Peter Shawn Taylor is senior features editor at C2C Journal, where the longer, original version of this article first appeared.Why do governments exist? There must be a better reason than simply providing well-paid jobs for people who enjoy bossing others around. Philosopher John Locke offered one of the clearest answers when he wrote in 1690 that the “great and chief end” of government is “the preservation of … property.”And by this most basic standard, Canadian governments are failing badly. Nowhere is this failure more obvious than in Richmond, BC. The recent Cowichan Tribes v. Canada case has shaken the very foundation of home ownership in Canada. The finding that aboriginal title can exist on the same piece of property as fee simple ownership, and that this native claim is a “senior and prior interest” has created property rights chaos. Local homeowners have been warned they cannot sell, renovate, or alter their properties without indigenous approval. A major commercial development collapsed as lenders fled the legal uncertainty. The case has even attracted international attention, with The Wall Street Journal recently asking, “Do Property Rights Still Exist in British Columbia?” No one has yet provided a convincing answer to this troubling question. It’s not as if Canadian governments were following Locke’s prime directive before the latest court ruling. “Cowichan is not a break from the past,” said Queen’s University law professor Bruce Pardy in an interview. Rather, it is the latest evidence of a much bigger problem in Canada regarding the ongoing diminution of property rights. Across the country, governments routinely treat private property as a tool for improving their own finances or to carry out political agendas. Eight provinces, for example, permit civil forfeiture, allowing the state to seize property without a criminal conviction. This vast power is open to abuse. In Quebec, recent changes to forfeiture law mean any cash sum over $2,000 is automatically considered evidence of illegal activity unless proven otherwise..Housing policy in Canada is almost entirely an exercise in depriving owners of their rights. Rent control removes the ability of landlords to charge market rates. “Renoviction” bylaws prohibit landlords from removing tenants in order to renovate apartments they own. Vacant homes taxes deliberately punish anyone who wants to own more than one home for whatever reason. Inclusionary zoning requirements force developers to build below-market apartments against their wishes.“We are doubling down on a dumb idea: that restricting property rights is the best way to get more housing built,” said Pardy of Canadian housing policy. “As soon as you start interfering with those rights, you no longer have a real market.” During the 2022 Freedom Convoy protests, the federal government froze bank accounts and financial assets of protesters and their family members. As University of New Brunswick law professor Paul Warchuk observed in a recent report for the Macdonald-Laurier Institute, this was “a complete deprivation of property based on suspicion alone.”What makes all these policies and government actions possible is the fact that Canada’s Charter of Rights and Freedoms is silent on property ownership as a fundamental right. Most other Western liberal countries have constitutions that protect both the right to own property and defend against its unjust seizure by government. Among OECD nations, only Canada and New Zealand lack this sort of explicit constitutional protection. The reason for this omission is political. When Canada’s Charter was created in 1982, liberty and individual rights were not top-of-mind topics. Further, some provinces worried that the inclusion of property rights would interfere with their interventionist policies, such as the Saskatchewan NDP government’s plans for nationalizing the resource sector. As a result, property rights were not included in the final version of the Charter. .Section 33 of the Charter, now referred to as the Notwithstanding Clause, would have addressed these provincial concerns. But in a case of unfortunate timing, Section 33 was added after property rights had already been removed. Placing property rights alongside all the other rights currently protected by the Charter — including freedom of speech, freedom of religion, and freedom of assembly — could have a big impact on the lives of Canadians. As University of Saskatchewan constitutional scholar Dwight Newman noted in an interview, a Charter that includes property rights would be “a very different thing” from our current version. Governments would likely have to go to greater lengths to justify policies that infringe on private ownership rights; judges would also be required to balance these competing rights more transparently.While the process to amend Canada’s Constitution is complicated and time-consuming, adding property rights would rectify a long-standing problem and provide Canadians with much greater security for their property and possessions. For decades, Canadians have thought their property was secure by default. Cowichan has shattered that illusion. If Canadians want to ensure what they own is truly theirs, now is the time to speak out. Peter Shawn Taylor is senior features editor at C2C Journal, where the longer, original version of this article first appeared.
