with great respect we still have 53 clauses to go, Mr. Chairman, there is lots of work ahead of us, but to satisfy your concern, Monday would be fine, perhaps maybe Tuesday. but certainly we would have some indication Monday.
The Joint Chairman (Mr. Joyal): So maybe Mr. Corbin . . .
Mr. Corbin: Mr. Chairman, we are prepared to come back to this clause at any time and dispose of it. We have had consultation in our group on the substance of it yesterday and we are prepared to deal with it at any time. Thank you.
The Joint Chairman (Mr. Joyal): Merci beaucoup, monsieur Corbin. I understand with general consent, we would stand that clause until further consideration with the representatives of the Conservative Party and the NDP Party later on Monday or Tuesday so that the Chair can call back the amendment and then the Clause 6.
Clause 6 allowed to stand.
The Joint Chairman (Mr. Joyal): So I would like then to move on Clause 7.
On Clause 7—Life, liberty and security of person
The Joint Chairman (Mr. Joyal): I would like to invite at this point Mr. Robinson who has notified the Clerk that the NDP Party might have another amendment on Clause 7 and I have not been served notice of that amendment.
Maybe Mr. Robinson could indicate to me what would be the content of the proposed amendment.
And I understand that I would like to deal with that amendment at this point because I think that amendment addressed itself to the very first word of Clause 7.
Mr. Robinson: Mr. Chairman, I am in a position of some difficulty here. I anticipated we would be dealing with mobility rights in Section 6 and it was only following the discussions with Mr. Epp that it was agreed to stand this particular clause.
In view of that, there is no written submission of this proposed amendment and if we could receive agreement from honourable members to dispense with written notice of the proposed amendment, we could deal with it now, otherwise I would ask for a brief recess to enable us to put it in writing in view of the change in our agenda.
The Joint Chairman (Mr. Joyal): I think Mr. Robinson, if I have well understood what I have been informed by our Clerk, I think it is to substitute on line 25 of page 4, the first word “everyone” of Clause 7 by the word “every person”.
Mr. Robinson: “Every individual”, Mr. Chairman.
The Joint Chairman (Mr. Joyal): By “every individual”. I think honourable members around the table can take written notice of that amendment and I do not really see the need at this point to take a recess. I think it is easily understood understandable by, I should say, every individual around the table. And of course, I do not want honourable members to interpret that as being the position of the Chair on the opportunity to receive the amendment. So maybe Mr. Robinson could make the usual presentation on the amendment.
Mr. Robinson: Yes Mr. Chairman, as I say we are moving slightly faster in this Committee than we anticipated, not having expected to be at Clause 7 at this particular point.
In any event, I would move then formally that we delete in line 24, I believe it is of the original clause, the word “every one” and insert in its place the words “every individual”, and of course the French version would be to delete the word “chacun” in Clause 7 and substitute the word “chaque individu”. I believe that would be the appropriate translation.
Mr. Chairman, the purpose of this proposed amendment is to specify very clearly that what we are talking about in Clause 7 is precisely what we are talking about in Clause 15. That is “natural persons” and not “artificial persons” or “corporations”.
Section 15 originally read “everyone” and the government, and I certainly think the government correctly changed those words to “every individual” and the explanatory notes read:
The word “everyone” would be replaced by the word “every individual” to make it clear that this right would apply to natural persons only.
Now Mr. Chairman, when we look at the rights which are dealt with in proposed Clause 7, we are talking about the right to life, to liberty and security of the person. And the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Surely it cannot be argued that any of those rights in any way adds to the rights of corporations or of artificial corporations. There may be some who suggest, for example, that the reference to security of the person, could be extended to corporations. However, any extension which might be made under the rubric of fundamental justice, would I submit, be covered already by protections from unreasonable search or seizure in Section 8. And to anyone who would suggest that, in some way, the security of the person as applied to the corporate sector would be expanded in Clause 7, I would ask them what is the nature of that exansion and what are you attempting to give to the corporate sector that is not already contained in Clause 7.
Clearly the right to life, and the right to liberty are ones which apply to natural persons, and do not apply to the corporate sector.
Now Mr. Chairman, I recognize that the government is tabling a proposed amendment that would add the right to the enjoyment of property and would change the words to “the principles of natural justice”. For the right to the enjoyment of property, if this is to be accepted, and there will be a debate on that proposed amendment, again, should surely be restricted in this particular instance when we are talking about natural justice to individuals. That is the concern, even if the proposed government amendment is accepted.
So Mr. Chairman, in recognition of the fact that it is human beings we are talking about, and natural persons, very clearly in Clause 7, I suggest that the logic which compelled the government to change Clause 15 from “everyone” to “every individual” would be similarly applicable in Clause 7.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
I now give the floor to the Honourable Perrin Beatty. Mr. Beatty.
Mr. Beatty: Thank you, Mr. Chairman.
I listened Mr. Chairman, with a great deal of interest to my friend Mr. Robinson as he explained the NDP’s rationale for changing the wording in Clause 7 and if I understood him correctly, he indicated that none of the rights which were conferred in this clause, could be construed in any way as applying to corporations at the present time.
If indeed that is the case, there is no need to change the wording so as to specifically exclude corporations. In other word, corporations could not claim the right to life, they could not claim the right to liberty or claim the right to security of person. Then there is not a need to specifically exclude them. I think that the concern of the NDP was indicated when Mr. Robinson spoke about the amendment which will be moving next, and that is to extend the right to enjoyment of property, and I gather that the reason why the NDP wants the amendment made at this point, is to ensure that the right to enjoy property, that one cannot be deprived of except in accordance with principles of natural justice, should not extend to corporations.
Mr. Chairman, I would indicate to members of the Committee, that they should look at this area very, very seriously because, and perhaps I would ask the question of Mr. Robinson, is it fair if we extend property rights for example, for a family farm, to individuals to own a family farm, and not to have that family farm taken away from them except under the principles of natural justice. In other words, that they be given the opportunity for a fair hearing and the expropriation that would take place, would be in accordance with legally acceptable means.
How is it different, from the family which incorporates its family farm, where the husband and wife and perhaps one of the children decide to incorporate their family farm because federal tax legislation makes it advantageous or desirable for them to do that. Why should that family then be deprived of their right to enjoyment of property because they have chosen to incorporate a family farm? I would argue that this would be discriminatory and most unfair, and that millions of Canadians would be deeply concerned about the elimination of this sort of protection for people who have incorporated small businesses or who have incorporated family farms.
The same thing. Mr. Chairman, clearly applies in the case of family who would incorporate a small business.
Surely, Mr. Chairman, if we believe in justice, we believe that property cannot be taken away from people, including people who have incorporated themselves in a business or in a family farm, except by legal methods, lawful means, and except after they have had a fair hearing, the right to express themselves and to express the reasons why they should not be deprived of that property.
I see no way, Mr. Chairman, in which the national interest, the public interest, is harmed by insuring that those two principles be respected. First of all, that property cannot be
taken away without legal means, and secondly that it cannot be taken away until after someone has had a fair hearing. And I would suggest to you that the NDP amendment, which would exclude family farms and family corporations, would do a grievous injustice to literally thousands and thousands of Canadians and that members of the Committee who have indicated previously that they were prepared to support the extension of property rights into the Charter, would be making a very grievous mistake and doing a serious injustice to large numbers of Canadians if we accepted the NDP amendment.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Beatty.
Honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I guess I would prefer, if the Minister, because of the legal arguments raised on the surface, persuasive arguments that Mr. Beatty has raised, perhaps we could hear from the Minister at this moment on that point. I would like to get his views before I formulate my own opinion.
The Joint Chairman (Mr. Joyal): Thank you very much Mr, Mackasey.
I will certainly invite the honourable the Acting Minister of Justice to give the information that you would like to obtain.
The honourable the Acting Minister of Justice, Mr. Kaplan.
Hon. Robert P. Kaplan (Solicitor General and Acting Minister of Justice): Mr. Chairman, I have very little to add to what we indicated yesterday about “every person” and “every individual”.
We think an “individual” clearly applies to human beings only, and the other two expressions are interchangeable and that their scope is determined by the context.
I would agree with Mr. Beatty that, if the rights provided in this clause, as amended, could extend to corporations, that they will do so if you used the word “everyone”, but would not if Mr. Robinson succeeds with his amendment; so that in effect when we come to add the provision about property Mr. Robinson would have us deprive incorporated family farms and religious corporations, personal holding companies of individuals from receiving any protection of Clause 7.
I know perfectly well that he is prepared to show how all of those rights are protected elsewhere in the Charter; but he uses exactly the opposite argument when it suits his purpose to do so, that every right should be protected in every clause.
So I would like to repeat our general attitude to useless amendments. The Liberal members met yesterday and thought that one possibility is to be accommodating to amendments which we do not think make any difference.
But in my discussions with Liberal members it was indicated to me clearly that we ought, as a policy, to reject amendments that we do not see as making any difference.
That, as I understand it, will be the position that members would be taking to all of the clauses.
I suppose Mr. Robinson will have an amendment to propose every time the word “everyone” or the phrase “every person” appears. I think if it would be of any assistance to him to know that he would be wasting his time, we indicate that we are not prepared to support amendments which just give him a chance to listen to himself talking.
Mr. Robinson: A point or order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. Robinson, a point of order.
Mr. Robinson: Mr. Chairman, many of us as Committee members have sat here for many hours, and you have recently indicated in your document the extent to which we have been working. I recognize the fact that the Minister has not been taking part in these deliberations until very recently.
But I think there has been a tone which has tended to avoid the kind of personal attack which the Minister has unfortunately engaged in.
On a couple of occasions I have deliberately refrained from responding, and I would like to ask you, Mr. Chairman, to indicate to the Minister that we should be dealing with substance and not engaging in personal attacks on individual Committee members.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
I am glad to concur with you that we have been quite self-disciplined in the last days.
The honourable the Acting Minister of Justice has made such a reference at the very moment that the Chair was thinking that we had now arrived at a modus operandi at the clause-by-clause step. I think every member around this table has noticed that since yesterday afternoon we arrived at the madus vivendi that provides satisfaction.
I am glad to inform the honourable Minister that he has been witness to that kind of modus operandi and I am glad that he can join us in keeping it in the same context.
Thank you very much, Mr. Robinson.
Mr. Mackasey, do you want to speak?
Mr. Mackasey: Only to suggest, Mr. Chairman, that I am very much persuaded by the Minister’s corroboration of Mr. Beatty’s argument.
I realize that Mr. Robinson, of course, is an extremely persuasive member, and he has influenced my thoughts quite a lot. He has a tremendous grasp of the constitutional legalism which I could never profess to have.
But I do believe that the Minister said something which is the very key to me as a layman. I would like to read a document which in a matter of moments would make us see the basic intent.
If the wording of that clause at the moment clearly protects the small family unit, the incorporated family unit, and it is c
lear, then I would prefer that type of clarity than having to go all through the proposed resolution to find the legal protection which would be removed from this clause by the adoption of this amendment. I very much prefer to see it in the present wording than having to find solace in other clauses.
I am satisfied and intent to vote against the amendment as proposed by Mr. Robinson.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.
I would like to invite Mr. Robinson to conclude on the proposed amendment.
Mr. Robinson: Mr. Chairman, having listened carefully to the arguments of Mr. Beatty, I would still suggest that this amendment is worthy of support.
I must say that I am pleased to hear the Minister say that the government members have decided to take a position that they are not going to support amendments which do not make any difference. We certainly do not intend to propose any such amendments, and therefore there should not be any problem in that particular regard.
With respect to this particular amendment, however, it is being suggested that the family farm or the family corporation— and Mr. Beatty used the two terms interchangeably— might in some way be threatened by this.
Well, of course, there has been no evidence whatsoever presented to that effect, that the family farm or corporation might be threatened by this.
If it were suggested, all members of this party would certainly vigorously resist that.
However, I would like to point out that we are not just opening the door ehre to the family farm and the family corporation which are already clearly protected by other clauses of this constitution; but we are also opening the door to the large foreign corporation, because there is no restriction here to citizens of Canada; there is not restriction here to citizens of Canada when we are talking about the proposed amendment of property rights. We will come to that later when we deal with the substance of that amendment.
But this would allow foreign corporations to come in and would apply that standard to large foreign corporations as well.
So while you may talk about the family farm, and the samll family and religious corporations, all of which are to some extent already protected in any event, there is still, I think, a concern, if there is to be an addition of the principles of protection of the enjoyment of property—and that was stated to mean a fair hearing as well as legally acceptable means of taking that property; and we will await with interest the words of the law officers of the Crown on that interpretation of the meaning of “natural justice” in that respect; but we need to be very careful in our drafting of this document, because it is going to last for a long time.
The government has indicated in Clause 15 that they have accepted the principle that there are certain rights which should be restricted to natural persons.
Mr. Chairman, as I said before, I would certainly suggest that in this particular instance these rights should be restricted to natural persons.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
I see that honourable members are ready for the question. The proposed amendment is to substitute in line 24, page 4 of the English version, the word “everyone” by “every individual”, and on page 4, line 25 on the French version le mot «chacun» par «chaque individu».
The Joint Chairman (Mr. Joyal): I would like to go the next amendment, which is the amendment identified by the letter N-10, Clause 7, page 4, and invite Mr. Robinson on behalf of the New Democratic Party to move the proposed amendment.
I am sorry, but I have been informed by our Clerk that we should go on the amendment moved by the Conservative Party, the one identified by the letter C.P.—for Clause 7, page 4, and I invite the honourable Perrin Beatty to move the proposed amendment.
Mr. Beatty: Thank you, Mr. Chairman. Perhaps I can read the amendment in both official languages.
I move that Clause 7 of the proposed constitution act, 1980 be amended by
(a) striking out line 25 on page 4 and substituting the following:
security of the person and enjoyment of property and the right not
and (b) striking out line 27 on page 4 and substituting the following:
with the principles of natural justice
Mr. Chairman, I will attempt also to read it in the other official language without inflicting any damage on anyone’s ears. I should indicate that I am a graduate of the Harry Hays School of language training.
Article 7, page 4, [Translation] motion by Mr. Beatty.
Clause 7, page 4, motion by Mr. Beatty.
that Clause 7 of the Proposed Constitution Act, 1980 be amended by:
(a) striking out line 25 on page 4 and substituting the following:
Security of the person and enjoyment of property and the right not
and (b) striking out line 27 on page 4 and substituting the following:
with the principles of natural justice
The Joint Chairman (Mr. Joyal): I would like to say, Mr. Beatty, that this is a clear case where the pupil supersedes the master.
Mr. Beatty: Mr. Chairman, if the country is able to stay together with my accent, then it was built very strongly, I think.
Mr. Chairman, in explaining that we are moving, I would like to make a few comments.
The family farm, family business and family home are some of the most fundamental elements of Canadian society; yet, anyone who has ever dreamed of his own home or a family farm or business, would be disturbed by the fact that while the Diefenbaker Bill of Rights included the right to the enjoyment of property, the Charter of Rights proposed by the government in the constitution is mute on the subject.
Mr. Chairman, it is not uncommon at all for federal constitutions or national constitutions to include recognition of party rights. Indeed, a cursory check of various constitutions we have been able to locate more than 30 countries around the world which include India Constitution the right to own property as one of the fundamental constitutional rights. I will name just a few of them, which I think would be instructive, covering a broad spectrum: Belgium, Portugal, France, Germany, lreland, Italy, Luxembourg, Japan, and of course, the United States.
So what we are proposing, Mr. Chairman, is not novel in any way. It is not an experiment which has not been tried in other areas. It is a recognition of the hopes and dreams of millions of Canadians who believe that the right to own property is a fundamental right which should be enjoyed by all Canadians.
Mr. Chairman, this right was included in the Diefenbaker Bill of Rights and it was proposed to us that it should be included in the Charter of Rights in the constitution by the Canadian Organization of Small Business and by the Canadian Bar Association.
Mr. Chairman, concern has been raised as to whether or not this involves an intrusion into areas of provincial responsibility, and it has been suggested from time to time that property rights are exclusively reserved to the provinces.
First of all, I would like to point out that there is some property which belongs under federal jurisdiction, for example copyright and patent rights, clearly areas falling under federal jurisdiction.
But in addition to that, we do recognize the fact that the bulk of property rights, for example, control over real property by and large resides under provincial jurisidiction.
But I would point out to members of the Committee who are concerned in this area that the position of the Progressive Conservative Party from the outset has been that no provision of the Charter of Rights should apply to any province against its will; that obviously the proposal we have made is that provinces should have the right to determine what provisions within the charter would apply in their jurisdictions and would not be imposed on them by Ottawa.
We are establishing a principle here, as we propose to establish a principle in the case of freedom of information, which we believe should extend across the board, but as we felt in the case of freedom of information, we feel here that because these are areas falling under provincial jurisdiction, the extent to which they fall under such jurisdiction, the provinces should have the right not to have Ottawa simply imposing those rights and responsibilities on them and they have a right to be heard and to make that decision, and we are confident, Mr. Chairman, that sooner or later and eventually all provinces will agree that the right to the enjoyment of property should be included in the constitution and that they would move in this direction.
A second concern has been expressed as to whether or not this provision will prevent provinces from legislating in areas of property rights. For example, concern was expressed at the First Ministers conference about Prince Edward Island and whether or not they would have the right to ensure that their land in that province was not held by people from out of the province who were not there to take advantage of it, and local people were not deprived of their rights to use property within their province.
Mr. Chairman, it is our contention in the Progressive Conservative Party that the amendment we are proposing would not prevent provincial governments from making or passing legislation which they feel was essential and justified.
We are asking two things; one, that the principle of the right to ownership of property should be recognized in the constitution; secondly, that that right should not be taken away from anyone unless he has had a fair hearing and this is done by lawful means.
We believe that such provisions would not prevent provincial governments from expropriating property if the public interest demanded it, as long as there were fair hearings and was done legally; it would not prevent legislation from being passed by provincial governments which would reserve land to local people, if it were done fairly and by lawful methods.
So we do not feel we would therefore be imposing in the constitution an obligation of the provinces which would greatly circumscribe the rights of the provinces to operate in a field under their jurisdiction, but rather that we would, first of all, recognize a central principle in the Charter of Rights and, secondly, we would say that all governments have the responsibility in dealing with their citizens to do so in a way which recognizes basic principles of law, that it is lawful and done after a fair hearing.
Mr. Chairman, I might indicate that there are two aspects. The first is the right to the enjoyment of property. Secondly, you will note that we have changed the words “fundamental justice” to “natural justice”. We do that because we believe there is a greater body of law defining what constitutes “natural justice” and we are more comfortable with a word included in the charter which is more clearly defined, ans we should be very careful, as Mr. Robinson stressed, to be cau-
tious when we are including wording in the constitution to ensure that we know what we are doing.
We believe that “natural justice” properly represents what the vast majority of Canadians want to see take place when it comes to property rights or the right to life or to the security of the personor the right to liberty.
Mr. Chairman, we are opposed to the concept. We could, of course, have included the proposal for due process of law instead of natural justice, but that simply implies that governments have the right as long as it is lawful. As long as they pass legislation to authorize what they are doing, they have the right to go ahead and do whatever they want, and we believe their fundamental principles here regarding process, and whether or not people have a right to be heard and whether or not they have been fairly heard, that this should be included in the constitution when we are dealing with such fundamental areas of individual rights.
Finally, Mr. Chairman, Mr. Robinson indicated that the NDP was not attempting to take away family farms or to threaten the position of family farms or family businesses, and I accept their word on that, but he said that a different case could be made in the case of corporations, and I think, Mr, Chairman, that we should ask ourselves if we have concerns about whether or not corporations should be entitled to the same rights as we are giving to all Canadians and to small businesses and to family farms.
I think we have a right to ask our friends in the NDP, to ask anyone who is opposed to this provision, what would they propose to do in the case of large corporations, be it even foreign owned multinationals, would they deny them the right to a fair hearing; would they deny them the right to expect that before property was taken away that that should be done by lawful means; and how is the national interest damaged? How is the national interest damaged by conferring these rights to corporations as well as to individuals?
Do we not feel that anyone operating lawfully in our society is entitled before property is taken away from them to a fair hearing and to have that property taken away only by legal means.
Mr. Chairman, I think that property rights should extend both to corporations and to individuals, and this is why we have moved the amendment in the way that we did. l think it is an amendment which deserves the support of all members of the Committee; and that it be welcomed by literally millions of Canadians.
The Joint Chairman (Mr. Joyal): Thank you very much, honourable Perrin Beatty. Jean Lapierre.
Mr. Lapierre: Thank you, Mr. Chairman.
I think that Mr. Beatty has clearly demonstrated that property rights should be included in the new Constitution. Since I am the same man I was yesterday, the same man who made a commitment to his colleagues opposite, I am still willing to go along with their suggestion.
There is, however, a technical problem. In the French version, you said:
la sécurité de sa personne et la jouissance de ces biens
C-E-S. I would prefer that you say S-E-S, to show that we are talking about his property.
The Joint Chairman (Mr. Joyal): Fine.
You may continue, Mr. Lapierre.
Mr. Lapierre: As you know, the Canadian Bill of Rights grants property rights.
Over the summer, in July, consideration was given to including this right in the federal proposal, but a number of provinces were concerned about the inclusion of a provision of this type because of zoning, environmental and industrial development legislation.
We are convinced that this new provision will not prevent the provinces from passing legislation and I assure my colleague opposite that their proposal would certainly raise the ire of our colleagues like Mr. Garon, Mr. Léonard and others, particularly in Quebec, except that what they are proposing is quite different.
As for the second part of your proposal, it is entirely realistic to ask that the notion of fundamental justice be changed and a number of associations, including the Canadian Civil Liberties Association, the National Association of Japanese Canadians, Indian Rights for Indian Women, the National Black League and others, have asked that the notion of fundamental justice be more clearly defined, since it is not a well-known legal expression.
For this reason, the members of this Committee are willing to recognize this principle. Also, property rights have intrinsic value in Canada and we are prepared to go ahead with this.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Lapierre.
Mr. Robinson, do you wish to comment on this proposition?
Mr. Robinson: Thank you, Mr. Chairman. I would indeed. Again I have listened with interest to the statements of Mr. Beatty and Mr. Lapierre and I can certainly fully endorse the remarks which have been made with respect to the vital importance in Canadian society of the small business, of the family farm and the family corporation, but with great respect to those two individuals that is not the issue in this particular amendment.
No one around this table would deny that those are some of the cornerstones of Canadian society, and that they deserve full protection and full recognition in any charter of rights.
However, Mr. Chairman, what we are doing in this proposal is going far beyond that. We are entering waters which in fact have not been entered before in any of the discussions, certainly in recent years, between federal and provincial governments,
at least on the part of the federal government for putting forward a proposal of this nature.
If one looks at the July 1980 draft; if one looks at the February 1979 document; if one looks at Bill C-60; if one looks at the Lamontagne-MacGuigan report; if one looks at many earlier documents, one can suggest that this particular right extending as it does right across the board, right across the board both to provincial and to federal governments, extending not just to Canadian citizens, but to all persons, foreign corporations, large Canadian corporations, no distinction whatsoever represents a sweeping extension of this right.
Mr. Chairman, there has been some reference made to the Canadian bill of rights, and indeed there is a reference in Clause l of the Canadian bill of rights to the right to the enjoyment of property without being deprived thereof, except by due process of law.
Mr. Chairman, the fundamental fact that must be kept in mind with respect to the Canadian bill of rights is that that applied it within the federal jurisdiction, and I would suggest that those who are interested in looking at how that particular right has been applied would search the law books in vain to find any particular jurisprudence on that subject, because the courts of this country have recognized that property rights fall within the provincial domain. So to say that because this is a right which is contained in the Canadian bill of rights some» how it should be extended to the provincial level, with great respect to those who argue in that position, it simply does not deal with the fundamental fact that this is a matter which is directly within provincial jurisdiction.
I am surprised, Mr. Chairman, I am very surprised to see this amendment coming forward from the Conservative Party of all people, because it is the Conservative Party that has suggested that the federal government is attempting to ram something down the throats of provincial governments,
Well, for heaven’s sake, if this is not ramming something down the throats of provincial governments, if this is not something which has been strenuously resisted by a number of provincial Conservative premiers, I do not know what is, because they have made the point quite properly that in a number of jurisdictions they want, for example, to protect their land from foreign ownership, from foreign corporate ownership in many cases.
The Province of Prince Edward Island: their Premier, Angus MacLean, have made this argument very clearly and very eloquently, and I think very persuasively that they have a right to protect their land from the encroachment of foreign corporate interests.
What does the Conservative Party have to say about this particular imposition, this imposition which, as I say, is on the table for the first time in any significant sense.
Mr. Lapierre: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. Lapierre, on a point of order.
Mr. Lapierre: I would like to tell Mr. Robinson that he should go back to his July 1980 document, to Clause 9, where we proposed that everyone has the right to use an enjoyment of property individually or in association with others, and the right not to be deprived thereof, except in accordance with the law and for reasonable compensation.
In case he should forget, I would say to him, “Dont’t bite off more than you can chew”, because one should not get the impression that it is something new. It had been discussed a long time ago.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.
Mr. Robinson: Mr. Chairman, merci. With great respect to my friend, Mr. Lapierre, I am glad that he pointed out that Clause 9 is contained in there because I was coming to that point in just a moment.
Clause 9 is a very different formulation from what is being proposed by the Conservative Party. What was proposed in Clause 9, and indeed what has been proposed by the Canadian Bar Association, and what was proposed by Mr. Walter Tarnopolsky, who I certainly think all members of this Committee would recognize as an authority in this area, was that if we are to talk about the right to the enjoyment of property, a right which is so fundamentally within the provincial jurisdiction, an area which surely if it is argued that courts must exercise some hesitation in dealing with this particular item; this is one area that the courts should be hesitant in embarking upon, that that should be very narrowly worded.
Mr. Chairman, Clause 9 quite properly was worded very narrowly in accordance with the recommendations of the Canadian Bar Association and in accordance with the recommendations of Professor Tarnopolsky in stating that this right to the enjoyment of property and the right not to be deprived thereof, except in accordance with law and for reasonable compensation, well “in accordance with law” is surely the fundamental test there.
If we are to get into this area we must ensure that the provinces are left with a relatively free hand as long as they act in accordance with the principles of law in dealing with property.
I would like to turn to another argument on this subject, Mr. Chairman, and that is this.
As I say, the Conservative Party has argued that this should be imposed on the provinces, or perhaps they might say that because they are splitting their package that they are not really imposing this particular right, but they are prepared to urge this upon the provinces. They have indicated that very clearly, that if this is to be in the Charter, they are prepared to urge this on the provinces.
And if we are talking about the right to the enjoyment of property, that is all very well for those who have property to enjoy, but if we are going to get into this area of economic rights and property rights, it is all very well to protect the corporate sector and protect their right to enjoy property, but if we are going to embark in these waters, let us start looking
at some other areas, some other economic and social areas. Let us start looking at the right to a clean environment, while the corporate sector is busy enjoying our property, let us make sure that they keep our environment clean.
If we are going to talk about the right to enjoyment of property by the corporate sector, let us also insist that when they enjoy our property that our workers are not killed, and are not injured and do not become sick on the job.
If we are going to talk about this right to the enjoyment of property, Mr. Chairman, if we are going to get into this area, then let us deal with some of the implications of that.
Mr. Chairman, I would like to conclude then by saying that certainly while we recognize the importance of the principles of natural justice and their application, I would point out that by substituting the words “natural justice” for “fundamental justice” in this proposed section, that we are regressing from an area which the Deputy Minister of Justice, supported by the Minister of Justice in earlier appearances, had indicated was an evolving area.
At that time the words “fundamental justice” were justified as leaving some opportunity for the court to move in to new fields of jurisprudence.
We are restricting that opportunity, Mr. Chairman. We are trying the hands of the court to the recognized principles of natural justice.
I suggest that we should allow the courts some leeway in talking about, for example, liberty and security of the person, to evolve in tune with changing Canadian society. And fundamental justice would allow that. Natural justice would not. It would restrict us to the existing principles of natural justice.
Mr. Chairman, as I say, in conclusion, I believe that this amendment must be rejected; rejected on a number of grounds on the basis of its incursion into the provincial spheres so vigorously resisted by a number of Conservative premiers. If there was one amendment and one amendment which really raised the ire of those Conservative premiers, it was this, at the discussions. I point out that the amendment that was on the federal table was far less strong than this. If they were prepared to vigorously resist that according to law, for heaven’s sake, how much more vigorously will they resist this?
We are attempting to build consensus in this country, Mr. Chairman, and this is a vehicle to destroy any consensus which might arise.
Mr. Chairman, I strongly urge rejection of this amendment.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson. I see that Mr. Nystrom and Mr. Hawkes have requested the Chair to speak on the proposed amendment, but I would like to inform Mr. Nystrom that I have already asked around the table if there were other speakers before I invited Mr. Robinson to conclude, and l have at this point to call the vote, because Mr. Robinson has concluded . . .
Mr. Beatty: It is my motion, Mr. Chairman.
The Joint Chairman (Mr. Joyal): I am sorry, you are right. The Chair is confused. I have still Senator Tremblay. Mr. Hawkes, you can go on with your remarks.
Mr. Hawkes: Thank you, Mr. Chairman.
Just a brief interjection in light of Mr. Robinson’s comments, but I think the record of the Conservative Party, unlike that of the New Democratic Party, is rather clear and consistent that from the day we first saw the government proposal we have indicated in the strongest possible terms that the nature of the Federation of Canada, the relationship between federal government and provincial government has been under attack by this proposal. We have amendments before this Committee that we believe in very strongly are the way out of the impasse which has been created, and our amendment, which splits this package, acknowledges the nature of the Canadian federation, and as we approach the provinces, the Parliament of Canada is making a statement to the legislatures of the different provinces, and I think it is important that as part of that statement that we ask them in their consideration, in their involvement in this process of constitutional renewal, that they pay special attention to the issue of property rights, because this nation has been founded by people who value their property, and as we move towards the concept of entrenching rights in the constitution of Canada, the concept of property is important, but it needs to be vetted with the wisdom which accrues to those levels of government who are charged with the responsibility; and the responsibility under the BNA Act in large measure for the issue of property has resided, since the beginning of this federation, in the hands of the provinces.
We need their wisdom, and I suggest that Mr. Robinson’s basic argument essentially provides support for the position which this Party has adopted from the start, that we need collective wisdom and we need time to renew this federation and therefore I urge members to vote for its inclusion on the understanding that this principle will be clearly enunciated as one which should be considered by the provinces as they become engaged in the process of constitutional renewal.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes. Mr. Nystrom, followed by the honourable Senator Tremblay. Mr. Nystrom.
Mr. Nystrom: Mr. Chairman, I want to first of all make request to the Committee, a request that you acceded to earlier today to the Conservative Party, and that was to stand the clause on mobility rights, and I want to ask the Committee whether or not they will grant the same request on this.
I will explain why, Mr. Chairman.
The whole area of property rights has been a very, very controversial thing, and it was on the agenda this summer as Point 9 in the Charter under property rights, and the draft there was quite different from the draft before us today.
I think the draft last summer was a more liberal draft, in terms of giving the provinces more leeway, than the draft we have before us today.
It was a very controversial draft. It was opposed by many of the provinces during the negotiations this summer. Not only my province of Saskatchewan and Premier Blakeney opposed it, but some of the provinces represented by Conservative governments opposed it as well.
My argument here this morning is that I think it is only fair, since last night this was dropped on us by the government that they were going to accept this amendment, that we stand this until Monday evening. It will give us a chance to reflect. It will give us a chance, since we come from all the provinces of this country, to consult with different provincial governments. I think that is only right in a federation that we should do that, since this is one of the more controversial areas discussed during the summer.
I want to raise this morning as a non-lawyer and as a layman who feels at a distinct disadvantage when I deal with some of the terms that are used here, with some of the concerns that I have.
The first thing that I wanted to say, Mr. Chairman, is that I think we need, in this country, protection to own a farm, protection to own a small business, protection to own a home. I think we need some of those economic rights.
Now the Conservative amendment that is going to be accepted by that government gets us into the area of economic rights, and if we are going to get into that area, and I am certainly one that is interested in looking at social and economic rights; the right to medical care; the right to health care I think is a basic fundamental human right that should be enjoyed by all; the right to housing, I think, should be enjoyed by all people; I think the right to an income should be enjoyed by all people.
My colleague, Mr. Rose, says clean air and environment. There are a lot of basic social and economic rights that I think could be contemplated, and probably should be contemplated, included in the constitution. And I am not sure if I want to just include this one economic right at the exclusion of all the others, and I appeal to my fellow Committee members this morning to let this clause stand.
I look, for example, at the word “everyone”, and I wonder what that means. It does not refer to a Canadian citizen. “Everyone” I think would mean everyone; a Japanese businessman in America, and someone from France, or anywhere in the world. I remember the eloquent plea made by the Conservative Attorney General in Prince Edward Island at the conference of premiers this September in the constitution, the eloquent plea made by Premier MacLean’s Attorney General as to why, in the Province of Prince Edward Island, they needed to legislate farm size and ownership of farm land in that province to protect the heritage of Prince Edward Island. It was one of the most moving pleas made during that week of the constitutional conference.
I do not know whether or not this type of thing would interfere with Prince Edward lsland’s right to determine who owns their land, who controls their land, and the future destiny of that province.
I am not sure, Mr. Chairman, what this would do, for example, in Saskatchewan if this had been enshrined in the constitution five years ago before the premier and the government of my province, the legislature of my province, decided to take under public ownership over 40 per cent of the potash industry by purchasing foreign owned potash mines. I am not sure what that would do. Perhaps they could still do it. Perhaps it would have taken long court battles. Perhaps because of the inclusion here that these things can be done only in accordance with the principles of fundamental justice, that would have allowed them to do it because of the expropriation laws. But I am not sure of that, and I think we need time to reflect. We need time to consult legal opinion, legal counsel, time to consult the provinces.
So for that reason as well, I want Mr. Chairman to have this thing stood until Monday evening.
The other thing I referred to very briefly was Prince Edward Island and land, but I can refer to M. Lapierre and the Province of Quebec, and look at some of the land legislation that has been introduced by the province. Does this or does this not interfere with the rights.
I look at my own province and the concern about foreign ownership of land, absentee ownership of land, and I wonder whether or not this might interfere.
I also look at the argument of provincial rights, and here I am really surprised with my colleagues in the Conservative Party. I know they want to split this package, and have it referred to the provinces for their approval, but I think they also know that we have before us a majority government, and regardless of what the Opposition says, if the majority government is determined to get its way, in a parliamentary system, they usually get their way, and they may be doing this country a great disservice in terms of forcing something on the provinces the provinces do not want; because property rights comes under the administration of the provinces of this country, and again, because of that, I want time to consult, and time for members of this Committee to properly reflect as to whether or not we are doing the right and proper thing.
So for those reasons, Mr. Chairman, I ask this Committee to stand this. I oppose doing this at this time, I oppose the words that are before us. Perhaps we should be looking at amending them, striking them out totally, striking them out completely, and if we are to get into the area of economic rights, I am more concerned about people that perhaps do not even have property, but that have rights. What about people that rent their homes, that cannot afford property, that are paying huge interest rates in this country, and high rents in this country, do they have a right to housing? Do they have a right to income? Do they have a right to health care? Do they have these other basic rights? We have been told in this Committee that, well, we should really get onto these things and we should just include a charter of rights, patriate the constitution with an amending formula, and maybe consider a few other things, you know, like resources and equalization.
So, Mr. Chairman, I would like to ask you to stand this clause until Monday evening if possible.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.
The hon. Senator Tremblay.
Senator Tremblay: Thank you, Mr. Chairman.
I only intended to make a comment which supports what my colleagues, Mr. Beatty and Mr. Hawkes, have already said about the issue which preoccupies Mr. Lapierre as well as our friends from the NDP because the provinces are obviously affected by the enshrinement of this right to property. But before that, I would like to say a few words about the kind of analysis which Mr. Nystrom has just made on what will happen to the propositions we must develop.
He basically says that since the majority will have its way, the proposition should not contain anything which we are not prepared to impose to the provinces. But if you do not want to impose anything on the provinces, you may as well suppress the whole charter because, presumably, the majority will not accept the rationale of our arguments.
I hope the majority is still open to this rationale and that it is going to consider its fundamental intentions of unilateralism.
As to the point which is of concern to Mr. Lapierre, Mr. Nystrom, and his colleague, Mr. Robinson, you must keep in mind that the objective which we are pursuing comes into the framework of the whole charter, the whole proposition where nothing will be imposed to the provinces, if our proposition is accepted, we shall hand the provinces back with a proposition from the Canadian Parliament and we are not trying to improve the proposition of the Canadian Parliament before it is submitted to the provinces according to our recommendation.
Consequently, by doing what we are doing now, we do not impose on the provinces, we propose.
Mr. Lapierre: We cannot hear you.
Senator Tremblay: You are trying to bring us back to the brutal mechanics of the majority game. Maybe we are going to lose but, again, we hope that the majority is open to the rationale of our arguments and that upon establishing in due time the rationale behind a reference to the provinces instead of a reference to London for a Canadian Charter of Rights, we hope that even the majority will rally our arguments.
Therefore, we assume that on behalf of the Canadian Parliament we are now preparing a proposition for the provinces.
Mr. Beatty and others have demonstrated that it is substantially justified to put our amendment in this proposition which will be submitted to the provinces; and I will not come back to this, but I wanted to emphasize the fact that we do not impose anything on the provinces.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Tremblay.
I think that you have clearly expressed your opinion. Mr. Lapierre.
Mr. Lapierre: Mr. Chairman, I am vigourously opposed to the suggestion put by Mr. Nystrom to stand these very important clauses until Monday; indeed. we know that the amendments from the Conservative party have been presented Tuesday evening in a most orderly way and we also know that yesterday afternoon I have given our agreement in principle; they have had the whole day yesterday and the whole evening and as to Mr. Robinson, we know that he already has made up his mind; one wonders who is talking on behalf of whom and I must confess that the Conservatives have done their homework in the same way as we have and we are in agreement on these questions.
He said that he needs time to think about it, but he has had the holidays to do so because many groups who have appeared before us have talked about the right to property and, therefore, I do not think it is a new concept.
Mr. Nystrom: It is since yesterday evening.
Mr. Lapierre: Yesterday afternoon I stated that on our side we were ready to accept it, but the right to property is not a new concept and I personally wonder whether . . .
Mr. Nystrom: A point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): A point of order. Mr. Nystrom.
Mr. Nystrom: Mr. Chairman, I hesitate to interrupt Mr. Lapierre. But he did the same thing to Mr. Robinson on something that was very important. Mr. Chairman, this was talked about last summer, but it has never been in the resolution as presented to this Committee. It was only last night when the government said they would accept the amendment that was sprung on the Committee; and we would suggest to you that we have not had a chance to reflect seriously on this.
We were given to understand by the government that it was not their intention to move this as an amendment.
Mr. Epp: On a point of order.
The Joint Chairman (Mr. Joyal): A point of order, the Honourable Jake Epp.
Mr. Epp: Mr. Chairman. I have to mention to Mr. Nystrom that we came up front with our amendments Tuesday to put them before the Committee so that they could be evaluated. and every member would have an opportunity to do so.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.
Mr. Lapierre, I understand that you are through.
Mr. Lapierre: I am through. Our position is clear.
The Joint Chairman (Mr. Joyal): I now invite the Honourable Bryce Mackasey.
The Honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I listened to the debate. I sometimes resent people speaking in my name, because I usually make my mind up. My mind is that I would support my party, provided my conscience is clear on the issue. There are some fundamental things which do concern me at times.
The point that bothers me a little and will frankly affect my decision in what I will be doing is that the area that Mr. Robinson has touched on, the implications that this clause vis-a-vis the ability of foreign investors, not simply to buy land—because we buy an awful lot of land in the United States—but what they could do with this.
Before I make up my mind on the understanding of this clause, I would like to put a question directly to the Minister as to the validity, in his opinion, because as far as I am concerned it is his guidance I seek when I am confused.
I would like to ask the Minister a question on the validity of Mr. Robinson’s argument. Should we be included in the words “Canadian citizens” rather than “everyone”? That is the point that bothers me.
The Joint Chairman (Mr. Joyal): The honourable, the Acting Minister of Justice.
Mr. Kaplan: Mr. Chairman, I would like to be brief in my answer, but I would like to indicate that from the very beginning the Liberals have favoured the notion and concept of the protection of economic rights and rights of property, and that our reasons for withholding that provision from this Bill was for the reasons that some members indicated, that there were strong provincial objections to the inclusion of that type of protection.
Now, the Conservative members have put the provision forward and on the basis of their being prepared to see that contentious issue addressed by this Committee, and addressed by Parliament at this time, the Liberals are prepared, knowing the Conservatives are prepared to support this, since we do believe that economic rights and the rights of property should be recognized and protected, we also are prepared to see that provision move forward.
Now, the arguments that Mr. Robinson and Mr. Nystrom advanced are largely irrelevant to this particular provision, because this provision deals with process and not with the question whether foreign interests, for example, should be allowed to acquire assets and own property on the same basis as Canadians. This has nothing whatever to do with that.
All this deals with is the question of due process and provides that anyone—and I can assist Mr. Nystrom again by confirming that “anyone” means anyone as he suspected it did. So that is not something with respect to which anyone would need much time to reflect on. Anyone means anyone—foreign, domestic, incorporated or unincorporated—has the right not to be deprived of the enjoyment of their property except according to the principles of fundamental justice or of natural justice, whichever this Committee determines.
The narrow answer to your question is yes, we could restrict the right to be treated fairly in process to Canadian citizens. We could indicate by implication, as I think Mr. Robinson wanted to do, that foreigners should be subject to unfair rules, if that is what Parliament decides; that they should be denied due process in the enjoyment of property in our country. We do not agree with that.
We feel that the due process rules should apply to everyone— and I mean everyone—who is allowed by whatever other laws are relevant, to own and enjoy property in Canada.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Minister.
Mr. Robinson: Mr. Chairman, in the last few minutes, I have just attempted to locate the extract to which I had earlier referred. I would like to draw to the attention of the Committee the viewpoint of both the Canadian Bar Association and Professor Tarnopolsky which I think should be quoted. I believe it is persuasive.
This is from the Canadian Bar Association submission called Towards a New Canada.
I think it is important to point out, Mr. Chairman, that this Committee was one which contained representatives from right across Canada. It was chaired by Mr. Jacques Viau from the Province of Quebec, and there were representatives from Alberta, British Columbia, Ontario, Quebec, Prince Edward Island, New Brunswick, Nova Scotia, Saskatoon, Newfoundland.
Mr. Chairman, this was a very broadly representative group. They conducted a number of hearings and asked for many submissions. Following that they came together as a group and drew up a which is certainly worthy of serious consideration by this Committee.
Mr. Chairman, on the fundamental question before us and the question of property rights, this is dealt with at page 18 of the report of the Canadian Bar Association and the heading Legal Rights in their general section on fundamental rights, constitutional objectives. What they stated was this: that the federal government in their proposal, The Constitution and the People of Canada, suggested the inclusion of the following rights: one, the right of the individual to life and the liberty and security of the person and the right not to be deprived thereof except by the due process of law.
Now I would like to pause there for a moment. Mr. Chairman, to indicate that I am sure the Minister of Justice subconsciously perhaps, certainly erroneously referred himself to due process, that this would somehow guarantee due process. I certainly hope that is not what we are talking about, because if we start talking about due process, as the Minister did at one point, we are getting into the whole area of substantive due process. which is the last area we want to get
into in this particular country when dealing with economic rights.
I will go on to the second section that the Canadian Bar Association looked at, which was the right of the individual to the enjoyment of property and the right not to be deprived thereof except according to law.
Now that was a very weak formulation, but they said:
We agree with the general thrust of these proposals as did the Joint Committee. That Committee would in fact have gone further and provided that an individual should not be deprived of property except for the public good and for just compensation. However, we are convinced that the question whether the talking of property is for the public good is clearly one for the legislatures. We did have some sympathy for the view that just compensation for such taking should be consistently guaranteed, but in the end we think consistently with our view that economic rights are not appropriate for protection in a Bill of Rights, that this question, too, is fundamentally one for the legislatures.
It can be argued whether or not certain economic rights should be dealt with in the context of a bill of rights, and we will be dealing with that argument at little later.
But certainly, they say these bodies, that is the legislatures are best equipped to judge what is for the public good and what is just in economic matters.
So, Mr. Chairman, what the Canadian Bar Association recommended was that the right of the individual to the enjoyment of property should only be to the extent that it was according to law.
Mr. Chairman, it was another fundamental change, and that is that the federal government’s original proposal dealt with the rights of individuals, the right of the individual to the enjoyment of property.
Well, Mr. Chairman, that was precisely the amendment which I attempted to propose. There was no suggestion by the Canadian Bar Association or the government that we were extending this right and this whole area ofjurisprudence to the corporate sector; no suggestion whatsoever. We were dealing with natural persons in that case, and the federal government was dealing with natural persons in that particular case.
Then there was Professor Tarnopolsky, in a recent article in the Canadian Bar Review, dealing with provisions of Bill C-60 who made the following arguments. That was in 1978.
He makes reference to some of the problems with the due process of law clause with respect to the enjoyment of property and goes on in dealing with the separation of property from the due process clause to say:
With the adoption of such an amendment, however, the question that arises is whether to include any clause for the protection of property rights and if so, whether a phrase such as “except in accordance with law”, which is the one most frequently recommended, would be sufficient protection to ensure “just” treatment and “just” compensation for the taking of property. For this purpose
one could add to that clause the requirement that expropriation shall only be “in the public interest” and for “compensation”. The problem with such formulation, however, is that unless a further provision is made to exempt taxation of forfeiture by way of penalties from the protection for “just compensation”, then some court could extend the coverage of the property protection clause to provide an argument against the paying of taxes or the levying of forfeitures of property.
Mr. Chairman, the whole concept of natural justice is one, as l have indicated, is restrictive so far, but which some court could certainly and conceivably extend to deal with the whole area of compensation. If that were the case, can you imagine the nightmare we would be in in this country with courts deciding a question of that nature.
Professor Tarnopolsky goes on to make that point.
Besides, there could be extensive litigation over the “justice” of “just” compensation. Therefore it is probably preferable to provide merely that there shall be no deprivation of property “except in accordance with law”, and rely, thereby, on the representation of propertied interests in our legislatures to prevent the enactment of laws providing for expropriation without “just” compensation and confiscation without justification.
So, Mr. Tarnopolsky, who is a member of the United Nations Human Rights Committee as well as a member of the Canadian Human Rights Commission and the author of the leading text on the Canadian bill of rights.
The Joint Chairman (Mr. Joyal): A point of order, Mr. Robinson. You are giving us the pedigree of Mr. Tarnopolsky. I would like you to address the very content of the motion. I think you will understand that. I would like to remind you that when we are on amendments of subamendments, interventions should deal with the content of the amendments and not with the personality of any authority you might quote in support of what you are advancing.
Mr. Robinson: Mr. Chairman, I certainly appreciate that. l merely wanted to remind Committee members of the outstanding qualifications of Professor Tarnopolsky in this particular regard and to hope that perhaps his words might be listened to particularly seriously in the light of that.
Mr. Chairman, as I say, this amendment while it was proposed by the Conservative Party on Tuesday night, it was only yesterday that the government indicated that they were prepared to accede to this.
Surely, it is not unreasonable to ask that we be given some opportunity to consult on this matter which is of such vital importance and which could affect fundamentally some very important rights.
Now, the Conservative Party has objected on many occasions to the lack of consultation, the lack of an attempt to arrive at a consensus. What we are saying is, let us consult over the weekend on a proposal which is a new proposal and which has never been on the table before and which provinces
have never had to consider in the history of federal provincial negotiations in this country. This is the first time that this has been proposed.
Now reference has been made to the July 1980 draft, and as I have already pointed out that draft dealt what the deprevation of property according to law. Well, Mr. Chairman, there was such bitter resistance to that particular proposal by provincial governments that when we look at the final proposal which went to the September 1, Ministers conference we find there is no reference whatsoever to it, that there is no reference to the right to the enjoyment of property. The reason for that is simply that even the reference to the right to the enjoyment of property in accordance with the law was felt to be totally unacceptable to the provinces.
Now, we have this new concept, Mr. Chairman, and this new concept would add principles ofjurisprudence which, as I say, the provinces should be consulted on.
I would hope, Mr. Chairman, that the Conservative Party would follow through on the principles they have spoken on in many cases in the past and agree that we should give the provinces, give the Attorney General of the Province of Prince Edward Island, and the Attorney General of the Province of British Columbia, Saskatchewan, an opportunity at least to study this new proposal, this unprecedented proposal, over the weekend and then come back and consider the substance of it and whether we might not wish to restrict the wording to a certain extent.
Let us allow at least that minimal consultation which surely should be taken place on so fundamental and so unprecedented a change!
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
The Honourable James McGrath.
Mr. McGrath: Mr. Chairman, we feel there has been adequate debate on this. It is not a new principle. It was first introduced 20 years ago in the Diefenbaker bill of rights and was the subject of many witnesses who appeared before this Committee. It has been well covered by my colleague, Mr. Beatty. We would like the question to be put now,
The Joint Chairman (Mr. Joyal): Thank you.
Mr. Nystrom: Mr. Chairman, we have had many discussions in the last two or three months between Mr. Austin, Mr. Epp and myself and we have always carried on some very cordial talks and negotiations, and we have pretty well come to an understanding that if some member of this Committee wants to have something stood for a short period of time to reflect and consider, that would be acceded to.
I find it very strange this morning that we cannot have this done when we are dealing with something that is new, basic— something that caused a great deal of concern on the part of the provinces last summer.
You will know, Mr. Chairman, that my main role here is to try and build a consensus amongst Canadians.
There is obviously a lot of opposition to what the government was doing when it first introduced this resolution, and it was obviously causing some division in the country. I think it is important that all of us should lay aside some of our partisan labels and some of our original bias and try to build a consensus in this country.
Mr. McGrath: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. McGrath, a point of order.
Mr. McGrath: Mr. Chairman, it is evident to me what Mr. Nystrom is attempting to do is patently unfair, to put it mildy.
He is trying to suggest—and there is an audience out there who will judge the fairness of what he is attempting to do—he is trying to suggest that we are denying him a reasonable request because this is something new on the table and they would like to have time to think about it.
There are three points. First, the amendment has been on the table since last Tuesday night. Secondly, it has been the subject of debate before this Committee amongst a number of witnesses, and it comes as no surprise to Mr. Nystrom that this is one of our amendments—and there were a lot of written briefs.
Thirdly, Mr. Chairman, the principle has already been embedded in the Diefenbaker Bill of Rights for the past 21 years.
Now, I do not know why he needs to consult, because he has had the proposition before him all week and he has had the evidence before the First Ministers conference last fall.
I would respectfully suggest to you, Mr. Chairman, that it is reasonable to expect that there comes a time in this Committee when enough has been said and we should proceed to vote; and I think that time has arrived.
Mr. Robinson: Mr. Chairman, I have respect for the provinces and I want to consult them—and I am caught at 11 o’clock.
Mr. Beatty: Mr. Chairman, on a point of order.
The Joint Chairman (Mr. Joyal): Mr. Beatty, a point of order.
Mr. Beatty: Mr. Chairman, I would move that the Committee continue to sit until consideration has been concluded, including the vote on the motion CP-4.
The Joint Chairman (Mr. Joyal): I have an amendment. The Committee is always master of its own rules. The agenda that we accepted to sit for certain specific hours is not written in stone. If honourable members express the view that they should continue to sit, then the Chair is of course at the disposal of the Committee.
I have a proposal by the Honourable Perrin Beatty that this Committee should sit until the final vote on the proposed motion. I would like to have the views of the members of the Committee to do so, to accept such a motion.
Mr. Mackasey: Mr. Chairman, I must support Mr. Beatty’s request, and I would like very succinctly to tell the Committee why.
I am prepared and have always tried to listen to arguments with as open a mind as is possible, within reason, considering our parliamentary procedures and party differences.
I listened as openly as I could to the arguments of Mr. Robinson, including asking the minister for an evaluation of his arguments. That is the point to which I was prepared, if necessary, at least to abstain or vote with the proposal to postpone this item over the weekend.
I wanted to do that on the logic of the argument. I resent doing it on the tactics that brings us to an arbitrary hour to accomplish what you cannot do through logic and it is for that reason that I think we should continue now.
We have listened to the very persuasive arguments of the NDP as to why they think this should be extended over the weekend, and I am not persuaded. But if the Committee is persuaded in general, then let us have the vote and find out, but let us not try to accomplish by hours or by the 11 o’cIock rule something that you cannot get in a very democratic way, which is a vote, so I would suggest in support of Mr. Beatty’s point, that we continue to the point at least that we come to the vote as to whether we should stand this or not stand it.
The Joint Chairman (Mr. Joyal): Mr. Nystrom, on the proposed motion by the Honourable Perrin Beatty.
Mr. Nystrom: Mr. Chairman, I am not one to want to create difficulties and I think we have worked very well together in this Committee since November. I have had immense respect for my colleagues, immense respect for both yourself, Mr. Chairman, and your Joint Chairman.
I would just like to appeal to this Committee to show a little bit of respect in return, that we stand this, give us a chance to consult with our people, with our constituents and particularly with the provinces.
I also want to point out to you, Mr. Chairman, if I understand the way this Committee has been operating, that to change the rules, to change the agenda in terms of the adjournment time would require unanimous consent,
Some hon. Members: Hear, hear!
Mr. Nystrom: I would like to ask you whether or not I am right in that interpretation and if I am correct in that interpretation, Mr. Chairman, then we can expedite matters by having you make the ruling now because I would not give unanimous consent; and if I am wrong I would like to continue on the point of order.
The Joint Chairman (Mr. Joyal): Yes, Mr. Nystrom, I have consulted with the Clerk and my attention has been drawn in particular to Section 13 of Chapter 1 of the Parliamentary procedure and the rules in such a circumstance would request unanimous consent and as I see there is no unanimous consent to the proposed motion as put through by Honourable Perrin Beatty, so at this time I would like to adjourn the Committee.
Mr. Nystrom: Thank you very much, Mr. Chairman.
The Joint Chairman (Mr. Joyal): The meeting is adjourned until Monday evening at 8 o’clock.
From the Department of Justice:
Mr. Roger Tassé, Q.C., Deputy Minister; Dr. B.L. Strayer, Q.C., Assistant Deputy Minister, Public Law.