By Janet Ajzenstat

"Protection of property is a basic right." So says the editorial in the National Post (Friday, February 25, 2011). So says John Locke in the Second Treatise of Government.

And so say I.

But should we entrench the protection in the Canadian Charter of Rights and Freedoms?  No! Entrenching rights curtails legislative debate, public deliberation, and the voters' sense of political efficacy.

The immediate occasion for the Post's editorial was the decision by Federal MP Scott Reid and Ontario MPP Randy Hillier to introduce resolutions for entrenchment in their respective legislatures. They cite instances in their ridings where governments have appropriated private lands in ways that are indeed to all appearances unjust.

The better way to correct particular injustices, I would argue, and the better way to secure property rights in general is to raise a ruckus about  particular cases in the legislatures, and in the public arena and the media. That's politics and our rights and freedoms depend on it.

Remember the attempt in the 1980s and 90s to entrench a Canadian Charter of Social and Economic Rights? It seemed obvious to many good-hearted Canadians that looking after our less privileged citizens was the right thing to do and that governments should be compelled to do it. See the section on the Social and Economic Union in the Charlottetown Constitutional Accord (1992). It reads in part: "The policy objectives set out in the provision on the social union should include but not be limited to: providing throughout Canada a health care system that is comprehensive, portable, publicly administered and accessible; [and] providing adequate social services and benefits to ensure that all individuals resident in Canada have reasonable access to housing, food and other basic necessities."

The Accord catalogued the pieties of the 1980s. I can't begin to describe the reach of its ambitions. It called for high quality primary and secondary education … protection of workers' rights, protection of the environment …

It would have entrenched equalization payments and First Minister's Meetings. "Parliament and the government of Canada are committed to making equalization payments so that provincial governments have sufficient levels of public services at reasonably comparable levels of taxation."

It was a bold play by one generation to set Canada's course for once and all. It would have made it almost impossible for Canadian legislatures to respond to changes in the mood of the country, new situations and new arguments.

It would have crippled our democracy. It failed, thank goodness, in the national referendum of 26 October 1992. (I can hear Ted Morton laughing. He knows I voted "yes" in the referendum. I voted with my heart, Ted. I couldn't bear to think of breaking up the old partnership between Upper and Lower Canada. I lost my head.)

To repeat: Constitutionalizing rights takes political issues out of legislatures and detracts from public debate. It demeans the citizens' sense of political efficacy. The better way to correct particular injustices is to keep hammering away at issues and abuses in the arena of public opinion and in the legislatures.

[From The Idea file]

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3 Comments, RSS

  • P.M. Jaworski

    says on:
    March 2, 2011 at 2:01 am

    This is not just an argument against putting property rights in the Charter, it's an argument against constitutions, period.

    Separately, the only thing that this would take off the political table is expropriation without compensation. It doesn't forbid the legislature from having a political tete-a-tete about whose house they should take, it would forbid them from taking it without paying the homeowner.

    And that, really, should be off the table.

  • James Bowden

    says on:
    March 10, 2011 at 11:22 pm

    I agree with Jaworksi. This argument sounds more like a refutation of any entrenched constitution or bill of rights rather than an argument against amending the Charter of Rights in order to include the right to enjoy property and to receive just compensation for the seizure thereof. Why do the entrenchment of the freedoms of speech and assembly not detract from public debate? Since Canada already established its written Charter of Rights in 1982, the debate can only realistically focus on broadening the rights within that document; parliament has already lost its sovereignty on rights discourse. The logical extension of Ajzenstat's piece would call for the elimination of the Charter of Rights altogether.

  • Karen Selick

    says on:
    September 11, 2011 at 6:13 pm

    This is a very illogical essay in two ways.

    1. It compares property rights (a negative right prohibiting the state from harming citizens) to some weird "Charter of Social and Economic Rights" which was a proposed collection of positive rights forcing the state to give people stuff. Certainly the latter would have been very harmful, but that's because it was a collection of positive rights. That says nothing whatsoever about whether entrenching a negative right is good or bad. The comparison fails utterly.

    2. It suggests that the "better way" of securing property rights is to discuss them in the legislature and the newspapers. But there's nothing that prevents people from discussing property rights in the legislature or the media merely because they are secured in the constitution. The two are not mutually exclusive.