On Entrenching Property Rights in the Canadian Constitution

“All of which raises an interesting question. If we are agreed to constitutionally protect the property rights of some Canadians, why do we shrink from doing the same for others? Recall that the same Constitution that entrenched aboriginal rights, from which we now see derived aboriginal title, declined to protect the right to own property — a right that is also founded in common law, and that is often spelled out in statute, but was deemed unworthy of constitutional entrenchment. Like aboriginal title, the right to property is not absolute: in the constitutions of other countries, it is typically expressed as the right not to be deprived of one’s property except by due process of law, and with just compensation. And yet at the time it was considered expendable. It would be too costly to have to compensate property holders for infringing on their rights. It would be inconvenient.

Suppose, then, a government wishes to put a power line through a particular stretch of land. If the land is subject to aboriginal title, all of the rights the Court has now delineated kick in. But if it is merely someone’s property, no such constitutionally guaranteed rights apply. Now that we have defined and accepted aboriginal title as a constitutional right, is it not time this discrepancy was redressed?”

• Andrew Coyne: After aboriginal land title ruling, why not protect property rights of all Canadians?, By Andrew Coyne, National Post, June 27, 2014 9:08 PM ET, Twitter: @acoyne

So to read Andrew Coyne’s piece, one would think that institutionalizing the “right to property” or “right to enjoyment of property” has never been discussed. But it has. It was discussed by Canadians in 1867, 1981, 1982, 1983 and 1991.

In 1981, the Progressive Conservative Party suggested that section 7 be extended to protect the “enjoyment of property”. In 1983, Pierre Trudeau expressed support for entrenching property rights in the Constitution. So it has been discussed. However, every time it comes to the fore, a debate has issued: what are we looking to protect?

The Canadian Charter of Rights and Freedoms was being negotiated when the Progressive Conservative Party raised this issue, yet various Provinces and NDP had questions and concerns. For example, as David Johansen noted in his report “Property Rights and the Constitution”:

“Representatives of the NDP were concerned about such matters as: the effect of a guarantee on provincial legislation regulating non-resident ownership of land; the ability of governments to legislate on and control unique types of ‘property,’ such as data bank information; legislation providing mortgage relief; legislation preserving farmland and recreational land; legislation regulating businesses, such as legislation setting a minimum wage; and legislation dealing with the division of matrimonial property” (Prepared by: Law and Government Division of Government of Canada Publications BP-268E)
Consequently, it is simple to see that one question always comes up: “What are we trying to protect”?

Would we be trying to protect the rights of individuals to hold onto their personal information or would we be trying to protect individual’s rights to hold onto money, stocks, land, cars, houses, derivatives, ideas, income or other items? Or would those same protections which exist for individuals extend to corporations, banks, political parties, unions, churches or charities? These are the serious policy questions that any new constitutional protection should be put through. However, Mr. Coyne’s proposal does not do that and it would create some serious consequences. In fact, just look at the United States. In 1791, the Congress and a number of states passed the Fifth Amendment. This gave Americans the right to own property. The only problem was that in 1857, the Supreme Court of the US arguably used that provision to light the first fuse of the American Civil War, when it found that the rights of slave owners were constitutionally protected by the Fifth Amendment because slaves were categorized as property. The Dred Scott Decision (Dred Scott v. Sandford (1857)) showed us that the problem with entrenching the rights of existing property holders is that the future needs of society care not taken into account.

As an environmentalist, it is easy to see that a constitutional entrenched property rights protection could be used to force future governments to act to reduce COX, NOX, or other Green House Gas Pollutants. Or put differently, by not acting on Green House Gas emissions the Canadian government could be found to have diminished the property value of cities that are often flooded or close to water. This might include cities like Calgary, Vancouver, Toronto, Halifax, Montreal and Quebec City. The cost of such a lawsuit might force action of any government. However, with that being said, future Governments would also have a reduced pallet of policy options in other areas.

For those whom may not think that time is unimportant, I would ask you to look at Toronto. In the 1960’s, the Eaton’s company owned many pieces of land in the Yonge, Queen and Dundas St. area. Since Eaton’s was shifting its chain’s warehouse and support operations to suburban locales, they had to do something with their down town locations. They decided to build the Eatons’ Centre – a building which is still a mecca for shopping and tourism in Toronto. At the time, while many stakeholders created many demands which needed to be satisifed, Eatons’, as a single force, could meet those issues. Therefore, the Eatons’ Centre was built and city urban designers, politicians and other stakeholders were contented.

However, thirty years later when areas around the Eaton’s College Street fell into disrepair, a bigger problem occurred: people like my parents stopped showing the area off to tourists. This hit downtown Toronto – in terms of commercial real estate, loss of tourism dollars and a urban decay/criminal problems. Consequently, Toronto Politicians bought into a proposal that came from Eatons’ Centre Owners and surrounding stakeholders: expropriate many of the surrounding landowners and create a Times Square like attraction. And in that moment, Dundas Square was born.

Through paying the commercial price to existing land owners, the City of Toronto was able to drive a large redevelopment that would otherwise have hurt its reputation. Now I will not say that the process was perfect because it is not. For balancing legal rights of existing landowners against the needs of society and the needs of future users of a future project on a future site is never easy. Lawyers, mediators and negotiators going before courts will never lead to an easy or simple process. But Canadian History shows us that this process is more flexible than a Civil War. If one thinks I am being melodramatic, one only needs to look at the beefs that the residents of Upper and Lower Canada had with the Chateau Clique and the Family Compact before the Revolts in Upper and Lower Canada in 1836-7. The flexibility of not entrenching property rights, an example derived from the British, allowed us to avoid several issues.

Now with this being said, it is true that expropriation is not a perfect policy tools because it is a tool that can be used unevenly against social, economic and political minorities. As a Black Canadian, I recognize that Africville happened. Furthermore, I recognize that interned Japanese, German and Italian Canadians lost their properties too. One does not have to be a historian to realize that farmers keep losing their land to national priorities including the creation of Mirabel Airport and the wish of the Trudeau Government to create the Pickering Airport Expansion Project.

However, one can ask American Farmers if their landownership right under the 5th Amendment has helped them very much in dealing with the creation of the Keystone Pipeline. Many of them Republican or Democrat have had problems because TransCanada has encouraged States and the Federal Government to use their “right of eminent domain”. Or put differently, in the US, States and the Federal Government can set aside property rights of owners, if the project in question is one which is in the “public interest”. So in many ways, the US has shown that any landownership rights are only as good as the lawyers and lobbyists one employs to enforce those rights. Which leads us back to the beginning: what and whose rights are we looking to protect?

Furthermore, let us recognize that since 1791, property has changed. In fact, the manipulation of property rights is how the market works. Mutual Funds Investors, for example, hold onto units of pools of shares. This means that they depend on mutual fund providers, mutual fund distributors, stock exchanges and companies. Many of those stakeholders also have ownership rights at stake.

If one thinks about a modern smartphone, one will see many types of property. There is the Intellectual Property that goes into the software and hardware. There is the Intellectual Property that is created because of each individual’s interaction with each phone they own. All of this does not get into the issues of manufacturing of phones and their component parts. Nor have we talked about how these phones connect to digital networks on various phones. In all of these circumstances, ownership questions have to be asked. Especially, if one wants to wonder what ownership rights would do to CSEC, CSIS or RCMP investigations? For if a citizen owns their phone calls, cellular data or cellular metadata, what does this mean for other investigations? Governments wouldn’t be allowed to take that data without asking for your permission, right?

Consequently, when intelligent conservatives like Tasha Kheiriddin (Tasha Kheiriddin: Will property rights finally get Charter protection? By Tasha Kheiriddin, National Post, February 24, 2011) or insightful commentators like Andrew Coyne ask to have a Constitutional Entrenched Right to Property, we should ask them to define the term property. For it is not true that there are absolutely no property protections in our Constitution. Section One, as an example, forces the government to only prescribe “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Accordingly, in R. v. Big M Drug Mart Ltd. (1985) and R. v. Oakes [1986], Chief Justice Dickson said that our new Charter would mean that Government actions needed to be minimal in impairment, rationally connected to a government’s objective and be proportional when related to the infringement of a right and a government’s objective. Surely these restrictions are what Ms. Kheiriddin and Mr. Coyne want? Furthermore, in looking at section 7 and 26, one can see that while there is no direct evidence for property rights, there is a substantial level of due process protection for minorities – like property owners – who are about to lose their property.

This is important, for rather than having property owners use legal tactics to prevent the “natural death” of certain types of property, our system allows for the extinction of certain forms of property. Just think about British and American Slave Owners. Not only did they argue that the slave trade was a “necessary evil”, they used the existing legal framework to lock in a solution which no longer made sense. As a Liberal, I believe that every solution should not just work today but tomorrow as well. So in other words, we don’t want a solution that will lock ourselves into 100, 150 or 200 years of a senseless status quo that does not provide a substantial amount of good to the majority of society while enhancing the rights of small minority. We need a better balance: one that allows for the gain of both society and individuals. Accordingly, entrenching property ownership needs to be examined. For on balance, while property rights should be protected, in my mind, their entrenchment into our Constitution may not be desired.

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