Conservative MP Jim Hillyer submitted notice today for a private members’ motion advancing property rights for Alberta (scroll down a bit here). This would create a subsection in section 7 of the Charter of Rights that “7.1 (1) In Alberta, everyone has the right not to be deprived, by any Act of the Legislative Assembly, or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property, or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.”

This amendment to the Constitution would, in Hillyer’s view, be accomplished through section 43 of the amending formula, which allows amendments “in relation to any provision that applies to one or more, but not all, provinces” to be enacted by the federal Parliament and the relevant provincial legislature. 

On Twitter, Norman Spector argued that any new provision like this could only be accomplished through the general amending formula (requiring the consent of two-thirds of the provinces plus Parliament) because section 43 only applies to “existing” provisions that impact one or more, but not all, provinces. This is certainly not clear from the text of the provision – which does not include the word “existing” – but has apparently been the position of the federal department of justice in light of suggestions that a bilateral amendment might work to get Quebec a distinct society clause.

I’m not sure this is quite so cut and dry. Any amendment to the division of powers (or something like a distinct society clause), even if directed at a single province, would have an obvious impact on all provinces. It would go to the heart of their status as equal subunits in our federation.

What might be less clear is whether adding a new Charter provision like property rights limited a particular province is something that requires the consent of any other provinces from the perspective of the constitutional amending formula. If we think it might be a valid enactment, then all sorts of interesting potential scenarios are raised: can a province, if it obtains agreement from the federal Parliament, opt-out of certain Charter provisions, or the Charter entirely? Any federal government that agreed to such a situation would get lambasted (and indeed, so would any province: the Charter is enormously popular across Canada, including in Quebec, so no government would ever “go there”).

From a broader perspective, it would seem undesirable to have a patchwork of different rights in different provinces across the country. The Charter project itself was intended as a national unity project. If we started adding different, province-specific rights, what might that do to our conceptions of Canadian citizenship?  Would this proposal relating to Alberta be egregious in that regard? Under section 16 of the Charter, there are special provisions relating specifically to New Brunswick in light of its official bilingual status. Section 16.1 was added in 1993 under the s43 procedure. So why couldn’t Alberta add a new provision that relates only to that province?

It’s highly unlikely that Hillyer’s motion will get anywhere, but it raises an interesting constitutional question about the amending formula, especially in light of the recent Supreme Court ruling on what procedures are required for amendments to the Senate.

Emmett Macfarlane
Emmett Macfarlane is an associate professor of political science at the University of Waterloo. His research focuses on the intersection of governance, rights and public policy, with a particular emphasis on the policy impact of the Charter of Rights and Freedoms and the Supreme Court of Canada.

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