Model Forum / Radio Controlled / Air Models / April 2007

It seems that it depends on the history of the piece of land
in question:

http://en.wikibooks.org/wiki/Canadian_Property_Law/Real_Property

I don't see the principle you mention in this 1991 article in
favor of entrenching property rights in the Canadian constitution:

http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp268-e.htm#ARGUMENTS

A number of arguments have been put forward in favour of the
constitutional protection of property rights.

First of all, there is the historical precedent. Property rights have
played a central role in the evolution of Canadian society and indeed are
an essential part of British parliamentary democracy. These rights can be
traced back to the year 1215, when the Magna Carta was signed. The right
to own property was also included in the English Bill of Rights in 1689.
In 1948, Canada signed the United Nations Universal Declaration of Human
Rights, Article 17 of which reads:

  1. Everyone has the right to own property alone as well as in
  association with others.

  2. No one shall be arbitrarily deprived of his property.

Property rights are also recognized in the 1960 Canadian Bill of Rights,
which affirms the right of the individual to the enjoyment of property and
the right not to be deprived thereof except by due process of law. Clearly
then, it is arguable that our Constitution should be brought into line
with these historical documents.

The Supreme Court of Canada, in the case of Harrison v. Carswell,(3)
commented upon property rights in Canadian law as follows:

     Ango-Canadian jurisprudence has traditionally recognized, as a
     fundamental freedom, the right of the individual to the enjoyment of
     property and the right not to be deprived thereof, of any interest
     therein, save by due process of law.(4)

Section 26 of the Charter stipulates that:

     The guarantee in this Charter of certain rights and freedoms shall
     not be construed as denying the existence of any other rights and
     freedoms that exist in Canada.

Case law has construed this section to mean that the common law protection
of property rights is at least not threatened by the Charter.(5) Only the
inclusion of property in the Charter, however, would enable an individual
whose property rights had been infringed to have recourse to the
enforcement section of the Charter. Subsection 24(1) states in part that
"[a]nyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court ... to obtain such remedy as
the court considers appropriate and just in the circumstances."

It should be noted as well that the notion of property rights appears to
enjoy public support. A poll commissioned by the Canadian Real Estate
Board in 1987 found that 81% of Canadians considered it either "very" or
"fairly" important that the Constitution be amended so as to include
property rights. Various national organizations, such as the Canadian Bar
Association, the Canadian Chamber of Commerce, and the Canadian Real
Estate Association, have also stressed the need to include property rights
in our Constitution.

In entrenching property rights, Canada would be following the lead of a
number of other democratic countries, including the United States, West
Germany, Italy and Finland. In the United States, as noted above, the
Fifth Amendment to the U.S. Constitution provides that no person shall be
deprived of life, liberty or property without due process of law, nor
shall private property be taken for public use without just compensation.
In 1868, the Fourteenth Amendment to the U.S. Constitution was passed,
stipulating that no state shall deprive any person of life, liberty or
property, without due process of law. Thus, in the United States and in a
number of other countries where property rights have received
constitutional protection, their fundamental importance to the
preservation of democracy is recognized.

                        Marty