Should property rights be protected by Canada’s constitution?
This question arose at the Canadian Alliance Party policy convention in
April. While the party has always supported constitutional protection
for property rights, it expanded its position.
Its policy now says even if an agreement can’t be reached with the
provinces to amend the constitution, the party as government, would
pass federal legislation providing “that full, just and timely
compensation will be paid to all persons who are deprived of personal
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or private property as a result of any federal government initiative,
policy process or legislation.”
What are some of the issues involved in such a constitutional change or
law?
Rights that are protected by the constitution have greater protection
and status than rights established by mere legislation. Once rights are
protected in the constitution they cannot be overridden easily by
provincial or federal laws, though certain rights can be overridden for
periods of up to five years.
The constitution can only be changed by federal and provincial
agreement. Parliament and the legislatures of seven provinces having at
least half of the population of Canada (at minimum either Ontario or
Quebec has to agree) must agree to any constitutional change. The
constitution would have to be amended to add protection for property
rights.
To date, most Canadian political leaders have been reluctant to
advocate such a change. They fear it would restrict government’s
ability to legislate and regulate.
Recognizing the difficulties in achieving constitutional amendment, the
Alliance Party has proposed that the federal government enact
legislation that would protect property rights. This differs from a
constitutional change in two ways. First, it would only apply to the
federal government.
Second, a subsequent government could change
or repeal the law.
While the constitution or legislation might purport to protect property
rights, a major question to be addressed is the extent of that
protection. Should such a law apply when property is taken away, when
there are major limits on its use or when there is even the slightest
interference?
Many laws interfere with property rights. Speeding laws restrict the
manner in which we can use our cars and trucks, but most people would
agree these laws serve a useful purpose.
Both American and Canadian courts have already grappled with this
dilemma. The United States constitution provides that no one is to be
deprived of property without due process or without just compensation.
A hundred years ago, when zoning laws were first introduced in the
United States, Amber Realty Co. complained that the zoning bylaws of
the Village of Euclid violated its constitutional property rights. The
U.S. Supreme Court rejected the challenge finding that the zoning
ordinances were necessary and that constitutional guarantees must keep
pace with the needs of a changing society.
Canada’s constitution provides that aboriginal and treaty rights are
“recognized and affirmed.” Canada’s Supreme Court has ruled that
aboriginal rights are a form of property rights.
However, the court has also said while the words “recognized and
affirmed” mean the government can’t take away those rights without
consent, it can regulate those rights.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
