In Canada, property rights are provincial jurisdiction, except when they’re not. There is some federal overlap and overreach, and it’s the overreach Cheryl Gallant addresses in her Private Member’s Bill C-222, introduced to Parliament on February 17, 2020.

To understand how intertwined these issues are, it’s necessary to briefly delve into the history of property rights and the legislative changes and court decisions impacting them.

The Charter of Rights and Freedoms protects individuals and their property from state intrusion in a very limited scope [see Section 8’s search and seizure protections].

Our 1960 Bill of Rights protects the “enjoyment of property, and the right not to be deprived thereof except by due process of law.”

This is not a constitutional protection, but a federal statute that applies only to the federal government. It can be overridden by another Act of Parliament, as the Department of Veterans Affairs Act, s. 5.1(4) does with respect to interest on veterans’ pensions.

The Supreme Court, in Authorson v. Canada (Attorney General), ruled the government had no fiduciary duty to pay interest to veterans prior to 1990 because the government specifically used “clear and unambiguous language” to limit its obligations to disabled veterans.

The governmental expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear and unambiguous language to do so.

The Department of Veterans Affairs Act, s. 5.1(4) takes a property claim from a vulnerable group, in disregard of the Crown’s fiduciary duty to disabled veterans.  However, that taking is within the power of Parliament.

To make matters worse, government expropriation of land without the owner’s consent is not subject to the Charter of Rights and Freedoms, it’s governed by the Expropriation Act – which defines the steps the federal government must take before it can confiscate property.

This is where it gets messy.

Provinces generally abide by the common law requirements of compensation for expropriation. The federal government, however, is far less interested in compensating individuals for their losses than it is in seeking ways to take what it wants and levying fines on Canadians in the process.

Two examples are the Fisheries Act and the Species At Risk Act, as this August 2019 excerpt from a Department of Fisheries and Oceans policy statement explains.

The Fisheries Act and the Species at Risk Act provide a legal basis for conserving and protecting fish and fish habitat. The fish and fish habitat protection provisions of the Fisheries Act provide a holistic approach to conserving and protecting fish and fish habitat, supported by policies and programs that provide for the long-term sustainability of freshwater and marine resources.

The fish and fish habitat protection provisions of the Fisheries Act include:

• • a prohibition against causing the death of fish, by means other than fishing (section 34.4)

  • a prohibition against causing the harmful alteration, disruption or destruction of fish habitat (section 35)

  • a framework of considerations to guide the Minister’s decision-making functions (section 34.1)

  • ministerial powers to ensure the free passage of fish or the protection of fish or fish habitat with respect to existing obstructions (section 34.3)

It’s the extremely broad interpretation of this “prohibition against causing the harmful alteration, disruption or destruction of fish habitat” that causes land owners so much trouble.

The act of clearing a blocked culvert on your own land is one example of “disruption” deemed an offence by government officials.

Section 58 of the Species at Risk Act defines similar restrictions.

 

How Bill C-222 Resolves These Problems

That’s a lengthy bit of backstory, I know, but it’s all necessary to understand the Expropriations Act and Cheryl Gallant’s proposed amendment of it through Bill C-222.

The language of the Expropriation Act is not “clear and unambiguous” as the Supreme Court required in Authorson v. Canada, which opens the door for a wide range of property rights abuses.

These are the abuses Cheryl Gallant, Member of Parliament for Renfrew-Nipissing-Pembroke, seeks to remedy with Bill C-222.

Bill C-222 would add two exceptions to the Expropriation Act to clarify the conditions under which the government can expropriate property.

“There has been a disturbing trend in Canada towards what is referred to as regulatory, de facto or constructive taking of private property. This happens when Government uses its statutory powers to regulate or restrict the property rights of an owner, without acquiring title to the land being adversely affected. The landowner feels the impact of the regulation as if the land has been expropriated,” said Cheryl Gallant, M.P.

The first change is to the Exceptions section, under “Factors not to be taken into account.”

Bill C-222 would restrict the “special circumstances” government can invoke to seize a person’s property and avoid the requirements to give proper notice, hold public meetings and provide compensation.

Special circumstances cannot be the restoration of natural habitat caused by a natural event – whether attributed to climate change or not. These are not circumstances requiring the government to “urgently” abdicate its responsibility to citizens. They are ongoing natural occurrences.

The second exemption would address property the government deems is “urgently required.”

This is the more concerning portion of the Expropriation Act because it allows the government to seize your property immediately – when you have not been compensated or even when no compensation is offered.

It defies logic that we must change the way government expropriates property from us in order to protect our property rights.

“It doesn’t have to make sense. It’s government policy.”

Is Bill C-222 the perfect solution to the issue of property rights in Canada? No, but it’s one important piece of the puzzle that guarantees the rights of Canadians are respected by all levels of government.

 

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Please watch Cheryl Gallant’s video, below, for her brief overview as she introduced Bill C-222 into the House of Commons, the write or phone your Member of Parliament and ask them to support Private Member’s Bill C-222 when it comes up for a vote.

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