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Canadian
Charter of Rights Does Not Protect the Right to Property The Charter of Rights omits any mention of property or due process. As summarized by the Alberta Property Rights Initiative: "Private Property Rights in Canada Charter of Rights and Freedoms (1982) (applies to both federal and provincial governments): Section 7 states: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The Canadian Constitution does not provide a framework for strong private property rights. The omission of "property" and "due process" was a deliberate departure from the constitutional texts on which the section had been modelled. The Supreme Court of Canada will not interpret "liberty" to include economic liberty. The reasons for this can be found in the experience of the United States between 1905 (when the Lochner v. New York case was decided) and 1937 (when the case was overruled). During this 22 year period the U.S. Supreme Court relied on Constitutional provision for "property" and "liberty" to protect owners of factories and mines against the legislature. Using broad interpretive powers, they were able to prevent government from passing laws that limited the hours of work, mandated minimum wages, imposed health and safety standards, and protected unions. Thus, the legislative pursuit of welfare state policies was prevented by Courts enforcing a laissez-faire economic agenda. Since the case was overruled in 1937, U.S. Courts have been reluctant to review social and economic regulations despite Constitutional guarantees for property and contract rights. By omitting property and any guarantee of the obligation of contracts from Section 7, and by replacing "due process" with "fundamental justice" the government intended to restrict the broad interpretive powers of judges. However, "the principles of fundamental justice" had no meaning in Anglo-Canadian law. The intent of the Constitutional framers was to create an equivalent to "natural law," which provides procedural rules: a hearing, unbiased adjudication, and a fair procedure. However, the Courts have taken a broader interpretation of the term. Rather than restricting their powers, it has ushered in a period of extraordinary judicial activism. An example of judicial activism could be found in the interpretation of "security of the person." This could refer to the economic capacity to satisfy basic human needs. Thus state action that prevents a person from producing an income would violate this provision. This could include confiscation of property essential to a person's work or cancellation of a licence essential to the pursuit of an occupation. However, the Courts could also interpret it to mean the removal from welfare programs. If an economic role was restored to Section 7 it would trigger a massive judicial review of the welfare state apparatus, the level of public expenditures on social programs, and the regulation of trades and businesses. Section 7 reference to "liberty" and "security of the person" must be interpreted to exclude property and to exclude freedom of contract, in short, to exclude economic liberty. Thus, Section 7 does not recognize rights of corporations, it does not recognize the right to do business, and it does not recognize the right of an individual to work. The omission of property rights greatly reduces the scope of Section 7. There is no guarantee of compensation for property taken by government. There is no guarantee of fair procedure. There is no guarantee of fair treatment by the Courts. Most federal powers can authorize the expropriation of property: for example, to exercise power over the national capital Parliament could expropriate property for a greenbelt. The federal power of expropriation is confined to the taking of property for purposes within its legislative authority. The provinces have been granted power over Section 92(13) "property and civil rights in the province." The architects of the Constitution Act understood the phrase "property and civil rights in the province" as a description of the body of private law that governs the relationships between subject and subject, not government and subject. Nonetheless, the provinces have a general power to expropriate property, which is confined by those areas that fall outside provincial jurisdiction. Generally speaking, Parliament can expropriate provincial Crown property, however, provincial legislative power will not extend to federal Crown property. In Anglo-Canadian law a statute that takes private property implicitly requires compensation to be paid to the private owner. However, if the statute expressly states that no compensation is payable, then there is no room for interpretation. In the case where a statute is a regulatory restriction of private property, a "regulatory taking," no compensation is payable. Neither the federal nor a provincial government is under any constitutional obligation to pay fair (or any) compensation for expropriated property. Neither the Constitution Act 1867 nor the Charter of Rights contains any such guarantee. As a result, legislative power is unlimited. Canadian Bill of Rights (1960) (applies only to the federal government): Section 1(a) recognizes "the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law." In the event that property is expropriated there are no provisions for "public use" or requirements for "just compensation." The Bill of Rights recognizes a fundamental right to the enjoyment of property. It is guaranteed by "due process" which is held to be a guarantee of a fair procedure. It has been argued that this clause is sufficiently similar to the Fifth Amendment in the U.S. Constitution as to be interpreted to confer a right to compensation. The Courts considered this and rejected the notion as being beyond the provisions of due process. Canadian Human Rights Act (1980): No mention of property rights. |
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| Alberta Alone in Passing Property
Bill of Rights Alberta is the only jurisdiction within Canada that has passed specific property rights protection. In all the bills of rights and human rights acts, British Columbia, Manitoba, Ontario, Newfoundland and Prince Edward Island fail to mention property rights at all. The territories are similarly lacking in protecting property rights. The Saskatchewan Bill of Rights Act does not protect property rights, but asserts a limited legal right to property with respect to real estate. It does not fully protect property, nor are there any provisions for due process or just compensation. The Nova Scotia Human Rights Act guarantees the freedom to acquire property, but there are no rights to use property, nor is there protection against being deprived of property without due process of law or just compensation. The New Brunswick Human Rights Act actually places certain other rights ahead of property rights, limiting the usage of property. As well, people of New Brunswick may be deprived of property without due process or just compensation. The Quebec legal system does not strictly adhere to British Common law. The Alberta Bill of Rights Act specifies protection of property that can only be deprived under due process of law. The Alberta Personal Property Bill of Rights Act outlines provisions for just compensation. Unfortunately, these acts have their shortcomings, but they still offer much more vigorous recognition of property rights that does not exist in Canada outside of Alberta. As well, as a statute of Alberta, this legislation only pertains to areas where Alberta has exclusive jurisdiction. Despite property rights being codified in Alberta law, it can be ignored by the Canadian government. |
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| Alberta Property Rights Initiative |