Are Property Rights Protected in Canada?

Are Property Rights Protected in Canada?

Canadians are sometimes surprised to learn that the right to property is not afforded the same constitutional protection that exists in other countries such as Australia, India, and the United States. But it is not accurate to say that property enjoys no constitutional protection. The framers of The Constitution Act, 1867 (originally called the British North America Act) followed the British principle of “parliamentary sovereignty” by allocating lawmaking powers to the Parliament of Canada and the provincial legislatures, while incorporating limited checks and balances on government instead of absolute restrictions. These checks and balances included, importantly, dividing jurisdiction over private property: authority over property and civil matters in each province was given to the provinces exclusively, while Parliament was given power over bankruptcy, trade and commerce, copyright, banking, land reserved for First Nations, and other important matters. In addition, the Constitution required that legislation be approved by a Senate whose members were appointed and were, at that time, all substantial property owners. Finally, the Constitution gave the executive branch of government (i.e., the Governor General) the power, now largely fallen into disuse, to disallow any Act of the provincial legislatures.

Example: The Validity of Recent Pore Space Legislation

In 2010, the government of Alberta amended the Mines and Mineral Act by adding the following section:

“the pore space below the surface of all land in Alberta is vested in and is the property of the Crown in right of Alberta and remains the property of the Crown in right of Alberta…”.

The effect of the legislation is to transfer to the government any private rights that existed in so called pore space. If the Act had been silent on the question of compensation, then under the common law principles described above, the right to compensation for the taking would have been implicit in the statute. However, the amendment goes on to expressly deny any compensation, as well as the right to bring action against the government for the taking. In a country where property rights are protected by the constitution, such as in the United States, the amendment would be unconstitutional. But under the principle of parliamentary sovereignty, and within the Canadian constitutional framework, this a valid exercise of government power.

Private Property and the Charter

The Canadian Charter of Rights and Freedoms does not directly protect property rights. The Charter was enacted as part of the Constitution Act, 1982, which affirmed the Constitution as the supreme law of Canada and provided that
any law that is inconsistent with the Constitution is of no force or effect. The Charter guarantees certain individual rights against intrusion by the state and gives the courts the power to provide a remedy to anyone whose Charter rights are
denied. For example, section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

If property rights had been included in the Charter, certain laws restricting or removing property rights would be unconstitutional, and the courts would have been able to strike them down. But property rights were deliberately excluded from the Charter (the reasons for this omission are subject to some debate that cannot be summarized adequately in this guide), and subsequent proposals to amend the Charter by adding protection for private property have not been successful.

The Charter does affect property rights in other ways: section 8 protects individuals from unreasonable search and seizure of their property; section 15 guarantees equality before the law and can be used, for example, to challenge land use regulations that discriminate based on religion, mental disability, or other protected categories; and section 26 affirms the
existence of pre-Charter common law and other rights that existed in Canada. In addition, section 35 of the Constitution Act, 1982 protects Aboriginal rights, including land rights, against state interference.

Canadian Bill of Rights

Canada enacted the Bill of Rights in 1960. Like the Charter, it recognizes various rights of the individual. Unlike the Charter, it protects a right to the “enjoyment of property, and the right not to be deprived thereof except by due process of law.” The Canadian Bill of Rights is not a constitutional document, however, but merely a federal statute that applies only to the federal government. Its purely procedural protections can be legally overridden by another Act of Parliament. Furthermore, the courts have held that the due process requirement is satisfied if a law is passed that authorizes the infringement.

Alberta Bill of Rights and Alberta Personal Property Bill of Rights

Enacted in 1972, the Alberta Bill of Rights enshrines “the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by the due process of law.” (The 1972 legislation is sometimes confused with the 1946 Alberta Bill of Rights, which had significantly different wording, but never came into force.) Like its federal counterpart, the Alberta Bill of Rights has a limited scope. It only applies to provincially enacted legislation, and can be overridden by the Legislature. The Alberta Personal Property Bill of Rights, enacted in 1999, is another statute that offers certain protections, but does not apply to interests in land.

Property Rights Under International Law

Canada has voluntarily accepted multiple international obligations to protect property rights against intrusion by the government. For example, Canada is a signatory to the 1948 Universal Declaration of Human Rights, which recognizes that “[e]veryone has the right to own property” and provides that “[n]o one shall be arbitrarily deprived of his property”. This obligation is generally accepted as binding in international law, but because it has not been implemented by legislation in Canada, it is not binding domestically. In addition, Canada has entered into Foreign Investment Protection Agreements (FIPAs) with many of its trade partners. Canada is, notably, signatory to the North American Free Trade Agreement (NAFTA) with Mexico and the United States. These trade and foreign investment protection agreements effectively restrict the ability of the parties’ governments to take the property of foreign investors, unless the taking is for a public purpose, on a nondiscriminatory basis, and in accordance with due process of law. They confer protections of property and compensation rights that are broader than those provided under Canadian law, but only to investors protected under each specific agreement.