Property rights are being eroded by the charter, court decisions:
Recent ruling allows expropriation of interest owed to veterans,
Wednesday 15 October 2003
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
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
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
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
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.
Columnist, Edmonton Journal
Editorial Board Member, National Post
Index to some of Lorne Gunter's articles
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