Canada is nearly alone in the world as a liberal democracy having a written constitution lacking any explicit protection for property rights. Albertans- many of whom are weary of confederation – have often bandied about the idea of a provincial constitution protecting property rights. While there is merit to enshrining property rights in a potential new Alberta constitution, there are cautions that Albertans should consider first..Property rights are already protected by the common law. For example, in 1978, the Supreme Court of Canada said, “Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law.”.But the common law lacks the power of entrenched constitutional protection because any Canadian legislature could modify it by ordinary statute..In 1978, Prime Minister Pierre Elliot Trudeau’s government introduced Bill C-60, the Constitutional Amendment Act, in parliament. The bill contained a guarantee of, “the right of the individual to the use and enjoyment of property, and the right not to be deprived thereof except in accordance with law.”.This may be a verboten topic in the West, but Trudeau (The First) even tried to have property rights included in the Charter in 1982. This was opposed — no surprise — by the NDP, special interest groups and others. The Liberal government eventually gave up trying..But maybe that was a good thing. Constitutionally entrenching property rights has long been the goal of many on the political right, but is it the panacea many assume?.The Americans have explicit protection for property in their constitution’s Bill of Rights, and they have the advantage of a rich intellectual tradition acknowledging the moral and instrumental value of property rights. Nevertheless, their courts have whittled it away, piece by piece, until property rights have become wrought with caveats and exemptions borne of a similar rights balancing approach upon which our courts rely..There is also a question regarding how effectively a province could protect property rights on its own. If Alberta were to entrench its own protection for property rights, it would apply only to the provincial government and municipalities. It would not prevent the federal government – which would not be bound by Alberta’s constitution – from continuing to violate our property rights. .A perfect example of this was demonstrated earlier this year when the Supreme Court of Canada upheld the federal carbon tax legislation, which greatly interferes with the property rights of Albertans. Unless something entirely unforeseen changes, Albertans will be forever powerless to stop this sort of federal violation of property rights. Entrenching property rights in an Alberta constitution will have no bearing on any federal violations. .And lastly, the term “property rights” means something very specific to its advocates, but not to everyone. It’s a vague and uncertain term. Generally, advocates mean legal authority to possess, control, exclude and transfer an interest in something tangible, like land or chattels. But there are others who believe property rights should include socio-economic rights to education, healthcare, pensions and other benefits. This is a debate Albertans have never thoroughly had, and thankfully our courts have shown reluctance to adopt socio-economic rights without that debate..And lastly, if Alberta did entrench property rights, are we naive enough to believe all currently existing legislation would not be immediately grandfathered? I hate to be the bearer of bad news, but there is a very good chance that nothing would change..In my view, property is both a moral and legal concept foundational to the success of all free and prosperous societies. Governments should be greatly circumscribed in their authority to take or devalue property. But this is a complicated topic, and property rights should not be entrenched on a whim..Derek From is Columnist for the Western Standard and an associate lawyer with WKA Lawyers
