Jan.10/02 Editorial in
A joke asks: How do you get 50 drunken Canadians to leave. Answer: Ask politely.
Canadians are passive law-abiders and governments use this to chip away at personal liberty. A case in point: The omission of property rights from the Charter of Rights and Freedoms.
The right to acquire, use, enjoy and transfer property - land, buildings, vehicles, intellectual property and more - is fundamental to liberty. And Canadians are naive to rely on governments to respect ownership rights without a constitutional guarantee considering their patchy records.
Aboriginal Canadians on reserves live with the corruption and economic desperation that accompanies insecure rights to property. Citizens of Japanese descent saw their property confiscated and sold during the Second world war. Prairie farmers have been jailed for exporting grain grown on their own land, rather than using the Canadian Wheat Board.
Proposed federal endangered species legislation could mean vast tracts of land are made off-limits to ranchers, farmers, other landowners and resource-users, with compensation at the discretion of politicians. It could allow the federal government to intrude into property rights, generally a provincial jurisdiction.
Legislation passed to combat international terrorism authorizes police to seize certain property without normal judicial review. The Firearms Act compels law-abiding owners to surrender certain firearms without compensation. (Those who support this because they disapprove of guns should consider: If you favour government authority over property that you don’t like, it is harder to fend off the state when it comes after yours.)
Private property rights serve two purposes. They have economic utility and they help guarantee political liberty. Private property keeps power diffuse. It strengthens individual autonomy from government. Property rights and the protection of contracts form the legal foundation of the free enterprise system. They create incentives by rewarding owners for wise stewardship and maximizing the productive use of resources.
Nations with the strongest protections for private property have the highest levels of prosperity. Canada is considered to have strong property protections but it will take vigilance to maintain that. The Fifth Amendment of the U.S. Constitution reads in part: “(no person shall) be deprived of life, liberty or property without due process of the law, nor shall private property be taken for public use without just compensation.”
Canada’s 1960 Bill of Rights says Canadians have the right to “enjoyment of property and the right not to be deprived thereof except by due process of law”. But Parliament can override that Bill at will, just as it can subvert through statute centuries of common law on property rights. Neither is part of the Constitution. Entrenching similar language in the Charter (of Rights and Freedoms) would place the right at a higher level. It would give Canadians recourse, through the judiciary. It would place an onus on any government seeking to impinge on such rights to prove it meets the constitutional test of reasonableness.
The provinces were vocal opponents of a property rights provision when the Charter was drafted. Saskatchewan, to protect its expropriated mineral resources and Crown corporations; P.E.I., to preserve laws limiting non-resident land ownership; Quebec, to safeguard its unique income-security programs. As co-conspirators with the federal government, provincial premiers are hardly reliable guardians of your property. These limits and some of the examples cited previously, might well qualify under the “reasonable limits” provision of our Charter. They are not reasons to oppose Charter protection.
James Madison, a drafter of the U.S. Constitution, recognized that a charter could not totally protect citizens from legislative intrusions. In Canada, this would be even truer because of the “reasonable limits” clause. But Madison’s argument for enshrining such rights was “to establish public opinion in their favour, and arouse the attention of the whole community”.
The attention of Canadians most certainly needs arousing.
To enhance our democracy, Canadian governments should establish a constitutional remedy to the expropriation or undue restriction of property.