Essays
Why Property Rights Were Excluded from the Canadian Charter of Rights and Freedoms
By Alexander Alvaro
Introduction
With little public concern or notice, an opportunity to entrench in Canada's Charter of Rights and Freedoms a clause protecting property has been lost. The period for endorsement of such a clause by the provincial legislatures expired on May 2, 1991—three years after the House of Commons, by a vote of 108 to 16, passed a resolution that the Constitution Act, 1982 be amended 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
The resolution's reference to the "federal-provincial consultative process" was tacit recognition of the major stumbling block to inclusion in the Charter of any protection of property ownership. Amendment of the Charter to include such protection required the further support of the Senate, and seven of ten provinces representing 50 per cent of the population. 2 Even if such support were obtained, any province whose legislature had not endorsed such an amendment would be exempt from the force of the amendment because that right derogates from the proprietary rights of the province (see sections 38[2]-38[4] of the Constitution Act, 1982).
While provincial resistance to an entrenched bill of rights was overcome, resistance to entrenching "property rights" was not. The task of this article is to outline why a clause protecting ownership, use, or enjoyment of property was excluded from the Charter.
Theoretical Framework
The Tension between Property and Democracy
The debate concerning property rights must be understood in context of the tension in Western society between systems which are fundamentally rooted in property ownership and those which are rooted in democratic will. "Propertarian" systems are those in which the fundamental consideration of government decision-making is the preservation and protection of property; "democratic-communitarian" systems, to borrow Patrick Monahan's useful term, 3 are those in which decision-making is exercised on behalf of at least a majority of adult residents on the basis of democratic will and community values. Neither system negates the characteristics of the other; that is, propertarianism does not reject democratic institutions outright, nor does communitarianism outlaw property ownership. Each system incorporates a means for political decision-making that will attempt to ensure that the dominant characteristic of that system—property or democracy—is the ultimate reference point.
Propertarian systems are grounded in the belief that the basic role of government is restricted to the preservation and protection of property. Within such a system, democratic institutions are subordinated to property ownership. Even where decisions of the legislature are supreme, propertied interests will be protected as long as only the representatives of those interests are permitted to vote, or where membership to the legislature is based on a minimum, and high, property requirement. As an added safeguard, members appointed on the basis of wealth or peerage will likely occupy an upper chamber with power to veto legislation passed by any existing democratic institution. To the extent that it exists, suffrage is not universal; it is also based on a minimum requirement of property ownership, which one must satisfy to qualify as a voter. Political decisions tend to reflect the prevailing values of the property-owning class; this may be consistent with hierarchical systems of aristocracy or oligarchy or with laissez-fare economic systems. Whatever the system of governing, it persists whether or not it reflects the values of the majority of citizens.
Democratic-communitarian systems, on the other hand, are rooted in the representation of majority and community interests. Enfranchisement is not dependent upon property ownership. The democratic will is supreme to the extent that the government, as long as it has the confidence of Parliament, may pass legislation overriding common law protections of property. In a democratic system, property ownership does not disappear but is subordinated to the democratic will. Traditionally, democratic systems of government have been collective in nature—for example, liberal democratic or socialist. Such systems will tend to place legislative restraints upon the classical laissez-faire economy at the expense of property-owners: progressive taxation and redistribution of income, social programmes, workers' compensation, and regulations on employers. These restraints may be considered the product of democratic-communitarian values.
The variable of an independent judiciary complicates matters where judicial decision-making exercises the power to strike down legislative action. This has the potential to limit the power of other institutions to protect a propertarian or democratic-communitarian ethic. The judiciary might well support interests contrary to the dominant interests of legislatures. A number of mechanisms may be implemented at least to mitigate such a tendency. Judicial decisions in the common law or judicial interpretation of statute may be expressly overridden by the legislature. The judiciary itself may be appointed by elected officials; these officials may base the appointment of judges on criteria which include previous decisions or political and legal values. Most importantly, legislative representatives can retain the power to draft and amend the written constitution that the judiciary will interpret; thus they can send clear signals that the constitution ought to be interpreted consistent with propertarian or democratic-communitarian values.
Historical Framework
Protection of Property in Great Britain
Canada's institutions were derived largely from British tradition, which placed strong emphasis upon the protection of property. The Magna Carta, signed by King John in 1215, protected the property of British feudal lords from arbitrary seizure by the monarch. By the time Parliament assumed supremacy, it was clearly controlled by property owners. The statutory English Bill of Rights of 1689 limited the power of the King to seize property. The House of Lords was limited to and dominated by the aristocracy. A group of 287 peers received 29 per cent of the national income in 1801 4 and dominated the government with only occasional resistance. 5 The counties and boroughs that represented parliamentary electoral districts were dominated by the landowners. In all but 12 of the 203 burroughs only property holders could vote. 6 In the 40 counties,
"only those Protestant landowners who paid forty shillings annual tax were entitled to vote for Parliament....As voting was public, very few voters dared support any candidate other than the one nominated by the principal landlords of the county; hence very few voters bothered to vote, and many elections were decided by arrangement among the leaders without any balloting at all. The major landowners thought it was just that, having so much at stake in the conduct of the government and the fate of the nation, their representation in Parliament should be proportionate to their property; and most of the lesser landlords agreed." 7
British institutions were decidedly propertarian in nature. The attitude of the House of Commons, often eloquently expressed by William Pitt the Elder, was that "every man's house was his castle." 8 That differed little from the sentiment of the judiciary. In Entick v. Carrington, 9 Lord Camden echoed John Locke: "The great end, for which men entered into society, was to preserve their property." 10 The property-based feudalism of the Middle Ages had evolved into a free market spawning the Industrial Revolution. The rapid growth of commerce and industry associated with the Industrial Revolution would persist into the twentieth century. Fundamental to this evolution and growth were the institutional protections of property ownership.
However, seeds of democracy were also sown in the British system. During the mid-1800s, Britain's institutions began the century-long transition from a propertarian system to a democratic one. The Parliament Reform Bill of 1832 "disenfranchised the rotten boroughs and gave power in the Commons once and for all to the Commoners." 11 Responsible government emerged. Suffrage was extended to a wider circle of citizens. Universality followed the removal of property restrictions and the institution of a secret ballot. Primitive archetypes of modern social legislation were implemented under the influence of Robert Owen and Sir Robert Peel. Property ownership still held supremacy, but the roots of modern democracy took hold. Canada's constitutional framework, constructed in the midst of this transition, incorporated elements favourable to both systems of government.
Protection of Property in Canada
The Fathers of Confederation understood that absolute property ownership and democratic government were ideals in tension with one another. They wished to entrench in the institutions of a self-governing Canada the primacy of property ownership. Some believed there was a need to protect property owners from both the power of provincial legislatures and the power of unlimited majority rule. D. V. Smiley argues that "all the Fathers were anti-Democrats; none believed in universal male suffrage without a property qualification." 12 During the Confederation Debates, John A. Macdonald believed it was understood that class and property should take precedence over majority rule:
"While the principle of representation by population is adopted with respect to the popular branch of the legislature, not a single member of the Conference, not a single one of the representatives of the government or the Opposition of any one of the Lower Provinces was in favour of universal suffrage. Everyone felt that in this respect the principle of the British Constitution shall be carried out, and that classes and property should be represented as well as numbers." 13
Macdonald supported the concept of an appointed upper house which would hold veto power over legislation from the House of Commons, thus protecting the propertied class from unlimited majority rule. His intention was that the upper house be independent of the lower house, "in reality, a separate and distinct chamber, having a legitimate and controlling influence in the legislation of the country." 14 As a result, the British North America (BNA) Act of 1867 under section 17 established a Senate whose members were to be appointed, and among the qualifications outlined in section 23 was a minimum property requirement of at least "Four thousand Dollars over and above his Debts and Liabilities." 15 Appointment and the property minimum were meant to ensure that those who had veto power over Commons legislation held a vested interest on property rather than a loyalty to constituent voters.
The Fathers of Confederation also put into place mechanisms for limiting provincial power over property ownership. Macdonald hoped to avoid "the difficulty of what is called 'State Rights'" which "had much to do in bringing on the present unhappy war in the United States." 16 Section 92(13) of the BNA Act granted to the provinces jurisdiction over "property and civil rights." Section 92(13) was not a guarantee of any right to own property; it allowed the provinces to make laws pertaining to property and to override common law protections of property in so legislating. The Act expressly limited that power, Peter Hogg explains, by including in section 91 a number of matters which would otherwise have come within property and civil rights in the province. 17 In addition, "the peace, order and good government phrase in the opening language of section 91 presumably contemplated that certain matters which would otherwise have come within property and civil rights could attain such a national dimension so as to come within federal competence." 18
John A. MacDonald did not intend that the broad powers which remained in section 92(13) be left unqualified in the hands of the provinces. In his words, "as regards the Lower Provinces, a great desire was evinced for the final assimilation of our law." 19 Section 94 was thus included in the BNA Act to allow Parliament at some future date to legislate for the uniformity of laws pertaining to property and civil rights in the provinces of Ontario, Nova Scotia, and New Brunswick, with the legislative consent of those provinces. Though British common law still applied in these provinces and thus in theory protected property ownership, Macdonald was fearful of granting to the provinces a power over property and civil rights which would allow them to legislate to override the common law:
"Because although the law of those provinces is founded on the common law of England, yet every one of them has a large amount of law in its own— colonial law, framed by itself and affecting every relation of life, such as the laws of property." 20
The fathers of Confederation also included a "disallowance power" in sections 56 and 90 of the BNA Act, giving the governor general—in practice acting on behalf of the federal cabinet—power of disallowance over acts of the provincial legislation regarding property.
The Predominance of Democracy in Canada
Canada's democratic institutions had been strengthened in 1840 by the adopting of responsible government. Convention dictated that the monarch (or governor general) always act upon ministerial advice, as long as the ministers could claim the support of the majority of members in the elected house, even if acting on such advice would encroach upon property ownership. The essence of responsible government implied that democracy ought to assume primacy in Canada's institutions.
The resulting tension between institutions favourable to property and those favourable to democracy was incorporated into Canada's constitutional framework. As long as the Senate predominated over the House of Commons, there was no doubt that the interests of property owners would prevail. However, the status of property as the basis of Canada's institutions quickly eroded. Institutional protections of property against federal encroachment withered, and universal enfranchisement ensued. The phenomenon of party dominance discouraged divergence by the Senate from the House of Commons. Time rendered the property requirement for appointment virtually meaningless. The Senate never fulfilled the functions meant for it, becoming instead a rubber stamp for Commons legislation and a burial ground for political patrons. The Social Joint Committee on Senate Reform in 1984 attributed this change to public attitudes toward appointed bodies:
"[T]he Senate's use of its so-called absolute veto over federal legislation came to be resented and, subsequently…the Senate was no longer prepared to use its powers except on rare occasions." 21
Institutional protections of property from encroachment by the provincial legislatures fared little better. The disallowance power was used sparingly and has not been used since 1943. The vision of MacDonald never unfolded with respect to section 94. The House of Commons in 1902 discussed for the last time, but did not vote upon, implementation of section 94. 22 During that debate Robert Borden suggested that the onus was not upon the federal government but upon the provinces to initiate procedure on section 94 to ascertain "whether there was any basis upon which they could agree on any subject coming within the definition of property and civil rights." 23
The only major protection on legislative activity regarding property was the division of powers. Legislation by one level of government which, in "pith and substance," encroached upon the jurisdiction of another level of government was ultra vires. But many areas involving property ownership conceivably fell within the federal jurisdiction. Where one ended and the other began was at the discretion of the courts and such discretion wavered: either in favour of a stronger central government at the expense of provincial power or in favour of stronger provincial autonomy at the expense of the federal government. For our purposes what is important is not the resolution of the federalism dilemma but the fact that the debate concerning property ownership had long ceased to consider whether or not property ownership ought to have been subordinated to the dictates of legislatures. The debate focussed on which level of democratic government, federal or provincial, would have jurisdiction to regulate property ownership. While each level faced the fluid constraints imposed by federalism, the combined effect of activity of federal and provincial governments was to subordinate property ownership to aggressive government programmes of expropriation, intervention, and regulation. Beginning on the 1930s, both levels of the government established comprehensive social-welfare programmes, implemented economic legislation, created crown corporations, and expanded their tax bases.
To those who valued traditional protections of property ownership, this expansion of power over property by the two levels of government was disturbing. In 1944, William Gladstone Murray warned Ontario property owners that a post-war Canada had "two sets of advice" about its future from which to choose, "one based upon the Christian and humane tradition of individual freedom; the other based upon the pagan and German conception of slavery." 24 Murray believed that private property was "the most important guarantee of freedom, not only for those who own property, but scarcely less for those who do not." 25
It appeared that Canadian leaders might heed that warning. A Special Joint Committee of the Senate and House of Commons, formed in 1947 to discuss a United Nations draft proposal concerning human rights and freedoms, ought to be legislated or entrenched within the constitution. As a result, Canada signed the UN Declaration of Human Rights, article 17 of which included clauses protecting property ownership from arbitrary deprivation. 26 To honour the spirit of the document, Canada felt bound to effect some sort of written statement of rights and freedoms, one which would include protection of property. Many argued, however, that an entrenched bill of rights would weaken the democratic basis of Canada's institutions by placing the decisions of democratically elected officials under the scrutiny of a non-elected court. Rather than entrench a bill of rights, in 1960 the House of Commons enacted the Canadian Bill of Rights, which included "the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by the due process of the law." 27 As federal legislation, the Bill of Rights applied only to areas within federal jurisdiction. As a statute, the Bill was vulnerable to repeal by another federal piece of legislation. Whatever protections it offered, the Bill of Rights was still subordinated to legislative action.
A democratic basis for Canada's institutions had been established through the erosion of constitutionally entrenched protections of property. But as public debate grew concerning the need to stitch an entrenched bull of rights into Canada's constitutional fabric, there were renewed concerns about the permanence of Canada's democratic values. Unclear was the effect an entrenched bill of rights, with protection of property ownership, would have on those values.
Property Rights in the Modern Round of Constitutional Talks
The Potential Ramifications of the Clause
The modern round of constitutional talks took place in a climate where primacy of democracy had prevailed over that of property ownership, but the supremacy of the democratic principle did not mean that the property rights clause was destined to be excluded from the Charter. A carefully worded clause protecting property from procedural unfairness could have been included, one which could have been interpreted by the courts not to impinge upon the economic power exercised by governments supported by elected officials. That it was excluded indicated the strength of the fear that, once placed in the hands of a non-elected judiciary, such a clause had the potential to subvert the seeming victory of democracy by propertarian interests: interests which desired to diminish the scope of the economic power of governments.
Had a clause protecting the "right to use and enjoyment of property, and the right not to be deprived thereof" been inserted in section 7 of the Charter as originally proposed, the impact of such a clause would depend upon the courts' interpretation of the intraclausal qualifications of that right, that is, the phrase "except in accordance with the principles of fundamental justice." If the phrase was understood to protect the rules of procedural fairness only, says Peter Hogg, such rules would require the conjunction with the taking, "a hearing, unbiased adjudication, and (a recent development) a 'fair' procedure…[T]he courts could review and the appropriateness and fairness of the procedures enacted for a deprivation of life, liberty and security of the person [in section 7]—but that is all. The courts could not review the substantive justification for deprivation." 28
If, however, "fundamental justice" did include substantive fairness, the courts would be able to look at the taking itself even of the rules of procedural fairness were properly followed. Opponents of the clause feared that its interpretation would not be limited to issues of procedural fairness. In the United States the Fifth Amendment protects citizens against deprivation of "life, liberty or property, without due process of the law"; the Fourteenth Amendment broadens that protection to prevent encroachment by the states. Due process in the United States was interpreted not only to protect procedural fairness but substantive fairness as well. 29 Beginning in 1890, the United States Supreme Court used the doctrine of due process to strike down legislation "regulating minimum wages and maximum hours in employment, requiring workmen's compensation, regulating various business activities, and fixing prices." 30 Such legislation was deemed to encroach unconstitutionally upon the use of property and freedom of contract. The case of Lochner v. New York defined "liberty" to include freedom of contract. 31 The effect of these decisions for almost a half-century was to protect constitutionally laissez-faire capitalism from the encroachment of democratic institutions, effectively paralyzing legislative action in the realm of social welfare and employment regulation.
It was clear from U.S. experience that a non-elected judiciary with the power to strike down economic legislation on the grounds that it contravened a clause protecting property ownership had the potential to exercise effectively the power originally intended to be exercised by the Senate. Such a judiciary would wield a veto of power over legislation from the House of Commons and protect property ownership from unlimited majority rule. However, the legal literature accepts the possibility that a "property rights" clause could be worded to direct the courts to ensure procedural fairness rather than substantive fairness. Walter Tarnopolsky wrote in 1979 that "separation of the protection of property from the 'due process' clause might provide further assurance" against the "substantive due process" interpretation that was applied in the United States in the period from the 1890s to the 1930s. 32 Tarnopolsky anticipated the fear of the potential use of such a clause to provide an argument against paying taxes or the levying of forfeitures of property:
"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 of our legislatures to prevent the enactment of laws providing for expropriation without 'just' compensation and confiscation without justification." 33
The adoption of either position did not reject the supremacy of democratic-communitarian values. The debate about the ramifications of the clause persisted in context of a clearly established supremacy of those values. One side held that the judiciary would interpret the property rights clause consistent with the interests of property owners and to override the interests of democratic will. This position demanded inclusion of their economic powers. Both positions spoke to and endorsed the primacy of democratic values. The only question was which position would win out.
The Exclusion of the Property Rights Clause
The Provincial Position
A majority of the provinces opposed the property rights clause, however worded. They argued that a property rights clause threatened to limit the scope of economic legislation enacted by elected governments. A number of provinces, especially Quebec, had established their own income-security programmes distinct from shared-cost programmes. Provinces like Saskatchewan had aggressively utilized their powers over property and civil rights to expropriate and to institute a number of province-owned crown corporations. Prince Edward Island had passed legislation limiting how much land non-residents could own in that province. All these activities were perceived to be threatened by the inclusion of a property rights clause in an entrenched bill of rights. Even with ultimate inclusion of section 33, allowing federal and provincial governments to pass legislation inconsistent with certain aspects of the Charter, the provinces would not risk having their economic power threatened.
While the provinces would eventually accept some entrenched rights, they were never willing to accept a clause protecting property rights. At the 1971 Victoria Conference, eight provinces and the federal government agreed to a few fundamental rights, property not among them. At the 1978 Regina Premiers Conference, the premiers expressed fears that "important provincial legislation respecting land ownership and other matters" was threatened by Bill C-60. 34 The premiers stated:
"Some provinces support the principle of Constitutional entrenchment of basic rights; while others believe that, under our parliamentary system, individual rights are better protected by basic constitutional traditions and the ordinary legislative process." 35
A majority of the premiers originally opposed not only the property clause itself but the entire concept of a Charter of Rights and Freedoms. But the results of the Quebec referendum on sovereignty-association in 1980 had placed a sense of urgency upon the constitutional process. Prime Minister Pierre Trudeau promised Quebec citizens constitutional reform if they voted "no" on the referendum. The premiers eventually acquiesced in their position concerning the Charter, as long as the Charter did not seriously encroach upon provincial powers. They insisted, however, that the property rights clause would do precisely that. Only Ontario and New Brunswick supported the Liberal position in favour of Charter protection of property rights. In a letter discussed at the Special Join Committee meetings, Premier Angus MacLean of Prince Edward Island indicated that PEI did not wish to have the Committee legislate property rights for their province. 36 Newfoundland, Nova Scotia, and Manitoba expressed similar objections to the proposed clause. Saskatchewan and PEI feared that legislation they had passed which inhibited land purchases within their provinces by foreigners could be challenged through such a clause. 37 Alberta's minister for federal and intergovernmental affairs, James Horsman, said of his province's position during the negotiations:
"[T]he debate made clear that the Government of Alberta's position is that the constitutional responsibility for property and civil rights being that of the Provinces, should remain there and not be entrenched in the Charter of Rights and thus become subject in any way to control of the federal government." 38
The premiers opposed the property rights clause because they viewed it as an encroachment upon their jurisdiction. It was also asserted that, in a democratic system, protection of property ought to exist to the extent that elected legislatures will allow. A number of provinces, including Alberta and Saskatchewan, took pains to point out they had legislated bills of rights which included protection for property. Horsman reassured the Alberta Real Estate Association in a subsequent speech:
"Nothing in the new constitution in any way undermines the property rights that Canadians have enjoyed in the past, and continue to enjoy today… It is the responsibility of the Government of Alberta on behalf of the people of Alberta, to ensure that property laws for Albertans are made according to the wishes of Albertans." 39
Provincial support for the property rights clause simply did not exist. In 1981, several provinces threatened to abandon any agreement if a clause protecting property rights was included. On January 22, federal Liberal Solicitor-General Robert Kapman was assigned to replace Jean Chretien, chairman of the Special Joint Committee of the House of Commons and the Senate on the Commission, who was ill for much of that week. Kaplan offered to include in section 7 of the Charter a clause protecting property, if the federal Conservatives (who supported the clause) were prepared to propose such a clause. The Conservatives accepted that proposal. 40 On January 25, however, New Democratic Party leader Ed Broadbent warned that he would not support the constitutional package unless the property rights clause was withdrawn. 41 The federal NDP had rallied behind the provincial position, and in particular that of the Saskatchewan NDP government, asserting that property was already protected by common law and was within the jurisdiction of the provinces. Trudeau felt he was close to obtaining Saskatchewan Premier Allan Blakeney's support for a constitutional package. Support from Blakeney was crucial to Trudeau, for Trudeau could then have claimed support from the West, in addition to Ontario and New Brunswick. To that end, Trudeau dropped the clause for good.
The Federal Position
The provinces, by opposing inclusion of a clause protecting property, cast themselves as champions of the democratic principle. Implicit in that stance was the suggestion that the intention of the federal government was to include the property rights clause in order to usurp the democratic principle for the sake of propertarian interests. It was certainly true that the federal government supported inclusion of the clause. In a number of proposed bills of rights, Pierre Trudeau supported inclusion of a clause protecting enjoyment of property. Such a clause was included in Trudeau's A Canadian Charter of Human Rights, tabled in 1968 when he was minister of justice. 42 As prime minister, he reiterated his approach to constitutional protection of property rights in 1969 by submitting The Constitution and the People of Canada. 43 In it he wrote that a Charter should protect "the right of the individual to the enjoyment of property." 44 In July 1978, Trudeau introduced Bill C-60, The Constitutional Amendment Bill. The Bill included a clause representing fundamentally the same protection suggested by Trudeau in 1969. 45 In July 1980 he made another attempt to include a property rights clause in a proposed Charter. 46 When the January 1981, and final, attempt to include the clause failed, Trudeau expressed his regret in Parliament:
"I said earlier that this government supported the property rights clause. We presented it to the provinces last summer. I personally would have liked to see it in the constitution. It was opposed by many of the provinces." 47
Despite his support for the clause, Trudeau had no desire to subvert the democratic principle for the sake of property ownership. His reasons for endorsing a property rights clause were inextricably linked to his support in general for an entrenched bill of rights. The specific clause protecting property rights was not fundamental to the Charter and he was prepared to omit it if necessary. Moreover, Trudeau never intended that a property rights clause interfere with government activity in the economic realm; rather, such a clause would simply provide procedural, not substantive, protection of property ownership.
The thesis that the Charter serves a dual purpose has been advanced by Peter Russell 48 and by Rainer Knopff and F. L. Morton. 49 They have argued that in addition to guaranteeing rights and freedoms, the Charter was meant to perform the more fundamental role of promoting national unity. 50 In addressing the national unity issue, the Charter's framers hoped to undermine the pronounced regional conflict which threatened to pull the country apart. Provincial assertiveness was fuelled after the Second World War by the growing importance of the welfare state and its value as a dynamic for "province building." 51 The provinces viewed their jurisdiction, especially section 92(13), as vital to achieving their goals. Quebec in particular emerged from its "fortress" following Duplessis' death, hoping to use the apparatus of the state to protect and enhance its distinctness from the rest of Canada.
These forces threatened to fragment the country. The charter was appealing to Trudeau and the Liberal Party because it offered the potential not only of protecting rights and freedoms, but also limiting provincial power and reversing these centrifugal forces. Rights and freedoms had the potential to cut across the territorial cleavages which divided the country. By making the guarantee of rights and freedoms something that all Canadians could equally share, the Charter would be a symbolic mechanism to transcend regionalism and restore national unity. But the Charter would, through judicial policy-making, also exercise a practical role in promoting national unity. To the extent that the Charter transfers policy-making power to the judiciary, "it transfers it to a centralized, rational institution." 52 Because the Supreme Court "sits atop a national appellate structure," 53 it is a "single and unified institution that applies uniform standards to the country as a whole." 54 "Once the Supreme Court has ruled that a particular provincial policy violates the Charter, that decision sets a uniform minimal standard that all provinces must obey." 55
"Minimum standards" would, of course, also be established to limit federal areas of jurisdiction. This would not impugn the dominant purpose of the Charter—that is, the national unity role it was intended to perform. Even when the federal government loses a Charter challenge, Knopff and Morton note, the principle of centralized policy-making does not suffer a setback because it is simply an alternative national institutional which is making policy. 56 Entrenchment of a Charter would have augmented federal power, though the immediate beneficiary would not have been the federal government directly but rather a federally-appointed court. Moreover, suggest Knopff and Morton, while the Charter applies to federal law, experience in U.S. constitutional jurisprudence and early Charter decisions show that the Charter is bound to exercise a disproportionate impact on provincial policy. 57
A property rights clause was intended to perform the same role—that of promoting national unity—as that of other rights and freedoms. Property rights were not accorded by the Liberals any more or less privileged position in the Charter than were other rights and freedoms. A property rights clause would not have had the same effect as section 94 or the BNA Act, for it would not have provided for uniformity in laws pertaining to property and civil rights. But it would have placed the Supreme Court in the role of establishing minimum national standards for legislation relating to property; such standards would have applied to all Canadians equally, in whichever province they resided. Significantly, the clause would have applied to Quebec, whereas Quebec was exempted from section 94.
Inclusion of the property rights clause in conjunction with this national unity role would not, however, have precluded the courts from embarking upon a "Lochner-era" style of interpreting the clause. Trudeau was not blind to that possibility. Included in the Charter were clear signals that it was intended to be a "liberal democratic" document. Says Patrick Monahan:
"Democratic values are expressly or implicitly referred to throughout the Charter. There are a variety of provisions in the Charter directed either towards protecting democratic debate and argument, or towards remedying systemic defects in the process…. Throughout the document, there is a recognition of the importance of communitarian values. A variety of provisions is directed towards ensuring that individuals living in communities are provided with the opportunity and means to define and develop their identities." 58
One of the most obvious indications of this is the qualification of all rights in section 1. The Charter ensures that the rights and guarantees prescribed in it are to be "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Rights and freedoms may be qualified only so long as such a qualification is consistent with the principles of a free and democratic society. That rights and freedoms were not intended to be absolute is specifically spelled out in the Charter. Peter Russell argues that in liberal democracies "fundamental rights and freedoms are not zero-sum entities which citizens either possess in their entirety or not at all." 59
It was hoped, then, that the property rights clause would not have been interpreted in its most absolute reading. But the Charter's framers would not have hung their hats upon hope alone. The wording of a property rights clause was crucial to its interpretation. Trudeau believed that, worded properly, a property rights clause could provide procedural protection of property without impinging upon the values of a democratic society, without forcing the courts into a position were they would defend propertarian interests. Trudeau indicated this approach to property rights as early as 1968 when he first proposed inclusion, in an entrenched bill of rights, of a right to enjoy property and "the right not to be deprived thereof except by due process of law." 60 It is important to note here that Trudeau expressed the possibility that the property rights clause could be deleted if faced with disapproval, because of the potential friction that was posed by the specific inclusion of such a right:
"In examining American experience with 'due process,' it appears that the guarantee as applied to protection of 'life' and personal 'liberty' has been generally satisfactory, whereas substantive due process as applied to 'liberty' of contract and to 'property' has created the most controversy. It might therefore be possible to apply the due process guarantee only to 'life,' personal 'liberty' and 'security of the person.' The specific guarantees of procedural fairness set out elsewhere in the bill would continue to apply to any interference with contracts or property. In this fashion, the possibility of any substantive 'due process' problems would be avoided.
In the alternative, if 'due process' is to remain applicable to 'liberty' of contract and to 'property,' there should be spelled out in some detail what is involved." 61
Reconsidering his approach, Trudeau proposed a year later that an entrenched bill of rights protect "the right of the individual to the enjoyment of property, and the right not to be deprived thereof except according to law." 62 Rather than risk repetition of the U.S. experience with "due process," he separated "property" from the due process protection of "life, and the liberty and security of the person" to indicate "that what should be required for the protection of property is procedural fairness, whereas the term 'due process' might be capable of a broader meaning which could unduly limit legislative action." 63
Almost a decade later, Bill C-60 followed the 1969 guidelines. It separated protection of property ownership from the protections of "life, liberty, and security of the person," allowing deprivation of property only "in accordance with the law." 64 That October, the Special Joint Committee tabled the "Lamontagne/ MacGuigan Report," its recommended amendments to Bill C-60, in Parliament. The Committee recommended that the government consider reverting to its original "due process" protection of the right. 65 Trudeau, wary again of the potential problems posed by a "due process" qualification of the right to use and enjoy property, ignored that recommendation. In July 1980, when he attempted again to include the property rights clause in the Charter, Trudeau did not change it substantially:
"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." 66
While it was clear how "due process" protection of property had been interpreted by the U.S. courts, it was still not obvious that alternative phrasing would have been interpreted less broadly. Trudeau's attempts to convince the provinces that the clause would apply only to protection of property from procedural unfairness, and that it would not impinge upon government action in the economic realm, fell on deaf ears.
Inclusion of the property rights clause did not hinge upon which argument was more convincing but upon which argument the provinces accepted. Since Trudeau indicated his government would honour convention and would not proceed unilaterally to patriate the constitution, the federal government required substantial support of the provinces before going to Westminster. When a carefully worded clause could not appease the provinces, Trudeau excluded it. The clause was not fundamental to his Charter and he was not prepared to risk the Charter for the sake of including a property rights clause. The fundamental purpose for including such a clause, aside from providing procedural fairness for property ownership, was for the "unifying" effect such a right, along with other rights and freedoms, could have. He was willing to sacrifice the clause, as he indicated as far back as 1969 that he was prepared to do, to avoid friction, attain provincial support and save the Charter; the remaining rights and freedoms were still sufficient to perform a "unifying" function.
Conclusion: Labour Pains or Signs of Terminal Illness?
The Supreme Court of Canada has generally ruled that the Charter does not impinge upon government action in the economic realm. Inclusion of a property rights clause in section 7 might have compelled a different interpretation. The court's early reading of the Charter seems to confirm provincial fears about the extent to which a property rights clause might have been interpreted. The Supreme Court has adopted a "broad, purposive" approach to interpreting Charter protections. 67 Consistent with that approach, the Court has read a broad protection of privacy into section 8 of the Charter, ending the expectation that "legal rights" would be viewed as procedural protections only. 68 Most notable though, has been the Court's assertion that "except in accordance with the principles of fundamental justice" means more than procedural fairness. Mr. Justice Lamer in Reference Re BC Motor Vehicles Act rejected the view that the phrase referred to procedural protections only. 69 Building on the decisions in Hunter and Big M Drug Mart, he stated:
"The task of the court is not to choose between substantive or procedural content per se but to secure for persons 'the full benefit of the Charter's protection'…under [section] 7, while avoiding adjudication of the merits of public policy. This can only be accomplished by a purposive analysis." 70
Consistent with this broad, substantive Charter interpretation, some commentators and judicial decisions have suggested that protection of property rights might be achieved with a wide interpretation of the "security of the person" clause in section 7. In an essay discussing the implications of including a clause protecting property rights in section 7, Jean McBean observes that "the question of whether economic rights are protected under section 7 is at present unanswered." She says, "It is possible that the 'new property' economic interests such as welfare rights and licenses will be included in section 7, even if more traditional types of property interests remain excluded." 71 McBean believes that such an interpretation, either of the section 7 "security of the person" clause, or alternatively of an entrenched property rights clause, would likely preclude the courts from impinging upon legislated economic interests. She regards this as a less traditional, positive approach. However, some courts have interpreted the security of the person clause to include protection of more traditional forms of property. In late 1982, a New Brunswick Court of Queens Bench decision interpreted the "security of the person" clause in just such a manner. 72 Many legal theorists were critical of this particular decision, which involved the seizure of a vending machine. Peter Hogg suggests that the Court went "too far" in that ruling 73 and notes that it is also criticized by John Whyte 74 and G. J. Brandt. 75 Patrice Garant observes that higher courts have been reluctant to give the "security of the person" clause such wide ambit. The New Brunswick Court of Appeal rejected the analysis of the lower court in Fisherman's Wharf 76 and in a case before the Federal Court of Appeal that same analysis was rejected in obiter. 77 Garant says that:
"[O]ne notes the strong reluctance of judges to bring economic protection within the purview of the words used in section 7…..The result has been followed in a wide variety of cases where attempts were made to invoke section 7 in challenging statutes or regulations affecting the right to property or economic interests connected to the exercise of the right to property." 78
It remains to be seen what the Supreme Court of Canada will make of these analyses. Still, it is clear that many jurists regard the absence of a specific clause protecting property as a signal for the courts to avoid, under the guise of protecting "security of the person," encroachment upon legislation affecting propertied or economic interests.
The extent of the provincial victory can be seen in the inclusion of sections 38(2) - 38(4) within the Constitution Act, 1982, by which dissenting provinces would decide if and when any clause would apply to them which would derogate from their proprietary rights. While it might be possible to word such a clause to please legal scholars, it seems less like that wording for such a clause could be formulated which would alleviate the fears of most of the province. But hope springs eternal. Efforts have persisted to achieve some sort of compromise. A second round of attempts to have the Charter amended to include a property rights clause was initiated by a British Columbia resolution. Ontario and New Brunswick passed similar resolutions. However, each of these resolutions has expired. In 1986, the Attorneys General form the provinces and the federal government established a federal-provincial working group of officials to study the implications of entrenching a property rights clause in the constitution. In May 1988, the House of Commons resolution was passed endorsing the entrenchment of property protection. Prime Minister Brian Mulroney also suggested that he would turn his attention to the property rights issue following the resolution of the Meech Lake Accord debate, although at the beginning of the 1990s the uncertain state of Canada's constitutional dialogue made this doubtful.
It appears likely that an agreement on wording satisfactory to all parties concerned will not be reached in the foreseeable future. The urgency which existed during the constitutional talks of the early 1980s is gone. Meech Lake and other issues of constitutional reform have relegated the once controversial property rights issue to obscurity. The provinces simply have too much at stake to expect that they will yield hastily to any proposal. Whatever happens, the historical ascendancy in Canada of democracy seems to ensure, for the near future at least, that the interests of property ownership, while they will certainly continue to be protected, will also continue to be subordinated to the will of democratic institutions—with or without the property rights clause.
Acknowledgements
The author gratefully acknowledges the helpful comments of Professor Peter N. Russell on earlier drafts of this article, as well as the advice of the anonymous referees for the Canadian Journal of Political Science which originally published this article in its XXIV:2 (June/juin 1991) edition.
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1 Government of Canada, House of Commons Debates, May 2, 1988, I5044.
2 Government of Canada, The Constitution Ac, 1982, s 38(1).
3 Patrick Monahan, Politics and the Constitution, 1987, pp. 103-06.
4 M. Dorothy George, England in Transition, 1931, p. 218 cited in Will and Ariel Durant, Rousseau and Revolution, 1967, p. 684.
5 Ibid.
6 Ibid., p. 685.
7 Ibid., pp. 684-85.
8 Great Britain, Parliamentary Debates, March 8, 1763, Hansard's Parliamentary History of England, 1813, p. 1307.
9 (1765) 19 State Trials, p. 1029.
10 Ibid., p. 1066.
11 Karl Polanyi, The Great Transformation, 1957, p. 101.
12 D. V. Smiley, The Federal Condition in Canada, 1987, p. 39.
13 Parliamentary Debates on the Subject of Confederation of the British North American Provinces, 1865, (reprinted 1995), p. 39. (Hereafter cited as Confederation Debates.)
14 Ibid., p. 36.
15 British North America Act, 1867, s. 23(4). Now Constitution Act, 1867.
16 Confederation Debates, p. 33.
17 Specifically, ss. 91(2), (15), (16), (18), (19), (21), (22), (23), and (28) of the BNA Act. Peter W. Hogg, Constitutional Law of Canada, 1985, pp. 454-55.
18 Ibid., p. 455.
19 Confederation Debates, p. 29.
20 Ibid.
21 Report of the Special Joint Committee of the Senate and House of Commons on Senate Reform, 1984, p. 8.
22 Frank R. Scott, "Section 94 of the British North America Act," in Essays on the Constitution, 1977, p. 116.
23 Government of Canada, House of Commons Debates, March 12, 1902, p. 1093.
24 W. Gladstone Murray, Private Property a Guarantee of Freedom: Text of Address to the Ontario Property Owners Association, 1944, p. 5.
25 Ibid., p. 2.
26 Pierre Elliot Trudeau, A Canadian Charter of Human Rights, 1968), p. 17.
27 Ibid., p. 18.
28 Hogg, Constitutional Law of Canada, p. 747.
29 Martin, Shapiro and Rocco J. Tressolini, American Constitutional Law, 1983, p. 296.
30 Ibid., p. 299.
31 Lochner v. New York, 198 U.S. 45; 25 Sup. Ct. 539; 49 L. Ed., 937 (1905) in Shapiro and Tressolini, American Constitutional Law, p. 299 and p. 314.
32 Walter Tarnnopolsky, "A Bill of Rights and Future Constitutional Change," Canadian Bar Review, 1979, p. 632.
33 Ibid., p. 633.
34 Extraction from the Joint Communique of Ministers, Proposals on the Canadian Constitution, 1971-78: Collation, December 1978, p. 73.
35 Ibid.
36 Senator Duff Robin, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada. Issue 46, January 27, 1981, p. 46:21.
37 "Article," The Globe and Mail, January 26, 1981, p. A1.
38 Rod Murphy, in Government of Canada, House of Commons Debates, April 29, 1983, p. 25008.
39 James D. Horsman, Notes for an Address by the Hon. James D. Horsman, Q.C. Minister of Federal and Intergovernmental Affairs, Government of Alberta, Canada, to Alberta Real Estate Association, May 13, 1985), pp. 5-6.
40 Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 41, January 20, 1981, p. 41A:1 and Issue 43, January 22, 1981, p. 43:58 and p. 43:59.
41 "Article," The Globe and Mail, January 26, 1981, p. A1.
42 Trudeau, A Canadian Charter of Human Rights, p. 19.
43 Pierre E. Trudeau, The Constitution and the People of Canada, 1969, p. 50.
44 Ibid., p. 52.
45 Government of Canada, The Constitutional Amendment Bill: Text and Explanatory Notes (Bill C-60), July 1978, p. 36.
46 Mark MacGuigan, in Government of Canada, House of Commons Debates, April 29, 1983, p. 25004.
47 Pierre Elliot Trudeau, in Government of Canada, House of Commons Debates, January 27, 1981, p. 6595.
48 Peter H. Russell, "The Political Purposes of the Canadian Charter of Rights and Freedoms," Canadian Bar Review, 1983, pp. 30-54.
49 Rainer Knopff and F. L. Morton, "Nation-Building and the Canadian Charter of Rights and Freedoms," in Alan Cairns and Cynthia Williams, eds., Constitutionalism, Citizenship and Society in Canada, 1985, pp. 133-82.
50 Russell, "The Political Purposes of the Canadian Charter of Rights and Freedoms," p. 31 and Knopff and Morton, "Nation Building and the Canadian Charter of Rights and Freedoms," pp. 136-37.
51 Ibid., p. 139.
52 Ibid., p. 147.
53 Ibid., p. 148.
54 Ibid., p. 147.
55 Ibid., p. 147.
56 Ibid., pp. 147-148.
57 Ibid., p. 148
58 Monahan, Politics and the Constitution, p. 104.
59 Russell, "The Political Purposes of the Canadian Charter of Rights and Freedoms," p. 30.
60 Trudeau, A Canadian Charter of Human Rights, p. 19.
61 Ibid., p. 20.
62 Trudeau, The Constitution of the People of Canada, p. 52.
63 Ibid.
64 Government of Canada, The Constitutional Amendment Bill: Text and Explanatory Notes, p. 36.
65 Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Report to Parliament, Issue 20, October 10, 1978, p. 20:11.
66 Mark MacGuigan, in Government of Canada, House of Commons Debates, April 29, 1983, p. 25004.
67 Hunter v. Southam, (1984) 2 S.C.R. 145, at 156.
68 2 S.C.R. 145, at 158, where Justice Dickson states: "There is….nothing in the language of [section 8] to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure."
69 Reference Re British Columbia Motor Vehicle Act, (1985) 2 S.C.R. 486.
70 Ibid., p. 499.
71 Jean McBean, "The Implications of Entrenching Property Rights in Section 7 of the Charter of Rights," Alberta Law Review, 1988, p. 548.
72 The Queen (N.B.) v. Fisherman's Wharf, (1982) 135 D.L.R. (3d) 307.
73 Hogg, Constitutional Law of Canada, p. 745, n. 17.
74 John Whyte, "Fundamental Justice: The Scope and Application of Section 7 of the Charter of Rights and Freedoms," in The Canadian Charter of Rights and Freedoms: Initial Experience, Emerging Issues, Future Challenges I, 1984, p. 39. This volume is a compilation of papers delivered at the Institute's conference. October 12-15, 1983.
75 G. J. Brandt, "Right to Property as an Extension of Personal Security—Status of Undeclared Rights," Canadian Bar Review, 1983, p. 398.
76 New Brunswick v. Eastabrooks Pontiac Buick Ltd.; New Brunswick v. Fisherman's Wharfs Ltd., (1982) 144 D.L.R. (3d) 21, at 31. Referred to by Patrice Garant, "Fundamental Rights and Fundamental Justice (Section 7)," in Gerald A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms, 1989, p. 347.
77 Regal Petroleum Ltd. v. Ministry of Energy Mines and Resources, (1985), 63 N.R. 135, at 136. Referred to in ibid.
78 Ibid.