Charter of Rights Does Not Protect the Right to Property
of Rights omits any mention of property or due process. As summarized
by the Alberta Property Rights Initiative:
"Private Property Rights
Charter of Rights and Freedoms (1982) (applies to both federal and
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
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.
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.
Human Rights Act (1980):
No mention of property rights.
| Alberta Alone in Passing Property
Bill of Rights
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.
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
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
|Property Rights Necessary
Institute has studied the correlation between property rights and gross
domestic product. Not surprisingly, those nations that protect property
rights tend to be wealthier. Those countries that do not protect
property rights tend to be poorer.
The study measured a correlation of 74% between property rights and per
capita GDP. It is the most important factor in determining how wealthy
a country will be.
Thus, we see the richer nations like the Western liberal democracies
have property rights and are well-off, while many Third World countries
do not enshrine property rights and are poorer as a result.
In order for Alberta to remain wealthy, we must enhance and protect our
property rights. Becoming independent from Canada will ensure this is
easier. Constitutional change in Canada is nearly impossible and
requires near unanimity from the Provinces.