In the historic Anglo-American tradition, the purpose of a constitutionally-entrenched individual rights document is to protect citizens from their own government. Seventeenth-century English political theorist John Locke famously summarized these protections as the rights to life, liberty, and property. The government can’t kill, imprison, or confiscate the possessions of its citizens without legitimate justification. (An exception, for example, would be citizens who are violent criminals)..Canada’s Charter of Rights and Freedoms, adopted in 1982 after great effort by Prime Minister Pierre Trudeau, essentially followed in this historic tradition. That is why it was an easy sell to Canadians in the early 1980s. Supposedly, the Charter would protect us from the government. Who doesn’t want that?.However, opponents of the Charter at that time — which included many Albertans — were very concerned about its deliberate failure to include property rights, one of the three key protections listed by Locke. By not including property rights, Canada’s Charter deviated from the historic Anglo-American heritage. This signaled that the Charter would not protect individual rights in the same way, or to the same degree, as previous rights documents..In 2015, University of Saskatchewan law professor Dwight Newman and his research assistant, Lorelle Binnion, wrote an article for the Alberta Law Review entitled, “The Exclusion of Property Rights from the Charter: Correcting the Historical Record.” This article explains why property rights were deliberately left out..As the Charter was being drafted in the early 1980s, there was support for property rights from many citizens as well as the federal Progressive Conservative Party. Influential organizations, such as the Business Council on National Issues and the Canadian Bar Association, also supported them..However, the New Democratic Party was strongly opposed to property rights, and would not support Trudeau’s proposals unless they were excluded. So, in short, Trudeau catered to the NDP’s demands to get that party’s support. As Newman and Binnion put it, “Property rights were sacrificed so the rest of the Charter and the Constitution could move forward, making apparent that property rights had not been central to Trudeau’s vision of the Charter even if he would have supported them.”.They point out that Trudeau was willing to bargain away property rights, “something he would not have done with other rights provisions.” Unsurprisingly, with his leftist ideological bent, Pierre Trudeau had no qualms about entrenching a document that excluded property rights..Newman and Binnion point out that property rights were omitted to satisfy a small ideological element that punched far above its weight: “Those who opposed property rights outright — some of them on full-fledged ideological grounds, because of favoring social ownership of the means of production — achieved an impact far beyond their numbers in achieving the exclusion of property rights.”.In short, property rights were sacrificed as a direct result of socialist influence in writing the Charter..There were two main results from this. First, and most obviously, protections for property rights in Canada are much weaker than protections for other basic rights. On top of that, the exclusion of property rights signaled to judges that restrictions on government power are not as extensive as they are in other Anglo-American jurisdictions. Some jurisdictions protect the historic rights of life, liberty, and property. But Canada’s protects life, liberty, and … well, that’s it..The restrictions on government power are less by conscious design. The NDP, with Trudeau’s complete concurrence, did not want government power restricted too much. How could socialism be implemented in Canada, if citizens had constitutionally-entrenched property rights? That would be a socialist’s nightmare. The socialist vision of a New Society cannot be imposed by governments if individuals have too much power vis-à-vis the state. In other words, the ideological message communicated by the deliberate exclusion of property rights is that the Charter’s limitations on government power only go so far..As Newman and Binnion explain, “Had the Charter contained the full set of classical rights, including property rights, the holistic reading of the Charter would presumably have been different, or at least ought to have been. On such a revised holistic reading, the presence of the property rights provision could have led to other rights being read differently.”.In other words, “the text and symbolism of a Charter without property rights has led to a different overall interpretation of the Charter compared to a text with property rights.”.The exclusion of property rights communicates that Canada’s Charter is unlike other rights documents in the historic Anglo-American tradition. In contrast to the U.S. Bill of Rights, for example, Canada’s Charter had direct socialist influence on its drafting, so its protection of individual rights is thereby reduced. Therefore, Canadians should not be surprised when judges rule that infringements on their liberties are justified under the Charter.
In the historic Anglo-American tradition, the purpose of a constitutionally-entrenched individual rights document is to protect citizens from their own government. Seventeenth-century English political theorist John Locke famously summarized these protections as the rights to life, liberty, and property. The government can’t kill, imprison, or confiscate the possessions of its citizens without legitimate justification. (An exception, for example, would be citizens who are violent criminals)..Canada’s Charter of Rights and Freedoms, adopted in 1982 after great effort by Prime Minister Pierre Trudeau, essentially followed in this historic tradition. That is why it was an easy sell to Canadians in the early 1980s. Supposedly, the Charter would protect us from the government. Who doesn’t want that?.However, opponents of the Charter at that time — which included many Albertans — were very concerned about its deliberate failure to include property rights, one of the three key protections listed by Locke. By not including property rights, Canada’s Charter deviated from the historic Anglo-American heritage. This signaled that the Charter would not protect individual rights in the same way, or to the same degree, as previous rights documents..In 2015, University of Saskatchewan law professor Dwight Newman and his research assistant, Lorelle Binnion, wrote an article for the Alberta Law Review entitled, “The Exclusion of Property Rights from the Charter: Correcting the Historical Record.” This article explains why property rights were deliberately left out..As the Charter was being drafted in the early 1980s, there was support for property rights from many citizens as well as the federal Progressive Conservative Party. Influential organizations, such as the Business Council on National Issues and the Canadian Bar Association, also supported them..However, the New Democratic Party was strongly opposed to property rights, and would not support Trudeau’s proposals unless they were excluded. So, in short, Trudeau catered to the NDP’s demands to get that party’s support. As Newman and Binnion put it, “Property rights were sacrificed so the rest of the Charter and the Constitution could move forward, making apparent that property rights had not been central to Trudeau’s vision of the Charter even if he would have supported them.”.They point out that Trudeau was willing to bargain away property rights, “something he would not have done with other rights provisions.” Unsurprisingly, with his leftist ideological bent, Pierre Trudeau had no qualms about entrenching a document that excluded property rights..Newman and Binnion point out that property rights were omitted to satisfy a small ideological element that punched far above its weight: “Those who opposed property rights outright — some of them on full-fledged ideological grounds, because of favoring social ownership of the means of production — achieved an impact far beyond their numbers in achieving the exclusion of property rights.”.In short, property rights were sacrificed as a direct result of socialist influence in writing the Charter..There were two main results from this. First, and most obviously, protections for property rights in Canada are much weaker than protections for other basic rights. On top of that, the exclusion of property rights signaled to judges that restrictions on government power are not as extensive as they are in other Anglo-American jurisdictions. Some jurisdictions protect the historic rights of life, liberty, and property. But Canada’s protects life, liberty, and … well, that’s it..The restrictions on government power are less by conscious design. The NDP, with Trudeau’s complete concurrence, did not want government power restricted too much. How could socialism be implemented in Canada, if citizens had constitutionally-entrenched property rights? That would be a socialist’s nightmare. The socialist vision of a New Society cannot be imposed by governments if individuals have too much power vis-à-vis the state. In other words, the ideological message communicated by the deliberate exclusion of property rights is that the Charter’s limitations on government power only go so far..As Newman and Binnion explain, “Had the Charter contained the full set of classical rights, including property rights, the holistic reading of the Charter would presumably have been different, or at least ought to have been. On such a revised holistic reading, the presence of the property rights provision could have led to other rights being read differently.”.In other words, “the text and symbolism of a Charter without property rights has led to a different overall interpretation of the Charter compared to a text with property rights.”.The exclusion of property rights communicates that Canada’s Charter is unlike other rights documents in the historic Anglo-American tradition. In contrast to the U.S. Bill of Rights, for example, Canada’s Charter had direct socialist influence on its drafting, so its protection of individual rights is thereby reduced. Therefore, Canadians should not be surprised when judges rule that infringements on their liberties are justified under the Charter.