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A Method to Entrench
Individual Property Rights
in the
Constitution of Canada

Minority Report of the Property Rights Committee to the Saskatchewan Party


Our ownership of property - both real and personal - is not protected under the Constitution of Canada. This exclusion has serious ramifications.

We must correct this omission.

In 2003 in Authorson v. Canada the Supreme Court of Canada declared that the taking of property from combat-disabled World War II veterans of Canada’s military forces was acceptable, quoting with approval:

"In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine. ...
The prohibition, “Thou shalt not steal,” has no legal force upon the sovereign body.
"(underline in the original)(1)

As Saskatchewan MP Garry Breitkreuz (Yorkton-Melville), noted with dismay:

We have lost one of our most important freedoms necessary for the existence of a truly free and democratic society. The right to life and the right to property go hand-in-hand – you can’t have one without the other."(2)

In response to this judicial travesty, the membership of the Saskatchewan Party in 2005 passed Policy Resolution JS05-17 to protect personal property:

"Be it resolved that a Saskatchewan Party government will support an amendment to the Charter of Rights and Freedoms that would enshrine the individual's right to own property in the Constitution of Canada."(3)

The Saskatchewan Party formed Government in November 2007 but took no action to implement this Policy.

Then in 2010 the Party membership passed Policy Resolution JS10-1:

"Be it resolved that a Saskatchewan Party Government shall amend the current Saskatchewan Human Rights Code to enshrine the individual’s Right to own property."(3)

However the Government took no measures to enact this Policy.

Therefore, in November 2012 at the Saskatchewan Party in Convention held in Saskatoon, the Party members appointed a Property Rights Committee to:

review current legislation and to report and make recommendations to better protect property Rights in our Province.

Meeting in December 2012 the Committee Chair and then Minister of Justice Don Morgan discussed and agreed that we do not want an “easy option” of an essentially meaningless property protection provision “subject to all existing and future laws”. The objective of the Committee is to:

"seek meaningful property protection of individuals against government action."(4)


I. The Importance of Property


Jan Narveson, emeritus professor of philosophy at the University of Waterloo in Ontario, stated:

"Property rights are essential to individual well-being because we are all individuals; we can live our lives as we will only if others are not free to invade and despoil for reasons of their own."(5)

Max Eastman, an active socialist and radical in his youth who later embraced free-marker values, professed:

The institution of private property is one of the main things that have given man that limited amount of free-and-equalness that Marx hoped to render infinite by abolishing this institution."(6)

In The Constitution of Liberty Austrian - later British - philosopher and economist Friedrich A. Hayek, Nobel laureate in Economic Sciences showed that:

"The recognition of private or several property is thus an essential condition for the prevention of coercion … The recognition of property is clearly the first step in the delimitation of the private sphere which protects us against coercion."(7)

As Hayek observes in "The Fatal Conceit: The Errors of Socialism":

"Protection of several property, not the direction of its use by government, laid the foundations for the growth of the dense network of exchange of services that shaped the extended order."(8)

Sir Henry Maine, Cambridge lawyer and historian, writing in 1880 declared:

"Nobody is at liberty to attack several property and to say at the same time that he values civilisation. The history of the two caimot (sic cannot) be disentangled."(9)

Of the importance of individual property, in The Law and Legal Theory of the Greeks J. W. Jones notes:

"In Athens of the fifth century, B.C. the sanctity of the private home was so fully recognized that even under the rule of the Thirty Tyrants a man could save himself by staying at home."(10)

About the history of freedom, Lord Acton, Member of Parliament, historian, and writer, asserted:

"A people averse to the institution of private property is without the first element of freedom."(11)

Jeremy Bentham, utilitarian philosopher and prolific writer, had much to remark about the importance of property and laws affecting property in his 1838 Objects of the Civil Law. Bentham observed:

"A state can never become rich but by an inviolable respect for property."

"Property and law are born and must die together. Before the laws, there was no property: take away the laws, all property ceases."

"An attack made upon the property of one individual spreads alarm among the other proprietors ... and the contagion may at last spread over the whole body of the state."

"The imposition of the confiscations is pretended to be employed as a punishment, when in truth the crime is only a pretence for the imposition of the confiscation."

"The more the principle of property is respected, the more is it strengthened in the minds of the people. Small attacks upon this principle prepare for greater ... fatal experience has shown with what facility security may be overturned, and how the savage instinct of robbery may assume an ascendancy over the laws."

Bentham insightfully concluded:

"The people and governments are in this respect only like tame lions: if they taste blood, their natural ferocity is rekindled."(12)


II. The Protection of Property


Property Protection in the United Kingdom

Magna Carta 1215, 1297

The Magna Carta, one of the oldest documents in the British tradition of the legal protection of personal rights, was the result of a revolt against the oppressions of King John in 1215. Section 39 recognizes the importance of property declaring:

"No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice."(13)

In 1297 King Edward I was forced to reissue the Magna Carta.(14) The protection of property was retained in section 29.

Significantly, one of the three extant provisions of the Magna Carta is the section that protects a person's property.

Sir Edward Coke forcefully reasserted that principle in the Petition of Right of 1628:
"that no man ... should be put out of his land or tenements ... without being brought to answer by due process of law."(15)

From Coke we have the famous declaration that:

"the house of an Englishman is to him as his castle."(16)

The Glorious Revolution of 1688 was the direct result of King Charles II and his brother James II not adhering to these well-establish principles. Before the people accepted a new king, they proclaimed the English Declaration of Right of 1689 that restated in modern language:

"the true, ancient, and indubitable rights of the people of this kingdom".(17)

With Queen Mary and William of Orange established on the throne, John Locke wrote in 1690 in his The Second Treatise of Government:

"The Reason why Men enter into Society, is the preservation of their Property; and the end why they chuse and authorize a Legislature, is, that there may be Laws made, and Rules set as Guards and Fences to the Properties of all the Members of the Society, to limit the Power, and moderate the Dominion of every Part and Member of the Society."(18)

In the mid-to-late 18th century as the British colonists in North America began to complain about violations of personal property, similar concerns were being voiced in Great Britain.

In 1763 William Pitt (the Elder) declared the inviolable of property:

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"(19)

Pitt affirmed this position in 1766:

"There are many things a parliament cannot do ... It cannot take any man's property, even that of the meanest cottager ... without his being heard."(20)

William Blackstone stated in 1769 in Commentaries on the Laws of England:

"The rights themselves thus defined ... may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property"(21)

By the time the first shots of rebellion were fired at Lexington and Concord on 19 April 1775, these ideas regarding individual rights where spread widely throughout British North America.

Property Protection in the United States


After the Revolutionary War, the new United States adopted its Constitution in 1787. Notably the document did not protect property - nor any other individual rights. During the constitutional ratification process a spirited debate ensued between the Federalists and Anti-federalists over the need to include a Bill of Rights in the Constitution. The Bill of Rights was finally adopted in 1792.

The Third, Fourth, and Fifth Amendments address property protections.

The Fifth Amendment to the United States Constitution declares:

"No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."(22)

While this protection of property is much more robust than what we have in Canada, it is not by any means absolute. The federal government and each state have the power of eminent domain — the power to take private property for "public use". However, "just compensation" must be paid if private property is taken for public use.(23)


Property Protection in Canada: "What could have"; "should have been"


With the signing of the Treaty of Paris in 1783 ending the Revolutionary War, United Empire Loyalists began migrating to Canada. These Loyalists carried with them King George III's promises of the Royal Proclamation of 1763 that:

"all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England;”(24)

The Royal Proclamation is very important to Aboriginal Canadians as it is recognized in section 25 of the Charter of Rights and Freedoms and guarantees:

"any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;"(25)

In 1867 the provinces of Canada were united "into One Dominion" by the British North America Act:

"with a Constitution similar in Principle to that of the United Kingdom."(26)

From our British background Supreme Court Chief Justice Beverley McLachlin notes that we have inherited "unwritten Constitutional principles" such that:

"the legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action."(27)

Thus, from the Royal Proclamation and the BNA Act, we "should have" inherited all the protections of property that our British forebears enjoyed.

Unfortunately, the Supreme Court seems to apply these "unwritten Constitutional principles" only to protecting the prerogatives of Parliament, not individual citizens.

Canadian Bill of Rights

In 1960 Prime Minster Diefenbaker's Government passed the Canadian Bill of Rights that declared:

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;

However, this document shall:

"be construed as extending only to matters coming within the legislative authority of the Parliament of Canada."(28)

And regrettably Parliament seems to be able to ignore this "quasi-constitutional" document any time Parliament makes its intention "clear and unambiguous.”(1)

In 1982 our right to property "would have been" protected in the Charter of Rights and Freedoms if it had been accepted as first proposed, that is:

"Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.”(29)

But the New Democratic Party refused to accept this provision with "property" included.(29)

One thing cannot be denied, The Constitution Act, 1867 (British North America Act, 1867), section 92 places property " exclusively" " in the Province":(26)

Exclusive Powers of Provincial Legislatures.

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,--

13. Property and Civil Rights in the Province

This means that the Provincial Governments are charged with protecting these Rights. So our Provincial Government "could have" protected our right to property if they had wanted to do so.

Yet when Tommy Douglas and the CCF passed the Saskatchewan Bill of Rights in 1947 they omitted the protection of property.(30)

In 1979 Allan Blakeney’s NDP Government incorporated the Saskatchewan Bill of Rights into the Saskatchewan Human Rights Code. The New Democrats again intentionally omitted property Rights.(31)

The inescapable fact is that even with a federal Constitution, a national Charter, and a provincial Humans Rights Code, the only legal protection of property we have in Canada is offered by Common Law. And with the Supreme Court's decision in Authorson, that protection is essentially ZERO.


III. Government Violations of Property


Our homes - our "castles" - our property may be violated in a variety of ways by government officials, bureaucrats, and municipal inspectors. The Frontier Center for Public Policy prepared a “Property Rights Index”(32) that reviews the ways in which property rights in Canada are abused.

- Expropriation -

Governments can force the transfer of land title from a private landowner to itself. In these situations there needs to be strong procedural safeguards in place that protect land owners.

- Land-use planning and/or Constructive Taking -

Land-use planning interferes with property as it restricts the owners uses. A constructive taking occurs when a land-use regulation is so severe it almost amounts to a full expropriation.

- Municipal power of entry -

Municipalities are granted the power to enter and inspect property for by-law compliance. While justified in many situations for public safety, warrant and judicial oversight should be required.

- Civil Forfeiture -

This is a civil proceeding where the government uses the courts to take title of property that the government alleges was used in unlawful activity. The problem with civil forfeit is that it does not require criminal conviction and has a lower burden of proof than in criminal cases.

- Endangered Species -

In seeking to protect endangered wildlife, fish, and plants, government may designate land that contains endangered species. Affected lands may lose value as use is restricted.

- Heritage Property -

Governments may designate property of historic and heritage value and thereby limit its use to the owner.

- Wills and/or successions -

The rights of individuals to dispose of their estate upon their death as they wish, their ability to pass property to the next generation is an important exercise of property rights.

The Frontier Center for Public Policy “Property Rights Index” gave Saskatchewan a fair grade. However we would like to see improvement in all areas, particularly in expropriation, land use planning, and civil forfeiture.


IV. The Charter of Rights and Freedoms - The Bilateral Amending Formula


After the failures of the Meech Lake Accord in 1987 and the Charlottetown Accord in 1992, the prospects of meaningful nation-wide constitutional changes are dim.

However, province-by-province changes to the Constitutional are very much a valid possibility. As University of Saskatchewan Professor of Law Professor Dwight Newman has noted, Charter section 43 - the Bilateral Amending Formula:

"may well provide a means around certain constitutional impasses and, indeed, a means of entrenching a neglected right to property."(33)

Dr. Newman has shown that Charter section 43:

"allows for a change to the constitution of Canada affecting only one or more provinces to be made by just the federal government and affected province(s)."(34)

An amendment to the Constitution to secure property rights protection by this "bilateral" method:

"may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies."(35)

Thus both the Federal Government and our Provincial Government would need to pass government-sponsored legislation stating the objective of the amendment. Fortunately one of the Founding Principles of the Conservative Party mirrors the Saskatchewan Party's belief in "the right to own property."(36)


V. The Proposal: Provincial Property Rights


After consultation with Professor Newman, the Property Rights Committee proposes this constitutional amendment:

The Bilateral Property Rights Resolution to entrench property rights would add section 7.1(1) to the Charter of Rights and Freedoms:

7.1 (1) In the Province of Saskatchewan:

(a) everyone has the right to both real and personal property and the right to title, use, and enjoyment thereof and the right not to be deprived thereof except by due process of law,

(b) property - both real and personal - shall not be taken for public use without full, just, and timely compensation, and,

(c) this provision shall be operative as a result of any government action.

Please Note Well:
This amendment if passed by both the federal and provincial governments would affect only provincial legislation; federal laws would not be affected.

VI. Potential Adverse Effects


Minister Morgan raised some concerns about the potential adverse effects that this amendment might have on various Saskatchewan laws; for example, The Family Property Act (formerly The Matrimonial Property Act), The Expropriations Act, and The Seizure of Criminal Property Act. Minister Morgan also noted that the ability of banks and third parties in car loans/repossessions to have security would need to be studied.

The Saskatchewan Department of Justice is reviewing the potential impact of this proposed amendment on these laws. But in brief, any effects on these laws should be in favour of the individual property owners.


VII. Conclusions and Recommendations


The absence of constitutional protection for individual property rights is glaring by its total omission. The pervious governments' unwillingness to enshrine property rights should not be continued.

We need to remember the members of the CCF, the forerunner to the New Democratic Party, pledged that they will not rest content:

"until it has eradicated capitalism and put into operation the full programme of socialized planning."(37)

We may have to modify some of our Saskatchewan laws. We indeed may have to forego some potentially useful benefits of some current legislation. But as Friedrich A. Hayek noted in The Road to Serfdom:

"We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may also prevent its use for desirable purposes."(38)

While we have Governments in both Ottawa and Regina that understand the value of property rights, we have a unique opportunity to correct the socialist denial of property rights.

We need to ensure that "everyone has the right to both real and personal property."


THEREFORE BE IT RESOLVED THAT the Government of Saskatchewan shall authorize by Resolution and request that the Senate and House of Commons also authorize by Resolution that:

In the Province of Saskatchewan:

(a) everyone has the right to both real and personal property and the right to title, use, and enjoyment thereof and the right not to be deprived thereof except by due process of law,

(b) property - both real and personal - shall not be taken for public use without full, just, and timely compensation, and,

(c) this provision shall be operative as a result of any government action.

We - we citizens of Saskatchewan - we can do this. We can set right this grievous omission. We must do this!

This is a gift we owe to our children and grandchildren as well as ourselves.

Sincerely,


Edward B. Hudson, DVM, MS
Chairperson, Property Rights Committee
26 March 2014

References:

1. Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2072/index.do

2. Garry Breitkreuz, "SCC Canadians Have NO Property Rights", July 29, 2003
http://www.garrybreitkreuz.com/breitkreuzgpress/property5.htm

3. Saskatchewan Party Constituency Manual 2013
Saskatchewan Party Office at (306) 359-1638

4. Letter summarizing meeting with Minister Morgan, Friday, 21 December 2012

"We discussed and agreed that we do not want the “easy option” of an essentially meaningless provision “subject to all existing and future laws” as in the Quebec Bill of Rights; that we seek meaningful protection of individual against government action. I suggested that I would like for us to “set the example for other provinces to follow”.

5. Jan Narveson, Libertarianism and Property Rights
http://againstpolitics.com/jan-narveson-libertarianism-and-property-rights/

6. - Max Eastman, “Socialism Doesn’t Jibe with Human Nature,” Reader’s Digest, vol. 38, June 1941, p. 47 {quoted in Friedrich A. Hayek, Road to Serfdom p. 136}

7. Friedrich A. Hayek, The Constitution of Liberty, University of Chicago Press, Chicago, 1960, p. 140

8. X. Friedrich A. Hayek, The Fatal Conceit: The Errors of Socialism,
A paperback of Volume I of The Collected Works of F.A. Hayek, p. 33
http://www.libertarianismo.org/livros/fahtfc.pdf

9. Sir Henry Maine, "Village-communities in the East and West", 1880
http://archive.org/stream/villagecommunit02maingoog/villagecommunit02maingoog_djvu.txt

10. J. W. Jones, The Law and Legal Theory of the Greeks, Oxford, 1956, quoted in F. A. Hayek, the Constitution of Liberty, University of Chicago Press, Chicago, 1960, FN 15, p. 451

11. John Emerich Edward Dalberg, Lord Acton, The History of Freedom and Other Essays [1907]
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=75&layout=html

12. Jeremy Bentham in Objects of the Civil Law (1838)
http://www.laits.utexas.edu/poltheory/bentham/pcc/pcc.pa01.c01.html

13. Magna Carta, 1215
http://www.constitution.org/eng/magnacar.htm

14. Magna Carta, 1297
http://www.archives.gov/exhibits/featured_documents/magna_carta/translation.html

15. Sir Edward Coke, Petition of Right, 1628
http://www.constitution.org/eng/petright.htm

16. Sir Edward Coke Castle Doctrine: 1627:
http://www.fee.org/the_freeman/detail/edward-coke-common-law-protection-for-liberty#axzz2qUkGSHU6

17. The English Declaration of Right of 1689
http://avalon.law.yale.edu/17th_century/england.asp

18. John Locke, The Second Treatise of Government, Edited with an introduction and notes by Peter Laslett, Cambridge University Press, 1988, § 222.

19. William Pitt (the Elder), Speech on the Excise Bill, House of Commons (March 1763)
http://en.wikiquote.org/wiki/William_Pitt,_1st_Earl_of_Chatham

20. William Pitt the Elder Speech in the House of Commons (1766), Parliamentary History of England (London, 1813), vol. 6, col. 195.
http://en.wikiquote.org/wiki/William_Pitt,_1st_Earl_of_Chatham

21. William Blackstone, Commentaries on the Laws of England, 1769
http://www.lonang.com/exlibris/blackstone/

22. United States Constitution and Bill of Rights
http://constitutionus.com/

23. Fifth Amendment, United States Bill of Rights
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

24. The Royal Proclamation. October 7, 1763
http://gsdl.ubcic.bc.ca/collect/firstna1/index/assoc/HASH013e.dir/doc.pdf

25. Canadian Charter of Rights and Freedoms
http://laws-lois.justice.gc.ca/eng/const/page-15.html

26. The Constitution Act, 1867 (The British North America Act, 1867)
http://www.solon.org/Constitutions/Canada/English/ca_1867.html

27. Right Honourable Beverley McLachlin,“Unwritten Constitutional Principles: What is Going On?” Remarks of the, P.C.- Given at the 2005 Lord Cooke Lecture in Wellington, New Zealand, December 1st, 2005
http://www.fact.on.ca/judiciary/NewZeal.pdf

28. Canadian Bill of Rights, 1960
http://laws.justice.gc.ca/en/C-12.3/

29. David Johansen, Property Rights and the Constitution, October 1991

30. Tommy Douglas, the CCF, and the Saskatchewan Bill of Rights
http://esask.uregina.ca/entry/saskatchewan_bill_of_rights.html

31. Human Rights, Emerging Issues in Saskatchewan
http://www.davidforbesmla.ca/wp-content/uploads/2013/10/Human-Rights-in-Saskatchewan.pdf

32. Frontier Center for Public Policy “Property Rights Index
http://www.fcpp.org/files/1/PS149_PropRightsIndex_JA31_F1.pdf

33. Dwight Newman, The Bilateral Amending Formula as a Mechanism for the Entrenchment of Property Rights
https://ejournals.library.ualberta.ca/index.php/constitutional_forum/article/viewFile/18834/14632

34. Guy Régimbald, Dwight Newman, The Law of the Canadian Constitution, First Edition, Student Edition LexisNexis, Markham, Ontario 2013, p.32

35. Constitution Act 1982, (UK), 1982, c11, s 43.

Section 43.
"An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including
(a) any alteration to boundaries between provinces, and
(b) any amendment to any provision that relates to the use of the English or the French language within a province,
may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies."

http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html

36. Conservative Party of Canada, Policy Declaration, As amended by the delegates to the National Convention on June 11, 2011, As consolidated by the National Policy Committee and approved by National Council

13. Property Rights

i) The Conservative Party believes the government should seek the agreement of the provinces to amend the Constitution to include this right, as well as guarantee that no person shall be deprived of their just right without the due process of law and full, just, and timely compensation.

ii) We believe the government should enact legislation to ensure that full, just and timely compensation will be paid to all persons who are deprived of personal or private property as a result of any federal government initiative, policy, process, regulation or legislation.

1. Role of Government
The Conservative Party believes the role of government is to:

i) protect the lives and property of its citizens;

Founding Principles
A belief that the best guarantors of the prosperity and well-being of the people of Canada are:

The right to own property;

http://www.conservative.ca/media/2012/07/20120705-CPC-PolicyDec-E.pdf

37. Regina Manifesto, The Co-operative Commonwealth Federation http://en.wikisource.org/wiki/Regina_manifesto

38. Friedrich A. Hayek, The Road to Serfdom, Text and Documents, The Definitive Edition, Ed. by Bruce Caldwell, University of Chicago Press, 2007

Minority Report Authors
Joe Gingrich and Edward Hudson
For more information, please contact:
306-230-8929