You then would be very impressed with David Eby. I actually get it, however for a "civil libertarian" you seem to defend the police state infrastrutcutre a lot of the time.
Property Rights - resurrection of an old topic
Thu, 2011-01-27 12:16
#52
Thu, 2011-01-27 13:04
#53
Boom Boom
Lots of overlap for sure. Libertarians are more of a cult than anything. They believe in invisible hand worship and other black magic.
You're probably thinking of "Right Libertarians" (eg: the Libertarian Party). Civil Libertarians aren't the same thing at all. There's a lot of overlap between Civil Libertarians and the Left (belief in free speech, support for an individual's right to smoke pot, gay rights, and so on).
There's a lot of unfortunate confusion, with the result being (among other things) some kind of curious belief that I don't believe in any kind of taxes, or that I'm a minarchist or whatever.
WRT to the thread topic, do Libertarians have a stated position on property rights?
(I have no knowledge whatsoever of Libertarianism)
Thu, 2011-01-27 13:11
#54
Snert
As I understand it, there's a pretty big split with regard to property rights, particularly as they involve resources. Some believe in them, some are very much against them. Those for = "right Libertarians", those against = "left Libertarians".
Note that technically, Anarchism is a subflavour of Libertarianism.
Thu, 2011-01-27 13:15
#55
@Boom Boom: I think all Libertarians are in favour of individual rights, which almost all take to include property rights. Also, in my experience, they're in favour of free speech, looser drug laws, and gay rights. As Snert points out, there's some variance on taxes and minarchy.
Three books that explain / defend libertarian positions are:
1) Anarchy, State, and Utopia, by Robert Nozick
2) Respecting Persons in Theory and in Practice, by Jan Narveson
3) The Libertarian Idea, also by Jan Narveson
ETA: Oops, cross-posted with Snert.
Thu, 2011-01-27 14:29
#56
Note that technically, Anarchism is a subflavour of Libertarianism.
ROFLMAO
Thu, 2011-01-27 14:50
#57
Boom Boom
Okay, will someone with a knowledge of Libertarianisn kindly open a new thread on the subject, and keep this one on the topic of Property Rights? Thanks muchly. 
Fri, 2011-01-28 00:16
#58
@ post 18
Yes property right are more to do with dividing humans into classes. It can be the Capitalist structure with tehindividual ownership or it could be a Government much like what they had in Russia and have in Cuba.
Ultimately ownership should be by all equally with everyone deciding democraticly how the property should be used.
Fri, 2011-01-28 08:30
#59
@ post 18
Yes property right are more to do with dividing humans into classes. It can be the Capitalist structure with tehindividual ownership or it could be a Government much like what they had in Russia and have in Cuba.
Ultimately ownership should be by all equally with everyone deciding democraticly how the property should be used.
I can understand democratic control of Big Things (however they're defined), but presumably you'd carve out some personal property from democratic decisions? If I want to replace my toothbrush, presumably that's not an issue that anyone else needs to vote on.
Fri, 2011-01-28 10:03
#60
Snert
ROFLMAO
[url=http://en.wikipedia.org/wiki/Libertarianism]Libertarian schools of thought[/url] may vary significantly in their details. One significant variable between the various strains is the degree to which the state should be reduced, with minarchists advocating reduction to just state protection from aggression, theft, breach of contract, and fraud, and anarchists advocating complete elimination of the state
I guess when you want to get rid of the State, you take your bedfellows where you can get them.
Fri, 2011-01-28 12:06
#61
Here is a scenario I would like some opinions on, which happened to my family.(fyi, it was when I was in grade 10, so I didn't have any input/control over the situation).
The provincial government decided they wanted to build a highway extension. 60% of the required land was owned by my grandmother, father and two uncles as part of our family farm. My family told the government they did not want to sell. The government basically told us to take what they were offering (below market value) or they would expropriate and we get WAY below market value. Those were the only opinions, with no legal recourse to their understanding.
So....how does someone protect themselves in this situation?
Fri, 2011-01-28 12:30
#62
ROFLMAO[url=http://en.wikipedia.org/wiki/Libertarianism]Libertarian schools of thought[/url] may vary significantly in their details. One significant variable between the various strains is the degree to which the state should be reduced, with minarchists advocating reduction to just state protection from aggression, theft, breach of contract, and fraud, and anarchists advocating complete elimination of the stateI guess when you want to get rid of the State, you take your bedfellows where you can get them.
Snert I much prefer to take my ideas on anarchism and its place in the socialist movement from someone like George Woodcock, not American drool from Wikipedia. Libertarianism is an american term that is really only applicable to their political milieu. IMO All the politics there have to revolve around the american dream of self reliance and making a personal fortune. I suggest you read "The Anarchist Reader" to gain an understanding of the history of the movement you think is a subset of some american meme.
Anarchism, which was first published in 1962, has been criticised, rightly, for it's emphasis on anarchism as a movement of the past. Reflecting on the period in which he had lived, Woodcock saw the passing of anarchism as a mass working class force as an irreversible feature of modern political life. His later contributions impressed anarchism's relevance on areas such as ecology and feminism.
The Anarchist Reader, in contrast, is a book which will stand the test of time. Emphasising the theory and practice of anarchism, it draws on an array of people associated with anarchism over the years, giving a comprehensive and accessible introduction to the breadth and relevance of anarchist ideas. Noting the revival of interest in anarchism since the 1960s, Woodcock wrote in his introduction "Anarchism, in summary, is a phoenix in an awakening desert, an idea that has revived for the only reason ideas revive - that they respond to some need felt deeply by people". George Woodcock died on January 28th, 1995 aged eighty two.
http://flag.blackened.net/revolt/ws95/woodcock45.html
Proudhun is a noted anarchist thinker that is known for the slogan Property is Theft. His book of course is far deeper than the six words that he is remembered for.
This year marks the 170th anniversary of Pierre-Joseph Proudhon's classic work "What is Property?" Within its pages two short expressions, a mere seven words, transformed socialist politics forever. One, only four words long, put a name to a tendency within the working class movement: “I am an Anarchist.” The other, only three words long, presented a critique and a protest against inequality which still rings: “Property is Theft!”
Fri, 2011-01-28 12:34
#63
Boom Boom
@ Ghislaine: Were they told well in advance that the highway was going through, and they had a chance to do some planning for relocation - or did they refuse to consider any alternatives? In my memory, highway planning is done years, sometimes decades ahead of actual shovels hitting the ground.
Fri, 2011-01-28 12:56
#64
Here is a scenario I would like some opinions on, which happened to my family.(fyi, it was when I was in grade 10, so I didn't have any input/control over the situation).
The provincial government decided they wanted to build a highway extension. 60% of the required land was owned by my grandmother, father and two uncles as part of our family farm. My family told the government they did not want to sell. The government basically told us to take what they were offering (below market value) or they would expropriate and we get WAY below market value. Those were the only opinions, with no legal recourse to their understanding.
So....how does someone protect themselves in this situation?
The question is always what is fair market value. Provincial governments need the right to build improved transportation corridors for the good of the whole population. Fair to me means being able to buy a comparable piece of property and replace buildings in the same market area. The government has immense powers and if they are bullies they can use that power to force a sale on their terms.
The law in BC is laid out here and includes the principle of restoring a person to the place they would have been but for the expropriation. Of course if the government offers you less than you think will restore your loss then you have to sue and by the time you pay the lawyers there is a good chance even if you win you will still receive less money in your pocket. Litigation costs are so high that many people in situations like this add up the potential amount against the legal costs if they win and there is not enough of difference to risk losing and getting stuck with the original offer and 100% of your own legal bills and about 40% of the governments. Ruthless companies and govenerments play within the litigation cost range and offer below market value but above the litigation cost deducted amount.
7. COMPENSATION: The compensation provisions of the Act are based on the general principle that, after receiving compensation, the owner should be in the same economic position as before the expropriation. The following guidelines are used for determining compensation: (refer to "Opening a Claim with the Supreme Court")
Fri, 2011-01-28 16:18
#65
There are some provinces with better legislation than others when it comes to expropriation. Expropriation must be done fairly and dealing with it as a problem in the context of the rights of individuals is much better than opening up property rights specifically.
There is a great deal of discussion including the balancing of parliamentary supremacy needed and the approach can be exclusively found within existing basic rights without the introduction of specific property rights.
Here is an interesting discussion for those interested.
Fri, 2011-01-28 17:44
#66
[url=http://michael-hudson.com/2010/05/neoliberalism-and-the-counter-enlighte... and the Counter-Enlightenment[/color][/url]
I find it remarkable that nobody has pointed out that Adam Smith did not say what neoliberals repeat when they count him as their patron saint. His aim, like that of subsequent classical reformers, was to free society from privatized land rent, monopoly rents, and financial interest and fees.These revenues come from purely property rights and privilege, not from basic technological or economic necessity. It was to isolate these forms of overhead that classical economists developed their analysis and quantified it in the 18th and 19th centuries.
Inevitably, the rentiers fought back. They naturally preferred a post-classical economics that was careful to avoid looking at what is really important in life, especially at how wealth was being obtained. Wealthy people like to think of themselves as earning income, not extracting it or getting a free ride. They even like to think of themselves as hosts, not as parasites – it is the poor, the welfare recipients and even their employees who are the parasites whose income is to be minimized, not their own privileged rake-off income, which they demand should receive special tax benefits because the wealthy financial classes are so essential for economic survival.
The rich have always fought hard to maintain their free ride privileges.
Sat, 2011-01-29 08:06
#67
There are some provinces with better legislation than others when it comes to expropriation. Expropriation must be done fairly and dealing with it as a problem in the context of the rights of individuals is much better than opening up property rights specifically.
There is a great deal of discussion including the balancing of parliamentary supremacy needed and the approach can be exclusively found within existing basic rights without the introduction of specific property rights.
Here is an interesting discussion for those interested.
The paper that you cite discusses how much the government can regulate property before it's functionally equivalent to expropriating it, not expropriation in general. And it assumes a framework of property rights is already in place. See page 4:
In fact, there appear to be only three recent cases in Canada where regulations have been found to expropriate property: Manitoba Fisheries, Tener v. The Queen and Casamiro Resource Corp. v. B.C. with the later two cases having almost identical facts. In all the remaining cases, compensation has been denied on the basis of one of the three rules. The most common grounds to deny compensation is the first rule, when the court finds that only a subset of the property rights have been removed.
Sat, 2011-01-29 09:00
#68
Boom Boom
Apparently the USA has property rights - someone can correct me if not - and they've managed to build an awesome network of cities and transportation infrastructre, regardless. But I agree with Fidel - property rights favour the rich.
Sat, 2011-01-29 10:00
#69
The U.S. has property rights - they also have expropriation, which they call "eminent domain". There is a constitutional requirement that if the government exercises eminent domain it has to compensate the owner. This recently went all the way to the Supreme Court. A Google search for "kelo supreme court" is quite enlightening.
Sat, 2011-01-29 11:09
#70
alan smithee
Talking about expropriation..
The government wants to rebuild the Turcot Interchange....This will come at the cost of an entire block around Cazelais St. in St.Henri,interstingly enough,a poor area.
There has not been any talk of relocating those who will be affected and a local media op-ed praised the project because there will be only a 'minimum' of people affected.
It makes me wonder what that talking head would say if the government decided to build a highway and his home was in the way and he was to have his home exproriated without compensation on top of that.
Bad ideas are only popular with those who are not affected by them.
Sat, 2011-01-29 11:23
#71
Boom Boom
Isn't expropriation and compensation a necessary evil for the greater good, though? How else have entire cities the world over been able to build and expand?
If expropiation and compensation is not acceptable, then what would you have in its place, Alan?
Sat, 2011-01-29 14:14
#72
alan smithee
Read what I said again,Boom Boom.
I said the people who are having their homes expropriated are not being compensated.
The owners of these housing units probably are but those renting the units aren't.
There is never anything of greater good when it comes to stripping people from their rights,their income or their homes.
Sat, 2011-01-29 14:35
#73
Apparently the USA has property rights - someone can correct me if not - and they've managed to build an awesome network of cities and transportation infrastructre, regardless. But I agree with Fidel - property rights favour the rich.
I think they built most of it during a time when labour wages were high and when they actually had a productive labour economy. Nowadays it's all about the rich owning most of the land and fed helping them out with inflating real estate bubbles. They want to store a lot of their wealth in land and real estate at inflated worth. Rich Americans would lose a lot of fictitious wealth they've accumulated over the last 30 years if real estate prices are allowed to fall somewhere close to reality. They've since shifted taxation away from land and onto labour and income. And what they have now is dilapidated infrastructure comparable to the end of the Soviet era when the Sovs stopped investing in infrastructure and technology by the early 1980s.
Sat, 2011-01-29 15:06
#74
alan smithee
The U.S. also has a grand thing called Manifest Destiny 
Sat, 2011-01-29 15:18
#75
Apparently today they are trying to do with money what used to be done with invading armies. And BRIC countries, Malaysia and South Africa are telling them no for the first time.
Sat, 2011-01-29 15:39
#76
Boom Boom
Read what I said again,Boom Boom.
I said the people who are having their homes expropriated are not being compensated.
The owners of these housing units probably are but those renting the units aren't.
There is never anything of greater good when it comes to stripping people from their rights,their income or their homes.
I'll ask again - what's your alternative to expropriation with compensation - especially when landowners stubbornly refuse to plan for the future knowing that the municipality or province needs to expand?
Sat, 2011-01-29 15:45
#77
alan smithee
If a municipal,provincial or federal government wants to buy out property from a land owner by bidding a compensation equal or greater of its value,who the fuck has a problem with that?
Where did I say anything against expropriation with compensation?...Where?
An alternative?...In the case of those who are losing their homes over this project--the TENANTS--(no they are not the land owners but that IS their homes) should be compensated as well.
I wouldn't call that my alternative...I'd call it my POINT.
Sat, 2011-01-29 15:59
#78
The old timers in Northern Ontario used to call it a Stalinist bureaucracy when their land was taken from them without compensation, or a pittance in compensation if they were lucky. I think today t's more like a liberal-fascist bureaucracy.
Sat, 2011-01-29 16:03
#79
Boom Boom
Okay, so we're in agreement, then. Just for the record, I agree it would suck to be the recipient of an expropriation order, even with compensation.
Sun, 2011-01-30 17:57
#80
Expropriation is a necessary tool but it can be misused.
That is true of many powers of government. Those who want to attack governemnt point to any misuse of power as a wedge to make their attack. Nothing new here. You do not have to justify every single use/abuse of power to justify the existence of that power, this is especially true when the power is held and abused by the very characters that are seeking to justify its removal.
YGTBK, -- not sure what you mean by this (The presumed existence of property rights) -- there is no assumption of particular property rights behind this. Rights to own and control property have been included as individual rights but not supplementary to those rights which is the distinction I am making here. Indeed given the paper seems to presume property rights, suggests we already have enough rights in ownership and common law to not require additional property rights.
It is also important to recognize that rights and power is not exclusively constitutional, except the constitution is the final arbiter.
Traditionally, English law already had many conventions included in the law that we used to call an unwritten constitution. On top of that we laid a constitution declaring equality of people in a number of respects. Existing property rights were not removed they are just subservient to the principle of equality of human beings. In short, property rights exist already to the extend we would want them to, the only increase in property rights we could have would be to bring them up to the level of human rights thereby challenging equality.
So in a way there is an assumption of property rights but not in the terms that people clamoring for them now suggest but the existing English Common Law that already provided sufficient support to answer all the concerns mentioned in this thread making it clear that any extension of property rights would be a direct challenge to equal human rights.
Sun, 2011-01-30 20:50
#81
Boom Boom
A possibly related topic is when governments move to allow development on environmentally-sensitive land, such as the threatened expansion of Kanata (outside Ottawa) on to Beaver Pond. I used to live in Kanata, and am horrified to see how more massive that city is than when we moved there (1968). In the Beaver Pond case, which I've been reading about on rabble, it appears that inadequate provincial environment assessments have been carried out, and the City fo Ottawa, the provincial government, and the federal government, are all looking the other way while the development proceeds. I had thought sound environment assessments to be routine especially on environmentally sensitive land (which in this case I think also has a native land claim), but the problem is that politicans can and do ignore them altogether or just overrule them. The solution might be an independent agency (in every province, or just federally?) with the legal authority to oversee and enforce environment and land claims matters.
ETA: The fight to save Ottawa's Beaver Pond forest from developers
excerpt:
A senior elder in the Algonquin First Nations, William Commanda, called the South March Highlands an "ancient and sacred site for the Indigenous people of the Ottawa River Watershed." Archaeologists have found artefacts estimated to be 10,000 years old -- twice the age of the pyramids in Egypt -- as well as ancient stone circles, including one in the Beaver Pond forest.
The City of Ottawa and the Ontario Ministry of Tourism and Culture have ignored these discoveries, citing their acceptance of a 2004 developer-commissioned study that reported no archaeologically significant finds. The federal government has remained silent, and no one is looking at what is still undiscovered but will be lost once the land is bulldozed and blasted.
Sun, 2011-01-30 20:59
#82
@ post 50
We are not talking about your personal belonging here. When the bourgeoise talk about property rights, they are talking about the means of production, not about your tooth brush.
Sun, 2011-01-30 21:07
#83
Lets put it this way.
If you can not understand the simple idea of property rights and what they meean to the Capitalist, you will have an even harder time understanding how you are being exploited.
You can not have property rights and not be exploited at the same time.
If the Capitalist can not have ownership of the means of production, then how can the Capitalists extract surpuls value?
Your inslavement to wage labour is directly related to their property rights.
We have property rights in Canda, from years of Bourgeois common law. They just want to enshrine this right, to wave it in your face.
Sun, 2011-01-30 21:21
#84
alan smithee
@ post 50
We are not talking about your personal belonging here. When the bourgeoise talk about property rights, they are talking about the means of production, not about your tooth brush.
In regards to expropriation and compensation,the land owner profits...The leasee has 'their toothbrush' taken from them.
Sun, 2011-01-30 21:52
#85
Boom Boom
full link: http://archive.rabble.ca/babble/ultimatebb.cgi?ubb=get_topic&f=1&t=006228
(archives are down for the moment, will re-link asap)
Still an issue for the extreme right.
excerpt: (from February 23, 2010)
Frontier's director of research, Mark Milke, notes Canada's showing occurred in the absence of constitutional protection for private property. "Canada is lucky to have a certain historical and legal framework of respect for property rights. However, and regrettably, property rights are not yet a guaranteed right. As such, the protection of property in Canada is akin to rule by a monarch. You're lucky if the king or queen is benevolent, but out of luck if the monarch is unwise, unjust or foolish."
Sun, 2011-01-30 22:07
#86
@ post 50
We are not talking about your personal belonging here. When the bourgeoise talk about property rights, they are talking about the means of production, not about your tooth brush.
@ who?
can't see the connection between my post #50 and yours -- can you recheck the number?
Sun, 2011-01-30 22:14
#87
Boom Boom
So in a way there is an assumption of property rights but not in the terms that people clamoring for them now suggest but the existing English Common Law that already provided sufficient support to answer all the concerns mentioned in this thread making it clear that any extension of property rights would be a direct challenge to equal human rights.
Excellent, Sean.
Mon, 2011-01-31 08:48
#88
@Sean: The position that English common law provides enough property rights and that no extension is required is a very reasonable one. If there were no Charter of Rights and Freedoms there would be little else to say.
However, since we do have the Charter, and since it overrides existing common law, it's reasonable to wonder whether the Charter should explicitly recognize common law property rights. Recognizing existing rights and extending new ones are distinct propositions.
Mon, 2011-01-31 11:37
#89
@Sean: The position that English common law provides enough property rights and that no extension is required is a very reasonable one. If there were no Charter of Rights and Freedoms there would be little else to say.
However, since we do have the Charter, and since it overrides existing common law, it's reasonable to wonder whether the Charter should explicitly recognize common law property rights. Recognizing existing rights and extending new ones are distinct propositions.
The problem is if it is explicitly made a Charter right then it gets elevated to a higher status. The courts would have to interpret the change as a request by the parliament to enhance the status of property rights from their current common law status otherwise it would be a meaningless change. We got the Charter in the constitution because the "Diefenbaker" Bill of Rights was ineffective against any legislation passed after it came into force. The Bill of Rights could not bind parliament's hands but the Charter can.
Of course all our rights in Canada are subject to Section 1. As an example, the Supreme Court agrees with me that pot laws are a violation of Charter rights however they have also ruled that the laws can be saved by Section 1.
Mon, 2011-01-31 11:53
#90
YGTBK you are coming up to the very point I am making which is that the only purpose in having further property rights enshrined would be for them to compete with individual rights now in our Constitution. Now if you argue the back side of that as you seem to be, that there is a point to them because of the Charter, please also recognize that this point is limited to only where these two rights (human and property) are in competition. I am not suggesting that enshrining property rights in the Constitution would have no effect-- far from it. I am saying that the only area it would have an effect is with respect to rights already in the Charter. This is why we should be very worried about those making this proposal.
If you believe that property rights are secondary to individual human rights you should oppose any extension of them in law and be satisfied with the extent to which they are now already covered in Common Law. You would be happy to see these property rights limited only by the Charter as they are now.
If you think that individuals with property should be able to use that ownership to trump other people's individual rights and the collective rights of individuals through collective governance, then you would want such an extension.
My problem is that those proposing more property rights are not presenting it this way. They are effectively lying about what is at stake and the moral choice we are being asked to make by entrenching these rights. That is why I am offended by the debate-- the advocates of property rights use individual examples (rather than the corporate ones actually implied here) to pretend this is about an extension of individual rights when it is actually the opposite. Now here is why:
In law a corporation is a person and it can have property. However, it is not a person when it comes to Charter rights. Corporations are formed mostly to create and invoke both limited liability and Common Law property rights and taxation benefits. The introduction of property rights would raise corporations, which do own property, to Charter-protected players able to compete for the first time for the highest hierarchy of rights with individuals. Please spend some time to think about this and realize just how scary the implications of that can be. This is the prime motive of those who advocate property rights. Imagine a world when a corporation can legally compete with an individual's Charter rights and then you will understand the push for property rights.
Mon, 2011-01-31 12:17
#91
The introduction of property rights would raise corporations, which do own property, to Charter-protected players able to compete for the first time for the highest hierarchy of rights with individuals. Please spend some time to think about this and realize just how scary the implications of that can be. This is the prime motive of those who advocate property rights. Imagine a world when a corporation can legally compete with an individual's Charter rights and then you will understand the push for property rights.
You say "introduction of property rights" when I think you mean "introduction of additional property rights", which I'm finding confusing - am I correct?
I think you're mixing a couple of issues here. Doesn't the detailed wording of the hypothetical text to be added to the Charter matter a lot? For example, right now Section 2 of the Charter gives "everyone" the right to freedom of expression, but tobacco companies aren't free to advertise as they wish - the courts have held that it applies only to individuals.
So if Section 2 included "freedom to own property, with expropriation permitted only on payment of fair compensation", would that open the floodgates? If you explicitly said that the provision only applied to individuals, would that help?
For reference you can find the text of the Charter at:
Mon, 2011-01-31 12:42
#92
I think you're mixing a couple of issues here. Doesn't the detailed wording of the hypothetical text to be added to the Charter matter a lot? For example, right now Section 2 of the Charter gives "everyone" the right to freedom of expression, but tobacco companies aren't free to advertise as they wish - the courts have held that it applies only to individuals.
Actually the SCC has not said that. It has said that the laws are subject to Section 1 and fail that test. If they were not covered by Section 2 as an individual entity then the case would not have needed a Section 1 analysis the corporate case would have failed prior to the balancing process in a free and democratic society.
How does the Consumer Protection Act limit that right and violate the charter?
A law will violate the charter if its purpose and effect restrict freedom of expression. For example, a rule against handing pamphlets might help to control a littering problem, but it would be unconstitutional because it seeks to control access to the meaning contained in the pamphlet. A law that prohibits dancing in the street has an affect on one's freedom of expression, but the purpose of the law is clearly to protect the public - not to prevent someone from communicating a message. Simply put, a law whose purpose is to control free expression is simply unconstitutional - as we saw in theBoucher case. In this case, the advertising law was designed to protect children by controlling how advertisers could express themselves. That meant both its purpose and its expression therefore to control expression therefore, it violated the charter.
Is this law a reasonable limit under Section 1 of the charter?
To be a "reasonable limit" according to section 1, a law must have an objective important enough to justify overriding a constitutionally protected right or freedom do more good than harm have a rational connection to the objective and impair the right or freedom as little as possible.
In this case, the court deemed that the Consumer Protection Act was a good, rational law whose objective was important enough to limit -as little as possible - Irwin Toy's freedom of expression.
In the end, Quebec's Consumer Protection Act was upheld and continued to protect children from the influence of big business. Backgrounder: Freedom of Expression
Quotable quote
" If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee."
From Irwin Toy Ltd. v. Quebec. Attorney General)
http://www.chrc-ccdp.ca/en/timeportals/milestones/124mile.asp
Mon, 2011-01-31 13:13
#93
@kropotkin1951 - You are right, it has been held to be a Section 1 issue, as stated at, for example:
http://www.cbc.ca/canada/story/2007/06/28/cigarette-ads.html
So if the hypothetical additional Charter wording were limited to individuals, would that be workable?
Mon, 2011-01-31 13:16
#94
The Not Withstanding Clause was Allan Blakeney's contribution to our Charter. He would not allow a constitutionally guaranteed individual right to trump a communal right without a balancing process. Parliamentary supremacy was and is is a competing idea to individual rights. Section 1 is a very Canadian method of balancing the rights of the majority against the rights of the individual. The Not Withstanding Clause gives provinces the right to thumb its nose at the SCC if it goes into the House and passes a law specifically excluded from the Charter. They must a sunset clause so the parliament has to vote every election cycle to override a specific right.
I have also added a link to a lecture he gave at U of S. I took his seminar course so I heard the contents of this lecture in the early '90's. His history of rights is well worth the time to listen to it.
http://www.usask.ca/law/allan_blakeney.php
On the national stage, Blakeney played a significant role in the constitutional debates of the 1980s. Prime Minister Trudeau made known his intention to bring Canada’s constitution home from Great Britain, and to add to it a Charter of Rights. Blakeney was apprehensive about Trudeau’s charter, which he believed would remove power from elected legislators and hand it to appointed judges. He played a pivotal role in negotiating a compromise where provinces accepted a Charter of Rights, but one that could be overridden by elected Legislatures.
Mon, 2011-01-31 13:28
#95
The introduction of property rights would raise corporations, which do own property, to Charter-protected players able to compete for the first time for the highest hierarchy of rights with individuals. Please spend some time to think about this and realize just how scary the implications of that can be. This is the prime motive of those who advocate property rights. Imagine a world when a corporation can legally compete with an individual's Charter rights and then you will understand the push for property rights.
You say "introduction of property rights" when I think you mean "introduction of additional property rights", which I'm finding confusing - am I correct?
I think you're mixing a couple of issues here. Doesn't the detailed wording of the hypothetical text to be added to the Charter matter a lot? For example, right now Section 2 of the Charter gives "everyone" the right to freedom of expression, but tobacco companies aren't free to advertise as they wish - the courts have held that it applies only to individuals.
So if Section 2 included "freedom to own property, with expropriation permitted only on payment of fair compensation", would that open the floodgates? If you explicitly said that the provision only applied to individuals, would that help?
For reference you can find the text of the Charter at:
First, I meant introduction of property rights in the context of the Charter-- sorry if that was not clear.
With respect I don't think I am mixing anything here as I believe I am on pretty solid ground as this is something I know a fair bit about.
And no, additional text would not help. I can't give a full overview of how the law works but it goes far beyond literal meaning. When you interpret law you consider the intent of the writers of the legislation, context and form an understanding of purpose and you apply doctrines-- most jurisdictions have an Interpretation Act-- and it is short enough and easy enough to read-- it would give you an idea how law is interpreted. You can't on the one hand introduce such a statement in to a formal Charter and then claim it has no meaning because the default interpretation in law is that it must have meaning. Since there is no purpose other than to limit individual rights then adding property rights can only do that.
It is extraordinarily difficult to provide property rights to individuals and not to corporations given the way money and transactions move. As tricky as it is, why would we want to give such advantage to wealthy individuals over everyone else? The point is that individuals are protected under the Charter and their property is protected under Common Law. Where the Common Law contravenes the Charter the Charter wins. Do you really want it another way?
Basic equality of the person is the way the Charter requires disputes to be managed. D we want to interrupt that by adding at the highest level another layer of rights -- so some people can be (with apologies to Orwell) more equal?
So yes the introduction of language like you propose would either have no effect in which case it would be not needed or it would have an effect. The very recognition of Property as a Charter right would have lots of unintended and unpredictable consequences as did the rest of the Charter which thankfully has worked out well. Law interpretation uses analogy and the raising of a Charter right to property as an introduction is going to be taken as a value that would be added to decisions.
Further, you are opening a door to all kinds of Charter cases on what is fair compensation. And all to what end? Most jurisdictions have some limits on expropriation without it being codified at such a level. There is also meaning to the direction you write something prohibited with exception or allowed based on a condition. Please don't think these are simple matters or that plain wording and coffee-house logic applies. It doesn't.
And this all comes back to the basic question that would be raised in the first case (and this is how the courts write new law). So now here is the text you wrote. Since it is not required in English law to simply manage expropriation what does it mean and intend? What additional value and weight must be now applied to the interests of property now that it is there? If it has any value at all then it must be the deciding factor between two otherwise equal persons.
You have to consider that when you add something to law you add only directions but you do not get to decide how it will play out in the future. Additional interpretive contexts will breed more interpretations until the law perhaps no longer resembles what it started as.
Comes back to why throw a grenade in a crowded room that has no enemy in it? Why risk this for something not needed if the intent is not to cause a conflict with individual personal rights?
Mon, 2011-01-31 15:26
#96
@Sean: you may be right, but I think you're being overcautious. The Charter sprang into existence three decades ago, undoubtedly causing all the problems of interpretation and unintended consequences that concern you, and we've managed to survive. To assume that in 2011 we're not able to change one line for fear of what might happen seems inconsistent with the idea of introducing the Charter in the first place.
Mon, 2011-01-31 17:08
#97
I can't be both right and overcautious. Either I am right or wrong. Overcautious would be wrong.
If I am wrong I am in good company because legal experts who are not right-wing tend to agree with me on this. I am not arguing a minority opinion here (I do sometimes but not today).
Like I say-- a word -- even a comma -- can change meaning drastically in law and here we are talking of the introduction of a whole new set of values in to a document that till now address individual rights only. Don't be so quick to assume that a "small" change would not have huge effect. In addition the Charter speaks to some of these concerns already from the direction of the individual rather than the property and to add more upsets the weighted balance those meanings hold. Law is often a balance of meanings and you can't just throw a nickle one side of the scales of justice and expect nothing to happen.
That said, this is not a small change-- everything in the Charter relates to individuals or equality between them (for example prohibited grounds for discrimination). There is no place to just write in your line without having a major effect. The Charter as written actually is a lot more straightforward than the implications that you want to throw at it.
I know it is hard to understand sometimes how law works but as I say it is a series of doctrines and interpretation rules on top of the explicit statements in the law and it is in fact just that delicate. I have had to go in to court with a briefcase of authorities just to argue one small point of interpretation. It is not uncommon in law for both sides to agree on the facts and spend days arguing the interpretation of those. And I have argued for people based on their property and did not find the law wanting in any way-- of course I was not trying to challenge people's Charter rights with property rights, but unless that is your aim, there is loads of law already to protect people with property and those laws can be amended and improved as we need.
Here are some clauses from the Charter you should consider before determining that it is defective and omitting something:
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Other rights and freedoms not affected by Charter
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
So you see the Charter does not take anything away that exists otherwise. Read the whole thing if you need to but please tell me where Property Rights are damaged in the Charter EXCEPT where they might conflict with other Charter rights. Which Charter right comes after Property Rights?
Again, please answer my question: Why do you think we need Property Rights in the Charter? What problem exactly would be solved? (Why roll the dice on unintended consequences if you can't answer this?) What needs to be done that cannot be done in civil (business law) where it belongs?
In addition there are other issues-- if you start to get in to property law at the Charter level you will have other implications as this relates to Civil Law. In Canada we have two sets of Civil Laws: Napoleonic Code in Quebec and English Common Law in the rest of the Country. To put something that speaks to Property and therefore business law in the Charter may not only have unintended consequences but those consequences may not even be the same across the country. The rest of the Charter speaks to the rights of the person not so much business transactions and while it is certainly present in Civil law it speaks to our common criminal code more. The introduction of Property Rights into the Charter is a big deal and would have far-reaching and profoundly negative consequences. The uncertainty while the courts figure out what exactly it means would just be the start of the problems.
Mon, 2011-01-31 17:25
#98
Boom Boom
As has been argued by you and others, property rights do NOT need to be in the Charter! That's why I've kept this topic going through two threads (and a third one about to start) - so we are prepared for the day when the 'Property Rights' crusade starts up in earnest.
Mon, 2011-01-31 18:11
#99
Boom Boom I was asking Ygtbk to explain why Charter rights need to be in the Charter given her/his arguments that they need to be there.I certainly think they not only do not need to be there but it would be a huge disaster to introduce them there as I argued.
But the best I ahve from Ygtbk is that it would do no harm -- a point I don't accept.
I was not advocating for property rights!
Mon, 2011-01-31 18:13
#100
Don't know why it repeated my post
Mon, 2011-01-31 18:13
#101
Don't know why it repeated my post