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View Alupa Clarke Profile
CPC (QC)
View Alupa Clarke Profile
2017-11-03 13:51 [p.14987]
Mr. Speaker, I must say that my Conservative colleague, the member for Kitchener—Conestoga, and my NDP colleague both gave excellent speeches. I was quite impressed by her reference to Mr. Diefenbaker, a great Canadian who hailed from her province. I myself was planning to bring him up today. I will still do so with pleasure, although my take will be slightly different.
The Conservative Party opposes Bill C-325, the act to amend the Canadian Bill of Rights to include the right to housing, which was introduced by the member for North Island—Powell River. I could say it is because the phrase “at a reasonable cost and free of unreasonable barriers” in the preamble is vague. I could say that the bill fails to consider price differences in housing markets. I could also say that section 92 of the Constitution considers housing to be a provincial matter, whereas the Canadian Bill of Rights, which was set in motion by Mr. Diefenbaker, applies only to matters of federal jurisdiction.
However, I am not going to use this perspective in my speech today in opposition to this bill. Instead, I would like to talk about the philosophical ideas underlying the bill introduced by the member for North Island—Powell River. I will use these underlying ideas to build my argument against this bill.
I would like to start by saying that, in my humble opinion, both Canada's intellectual left, which includes Marxist theorists at the Osgoode Hall Law School or at the University of British Columbia, and the intellectual right, meaning the Calgary School, would disagree with introducing this right into the Canadian Bill of Rights.
That said, hats off to the member for North Island—Powell River for proposing an amendment to the Canadian Bill of Rights instead of the Canadian Charter of Rights and Freedoms. This makes me very proud, since it means that the member subscribes to the British tradition of liberal constitutionalism, in other words, the Westminster tradition of liberal constitutionalism, instead of subscribing to the American tradition of liberal constitutionalism. It is a small distinction, but that small distinction makes a big difference over many centuries. I will explain why.
Under the Westminster-type British model of liberal constitutionalism, the legislative branch is the ultimate authority and has the last word on constitutional matters. That is why Mr. Diefenbaker, a great Canadian if ever there was one, would never, not in a million years, have enshrined the Canadian Bill of Rights in the Constitution. Doing so would make the judiciary, or the judicial branch, the ultimate authority.
The member for North Island—Powell River has a great deal of respect for our Canadian political culture based on the Westminster tradition of liberal constitutionalism, a culture that, sadly, was stifled, if not snuffed out, by a cultural revolution led by that party over there and Pierre Elliot Trudeau in 1982. They brought us closer to an American-style liberal constitutionalism, under which the judiciary gets the final word. We have the notwithstanding clause, sure, but regrettably, no prime minister has dared to invoke it.
Today's debate is historic. I believe this issue goes well beyond that of housing. The debate over how to strike a balance between individual and collective rights started in the age of enlightenment. Even in Canada, this debate has been going on since 1867. Since 1982, or for the last 35 years, Canadian intellectuals have engaged in a mighty fine debate.
John Locke, father of modern liberalism and individualism, believed that individual liberty predated the notion of statehood, and thus the establishment of any constitution or system of positive law. He therefore believed in natural law, and so, to his mind, all political systems based on this idea would place the individual at the heart of the constitutional state.
This is all fundamental to the debate we are having here today on housing, because John Locke would have said that the right to housing does not constitute an individual right, which forms the basis of natural law and therefore supercedes positive law.
A similar debate, although somewhat wider in scope, has been going on in Canada since the Charter was enshrined in 1982 in the midst of what I would characterize as a disgraceful cultural revolution. Progressive authors such as Mandel, Petter, Hutchinson, McWhinney, Hirschl, Mackay, and Lebel-Grenier are the standard-bearers of left-leaning, Marxist intellectual thought in academic circles. Then, there are the so-called conservative thinkers, the fathers of Canadian toryism: Banfield, Morton, Patenaude, Knopff and Martin.
Although they belong to radically different schools of thought, all of these thinkers would agree that enshrining rights or bringing in new rights is no way to address the housing situation in Canada.
My reasoning may seem circuitous but I am nearing my point. These people would have said that access to housing, food, and education is to be secured through political struggle. They would have said, for instance, that homosexuals acquired their rights through political struggle, and not by way of the Supreme Court of Canada or enshrined rights. They would have said that it is in the political arena that women fought to acquire their rights. In this case, the fight was waged by the suffragettes in the early 20th century, not by the Supreme Court of Canada. That is what they would have said.
Everything rests in that interplay between negative and positive rights. That is where we can distinguish between these two schools of thought, between Marxist and conservative thinkers.
I am circling back to what the member said. In the NDP, the hope is that we will be able to incorporate some positive rights into Canadian law. In other words, we would be looking to make concessions, a truly rare occurrence under the Canadian Constitution. That is what happened in the case of language rights granted to French-speaking Canada. That might be the only case of a positive right under our Constitution.
Conservative thought typically associated with classical liberalism would lean toward the idea that we have negative rights, or in other words, that our freedom stops where that of others begins. Canadian law is a pyramid that rests wholly upon the fundamental goal of ensuring that other people's rights are not infringed upon. There is no such thing as a positive right. This is a healthy debate.
My colleague stated that she believed to be waging a political fight. Perhaps she ought to fight to control prices or the housing market. Perhaps the fight ought to be taken to the provinces over their traditional areas of jurisdiction. Being here in the federal Parliament, seeking to incorporate new rights that will amount to nothing more than a bunch of letters on a piece of paper, does not constitute a political fight.
There were some important and well thought out observations around Diefenbaker, but my reading of the man is that he would not have gone so far as to incorporate this right into the Canadian Bill of Rights.
I disagree with both extremes, which are the Marxist thinkers of Osgoode Hall Law School in Toronto on one end of the spectrum, and on the other, those of the Calgary School, who believe in property rights above all else, where others believe in the right to housing. Both of these extremes are dead wrong, because in both cases, the result would be to paralyze the state. The power of the state is essential in Canada if we are to enforce our sovereignty first and foremost, namely in the military, economic and political spheres.
Enshrining property rights in the Constitution would prevent the government from running power transmission lines, for instance, or from carrying out large scale projects. Enshrining the right to housing in the Constitution would likewise paralyze the state, as it would have to supply housing to every Canadian, which is totally unrealistic, economically speaking.
Let us remain on the right track, the one we were on prior to 1982, and let us stick to the Westminster model.
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