PROPERTY RIGHTS IN ONTARIO

Scott Reid, Conservative MP for Lanark-Frontenac-Lennex and Addington.

I have long been a believer in the importance of entrenching property as a Charter right. That’s why I was happy to conduct a short interview with Mr. Reid this past week on the details of his resolution, and the intended consequences of his legislative efforts.

Canadians with a knowledge of constitutionalism in our country may be surprised to learn that this resolution is even being attempted. Previous efforts at constitutional change have produced divisive results in a nation which seems unable to come to an accord on its own constitution.

Mr. Reid and Mr. Hillier however hope to use a less famous avenue to effect constitutional change: Section 43.

“Unlike the American constitution which has one amending formula,” said Mr. Reid, “Canada has five separate amending formulas… the relevant one (in this case) is Section 43.”

“Section 43 is the process that is used for amending the constitution in so far as it applies to one province… in practice, what you are really doing is amending the constitution of the province (in question).”

Essentially, alterations to the Charter can be made when the legislatures of both a particular province and the federal government concur to that change. The amendment then only effects the particular province in which it was initiated: in this case, Ontario.

Through Mr. Hillier’s motion in the Ontario Legislative Assembly, and Mr. Reid’s mirroring motion in the House of Commons, Ontarians could be the first Canadians endowed with Charter protections for private property.

What, precisely, would this constitutional amendment entail?

The wording of the motion is as follows:

That, in the opinion of this House, the Canadian Charter of Rights and Freedoms should be amended to enshrine property rights for Ontarians, as follows:–

1. The following section is inserted after section 7:

7.1 (1) In Ontario, everyone has the right not to be deprived, by any Act of the Legislative Assembly or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

(2) Subsection (1) refers to any Act of the Legislative Assembly made before or after the coming into force of this section.

2. This Amendment may be cited as the Constitution Amendment, 2011 (No Expropriation in Ontario without Compensation), and reference to the Constitution Act, 1867 to 1982 shall be deemed to include a reference to the Constitution Amendment, 2011 (No Expropriation in Ontario without Compensation).

Legalism aside, I asked Mr. Reid what exactly the consequences of property rights protections would be.

“It is purely to protect landowners from losing part or sometimes all of the value of their land. If the government wants to take title from your land, they are required to offer full compensation.”

“One example relevant for farmers: let’s say in order to protect the province’s water and keep the quality pure, we can’t have nutrient waste running into water courses. You used to run your land right up to the end of a stream, but now you must keep the cattle coming from X metres around the stream. That’s a legitimate objective. But the fence isn’t free, and he (the farmer) now can’t use that land. You suffer two losses, and depending on the shape of the water course… some people have lost a quarter of their land.”

Property rights protections are especially important for Ontario’s farmers. Land ownership in rural areas goes beyond simply the control of property: land is directly tied to household income. Losing grazing area for cattle can significantly hamper the ability of a farming family to put food on the table. Through these resolutions, the Government of Ontario will now be required to offer compensation for that loss of income resulting from new land regulations and expropriations.

I asked Mr. Reid whether or not he intended to see property protections spread to other provinces.

“The short answer is yes. There is a saying from the USA: the states are a laboratory for democracy. Hopefully it will be copied everywhere.”

At the provincial level, the proposed amendment is in for a fight. “Because these are amendments that relate to Ontario… once it is passed in the (Ontario) Legislature, historically Parliament respects the decision,” said Mr. Reid.

“The real fight is in Queen’s Park. The Liberals are against this… a Liberal MPP stood up on the day of the announcement and criticised it. He worried about patent law, but this law clearly deals with real estate. They did a knee jerk reaction because it came from the opposition.”

Despite the battle shaping up in Toronto, feedback has been more positive in the halls of Ottawa.

“(I’ve gotten) good feedback from the colleagues I’ve spoken to in the House. I’ve tended to speak to rural MPs… (this amendment) is vital to their interests.”

Many Canadians would be surprised to learn that constitutional law already uses some aspect of property rights. Achieving Royal Assent on August 10th, 1960, Progressive Conservative Prime Minister John Diefenbaker’s Bill of Rights featured property rights in Section 1(a): “enjoyment of property, and the right not to be deprived thereof except by due process of law.” The Supreme Court has in the past been willing to use the precedent of the Bill of Rights in its rulings. I asked Mr. Reid then why he felt a Charter protection was necessary.

“The Bill of Rights is a federal law, quasi-constitutional,” said Mr. Reid, “… The Bill of Rights has no effect on the province of Ontario or on the actions of municipalities, who are frequently the worst abusers of property rights.”

It is only fair that the government compensate those who suffer a loss of land due to their government’s own regulations. Expropriations are the worst abuses of these powers. How fair is it for the government to sweep in and claim your property, without at least paying you fairly for it? I applaud Mr. Reid and Mr. Hillier for their work to empower landowners everywhere. The most important part of these changes is to protect those rural landowners who rely so deeply on land for their livelihoods. No farmer should be deprived of the ability to provide for their families because their government determined the “public good” overrode their ownership. When the necessity of the public good takes hold, landowners at least deserve a just compensation for their losses.

Very soon Ontario will have property rights. Hopefully one day all Canadians will have them too.

The preceding column is syndicated from the National Citizen’s Coalition.