Strengthening property rights

By Garry Breitkreuz
web posted November 1998

Mr. Speaker, once again I am disappointed that my bill has been given second-class status in this House. For the second time since I became a Member of Parliament, this important issue has been denied enough time for a full debate and MPs have been denied to vote for or against strengthening property rights in federal law. I think it's time for us to make all private members business that comes before this House votable.

I want to use the little time I have to explain why a full debate and a vote on Bill C-304 in this House are so important.

I have received impressive public support for my property rights bill considering that I have had so little time to promote this legislative initiative. I have received 491 pages of petitions signed by 11 292 Canadians from all across Canada who support this bill.

I have also received the support of The Canadian Real Estate Association that represents more than 200 real estate boards in every province of the country. Obviously, this is a very important issue for many Canadians.

As Members of this House are no doubt aware this is the 50th anniversary of the signing of the United Nations Declaration of Human Rights. Article 17 of the UN Declaration of Human Rights reads: "(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property."

Despite the fact that Canada ratified the UN Declaration of Human Rights fifty years ago, the fact is that Canadians are still being arbitrarily deprived of their property. There are and have been so many examples:

  • Bill C-68, the Firearms Act
  • The Canadian Wheat Board Act
  • The Endangered Species Act
  • The Pearson Airport Agreements Act
  • The National Energy Program

Just to name a few.

My colleagues and I will use our time to expose just a few examples of how the government has abused the property rights of millions of Canadians and why all Canadians should fear a government prepared to run roughshod over such a fundamental and natural right.

Professor Peter Hogg wrote in his book, Constitutional Law of Canada - Third Edition, "The omission of property rights from Section 7 [of the Charter] greatly reduces its scope. It means that section 7 affords no guarantee of compensation or even a fair procedure for the taking of property by the government. It means that section 7 affords no guarantee of fair treatment by courts, tribunals or officials with power over purely economic interests of individuals or corporations." (Citation 44.9 - page 1030)

Professor Hogg also wrote, "The product is a section 7 in which liberty must be interpreted as not including property, as not including freedom of contract, and, in short, as not including economic liberty." (Citation 44.7(b) - page 1028)

I ask the Members of this House, are their constituents even aware of this lack of protection in the Charter?

Former Prime Minister Pierre Trudeau argued long and hard for better protection of property rights first in his 1968 paper titled, "A Canadian Charter of Human Rights" tabled when he was Minister of Justice. Secondly in his 1969 paper "The Constitution of the People of Canada" and once again in 1978 when he introduced Bill C-60, "The Constitutional Amendment Bill." Mr. Trudeau tried to get property rights included in the Charter in July of 1980 and again in January of 1981. Finally, in April of 1983 he said in the House of Commons, "I would say that if we can have the agreement of the Conservative Party to introduce an amendment on property rights and to pass it in 24 hours."

Rather than try to amend the Charter of Rights and Freedoms, my Private Members Bill (C-304) proposes to provide adequate protection of property rights in federal law by strengthening the property rights provisions of the Canadian Bill of Rights.

In the past, the government has argued rather poorly, that there is no need to strengthen property rights in federal law. The government has argued in the past, that the Canadian Bill of Rights provides adequate protection of property rights.

But I ask, if property rights are so adequately protected in Federal law, how come the government can still keep violating Article 17 of the UN Declaration of Human Rights by arbitrarily taking the property of Canadian citizens?

First of all, the Bill of Rights only provides rather feeble protection of property rights and even these can be overridden by just saying so in any piece of legislation passed by this House. My bill proposes to make it more difficult to override the property rights of Canadian citizens by requiring a two-thirds majority vote of this House.

So we're not tying the government's hands to legislate but saying property rights are so important that an override clause should pass a higher test in this House.

Even if the government agrees to abide by the so-called guarantees in the Canadian Bill of Rights (as it is currently worded) protects only three things:

  • The right to enjoyment of property;

  • The right not to be deprived of property except by due process, and

  • The right to a fair hearing.

Unfortunately, the Bill of Rights does not (as I'll explain later) does not prevent the arbitrary taking of property.

The Bill of Rights does not provide any protection of our right to be paid any compensation - let alone fair compensation.

The Bill of Rights does not provide any protection of our right to have compensation fixed impartially.

The Bill of Rights does not provide any protection of our right to receive timely compensation.

And finally, the Bill of Rights does not provide any protection of our right to apply to the courts to obtain justice.

Bill C-304 would amend the Bill of Rights to provide this added protection for Canadian citizens from the arbitrary decisions made by the federal government to take their property.

Approval of my amendments to the Bill of Rights would allow Canadians to celebrate the 50th Anniversary of the signing of the United Nations Declaration of Human Rights knowing that we have finally provided the protection of property rights in federal law that the UN Declaration called for so many decades ago.

I can see a few Members on the government looking self-assured and confident that I am wrong and their government is right. The Minister of Justice's little helpers will soon stand up to proclaim as much.

But I am not wrong. And that is why we need a full debate in this House, not just an hour. That is why we need a vote in this House.

Voters in this country have to know that this government, by their own legislation (legislation the government Members have supported) and by the actions of their own Minister of Justice condone the "arbitrary" taking of property in direct contravention of Article 17 of the UN Declaration of Human Rights.

They should hang their head in shame rather than parading around the world, claiming to be the defenders of fundamental human rights. Article 17(2) of the UN Declaration of Human Rights states: No one shall be arbitrarily deprived of his property."

I only have time to cover one "arbitrary" taking of property by the Federal government and I'll use the example I know best - Bill C-68, the Firearms Act.

Section 84(1) of (Bill C-68) passed by Parliament in 1995 and now Chapter 39 of the Statutes of Canada arbitrarily prohibited an estimated 553 000 registered handguns - 339 000 handguns that have a barrel equal to or less than 104 mm in length (about 4.14 inches) and 214 000 handguns that discharge 25 and 32 calibre bullets.

The government "arbitrarily" decided that these 553 000 handguns (currently safely stored in the homes of their law-abiding, government-registered owners) were so dangerous that they had to be banned.

The government ignored the fact and the evidence from Statistics Canada showing that unregistered handguns, responsible for about 75% of all firearms crimes in the country, were already illegal.

In 1994, the government estimated these 553 000 handguns represented about half of all the firearms in the existing firearms registry!

What proof did the government provide that these firearms were dangerous? None. The decision was completely arbitrary.

What was the extent of the government evidence to justify the prohibition? In the government's "opinion" these legally acquired, properly registered firearms [and I quote] "are not considered to be suitable for organized target-shooting" and "such handguns are produced primarily for use as weapons." [unquote]

No evidence was ever presented showing how many crimes these 553 000 legally owned handguns had been involved in or how banning them would have prevented any crimes or prevent any crimes in the future.

In fact, neither the RCMP nor the Justice Minister were able to produce any evidence in Parliament that 64 year old handgun registration system has been used to help solved even one crime.

The government even proved my point about the arbitrariness of their decision to ban hundreds of thousands of legally-owned guns by deciding to leave most of these registered handguns they always refer to as "Saturday-night specials" in the hands of registered owners until they die.

It is then that most of these firearms will be seized because many of the heirs won't be able to comply with the onerous rules and regulations respecting ownership of firearms.

If these handguns are safe in the hands of the registered owners why did the government need to ban them?

The criminals are already breaking the law by using unregistered guns for their crimes. How did it improve public safety by banning guns in the hands of hundreds of thousands of good guys?

Surely if this arbitrary ban was to do any good the government would have to remove these so-called "Saturday-night specials" from the hands of their registered owners. They didn't - thereby proving the arbitrariness of their decision and providing all the proof anyone needs to demonstrate they are breaking Article 17 of the 1948 UN Declaration on Human Rights.

With the announcement of this ban the government destroyed the value of these 553 000 registered handguns. The government didn't have to physically take property to violate the fundamental property rights of these hundreds of thousands of law-abiding Canadians.

The government's arbitrary ban destroyed the value of these handguns and took money out of these citizen's pockets just as surely as the mugger takes the money out of his victim's pockets on the streets of downtown Toronto.

Government is force and this is how they use it. They use this force to throw western farmers in jail just because they choose not to sell their wheat to the government.

The Government uses this force to stop Canadians from receiving television channels the government doesn't want them to watch.

Are we really free when this violation of one of our most fundamental rights goes on right before our eyes? Some people will say, well what the government is doing isn't affecting me. But what will these people say when the government "arbitrarily" decides to take their property or destroy the value of their property?

Not only did the government arbitrarily ban this legally-owned property but they are refusing to pay compensation for either the loss in value suffered by this government-enforced theft but they are refusing to pay compensation for the legally-owned firearms that they are going to confiscate.

At the time that the government announced this arbitrary ban on private property, approximately, 20 000 to 30 000 of these firearms were held in the inventories of government licenced businesses.

On May 19, 1998 a firearms dealer received a letter from the Canadian Firearms Centre in the Department of Justice which said [and again I quote]: "Firearms in a dealer's inventory are not grandfathered and will therefor be subject to confiscation as of October 1. There is no compensation scheme planned at this time for dealers or individuals whose handguns become prohibited October 1, 1998 and are confiscated or turned in." [unquote]

On September 1, 1998 the Minister of Justice wrote a law-abiding gun owner in Ottawa. Her letter was commenting on a 1994 gun ban that paid them compensation if they surrendered their arbitrarily prohibited firearms to the government. The Minister said [and I quote] "The surrender initiative was unique. It should be considered an amnesty, rather than an expropriation. Firearms not identified under this initiative are not eligible for payment if surrendered or seized." [unquote]

There we have it in black and white - confiscation without compensation!

Not only was the ban of these 553 000 handguns completely arbitrary but so is the process by which the government decides to pay compensation for seizing firearms.

In June, the Canadian Police Association wrote the Minister of Justice complaining her plans to confiscate 20 000 to 30 000 banned handguns from government approved firearm dealers. The CPA letter said, [quote] "We were nothing short of amazed to hear questions of constitutionality concerning confiscation without compensation of property previously lawfully acquired swept aside as non-existent." The CPA called the Minister's actions "unwise in the extreme". [unquote]

With the passage of Bill C-68, the government also entrenched this arbitrary prohibition power in the Criminal Code of Canada.

Section 117.15(2) of the Criminal Code authorizes the Governor in Council (really a Cabinet committee called the Special Committee of Council) to prohibit any firearm, weapon, etc which "in the opinion of the Governor in Council" is NOT reasonable for use in Canada for hunting or sporting purposes.

Again the words "in the opinion of" make this a completely arbitrary decision by a committee of Cabinet. They could form this opinion even if clear and unequivocal evidence exists that the firearms they decide to ban are, in fact, "commonly used for hunting and sporting purposes."

Further, prohibitions prescribed by the Governor in Council are not subject to Parliamentary review since no such review is provided for in the Criminal Code.

Further still, there is no statutory right of appeal for individuals owning formerly legal but now arbitrarily prohibited property because the Criminal Code does not contain any such rights of appeal.

Finally, while a remote possibility exists for judicial review of a prohibition order, it would be virtually impossible for the any court to substitute their "opinion" for the "opinion" of the Governor in Council.

In fact lawyers from the Library of Parliament confirmed this when they wrote, [quote] "Courts would be loath the find that the Governor in Council acted in bad faith." [unquote]

Even the Standing Committee on Justice proposed an amendment to Section 117.15(2) in C-68 to remove the words "in the opinion of" and keep the wording the same as it has been for years thus requiring an objective test of what constituted firearms that are "commonly used for hunting and sporting purposes."

The Justice Minister ignored his own Committee (dominated by government members) and rejected the amendment. Consequently, we have a completely arbitrary prohibition power for the Cabinet entrenched in the Criminal Code of Canada - a prohibition power, I might add, that completely bypasses Parliament and cannot be appealed to or overturned by the Courts.

This completely arbitrary prohibition power clearly violates Article 17 of the UN Declaration of Human Rights.

The evidence is clearly there for everyone to see:

  • the arbitrary taking of legally owned property
  • confiscation of legally-owned property without compensation

In 1903 Pope Pius X wrote to his bishops, [quote] "The right of private property, the fruit of labour or industry, or of concession or donation by others, is an incontrovertible natural right; and everybody can dispose reasonably of such property as he thinks fit."

Not in Canada you say? Pity.

So in closing, I offer the government this opportunity to take corrective action by voting for my bill that would strengthen property rights in the Canadian Bill of Rights.

To this end, I would respectfully request the unanimous consent of this House to make Bill C-304 a votable item.

Wrap up comments

We have all heard the proof that our fundamental property rights are under attack. Are we just going to ignore it?

In her ruling on the provincial challenge of the licencing and registration provisions of Bill C-68, Madam Justice Conrad of the Alberta Court of Appeal wrote, [and I quote] "It establishes an administrative process, with broad discretion conferred on the administrative authority affecting property rights. The discretion and broad right to regulate enables the federal government to limit and control the property rights of law-abiding citizens. It does not prohibit existing potentially dangerous conduct, or conduct related to a serious risk of harm." [unquote]

Just because a bill is passed in Parliament doesn't make the use and abuse of government force to violate the fundamental property rights of its citizens a good thing.

In her book, Capitalism: The Unknown Ideal, Ayn Rand wrote: "The concept of a right pertains only to action - specifically to freedom of action. It means freedom from physical compulsion, coercion or interference by others. The right to life is the source of all rights - and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has not right to the product of his effort has no means to sustain his life.
The man who produces while others dispose of his product, is a slave."

My colleagues, this is a very serious matter that I fear we are taking far too lightly.

My bill strengthens property rights in federal law - it doesn't tie the hands of government.

I respectfully request the unanimous consent of the House to refer Bill C-304 to the Sub-Committee on Human Rights for further study.

Garry Breitkreuz is the Reform Party MP for the Saskatchewan riding of Yorkton-Melville. This speech was given by Mr. Breitkreuz in the House of Commons on October 5, 1998. A Parliamentary Assistant to Mr. Breitkreuz tells ESR that the bill will be re-introduced after the Liberals refused his motions to make his property rights bill votable and, alternatively, to send it to the Sub-Committee on Human Rights for further study.You can e-mail Garry at breitkreuzg@reform.ca

Click here for the full text of Bill C-304 (offsite)




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