Canada's Supreme Court Trashes Citizens' Property Rights

August 8, 2003 8:54 AM

Canada's Supreme Court Trashes Citizens' Property Rights.Canada's Supreme Court ruled: “Parliament has the right to expropriate property, even without compensation, if it has made its intention clear and, in s. 5.1(4), Parliament's expropriative intent is clear and unambiguous.” The Supreme Court ruling also stated: “Lastly, while substantive rights may stem from due process, the Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation.” M.P. Breitkreuz notes "They even ruled that the Bill of Rights ‘does not impose on Parliament the duty to provide a hearing before the enactment of legislation.’ So if the property rights guarantees in the Canadian Bill of Rights don’t protect an individual’s fundamental property rights, what good are they?"
posted by ZenMasterThis (54 comments total)

Fucking conservatives. I swear, I'm moving to Cana... oh, wait.
posted by RylandDotNet at 8:57 AM on August 8, 2003

Hell, y'all need to have a revolution or something. It worked out okay down here, mostly.
posted by alumshubby at 9:01 AM on August 8, 2003

can you say 'eminent domain'?
posted by quonsar at 9:04 AM on August 8, 2003

My MP just knocked on my door and took my fucking iPod! Mumbled something about national security, and grabbed the thing right out of my paws and scurried away, jitterbugging down the street. See if he gets my vote again.

...

Yawn. This really isn't news, nor is it alarming. See quonsar.
posted by stonerose at 9:08 AM on August 8, 2003

...the Bill of Rights ‘does not impose on Parliament the duty to provide a hearing before the enactment of legislation.'

Yawn. This really isn't news, nor is it alarming.

*tilt* [head explodes]
posted by ZenMasterThis at 9:11 AM on August 8, 2003

Took my fucking iPod, I say. And nobody did or said anything. Whole government just went on an expropriative rampage, for no reason, didn't pay anyone a dime, and nobody said boo. Business just kept on locating here as usual, apparently unconcerned at the fact that they could be Nasserized with no notice. Yep. Kleptocracy reigned.

...

See substantive rights may stem from due process, learn a little Canadian constitutional law, and chill.
posted by stonerose at 9:20 AM on August 8, 2003

Thank you quonsar, you took the words out of my mouth! This is nothing new, nor is it something that doesn't exist down in the Great Green South either!
posted by Pollomacho at 9:21 AM on August 8, 2003

Here's the actual court decision, for those who prefer not to get their news from the Opposition's press releases.
posted by Johnny Assay at 9:25 AM on August 8, 2003

ZenMasterThis, I'm sorry to be flip, but here's the deal. This Breitkreuz is a member of the very conservative Canadian Alliance party. He's trying to stir shit among his largely uneducated constituents by making them think the government is coming to seize their goodies. There's a reason you didn't find this story plastered on the front page of the Globe and Mail and other major Canadian news outlets. It's not that we're out killing seals, or that our brains have frozen over, leaving us incapable of protest. It's that it isn't news.
posted by stonerose at 9:28 AM on August 8, 2003

can you say 'eminent domain'?

Takings under eminent domain have to be paid for, unlike the assertion here.

Which seems to be in fact a pretty damn bogus assertion, since it's not talking about taking people's houses away. It's talking about not being able to sue the State for interest on money it was holding for you back when they didn't give interest on such things.
posted by ROU_Xenophobe at 9:35 AM on August 8, 2003

So I was out seal hunting yesterday, and I had this one sucker lined up a-ready for clubbin', when this Mountie jumps out from the pack ice, rips open my parka, and grabs my fuckin' iPod. Just grabbed it and ran, I say.

Eh, I guess it's okay. Who needs property rights when ya got yer health care, eh?
posted by DrJohnEvans at 9:44 AM on August 8, 2003

So if the property rights guarantees in the American Bill of Rights are all that's left after Ashcroft are through with the rest, what good are they?
posted by Space Coyote at 9:45 AM on August 8, 2003

can you say 'eminent domain'?

Takings under eminent domain have to be paid for, unlike the assertion here.

Under the US Constitution, you mean. A country more or less by definition can expropriate land within its borders. Moreover, you only get what rights you protect in law, and even then you only really get the rights that your leaders are willing to protect/enforce.
posted by norm at 10:01 AM on August 8, 2003

Why do you believe Ashcroft would spare property rights?
posted by ZenMasterThis at 10:01 AM on August 8, 2003

DrJohnEvans, I know this guy, right? And Jean Chretien personally took his fucking iPod:


posted by stonerose at 10:09 AM on August 8, 2003

...you only get what rights you protect in law, and even then you only really get the rights that your leaders are willing to protect/enforce.

Well said, norm.
posted by ZenMasterThis at 10:28 AM on August 8, 2003

Takings under eminent domain have to be paid for, unlike the assertion here.

The whole "paid for" is misleading. The gov't tends to condemn the property first, then buy it at a pittance.
posted by Cerebus at 10:57 AM on August 8, 2003

Well, I was going to be all up in arms and point out that property rights are in fact derived from the government (who "expropriated" all the real estate from First Peoples* pretty much without compensation in the first place), but then I read the actual ruling.

Thank you Johnny Assay. It's misleading to suggest that property was expropriated when it seems to never have been possessed.


*For those of you in the USA who live too far from our Northern neighbors to watch CBC, "First Peoples" is Canadian for "Native Americans."
posted by ilsa at 11:41 AM on August 8, 2003

Eminent domain isn't the only US corollary... for eminent domain, yes, there has to be some remuneration (see cerebus, above). But this sounds more like what property-rights folks down here call "unfunded mandates" or a "taking"... the big push now among the US groups on that bandwagon is to say that any time the government refuses to let you do something with your property (pollute it, for example), that the government is, in essence, taking your property from you.

Anyway, this ruling sounds like it was worded broadly enough to head-off such a similar assault on common sense in Canada.
posted by silusGROK at 11:44 AM on August 8, 2003

Yeah, those Canadians are so unAmerican. We respect private property and would never use the government to acquire it. Hardworking Republicans in particular...

1990

The property acquired so cheaply by the Rangers includes not just a fancy new stadium with a seating capacity of 49,000 but an additional 270 acres of newly valuable land. Legislation is passed and signed that authorizes the Arlington Sports Facilities Development Authority with power to issue bonds and exercise eminent domain over any obstinate landowners. Never before had a Texas municipal authority been given the license to seize the property of a private citizen for the benefit of other private citizens. A recalcitrant Arlington family refuses to sell a 13 acre parcel near the stadium site for half its appraised value. The jury awards more than $4 million to the family.

1993

With the new Ranger stadium being readied to open the following spring, George W. Bush announces that he would be running for governor. He is says his campaign theme will be self-reliance and personal responsibility rather than dependence on government.
posted by George_Spiggott at 11:57 AM on August 8, 2003

I really should attribute that properly.
posted by George_Spiggott at 12:02 PM on August 8, 2003

... more like what property-rights folks down here call "unfunded mandates" or a "taking"

Actually it's what's referred to as the "takings clause" in US Constitutional case law...

Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

See also Michigan University Summary of Property Takings Case Law
posted by ZenMasterThis at 12:26 PM on August 8, 2003

Damn. That's Michigan State University...
posted by ZenMasterThis at 12:27 PM on August 8, 2003

I guess just compensation includes that smart bomb that was dropped on Iraq in my name paid for by the tax dollars that were taken from me for public use?
posted by Pollomacho at 12:33 PM on August 8, 2003

I'm not sure what this thread is about, but I'd be pretty pissed if a Mountie took my fucking iPod.

Especially since I don't even live in Canada.
posted by cinderful at 1:59 PM on August 8, 2003

stonerose, thanks for that picture of our Prime Minister's fabled moment of glory:

Arthur: SHUT UP! WILL YOU SHUT UP! [Grabs Dennis]

Dennis: Ah! Now we see the violence inherent in the system!

Arthur: SHUT UP!

Dennis: Oh, come and see the violence inherent in the system! Help! Help! I'm being repressed!

Arthur: (muttering) Bloody peasant!

Dennis: Oh, what a giveaway! Did you hear that? Did you hear that, eh? That's what I'm on about! Did you see him repressin' me? You saw it, didn't you?

Personally, I'm more interested in human rights than property rights....
posted by jokeefe at 2:05 PM on August 8, 2003

Personally, I'm more interested in human rights than property rights....

Do you really believe it's possible to have one without the other?
posted by ZenMasterThis at 2:09 PM on August 8, 2003

Personally, I'm more interested in human rights than property rights....

Do you really believe it's possible to have one without the other?

Sure, why not. But then I'm a godless communist. No, really.
posted by jokeefe at 2:14 PM on August 8, 2003

They took your iPod? Dude, that's harsh.
posted by RylandDotNet at 2:37 PM on August 8, 2003

Look again, there aren't any property rights in the Canadian Constitution, or in the preface that makes up the bill of rights.

The reason? PEI. Prince Edward Island. It's a long story, but that's what happens when you have a provice so small that one person could easily own the whole thing if they were only moderatly rich.
posted by tiamat at 2:48 PM on August 8, 2003

jokeefe: All rights are property rights. Can you concieve and explain an alternate concept of rights?
posted by Snyder at 3:17 PM on August 8, 2003

ok, that really sounded dogmatic. let me rephrase: I believe all rights are property rights, and have diffiuclty concieving them in any other way. Do you have an alternate conception of rights?
posted by Snyder at 3:31 PM on August 8, 2003

jokeefe: All rights are property rights. Can you concieve and explain an alternate concept of rights?

Actually, I'd rather hear more about the conception of all rights being property rights--I assume you mean the right of control over one's own body (in a larger sense than Roe vs. Wade), i.e. freedom of movement, freedom from incarceration, freedom from harm? The insistence on property rights is a very American thing, and I'm happy to learn more about it, if you'd care to explain how human rights can be viewed as property.
posted by jokeefe at 3:31 PM on August 8, 2003

They can have my ipod when they pry it from my cold, dead hands.

But first I'll need to buy an ipod.
posted by Salmonberry at 3:32 PM on August 8, 2003

All rights are property rights. Can you concieve and explain an alternate concept of rights?

In argumentative terms it's the burden of the person making the assertion to substantiate it. Is the right to vote a property right? Free speech? The right to go about my lawful activities such as walking down the street unmolested by authority? It seems like you'd really have to do some stretching to call these property rights -- you might be able to do it with some tortuous logic, but "human rights" fits without any pounding.
posted by George_Spiggott at 3:33 PM on August 8, 2003

So I was tea-bagging this Mountie, when a 23-foot-long leopard seal broke through the ice below us and took my fucking iPod from my cold, dead hands!
posted by nicwolff at 3:41 PM on August 8, 2003

So I was tea-bagging this Mountie, when a 23-foot-long leopard seal broke through the ice below us and took my fucking iPod from my cold, dead hands!

Not to mention the incredible Now you see it now you don't gay octopus.

There, I think that nicely summarizes the day's threads. :)
posted by jokeefe at 3:59 PM on August 8, 2003

Tea-bagging a Mountie. . .

Wow . . . I just . . . hmmm . . . Tha't just plain harsh.
posted by Fezboy! at 4:00 PM on August 8, 2003

**Retraction**

I hadn't read the Michael Johnson thread. It all makes perfect sense now.
posted by Fezboy! at 4:19 PM on August 8, 2003

Well, human rights is a vague concept. What, exactly, constitutes a human right? I think human rights are partially self-evident, and partially not, so that's why they should be defined. It's all fine and good to advocate for human rights based on their self-evidentness, but I think someone who cares about such things should at least make an attempt to fit "human rights" in a conceptual framework beyond "things I like." (To clarify: when I say human rights, I mean rights that are innate, not legal rights. I don't think that there is any other way to conceptualize them.)

For my own part, I've tried to eschew an explicit moral or religious based explanation for rights, and the best one that I can come up with is property rights. I'll try not to get too long winded, so some of my reasoning might be truncated, but try to bear with me. :)

Basically, what are my rights? Let's start broadly: Anything I can do. Why? Because I'm the one who is ultimate control over myself. I am the final sovereign, as it were, of my person and mind, and ultimately cannot be compelled to do anything, short of dying. (In the sense, no one can be made to do something, as if they were a puppet. They can be persuaded, or threatened, or tortured, but ultimately, no one has direct control over another they same way I have direct control over this computer, or a pen, or an automobile. None of those, outside of some kind of mechanical failure, can decide not to do something I tell it to do.) Since I'm not looking for a religious explanation (ie, God ordained free will,) or a moral one (it's the right thing to do,) the best conception I can fit this concept in is one of ownership. Essentially, I have total and sole title over my body and mind, total and nontransferable ownership.

Therefore, anything that violates my ability to do that violates my rights. But since I'm trying to conceptualize human rights, not Snyder rights, we must apply the same standard to others. So, everyone can do whatever they want, right? But what if someone wants to prevent me from exercising one of my rights? Or vice versa? Well, if we lived in the good 'ol state of nature, then whoever is the stronger or trickier or whatever wins the match, as it were. But since we are talking about rights, (not ability,) which presupposes some kind of civilization, then clearly we need a more definitive, non-violent, and fairer approach. We have to conceptualize what ownership means. That means not only defining responsibilities (since we already defined more general rights, and admitted there are limitations of some kind,) which generally means, not damaging the ability of another to exercise their rights.

This is pretty vague. We acknowledge that no one can compel you to do anything but die, but we also realize that people are not superhuman, that they do not have 100% control of themselves at all times, and extreme pressure, both physical and psychological can 'break' them. Therefore, we realize that death is not the only way to 'make' a person do something. (While we still acknowledge, philosophically, that no one can ultimately be compelled to do something they don't want to do, they can be made to believe, truly or otherwise, that to not do what they are being compelled to do would result in a worst outcome, either for themselves or others. I think this is the best way to explain it.)

I just realized I'm getting a bit away from my topic, and was about to get into an explanation of my views on what is a violation of rights, and then the additional filter of living in a society, and what restrictions one voluntary accepts to live in one in exchange for various legal rights, (different from human/property rights, in that they are not innate, as it were,) and conditions when one's rights may be totally violated in a societally accepted, and in my mind accepted way. (For example, criminals, who's rights are abridged at least temporarily, the dangerously insane, those with mental deficiencies.) I realize that would be a bit to far off, even from where I was beginning. If someone is interested for some gawdawful reason, let me know via email.

Anyway, what it comes down to is that I exercise my right to speech, I am exercising my title to my self, when I take medicine, when I eat, when I move about wishing to be unmolested, when I am not incarcerated, and if I am, that right to try and free myself. I wish to clarify that any time anyone has something like this happen to them, it is a violation of their human rights. Murderers being jailed violates the murderers rights, because I feel that there is no other way to look at it. If the rights are innate, they cannot be waived by anybody. (IIRC, Locke even said that anyone who tries to waive their own rights is obviously insane, such as someone attempting suicide.)

However, I also believe that sometimes, for the greater good of both individuals and society, people's rights must be violated by the state to insure the rights of others and maintain peace and the polity. In practice, we should endeavor that only those who are threat to other's rights are locked up, but this is the danger/advantage of living in a society.

How this relates to property rights in the general sense, (ie property such as land or possessions,) is basically a weak extension of my entitlement over my body to things outside of it. Of course, this is not all encompassing, as it is with ourselves, but has many similar advantages and disadvantages with the "self only" type of property right. It also carries with it it's own unique disadvantages and advantages. I propose that even a society that did not recognize privately held goods or land could still have a property right concept of human rights.

I hope this is at least partially clear. Human rights=property rights is not really intuitive, (it wasn't to me, and took me awhile and some reading to figure it out, and then agree with the conception,) but I hope it made my point clearer. Sorry for the length and digression.
posted by Snyder at 5:34 PM on August 8, 2003

I also apologize for the pedantic nature of my writing.
posted by Snyder at 5:34 PM on August 8, 2003

I dunno, Snyder. I question the premise that property rights is somehow an extra-moral foundation for human rights. And assuming we're going for a foundation that has the broadest possible degree of acceptance, this seems to have a whopping degree of Western bias. Look at the universal declaration of human rights, for example - it's the closest we've come to a culturally transcendent code of conduct, and it focuses on the dignity of the person. So, I'm not sure what the focus on property gains us.
posted by stonerose at 7:03 PM on August 8, 2003

Essentially, I have total and sole title over my body and mind, total and nontransferable ownership.

Ah, that's what I thought you would argue (see comment above). But this supposes the primacy of a certain type of individualism; by your reasoning, anything which compels a person to do something they would rather not is a violation of that individualism. I actually see nothing wrong with a moral definition of human rights (not a religious one, but a moral one: there's a difference). Otherwise, even granted that we as individuals are sovereign over our persons, using the idea that we are our own property, to dispose of as we see fit, is too clumsy to use, too reductive. I have human rights because I am a human being, not because I own myself, and I don't need my humanity translated into an ownable commodity in order to possess those innate rights. And besides, the idea that we do belong to ourselves isn't entirely true either: I at least partly belong to my son and family through my social and moral obligations to them.
posted by jokeefe at 7:22 PM on August 8, 2003

A: Personally, I'm more interested in human rights than property rights....

B: Do you really believe it's possible to have one without the other?

A: Sure, why not. But then I'm a godless communist. No, really.

The history of communism in the 20th century would seem to pretty much confirm that you can't have one without the other. I'm not sure I buy Snyder's arguments, but it's clear to me that, however you justify it, property rights are human rights, and a nation that does not respect one's property is likely not to respect one's person either.
posted by Slithy_Tove at 8:46 PM on August 8, 2003

And the history of Socialism (as opposed to the divinely imbued Capitalist tradition) is the final word on the possibilities of human nature?

I hardly think so. For most of human prehistory (many anthropologists would argue) humans have tended to live in cultures which would have been aghast over our current, 'modern' sense that property rights (the ownership of objects which is viewed as inviolable and sacred, that is) overshadow collective human needs.

The equation of property rights with human rights would have, in fact, puzzled many of our forebears, and led them to shake their heads in bewilderment - for objects held as inviolable property exist outside the realm of interdependence. Sacred property is bounded by magical walls around it which reach to the sky and beyond, yes, but those walls exclude much of the human spirit as well.

"I own what I own, and the world be damned" is the new formulation, the mantra of sacred property - but it is one which would have appalled much of that preindustrial humanity which was highly sensitized to the larger economy of being.

In modern human history, the human appreciation of social good has shriveled in almost direct proportion to the average rise in material. wellbeing.

Shame on us.
posted by troutfishing at 9:29 PM on August 8, 2003

A: Sure, why not. But then I'm a godless communist. No, really.

The history of communism in the 20th century would seem to pretty much confirm that you can't have one without the other.

Well, I was just kind of twitting ZenMasterThis about being a communist, a reaction that tends to come over me whenever I experience people talking about modern conceptions of property ownership as if they are these unassailable laws of society, nature, whatever, and a fundamental requirement for status as a member of said society.

So yeah, what troutfishing said.
posted by jokeefe at 1:46 AM on August 9, 2003

'Property rights are a superstition. One holds property only by the courtesy of those who do not seize it.'
- Ayn Rand -
posted by LowDog at 5:27 AM on August 9, 2003

LowDog, Ayn Rand did not say that, any more than Shakespeare said "Let's kill all the lawyers," or Robert Frost said, "Good fences make good neighbors." Characters those authors created said those things. In the case of Rand, that line was uttered by one of her villains, a nasty little fascist type. It assuredly does not represent Rand's view. It represents the opposite.

Troutfishing is right, primitive societies often have a minimal conception of private property. It's clear that societies are unable to advance beyond the hunter/gatherer stage without developing a concept of property rights, and the culture acknowledging those rights and respecting them.
posted by Slithy_Tove at 7:13 AM on August 9, 2003

Humans can't be owned.

That means that not only can no one "own" you, you don't really "own" yourself.

Also, if you own yourself, should you be able to sell yourself?

I find that the focus on self-ownership is usually a setup for a long diatribe on the vitures of libertarianism...
posted by bshort at 8:22 AM on August 9, 2003

'Property rights are a superstition. One holds property only by the courtesy of those who do not seize it.'
- Ayn Rand -

Resorting to quoting Ayn Rand in a discussion: -50 points
Quoting her incorrectly: -100 points
posted by jokeefe at 9:05 AM on August 9, 2003

Humans can't be owned. That means that not only can no one "own" you, you don't really "own" yourself.

On the contrary. It is precisely because you own yourself that no one else can own you.
posted by kindall at 9:14 AM on August 9, 2003

It is precisely because you own yourself that no one else can own you.

But what does that mean, operationally? We're 'owned' in lots of ways, in so far as our freedom is restricted. We need to work. We need to pay taxes. We need to obey laws. We may need to perform military service. What does self-ownership really mean, if we owe all of these obligations?
posted by stonerose at 9:29 AM on August 9, 2003

The problem with the question of "do you own yourself?" is that it presupposes that humans can be owned. Which is begging the question.

So if the restriction of my rights means that the restricting body owns me, does that mean that my credit card company "owns" me? No, of course not. I have a legal obligation (under contract law) to pay them back money that I've borrowed from them, but they can't come grab me and throw me in the salt mines if I refuse to honor my obligation. In fact, the worst that can happen is that they could seek to gain control of property that I "own" and then use that as compensation for the money that I owe.

If a person was really property, then why wouldn't they be allowed to take a kidney for the $3000 that I have outstanding? Or maybe a finger?

So when you say that "no one owns you, because you own yourself", what does that really mean? Couldn't one say that no one owns you because you can't be owned?

Assuming, for a moment, that you own yourself, could you legally sell yourself to someone else (i.e. indentured servitude)? Not under US law.

So then if you can't sell yourself, do you really have property rights to yourself? It sure doesn't sound like it. Which would seem to imply that the government owns you, because they won't let you be bought and sold.

As a side note, its illegal to buy organs from live donors. So not only do your not really own your whole body, you don't even own parts of your body...

Of course I'm just arguing with myself now, but if I've made some sort of huge error, please tell me, because I've often been confused as to why people find this line of reason so appealing.
posted by bshort at 11:35 AM on August 9, 2003

Lastly, while substantive rights may stem from due process, the Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation

I didn't know we were allowed to criticize Canada. Oh well, I guess I'm not moving there now.
posted by Bag Man at 1:18 PM on August 9, 2003