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since June 19, 2001


Canadian Property Rights


Property rights are being eroded by the charter, court decisions: Recent ruling allows expropriation of interest owed to veterans, widows

Wednesday 15 October 2003

p. A19

Both of the following statements were made within the past three months. One is from Canada, the other from Communist China. Which is which?

A) "The government has the right to expropriate property, even without compensation, if it has made its intention clear."

B) "We should protect all kinds of property ownership -- including private ownership."

Of course, this is a trick question.

The first quotation is from the Supreme Court of Canada's July decision in the Arthurson vs. Canada case, in which the justices agreed with the federal government that Ottawa could rob mentally disabled war veterans and their widows of hundreds of millions of dollars they were owed in interest on their pensions simply by passing an expropriation law that was "clear and unambiguous."

In essence, due process has been served, the court ruled, if Ottawa merely makes its intent to rob emphatic. This is the equivalent of arguing that the difference between rape and lovemaking is the rapist's clear declaration beforehand that his actions will constitute making love.

In fairness to the court, it has been a developing precept in Canadian law since at least the 1920s that expropriation without compensation is permissible provided the expropriating government includes in its expropriation legislation a clause declaring its unwillingness to pay compensation to its victims. It may be abhorrent and have nothing whatever to do with justice, but the court's Arthurson decision really was just the logical endpoint of a legal evolution (perversion?) begun nearly 80 years ago.

The second quotation was uttered this weekend by Chinese President Hu Jintao during the 16th gathering of the Central Committee of the Communist Party of China. Although that gathering concluded Tuesday without a formal declaration that private property rights have been added to China's constitution -- the Central Committee's communique referred only to an unspecified "constitutional change" -- it is widely believed that China's most senior and powerful Communists voted to reverse their 82-year-old declaration that state ownership of all property was "inviolable."

If, indeed, the businesses and farm plots of China's entrepreneurs and landowners are now constitutionally protected, the Chinese have one up on Canadian entrepreneurs and landowners. In Canada, there are no constitutional safeguards for private property, and increasingly few common law protections, either.

The Chinese are not more free than we are, nor would I prefer their political and justice systems to ours. Canadian dissidents do not disappear in the middle of the night; their Chinese counterparts still do. And the Chinese constitution already contains dozens of human rights not honoured by the nation's rulers. Even if that constitution now also claims to protect private property, it remains to be seen whether that protection has any real-world force.

Still, intellectually, the Chinese are moving in the right direction; we are not. China is seeking to expand its private sphere. Politicians and technocrats here are constantly looking for ways to contract ours.

Property rights are disdained by Canada's ruling establishment, both in Parliament and the courts, at the municipal and provincial levels almost as much as at the federal. Property rights are an impediment to all the do-gooding our politicians are up to. How can they be expected to protect the environment, ensure worker safety, control guns, regulate healthy behaviour, redistribute incomes "fairly," advance human rights in hiring and renting, and so on, and so on, and so on, if Canadians have the right to own and enjoy their property as Canadians see fit?

Sure, sure, Canadians can own property, but they have to permit their betters -- i.e. the government, lobbyists, editorialists, special interests, etc. -- to have first say on what they may erect and produce on their land, what conditions and safety equipment must exist there, who they must associate with there, and what is to be done with the proceeds they earn there.

After that, of course, the property is theirs to use as they please -- that is, until their betters decide to expropriate it without compensation. Otherwise, the property is theirs, freehold.

In 1999, in deciding who owned the crops produced on Canadians' farms -- the farmer or Ottawa -- the Manitoba Court of Appeal decided in Ottawa's favour and decreed: "The right to 'enjoyment of property' is not a constitutionally protected, fundamental part of Canadian society."

If property rights were in place and enforced, why that might lead to -- gasp -- limited government. And since so many Canadians are convinced that government represents unlimited good ... well, the thought of limiting goodness is just too much to bear.

During the 1980 and 1981 constitutional debates on repatriation and the Charter of Rights and Freedoms, protection of property rights was discussed by Prime Minister Pierre Trudeau and the premiers. According to former Alberta premier Peter Lougheed in an interview with the editors of Alberta in the Twentieth Century, "this was a very short, 10-minute bargaining session." Property rights were on and off the table in the blink of an eye because the provinces objected to the charter limiting their right to expropriate.

In China, the Communists are erecting barriers to unbridled state action. They may not be strong barriers. We don't know yet. But at least they are erecting barriers. Here in Canada, in the name of freedom and fairness, we are intent on tearing them down.
Lorne Gunter
Columnist, Edmonton Journal
Editorial Board Member, National Post

Index to some of Lorne Gunter's articles

On global Warming

On other issues

See also:

THE WAR ON PROPERTY RIGHTS & WHAT IT MEANS TO YOU, by Dr. Michael S. Coffman Ph. D.;  August 23, 2006, NewsWithViews.com

whiterose.gif (6796 bytes)The White Rose
Thoughts are Free

Posted 2003 10 15