Let’s Talk About: Property Rights & The Canadian Charter of Rights and Freedoms

The Alberta election is heating up and is soon to be decided as Albertans go to the polls on Monday, April 23, 2012. One of the many controversial issues raised by the Wildrose leader, Danielle Smith, is on property rights and the absence of such rights guaranteed in the Charter. Smith, on her Wildrose website, suggests the “fundamental role” of government is the “protection and preservation of property rights.” As part of her platform on this “fundamental” issue is the promise her government would “entrench property rights.” She would do this by implementing an Alberta Property Rights Preservation Act, entrenching “basic property rights in the Alberta Bill of Rights” and spearheading “a national initiative to add property rights to the Canadian Charter of Rights and Freedoms.” 

Really? Are we really to believe that this “pressing” issue of property rights should be shoulder to shoulder in our Charter along with our fundamental freedoms such as freedom of expression, freedom of conscious, and equality rights. Should our preoccupation with individual, political, and democratic rights take a back seat to issues of ownership and possession? What will this mean for our criminal law and the ability of the government to reasonably search and seize property for a criminal investigation? Does the corporeal trump the spirit? Is property, which not everyone has the ability to own, require the special attention and protection of our most Supreme laws? Why should property rights, which were specifically and deliberately left out of the Charter, now be placed back in?

Not that we would ever see the unanimous agreement to do so that is required before the Charter could be amended. Do we need the kind of property rights litigation, which occurs in the United States, where property rights were specifically enshrined in their Constitution and viewed as sacred as life itself? And if we feel we do want this protection, are we prepared for the result. For a good discussion on the history of American Constitution property rights, read the SCC decision in Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.).

Danielle Smith may have taken a page from her namesake, Adam Smith’s, Wealth of Nations, with a call to protect life, liberty and property but fails to recognize the positive obligation protecting property would place on the government. Thus, we would need a robust and interventionist government, willing to step into the property rights fray. Entrenching property rights would mean not less government but more government, as the Courts would be busy reviewing the government’s ability to regulate and protect the national interest in the name of the economy. Take for instance the issue of natural resources and the role ownership of such resources would play under a property Charter rights scenario.

Canada does in fact have some experience with protection of property rights as section 1(a) of the Canadian Bill of Rights, 1960, the statutory, quasi-constitutional precursor to the Charter, protects “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.” While this still enacted statute can still be used to “protect” property rights, the legal interpretation of this right has not provided the protection the Wildrose maintains they can provide if elected. 

But would such entrenchment of property rights really “protect and preserve” an individual’s right to their property as touted by the Wildrose? It is instructive perhaps to look at the case law on property rights in the Bill of Rights. This passage of the Bill of Rights was considered by the Supreme Court of Canada rather recently in the 2003 Authorson case, in which disabled veterans attempted to require the federal government to pay past interest on pension funds despite legislation minimizing Crown liability. The end result of the decision, dismissing the veterans’ claim, was to uphold Parliament’s right to expropriate property without compensation.

Legally, an “entrenchment” of property rights does not in and of itself suggest an individual’s right to property would be absolutely guaranteed. Indeed, considering all of our rights under the Charter are not absolutely protected, any “new” Charter rights would be treated similarly. According to s. 1, all of the Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  In addition, both Parliament and each provincial legislature, including Alberta, have the authority to enact legislation contrary to the rights guaranteed in the Charter through the Charter notwithstanding provision contained in s. 33.

Therefore, the Wildrose is promising, in a very heated election, something they cannot themselves guarantee. Undoubtedly these are the best promises to make: no one can take them to task for merely promising to try. Interestingly, the Authorson case was written by the then Alberta appointment to the SCC, Justice Major, who is now trying to sort out the MLA compensation debacle. Of course, the proponents of property rights would suggest it is the poor wording of the Bill of Rights, offering property protection in accordance with due process, which is the problem and which can be easily fixed.

But even if the Charter was amended and property rights were absolutely protected as desired by the Wildrose, the question still remains whether or not protecting property rights is in the best interests of Canadians. If we say “yes” to property rights, then we must be prepared for all kinds of litigation overrunning our justice system such as: litigation on the right of the government to tax individuals; litigation on the government’s right to make decisions on natural resources; litigation on intellectual property rights including copyright and access to information; and litigation regarding criminal law and search warrants as discussed in the SCC case of Quebec (Attorney General) v. Laroche. We could even see spill-over litigation in the area of economic rights, which traditionally has been unprotected by the Charter as discussed in the SCC Gosselin case, which could put Canada’s economic health at risk by promoting the financial sovereignty of the individual at the expense of a strong economy and healthy society.

Thus, in the end, we must decide if property rights are worth protecting in our country knowing the possible legal pitfalls, which may ensue. Let’s ensure the next thirty years of Charter litigation promotes our fundamental freedoms as individuals of choice and free will, entitled to respect and dignity, instead of a document weighed down by possessory rights and self-interest.

Creating A Positive Out of A Negative

Today, we will journey from yesterday's Peace Camp to Victoria's Tent City and discuss the legal implications of protecting positive rights through the Charter.

Our Charter is generally a negative rights document protecting mostly civil and political rights. To protect these rights, the government is required to refrain from action, essentially to leave us, the right-holders, alone to enjoy rights such as freedom of religion (s.2(a)) and freedom of expression (s.2(a)).

The idea of positive rights in the human rights context is more problematic. These rights require the government to take action, to fulfill our entitlement to rights. They are typically socio-economic in nature and cover a wide array of social welfare issues such as the right to education or the right to health care. 

Traditionally, our Courts have been reluctant to find positive rights protection in the Charter : this would require the non-elected judiciary to step into the political fray by creating public policy. Despite this cautious approach, as Dylan would say (that's Bob, not Thomas), "the times they are a changin'." An example of this judicial trend into the positive rights arena, is the Supreme Court of Canada decision in the Chaouilli case, where Quebec legislation limiting timely access to health care was found to violate s.7 rights under the Charter.

Recently, further forays into the positive rights territory has produced interesting results. The 2009 Adams case, a particularly unique case from the British Columbia Court of Appeal (BCCA), highlights the lengths the Court will go to protect basic human rights, such as shelter. At the time of Adams, the City of Victoria was experiencing a severe shortage of shelter beds for the City's numerous homeless, resulting in a Tent City erected in a local public park. The Tent City housed 70 homeless people by the time the City of Victoria started legal steps to evict the people through the authority of the municipal bylaw. 

In a bold decision, the BCCA found the bylaw was overly broad and deprived the homeless people of their right to life, liberty and security of the person under s. 7 of the Charter by prohibiting the assembly of temporary overnight shelters by the homeless, who had no alternative accommodations. To require them to leave would negatively impact their personal integrity and diminish greatly their human dignity and self-worth.

As a result, the Court crafted a highly ingenious and singular remedy declaring the legislation inoperative when the number of homeless people exceeded the number of shelter beds available. The Court was sending a clear message to the City of Victoria: provide or accept the consequences.

The interesting aspect of this positive rights movement is how grounded it is in the basic minimal needs one requires in order to live; water, food, and shelter. And yet considering the origins, why is this such a unique foray? If indeed these rights are so basic, why are they not already "covered" by the Charter?

Perhaps the answer lies at the beginning of this post; with the meaning of positive rights. The government must act to fulfill these basic rights, which means big government spending big money. Not such a popular notion in a weakened economy. Another reason may be more subtle and may be found in the historical framework of our liberal democracy itself as epitomized by the laissez-faire or "hands off" government policies of the economist Adam Smith.

For whatever reason, it is clear the Courts have become more positive about our rights, which proves a positive can be created out of a negative.