Angry in the Great White North

As the American blogstorm builds over Kelo, I dug up this reference about property rights in Canada, that covers some of the history and thinking behind the decision:

Section 1(a) of the 1960 Canadian Bill of Rights (S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III) provides federal statutory recognition of “the right of the individual to ... enjoyment of property”, and the right “not to be deprived thereof except by due process of law.” The right to property is also included under the fifth and fourteenth Amendments of the American Bill of Rights. However, the Canadian Charter of Rights and Freedoms does not provide constitutional protection for individual ‘property rights’. At the meetings of the Special Joint Committee on the Constitution and during Parliamentary debate on Bill C-60, Progressive Conservative MPs proposed that a right to “the enjoyment of property” be included under section 7 of the Charter. This amendment was rejected largely due to provincial government concerns, shared by federal New Democratic Party MPs, that entrenching property rights in the Charter of Rights and Freedoms could interfere with environmental, zoning and other land use regulation; public ownership, expropriation and regulation of resource-based and other industries; and with legislative restrictions on foreign ownership of land. In the 1989 decision of Irwin Toy v. Quebec (A.G.) ([1989] 1 S.C.R. 927), the Supreme Court of Canada referred to the intentional exclusion of property rights from the Charter as a basis for finding that economic rights of a “corporate-commercial” nature are not protected under section 7.

Nasty business this. We can't let people have true ownership of their property for fear that they might do something environmentally unsound. For instance, build on it.

What does the Bill of Rights actually say?

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) 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

You might think that, hey, property is in there. What's the problem?

To see the problem, consider the changes being proposed under Bill C-279, introduced by Conservative MP Scott Reid:

(a) the right of the individual to life, liberty, security of the person and enjoyment and use of property, and the right not to be deprived thereof except by due process of law, and, in the case of property, without full, just and timely compensation;

See the subtle difference? My right to property must include the right to use it. To merely enjoy it allows the government to put restrictions on its use. When the Ontario government banned development on the Oak Ridges Moraine, it didn't take anyone's property away. But it made the properties valueless. People lost their life savings, having purchased the land with the intent to flip it to a developer at some point the future. That future would now never come, all because the government has the absolute power to define how you can use your property. The landowners could, however, continue to "enjoy" it.

Of course, the other huge omission is that of compensation. The original text does require due process, which makes one think people are protected. But as the Supreme Court showed, all it means is that the government has to write it down and get it signed, then they take your stuff. In the case of the Moraine, no compensation was offered to anyone. Under the new wording, such a law would contravene the Bill of Rights if it did not incorporate a compensation regime.

On November 25, 2004, MP Scott Reid told this terrible story about Mirabel airport, the enormous and vitually unused airport near Montreal:

There were 88,000 acres expropriated, as I say, two-thirds the size of the sovereign country of Singapore, and 3,200 families were forced to move as a result of that expropriation. Only 5,000 acres were used for the airport. As one of my hon. colleagues from the New Democratic Party has pointed out, that is a larger amount of land than is used for Heathrow Airport, the largest and busiest airport in the world. Mirabel has tens of thousands of additional acres that continue not to be used.

As early as January 1971, the Liberal cabinet knew that 22,000 of those acres were not required for the purposes of the airport under any imaginable scenario. Rather than face the public relations embarrassment of having to retract that expropriation, it continued on and depopulated the area of a further 1,700 people who did not need to be moved, but who were forcibly moved to avoid a public relations embarrassment. That is an absolutely astonishing thing to do.

However, this is typical of the attitude that has been taken by that government and by Liberal governments since that time toward private property owners, or even by Liberal governments before that time. After all, it was a Liberal government that in the 1940s that not only rounded up and interned the Japanese Canadians in camps in the interior of B.C. and in other places like Saskatchewan. It also then took their property from them, expropriated it, auctioned it off and then charged the costs of the auctioning against the value of the property. This is the attitude that this government and Liberal governments historically have had toward the private property rights of Canadians.

I don't hold out much hope that this private member's bill will pass with the Liberals in control. But the potential is there for Canada to take a step forward even as the United States has taken a step back.