Taking your property

By Craig Docksteader
web posted November 1, 1999

In Canada, it is illegal for someone to take your private property. If they do, we call it theft. You can sell your property, give it away, or have it confiscated through legal processes such as fines or settlements, but nobody can arbitrarily take it without breaking the law.

Unless that someone is the government.

Few people realize it, but Canadian governments enjoy an unrestricted ability to enact laws that arbitrarily deprive people of their property. If the government wants your land, house, car or computer, it can take it. You have no guarantee of compensation, no guarantee of fair procedure, and no guarantee of fair treatment by the Courts. In fact, there are no obstacles that cannot be easily overcome, which means property owners have no effective protection.

That's why Environment Minister David Anderson can threaten to pass an Endangered Species Act which could take privately-owned agricultural land out of production without offering compensation to the owner. That's why the Firearms Act can make the possession of certain types of firearms illegal, but give their owners no compensation for their loss. That's why the Canadian Wheat Board Act can prohibit a prairie farmer from selling his own wheat, forcing him to turn it over to a government agency. The average person instinctively recognizes the importance of property rights, but Canadian law does not.

It has not always been this way. As far back as the signing of the Magna Carta in 1215, British tradition put a strong emphasis on the protection of private property. Over the next several hundred years, property rights were recognized by the courts and thus became an undisputed component of British common law.

When Canada became a nation in 1867, British common law served as part of the foundation for judicial matters. But the 1867 British North America (BNA) Act gave both the federal and provincial governments the right to override common law protections of property, when issues fell within their jurisdiction. The end result is that, today, common law protection of property rights can be trumped by an Act of any legislature in the country.

There are two possible solutions to this problem -- one constitutional and the other legislative. The constitutional fix involves amending the Canadian Charter of Rights and Freedoms to include protection for property rights. The legislative fix involves amending the Canadian Bill of Rights to strengthen its property rights measures, and amending provincial human rights laws.

Even amongst property rights supporters, there are differing viewpoints over which solution would be the better route to pursue in order to secure greater protection for property rights. On the one hand, a constitutional amendment would give Canadians greater protection from governments that want to pass laws which arbitrarily expropriate their property. But on the other hand, there is growing concern that constitutional entrenchment of property rights would place too much trust in judges. Judicial "interpretations" of the Charter could result in undesirable public policy outcomes, such as protecting welfare policies as property interests of the welfare beneficiaries.

Regardless of the method utilized, however, the desired end result is clear: Adequate property rights protection should ensure that neither the government nor the community exercising its power through government may take your property except under three very limiting conditions:

(1) The taking of your property must be for public use;

(2) The taking of your property must be through due process of law; and,

(3) The taking of your property must be with just and timely compensation.

Anything less is unacceptable and will continue to leave Canadians with no protection for their property rights.

Craig Docksteader is Coordinator with the Prairie Centre/Centre for Prairie Agriculture, Inc.

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