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Studies on the Canadian Constitution and Canadian Federalism


Last revised:
26 February 2001

Property and Civil Rights


Claude Bélanger,
Department of History,
Marianopolis College

Few expressions have given courts more difficulties, when interpreting the Constitution Act, 1867, than the Property and Civil Rights clause found in s. 92 (13) of the document. The expression had already a long history as it first appeared in the Quebec Act (1774) where it was mentioned that "in all matters of controversy, relative to property and civil rights, resort shall be had to the laws of Canada." The laws referred to in the Quebec Act were undoubtedly the Coutume de Paris which means that the expression covered a wide field.

Property and Civil Rights can mean any possible legislation outside criminal law and, if a wide interpretation of the term is given, everything found under s. 91 would be treated as exceptions to the general legislative power of the provinces. While the Judicial Committee of the Privy Council favoured such a wide interpretation of the Property and Civil Rights clause, the Supreme Court of Canada has favoured the Peace, Order and good Government clause. If one is to go along with the thinking of the Judicial Committee, it seems that a large part of the residuary power would rest in the Property and Civil Rights clause. There is some evidence that the Fathers of Confederation intended the clause to be given a wide interpretation: Resolution 43 (15) of the Quebec Resolutions stated "Property and Civil Rights, excepting those parts thereof assigned to the General Parliament;" two of the earlier drafts of the Constitution Act repeated the wording of the resolution while article 99 of the final draft of the Act said, after listing 27 heads of federal jurisdiction: "And any matter coming within any of the classes of subjects enumerated in this Section shall not be deemed to come within the Subject of Property and Civil Rights."

Hence, it seems pretty clear, given the context of the legislative history of the Constitution Act, that the Fathers of Confederation understood the importance of the clause and wanted to withdraw specific fields of jurisdiction from the definition of Property and Civil Rights. Anything that was not included in section 91 and was relevant to Property and Civil Rights was thus meant to fall under provincial jurisdiction by virtue of s. 92 (13) unless it could be proven to be of a general rather than a local nature. This is precisely the way the Judicial Committee interpreted the clause. The Fathers of Confederation, who favoured, otherwise, a large grant of powers to the federal government, may not have considered as overly important the grant of such large powers to the provinces as there was hope that the Property and Civil Rights power of the English provinces would be brought under federal jurisdiction in a relatively short period of time (s. 94 of the B.N.A. Act; for a description of attempts to make the property and civil rights laws of the English provinces uniform see Frank R. Scott, "Section 94 of the British North America Act," in Canadian Bar Review, VOL. XX, (1942): 525-544).

As it has been interpreted, the term property would include anything subject to ownership, among others: real property, animals, liquor, vehicles, merchandise, stocks, bonds, trademark, etc. Civil rights would encompass local contracts, labour-management disputes, marketing, employment, sports, hoarding, prices, credit, adoption, collective bargaining, certification of locals, strikes, social assistance, child welfare, pensions, health care, unemployment relief, etc. Most of these things are important to the social makeup of a society and are clear expressions of the culture of a people. There is ample evidence in the Constitution Act that these are just the sort of things that the Fathers of Confederation wanted to leave with the provinces. To have done otherwise would have led to endless quarrels at the central level and one of the purposes of the union had been to create a central government entrusted with powers over which Canadians were in agreement.

Civil rights are not to be confused with civil liberties. A right is an advantage, conferred and protected by law, granted to an individual. Often, it implies a corresponding duty on the part of another individual. A liberty is what an individual may do without being impeded from doing so by any law. Before 1982, there was widespread disagreement among constitutional experts as to who was responsible for legislating on civil liberties. Both levels of government are now bound by the terms of the Canadian Charter of Rights and Freedoms.

© 2001 Claude Bélanger, Marianopolis College