PROTECTION OF THE RIGHT TOPROPERTY UNDER THE CANADIAN

CHARTER OF RIGHTS ANDFREEDOMS

Philip W. Augustine*

I. INTRODUCrION

"The prohibition 'Thou shalt not steal' has no legal force upon thesovereign [legislatures of Canada]."' That pithy statement, made by Mr.Justice Riddell in 1908, vividly described the absence of any constitutionalprotection of the right to property in Canada. Since then, Canadianlegislatures have passed a number of statutes designed to protect the rightto property and other fundamental freedoms. The most recent and mostimportant of these statutes is the Canadian Charter of Rights and Free-doms.2

This article will examine the extent to which a constitutional right to"property ' 3 now exists in Canada. It will also review the jurisprudenceunder the Charter, the Canadian Bill of Rights4 and earlier common lawdoctrines, as well as the definitions accorded to the terms "due process"and "fundamental justice". Finally, this article will compare the Canadianposition with respect to the right to property with that adopted in theEuropean Convention on Human Rights.5

II. CONsTrrIUToNAL BACKGROUND

Subsection 92(13) of the Constitution Act, 1867 grants to eachprovince legislative authority over "property and civil rights", thus

* Of the Bar of Ontario.I Florence Mining Co. v. Cobalt Lake Mining Co., 18 O.L.R. 275 at 279, 12

O.W.R. 297 at 301 (H.C. 1908).2 Constitution Act, 1982, Part 1, enacted by the CanadaAct, 1982, U.K. 1982, c. 11.3 Defining the term "property" raises substantial jurisprudential issues beyond the

scope of this article. "Property" will here be used in its popular sense of a possession orthing capable of being owned. See M. Cohen, Property andSovereignty, 13 Cornell L.Q. 8(1927). See also C. Reich, The New Property, 73 Yale L.J. 733 (1964).

4 R.S.C. 1970, App. III.5 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

Nov. 1950 (in force 3 Sep. 1953), Europ. T.S. No. 5 [hereafter cited as Convention].

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providing them with clear constitutional authority to legislate on anymatters concerning property, including expropriation. The federal govern-ment's constitutional power to legislate concerning property and expropri-ation is considerably more confined by the absence of any expressauthority in the Constitution Act, 1867. The Canadian judiciary has,however, determined that the federal government may legislate concerningproperty to the extent that it is necessarily ancillary to its heads oflegislative authority,6 is for the general advantage of Canada7 or is neces-sary for the peace, order and good government of Canada. 8 In short,property rights are largely but not exclusively the legislative prerogative ofthe provinces; however, both levels of government possess the authority tointerfere with the property rights of individuals, unfettered by any expressprohibition to the contrary.

The Constitution Act, 1867 was the product of several years ofCanadian Confederation Debates and manifested a deliberate choice by theCanadian people and politicians of the day in favour of "a Constitutionsimilar in Principle to that of the United Kingdom". Thus, the Constitu-tion, as initially enacted, was based on the British model of parliamentarysovereignty without written guarantees of individual freedoms. It did notfollow the American model of institutional checks and balances and awritten Bill of Rights. 9 The effect of this choice was that the ConstitutionAct, 1867 simply divided up the areas of legislative competency, protectinga number of collective rights'0 while remaining silent on the issue ofindividual rights. The popular rationale for the absence of any expressconstitutional protection of individual rights was that such rights would berespected and protected by a sovereign Parliament. In any event, abuse ofpower could be controlled by the electorate who could replace the abusivegovernment with one more responsible." However, this theory failed toaddress the question of how individual citizens and minority groups wereto secure the protection of their civil rights against an oppressive majority.

As a result of the adoption of the parliamentary system in Canada andthe reference in the Constitution Act, 1867 to "a Constitution similar inPrinciple to that of the United Kingdom", it has been suggested that theMagna Carta (1215), the Petition of Right (1628), the Bill of Rights (1689)and the Act of Settlement (1700-01) were incorporated into Canadian

6 Reference re Waters & Water-Powers, [1929] S.C.R. 200, [1929] 2 D.L.R. 481.7 Re Ont. Power Co. & Hewson, 6 O.L.R. 11, 2 O.W.R. 419 (H.C. 1903), affd 8

O.L.R. 88, 3 O.W.R. 865 (C.A. 1904), affd 36 S.C.R. 596 (1905).8 Laskin's Canadian Constitutional Law 536-39 (4th ed. A. Abel 1973).9 This choice was largely dictated by Canada's loyalist traditions and contemporary

comparisons between Imperial Britain and the republican, war-tom United States. It wasthese factors, rather than any careful examination of the most effective means of balancingpublic and private rights, that appears to have been determinative. See generally TheConfederation Debates in the Province of CanadaI1865 (P. Waite ed. 1963).

10 Ss. 17, 20, 50, 93, 133.I1 Florence Mining Co. v. Cobalt Lake Mining Co., 18 O.L.R. 280 at 293, 13

O.W.R. 837 at 848 (C.A. 1909).

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constitutional law. However, in only one case have Canadian jurists reliedupon these British documents as having constitutional effect in Canada. InR. v. Hess (No. 2)12 the British Columbia Court of Appeal held that thesection of the Criminal Code permitting the detention of an accused afterhis acquittal pending a possible Crown appeal was ultra vires as beingcontrary to the above-mentioned documents. This case has not beenfollowed and has been expressly disapproved by a leading Canadian legalscholar.13 Therefore, the persuasive force of Hess is highly question-able. 14 Thus, at the time of Confederation, individual rights and freedomsin Canada were not protected by either an express Bill of Rights as in theUnited States or by the constitutional documents of Great Britain.

1H1. DIVIsION OF POWERS

The traditional legal analysis of Canadian constitutional questionshas focussed on construing the pith and substance of a particular piece oflegislation and then determining whether or not that legislation is withinthe legislative competence of the enacting legislature. This processinvolves two subjective decisions based upon general principles and widerules of interpretation. The Canadian judiciary,15 and the Judicial Com-mittee of the Privy Council until 1952, have therefore had a great deal oflatitude within which to protect, defacto, the rights of individual Canadi-ans while superficially applying a legal analysis wholly irrelevant to theissue of individual rights and freedoms.

An example of this process is the case of Union Collery Co. of BritishColumbia v. Bryden.16 The British Columbia Legislative Assembly hadenacted the Coal Mines Regulation Act 17 prohibiting, inter alia,"Chinamen" from working in any underground coal mine. After a lengthyanalysis and consideration of the pith and substance of the legislation, theCourt determined that the Act concerned "naturalization and aliens",18rather than "provincial undertakings"' 19 or "property and civil rights".20

12 [1949] 1 W.W.R. 586, [1949] 4 D.L.R. 199 (B.C.C.A.).13 B. Laskin, Canadian Constitutional Law 971-73 (3d ed. 1966).14 In Newfoundland Colonization & Mining Co. v. Newfoundland, 4 R.P.R. 82 at

91, 15 Nfld. & P.E.I.R. 338 at 347 (Nfld. C.A. 1978) a submission in the Appellant'sfactum expressly relying on the Magna Carta was rejected by the Court as being totallywithout merit. See also Nelson v. Pacific GreatE. Ry., 25 B.C.L.R. 259 at 265, [1918] 1W.W.R. 597 at 603 (S.C.); Re McDowell & Town of Palmerston, 22 O.R. 563 at 565 (H.C.1892) where it was clearly held that the power of a provincial legislature to expropriatewithout compensation is not limited by the Magna Carta.

15 Minister of Home Affairs v. Fisher, [1979] 3 All E.R. 21 at 25 (P.C. 1979)(Berm.).

16 [1899] A.C. 580 (P.C.).17 R.S.B.C. 1897, c. 138.18 Sub. 91 (25).19 Sub. 92(10).20 Sub. 92(13).

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Consequently, the Act was held to be ultra vires the provincial legislature.Implicit in this decision is the fact that the Act would have been valid had itbeen passed by the federal Parliament. The. decision is hardly a monumentto the protection of civil liberties. 2'

Within the confines of the division of powers analysis, there is clearlyno room for the protection of fundamental freedoms as separate constitu-tional values. Furthermore, as civil rights issues cannot be dealt withexpressly within this traditional analysis, it has been impossible to developa rational body of judicial precedents to assist in the definition andprotection of fundamental freedoms in Canada. As a result, this approachto the balancing of public and private rights, to the extent that it existed atall, must be considered a failure.

IV. RULES OF STATUTORY INTERPRETATION

When Canada attained nationhood in 1867, it transplanted not onlyvarious British legal institutions such as Parliament and the English com-mon law,2 2 but also certain fundamental British values such as the sanctityof life, liberty and property. These values have been partially protected inCanada by the application of rules of statutory interpretation developed inthe eighteenth century by the British judiciary.23 The purpose of theserules is twofold: to ensure on the one hand that Parliament does notinterfere with the fundamental liberties of the subject, while on the otherhand, to ensure that there is no interference with Parliamentary supremacy.

The general rule developed by the courts to achieve this purpose hasbeen described in the following terms:

[s]tatutes which encroach upon the rights of the subject, whether as regardsperson or property, are subject to "strict" construction... . [W]here theimport of some enactment is inconclusive or ambiguous, the court mayproperly lean in favour of an interpretation that leaves private rightsundisturbed. 24

With respect to property rights, this rule has two aspects. First, courtspresume that the legislature does not intend to deprive an individual of hisproperty. Thus statutes will be construed so as to avoid such deprivationunless they are capable of no other reasonable interpretation. Second, if astatute clearly expresses the legislature's intention to take the property ofan individual, then, in the absence of clear words to the contrary, thelegislature will be presumed to have intended that the former propertyholder receive just compensation.

21 See also Cunningham v. Homma, [1903] A.C. 151 where it was held that aprovincial Act prohibiting any person of Japanese ancestry from voting was not ultra vires:"the policy or impolicy of such an enactment as that which excludes a particular race fromthe franchise is not a topic which their Lordships are entitled to consider". Id. at 155-56.

22 B. Laskin, The British Tradition in Canadian Law (1969).23 J. Corry, Appendix I to E. Driedger, Construction of Statutes 251 (2d ed. 1983).24 A.-G. Can. v. Hallet& CareyLtd., [1952] A.C. 427 at 450, [1952] 3 D.L.R. 433

at 446-47 (P.C.).

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These presumptions have been applied in a wide variety of cases,including cases which post-date the Canadian Bill of Rights and theCharter. The review of several such cases will serve to illustrate the legalprinciples, the position these principles hold in the Canadian legal struc-ture and their effectiveness in protecting Canadians' property rights.

In Manitoba Fisheries Ltd. v. The Queen25 the plaintiff had its fishexporting business terminated by the Freshwater Fish Marketing Act. 26

This Act created a statutory corporation and granted it the exclusive right tocarry on the business formerly carried on by, among others, the plaintiff.The plaintiff claimed compensation from the Federal Crown for the loss ofits business and goodwill. In both the Federal Court and the Federal Courtof Appeal it was held that there had not been a "taking" of property and,consequently, the plaintiff had no right to compensation. On further appealto the Supreme Court of Canada, Mr. Justice Ritchie, speaking for theentire Court, found that there had indeed been a "taking". He then appliedthe rule of statutory interpretation set out above, holding that as the statutedid not address the issue of compensation, Parliament must be presumed tohave intended that the property holder receive compensation. Accord-ingly, the Federal Crown was ordered to compensate the plaintiff on thebasis of the fair market value of the property taken including the goodwill.

R. v. Appleby (No. 2)27 provides an example of the injustice that ispossible when private property is not protected through the application ofthese presumptions. The defendant was charged with failing to submit tothe National Library two copies of books which he had published, contraryto the provisions of the National Library Act.28 In a complete reversal ofthe presumption in favour the property rights of individuals, it was heldthat the Crown had the right to take the defendant's property withoutproviding compensation unless the defendant could establish a statutoryright to such compensation. As authority for this proposition, Chief JusticeHughes relied upon the case of Sisters of Charity of Rockingham v. TheKing29 in which Lord Parmoor stated that " [n]o owner of lands expropri-ated by statute for public purposes is entitled to compensation ... unlesshe can establish a statutory right [to his claims]". 3° Nowhere in thejudgment in Appleby are the presumptions in favour of property rightsreferred to despite the presence of ideal factual circumstances for theirapplication. It is submitted that Sisters of Charity and Appleby were bothwrongly decided because of the Courts' failure to apply the presumption infavour of private property. 31

25 [1979] 1 S.C.R. 101, 88 D.L.R. (3d) 462 (1978).26 R.S.C. 1970, c. F-13.27 15 N.B.R. (2d) 650, 76 D.L.R. (3d) 110 (C.A. 1976).28 R.S.C. 1970, c. N-Il, sub. 11(1).29 [1922] 2 A.C. 315, 67 D.L.R. 209 (P.C.).30 Id. at 322, 67 D.L.R. at 211.31 Sisters of Charity was also referred to in Newfoundland Colonization & Mining

Co., supra note 14 at 88, 15 Nfld. & P.E.I.R. at 344. However, in that case, unlikeAppleby, the Court based its decision on the presence of an unambiguous statutoryprovision and not on the inability of the plaintiff to find a statutory provision entitling it tocompensation.

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Despite the important role that the presumptions in favour of privateproperty can play, they are actually nothing more than long standingcommon law rules of statutory interpretation. 32 Judicial statementsdescribing them as being "fundamental" or "constitutional in the Britishsense" 33 do not alter their status nor have they been incorporated into theCharter by virtue of section 26.34 In the final analysis they remain ordinarycommon law principles that are incapable of protecting property rightsfrom the dictates of a competent legislature employing unambiguouslanguage.

35

V. IMPLIED BILL OF RIGHTS

Commencing in 1938 and with increasing frequency after World War11, the Canadian judiciary manifested an impatience with the traditionaldivision of powers analysis when dealing with issues involving fundamen-tal freedoms. In a series of cases from 1938 to 1957, various Justices of theSupreme Court of Canada enunciated a constitutional doctrine thatprovided limited protection for certain fundamental rights and freedomssaid to be necessary to maintain a free and democratic society.36 Thisdoctrine, completely independent of the division of powers analysis, cameto be known as the "implied bill of rights".

The implied bill of rights was based upon the reference in thepreamble of the Constitution Act, 1867 to "a Constitution similar inPrinciple to that of the United Kingdom" as well as section 17 of theConstitution Act, 1867 which states that there shall be "one Parliament forCanada". These two provisions were found to imply that Canada shouldhave a democratically elected Parliament. This was seen as necessarilyrequiring the judicial protection of fundamental freedoms such as freedomof the press, freedom of speech and freedom of association which wereperceived as essential prerequisites for the democratic election of thefederal Parliament.

The existence of an implied bill of rights was first recognized by ChiefJustice Duff in Reference Re Alberta Bills. 37 It was invoked in subsequentcases38 only with respect to a narrow range of rights directly relevant to the

32 Supra note 23.33 Re Estabrooks Pontiac Buick Ltd., 44 N.B.R. (2d) 201 at 213, 7 C.R.R. 46 at 54

(C.A. 1982), affg sub nom. Melvin v. New Brunswick, 40 N.B.R. (2d) 42, 1 C.R.R. 307(Q.B. 1982).

34 P. Hogg, Canada Act 1982 Annotated 70 (1982).35 London & N.W. Ry. v. Evans, [1893] 1 Ch. 16 at 28 (C.A. 1892).36 Reference re Alta. Bills, [19381 S.C.R. 100, [1938] 2 D.L.R. 81 (Duff C.J. &

Davis J.); Winnerv. S.M.T. (E.)Ltd., [1951] S.C.R. 887, [195114 D.L.R. 529 (Rand J.);Saumur v. City of Quebec, [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641 (Kerwin, Rand,Kellock, Locke JJ.); Switzman v. Elbling, [1957] S.C.R. 285, 7 D.L.R. (2d) 337 (Rand,Kellock, Abbott JJ.).

37 Supra note 36.38 Id.

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political process. These cases dealt primarily with the application of theimplied bill of rights to provincial legislation. However, it was suggested indicta by Mr. Justice Abbott in Switzman v. Elbling39 that the implied bill ofrights might be extended to restrict the powers of Parliament as well.Although the implied bill of rights was never recognized by a majority ofthe Supreme Court of Canada, and never extended to the protection of theright to property, it represents the beginning of a judicial concern with theprotection of fundamental rights. This concern soon found a legislativecounterpart in the Canadian Bill of Rights.

VI. THE CANADIAN BILL OF RIGHTS

1. General Background

Following World War 1140 there developed in Canada judicial, 41

academic 42 and political 43 support for greater and more explicit protectionof fundamental rights and freedoms. On August 10th, 1960, following twoyears of committee hearings and several amendments, the Canadian Bill ofRights was given royal assent. The Canadian Bill of Rights is an ordinarystatute of the federal Parliament, applying only to the federal legislativefield. It remains in force today despite the existence of the Charter.44

The Canadian Bill of Rights has generally proven to be ineffective inenforcing and protecting the rights and freedoms of Canadians. Thisfailure is largely attributed to a poorly drafted enforcement section45

which does not clearly empower the judiciary to invalidate legislation heldto be contrary to the provisions of the Canadian Bill of Rights.46 Inaddition, the judicial interpretation given to the Canadian Bill of Rightshas been conservative in the extreme. 47

39 Id.

40 This point in history is widely accepted as the beginning of increased interest inhuman rights in Canada and abroad. See E. Mendes, Interpreting the Canadian Charter ofRights and Freedoms:Applying International andEuropean Jurisprudence to the Law andPractice of Fundamental Rights, 20 Alta. L. Rev. 383 (1982); W. Tarnopolsky, The IronHand in the Velvet Glove: Administration and Enforcement ofHuman Rights Legislation inCanada, 46 Can. B. Rev. 565 at 568 (1968).

41 See note 36 and accompanying text supra.42 See W. How, The Casefor a Canadian Bill ofRights, 26 Can. B. Rev. 759 (1948);

F. Scott, Dominion Jurisdiction Over Human Rights and Fundamental Freedoms, 27 Can.B. Rev. 497 (1949).

43 See Racial Discrimination Act, 1944, S.O. 1944, c. 51; Saskatchewan Bill ofRightsAct, 1947, S.S. 1947, c. 35. See also two speeches made by John Diefenbaker, H.C.Deb., 20th Parl., 1st sess. at 2455-61 (3 Nov. 1945); H.C. Deb., 20th Parl., 3d sess. at3149-59 (16 May 1947).

44 See s. 26. See also W. Tarnopolsky, Some Perspectives on the Canadian CharterofRights and Freedoms, in The U.S. Bill of Rights and the Canadian Charter of Rights andFreedoms 203 at 206 (W. McKercher ed. 1983).

45 S.2.46 Curr v. The Queen, [1972] S.C.R. 889 at 902, 26 D.L.R. (3d) 603 at 615-16.47 See, e.g., J. Whyte, Fundamental Justice: The Scope and Application of Section

7 of the Charter, 13 Man. L.J. 455 at 461 (1983).

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Despite its manifest weaknesses, the Canadian Bill of Rights doeshave the virtue of expressly declaring that the right to property is worthy oflegal protection:

1. It is hereby recognized and declared that in Canada there have existed andshall continue to exist without discrimination by reason of race, nationalorigin, colour, religion or sex, the following human rights and fundamen-tal freedoms, namely:(a) the right of the individual to life, liberty, security of the person and

enjoyment of property and the right not to be deprived thereof exceptby due process of law. 48

The right to property expressed in subsection l(a) is riddled withfundamental defects. First, subsection l(a) applies only to "individuals",thus excluding all non-natural persons such as corporations from the scopeof its protection. 49 Second, the content of the right to property is flawed inthat it fails to provide an express right of compensation for an individualwhose property rights have been violated. This deficiency is in sharpcontrast to the Fifth Amendment of the American Constitution whichlimits federal powers and expressly includes a right to "just compensa-tion". While the Fourteenth Amendment does not include such a provisionwith respect to state powers, this deficiency has been remedied by theAmerican judiciary which has found such a right to be implied in theAmendment by the words "due process" .50

It has been argued that a similar right to compensation exists byimplication in subsection l(a) of the Canadian Bill of Rights. In N.C.C. v.Lapointe5I an individual sought judicial relief after the N.C.C. had expro-priated his real estate under the Expropriation Act 52 without providingnotice or affording the plaintiff any real opportunity to take legal proceed-ings to prevent the expropriation. It was held that the Expropriation Act didnot contravene the Canadian Bill of Rights. The trial judge said:

In fact, the right which the individual posesses "to enjoyment of property andthe right not to be deprived thereof" except by due process of law, means, Ifeel, that this right may only be withdrawn from him by the law existing or inforce. The expropriation of property must, however, be carried out by areasonable procedure, for a purpose which may be regarded as [in] the publicinterest, and the owner is to recover compensation, the amount of which mustbe fairly arrived at after a hearing. 53

48 Emphasis added.49 R. v. Halpert, 9 C.C.C. (3d) 411 at 421, 6 C.R.R. 136 at 147 (Ont. Prov. Ct.

1983), rev'don other grounds 48 O.R. (2d) 249, 15 C.C.C. (3d) 292 (Cty. Ct. 1984);NewBrunswick Broadcasting Co. v. C.R.T.C., [1984] 2 F.C. 410 at 427, 13 D.L.R. (4th) 77 at90 (C.A.), leave to appeal granted [1984] 2 S.C.R. ix.

50 Chicago, B. & Q. R.R. v. City of Chicago, 17 S. Ct. 581 (1897). See also, I.Rand, Except by Due Process of Law, 2 Osgoode Hall L.J. 171 at 185 (1961); E. Corwin,The Constitution and What it Means Today 388 (14th rev. ed. H. Chase & C. Ducat 1978).

51 [1972] F.C. 568, 29 D.L.R. (3d) 376 (T.D.).52 R.S.C. 1970, c. E-19 (replaced by R.S.C. 1970 (1st Supp.), c. 16).53 Supra note 51 at 571, 29 D.L.R. (3d) at 379.

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In Re Estabrooks54 "[t]he right to enjoyment of property free from thethreat of confiscation without compensation" 55 was boldly announced tobe a "right embodied in our constitution" .56 No underlying authority wascited for this proposition and it was subsequently rejected by the Court ofAppeal. 57 The case has also received strong academic criticism. 58

At best, therefore, only the most tenuous argument can be made infavour of an implied right to compensation based upon the judgments inLapointe and Re Estabrooks and the similarities between subsection l(a)and the Fourteenth Amendment. The better position seems to be that theCanadian Bill of Rights does not provide a right to compensation, expres-sly or by implication.

2. Due Process

The right to property provided by the Canadian Bill of Rights is notwithout qualification. Subsection l(a) provides for "the right of the indi-vidual... to enjoyment of property and the right not to be deprived thereofexcept by due process of law". The words, "except by due process of law"clearly indicate that the legislature contemplated some process whereby anindividual might legally be deprived of his fundamental rights, 59 includinghis right to property. The exact nature of this process and the degree towhich it permits judicial intervention into the substantive content oflegislation is not defined. Thus, it is necessary to review the meaning givenit by the courts.

The phrase "due process" was adopted from the American Constitu-tion where it is used to qualify the right to life, liberty and property asguaranteed in the Fifth and Fourteenth Amendments. 60 By the time it wasimported into Canada, the expression had accumulated 180 years ofjudicial interpretative baggage, much of it internally inconsistent.

Initially, the United States Supreme Court gave the expression "dueprocess" a substantive definition, whereby the judiciary could rule on the"wisdom" 61 of the substantive content of legislation. This gave rise to a

54 Supra note 33 (Q.B.).55 Id. at 54, 1 C.R.R. at 316.56 Id.57 Re Estabrooks, supra note 33 at 211, 7 C.R.R. at 52 (C.A.). LaForest J.A. held

the proposition to be a presumption arising from the Constitution but not a right embodiedin it.

58 G. Brandt, Note, 61 Can. B. Rev. 398 (1983).59 Miller v. The Queen, [1977] 2 S.C.R. 680 at 704, 70 D.L.R. (3d) 324 at 343

(1976) where Ritchie . refers to the right to life.60 The drafters of the United States Constitution adopted the phrase from the Magna

Carta:No freeman shall be taken and imprisoned or disseised or exiled or in any waydestroyed, nor will we go upon him nor send upon him, except by the lawfuljudgment of his peers and by the law of the land. (emphasis added)

See also W. Tarnopolsky, The Canadian Bill of Rights 222 (2d ed. 1975).61 This course has been avoided in the Canadian context. See Morgentaler v. The

Queen, [1976] 1 S.C.R. 616 at 632-33, 53 D.L.R. (3d) 161 at 173-74 (1975).

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virtually boundless degree of judicial intervention. However, due tochanges in the membership of the Supreme Court, 62 and political andeconomic pressures in the United States, 63 the Court changed direction. Inthe 1937 case of West Coast Hotel Co. v. Parrish,64 the Court adopted adefinition of "procedural due process" whereby the degree of judicialintervention was limited to ensuring that the legislatures did not interferewith judicially formulated procedural safeguards.

One of the lasting effects of the temporary application of substantivedue process was to greatly expand the right to property. This expansionincluded all the elements of ownership and appeared to merge the right toproperty with the more amorphous right to liberty.65 In addition, "dueprocess" as employed in the Fourteenth Amendment was held to create aright to compensation.66

In light of the preceding history of this phrase and the absence ofprevious judicial interventionism in Canadian constitutional history, theCanadian judiciary could apply one of the following three definitions to theterm "due process":(a) according to law - a legislature could override the protection

provided by subsection l(a) simply by passing an ordinary statute;(b) procedural due process - ensuring that the rules of natural justice are

adhered to and that all other procedural safeguards applicable to thespecific case are employed; or

(c) substantive due process - the examination by the judiciary of thecontent of legislation to determine whether or not, in the subjectiveopinion of the court, it is acceptable.The first definition provides less legal protection to property holders

than was previously available under the rules of statutory interpretation.Thus, if "according to law" were the operative definition of the phrase,subsection l(a) would be pointless and perhaps even regressive. 67 Thethird definition has been considered by Canadian jurists and academics andhas been universally rejected as being contrary to principles of responsiblegovernment, lacking any "objective or manageable [standard] by which aCourt should be guided" in substituting its judgment for that of thelegislature. 68 Procedural due process has been repeatedly employed as theworking definition of this phrase in those Canadian decisions that haveaddressed this issue.

62 Eight U.S. Supreme Court Justices left the bench between 1932 and 1941,permitting President Roosevelt to appoint justices who were unlikely to interfere with hislegislative programs. See generally G. White, The American Judicial Tradition (1976);infra note 63 at 449.

63 L. Tribe, American Constitutional Law 451 (1978).64 57 S. Ct. 578 (1937).65 E. Corwin, supra note 50 at 216.66 Chicago, B. & Q. R.R. v. City of Chicago, supra note 50.67 W. Tarnopolsky, supra note 60 at 223-24; L.-P. Pigeon, The Bill ofRights and the

British North America Act, 37 Can. B. Rev. 66 at 75 (1959).68 Curr, supra note 46 at 899-900, 26 D.L.R. (3d) at 614.

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In Curr v. The Queen69 an accused argued that certain provisions ofthe Criminal Code which made it an offence to refuse to provide a sampleof one's breath were violations of the right to "due process". Mr. JusticeLaskin, as he then was, refused to embark upon a substantive review of thelegislation, especially in light of the status of the Canadian Bill ofRights asa mere statutory enactment. 70 Dissenting in Morgentaler v. The Queen7'Laskin C.J.C. repeated the procedural definition of due process and spokeof resisting the temptation to consider the "wisdom of legislation" .72 InLapointe73 it was held that in order to satisfy the due process standard, itwas necessary only to ensure that the expropriation legislation pre-datedthe date of expropriation and that the procedure set out in that legislationwas followed. This decision is so far removed from a substantive review oflegislation that it very nearly, except for the requirement of non-retrospec-tivity, resembles the "according to law" definition set out above. Thisdecision is illustrative of the hesitancy of the Canadian judiciary to take aninterventionist role when interpreting the Canadian Bill of Rights, even toprotect the tenets of natural justice.

In R. v. ThibodeaU74 property was confiscated without providingnotice to the owner of the property by the federal Crown for a violation ofthe Migratory Birds Convention Act. 75 Without expressly relying upon thedue process provision of subsection l(a), the trial judge held that theCanadian Bill of Rights applied and had been contravened by the Crown'sfailure to provide notice and a fair hearing. The reasoning is unclear: it mayinvolve an application of administrative law principles or it may give theexpression "due process" a procedural definition similar to that of "natu-ral justice". 76

In summary, the Canadian Bill of Rights is a mere statutory instru-ment, applicable only in the federal legislative field and then only withreference to individuals. It expressly provides for protection of the right toproperty and the right not to be deprived thereof except by "due process oflaw". The right to property, like the Canadian Bill ofRights generally, hasbeen given a conservative, non-interventionist interpretation. The "dueprocess" provision has also been restrictively interpreted, having beenheld to provide little more than an assurance of natural justice. No right to

69 Supra note 46.70 Id. at 902-03, 26 D.L.R. (3d) at 616. See also B. Laskin, An Inquiry into the

DiefenbakerBillofRights, 37 Can. B. Rev. 77 at 128 (1959), where the author describes theexpression "due process" as a "troublesome phrase" and one not appropriate in astatutory enactment. In the ensuing twenty year period, Laskin never waivered from thisposition.

71 Supra note 61.72 Id at 632-33, 53 D.L.R. at 173.73 See note 51 and accompanying text supra.74 23 N.S.R. (2d) 16 (S.C. 1976).75 R.S.C. 1970, c. M-12.76 De Smith's Judicial Review of Administrative Action 156-58 (4th ed. J. Evans

1980).

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compensation for the confiscation of private property has been judiciallyimplied into the expression. In short, the inclusion of the right to propertyin subsection l(a) has served primarily as a declaration of the right toproperty rather than an effective mechanism for the enforcement andprotection of that right.

VII. CHARTER OF RIGHTS AND FREEDOMS

On April 17, 1982 the Constitution Act, 1982, including the Charter,was proclaimed in force throughout Canada. Subsection 52(1) of theConstitution Act, 1982 reads as follows:

The Constitution of Canada is the supreme law of Canada, and any law that isinconsistent with the provisions of the Constitution is, to the extent of theinconsistency, of no force or effect.

It is by virtue of this provision that the Charter has been accorded aconstitutional status capable of overriding federal and provincial legisla-tion. 77 This status has dramatically altered the role of the Canadianjudiciary and provided, for the first time in Canadian history, constitu-tional protection for certain enumerated rights and freedoms.

The Charter, unlike the Canadian Bill of Rights, has broad applica-tion. Its protections have been afforded to "anyone" 78 and "everyone": 79

these phrases have been interpreted to include both corporate and naturalpersons, 80 despite academic opinion to the contrary.8' As well, theCharter has been given "a large and liberal interpretation" 8 2 unlike therestrictive "frozen concepts doctrine"8 3 applied by the Supreme Court ofCanada to the Canadian Bill ofRights. In further contrast to the CanadianBill of Rights, the Charter contains a clear and effective enforcement

77 R. v. Holman, 28 C.R. (3d) 379 at 391 (1982); Reference re S. 94(2) of the MotorVehicle Act, 42 B.C.L.R. 364 at 67, 147 D.L.R. (3d) 539 at 42 (C.A.), affd (unreported,S.C.C., 17 Dec. 1985). See also W. Tarnopolsky, supra note 44 at 206.

78 Sub. 24(1).79 Sub. 2(b) and ss. 7, 8, 9, 10, 12 and 17.80 Halpert, supra note 49 at 419, 6 C.R.R. at 145; Southam Inc. v. Director of

Investigation and Research of the Combines Investigation Branch, 20 Alta. L.R. (2d) 144at 152, [1982] 4 W.W.R. 673 at 682 (Q.B.), affd sub nor. Southam Inc. v. Hunter, [1984]2 S.C.R. 145; Balderstone v. The Queen, 19 Man R. (2d) 321 at 329-30, 143 D.L.R. (3d)671 at 678 (Q.B. 1982); R.L. Crain Inc. v. Couture, 30 Sask R. 191 at 214, 6 D.L.R. (4th)478 at 505 (Q.B. 1983).

81 Supra note 47 at 456.82 Re Southam Inc. & The Queen (No. 1), 146 D.L.R. (3d) 408 at 418, 6 C.R.R. I at

10 (Ont. C.A. 1983); ReR. and Potma, 37 O.R. (2d) 189 at 199, 136 D.L.R. (3d) 69 at76(H.C. 1982); Minister of Home Affairs v. Fisher, supra note 16. See also Canadian Charterof Rights and Freedoms at 25-39 (W. Tarnopolsky & G. Beaudoin eds. 1982).

83 R. v. Burnshine, [1975] 1 S.C.R. 693 at 705, 44 D.L.R. (3d) 584 at 592 (1974);Miller, supra note 59.

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mechanism 8 4 to ensure that its rights and freedoms are more than piousplatitudes without legal effect.8 5

Despite these improvements, the Charter is markedly deficient in thefield of property rights. Unlike the American Bill of Rights (AmendmentsV and XIV), the European Convention on Human Rights (Article 1 ofProtocol No. 1), and the International Convention on Civil and PoliticalRights (Article 17-1),86 the Charter contains no express protection of theright to property. This is particularly remarkable in light of the fact that theright to property is included in the Canadian Bill of Rights in subsectionl(a).

To understand why the right to property was not afforded constitu-tional protection, one must first look to the drafters of the Charter. Despitethe responsible and conservative judicial interpretation given the right toproperty in the Canadian Bill of Rights, there existed among seniorDepartment of Justice officials a deep-seated fear that the juxtaposition ofthe right to property and "due process" in a constitutional instrumentwould give rise to an excessively wide definition of the term "property"and result in extreme substantive interventionism by the Canadian judici-ary.8 7 The solution frequently proposed to this perceived problem was torecommend the separation of the right to property from the right to life,liberty and security of the person and to qualify the right to property bysome expression which has less substantive import than "due process",such as "according to law" or "natural justice".ss

When the first draft of the Proposed Resolution was tabled in theHouse of Commons on October 2, 1980, the right to property had beendeleted and the words "due process" had been replaced by the expression"fundamental justice" .89 The deletion of the right to property may havebeen due, in part, to the fear of substantive due process. However, the morelikely explanation is that by its deletion, the Liberal government side-stepped an issue that would have been strongly opposed by both the federalNew Democratic Party and the provincial governments whose legislative

84 Sub. 24(1).85 See John Diefenbaker's address in the House of Commons where he stated:

"These great traditional rights are merely pious ejaculations unless the individual has theright to assert them in the courts of law." H.C. Deb., 20th Pan., 3d sess. at 3152-53 (16May 1947).

86 16 Dec. 1966 (in force 23 Mar. 1976), U.N. Doc. A/6316. Canada ratified thisconvention in 1976, after consultation with the provinces.

87 Department of Justice, A Canadian Charter of Human Rights (1968). J. Whyte,supra note 47 at 456-61. Minutes of Proceedings and Evidence of the Special JointCommittee of the Senate and House of Commons on the Constitution of Canada, 30thPan., 3d sess., Issue No. 12 at 12:39 and 12:52-53 (12 Sep. 1978); 32d Parl., Ist sess., IssueNo. 46 at 46:37 (27 Jan. 1981).

88 W. Tarnopolsky, supra note 60 at 16. E. McWhinney, Canada and the Constitu-tion 1979-1982: Patriation and the Charter of Rights 58 (1982).

89 Proposed Resolution of a Joint Address to Her Majesty The Queen respecting theConstitution of Canada, October 2, 1980. See also note 131 and accompanying text infraconcerning the issues surrounding "fundamental justice".

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authority under subsection 92(13) of the Constitution Act, 1867 would havebeen most affected. Shortly thereafter, the right to property came veryclose to being included in the Charter. Initially the federal Conservatives"chose to fight the process of repatriation at the expense of remaking orrefining its contents" .90 Later,9' the Conservatives proposed in Committeethat the Charter be amended to add the right to property and the right not tobe deprived thereof except in accordance with the principles of naturaljustice. On Friday, January 23, 1981, Solicitor-General Robert Kaplanindicated to the Special Joint Committee that the Liberal governmentwould support the Conservative amendment. However, due to the vigorousopposition of three Conservative provincial governments 92 and the threatthat the federal New Democrats would withdraw their support of therepatriation package, the federal government withdrew its support for theConservative amendment the following Monday, January 26, 1981. Theright to property continued to be omitted from subsequent revisions andamendments 93 and the Charter was ultimately proclaimed in force, with-out any express protection for the right to property.

Despite the absence of express protection of the right to property inthe Charter, there are both judges and legal scholars who maintain that it isprotected by the Charter, suggesting that it is included by implication insections 7, 8 and 26.

Section 7 reads as follows:

Everyone has the right to life, liberty and security of the person and the rightnot to be deprived thereof except in accordance with the principles of funda-mental justice.

There are two provisions in section 7 that may be considered to impliedlyinclude a right to property: the right to security of the person and the rightto liberty.

The expression "security of the person" has not previously been usedin a Canadian constitutional instrument and its meaning is not clear.94 Itcould be interpreted narrowly and be limited to protection of bodily

90 E. McWhinney, supra note 88 at 57.91 See the following newspaper articles: R. Sheppard, Liberals accept PC amend-

ment on property, The Globe and Mail (Toronto), 23 Jan. 1981, at 8, col. 3; R. Sheppard,NDP gains vote postponement on Tory property amendment, The Globe and Mail(Toronto), 24 Jan. 1981, at 12, col. 1; R. Sheppard, Property rights issue may bring boycottof sessions by PCs, The Globe and Mail (Toronto), 27 Jan. 1981, at 1-2, col. 2.

92 P.E.I., N.S. and Nfld. were all attempting to maintain control over foreignownership of provincial farmland. See Globe and Mail articles, 23 & 27 Jan. 1981, supranote 91.

93 A Consolidated Resolution was tabled in the House, H.C. Deb., 32d Parl., Istsess., at 7219 (13 Feb. 1981); Amended Resolution, November 18, 1981; Final Resolution,December 8, 1981.

94 This expression is used in para. l(a) in the Canadian Bill of Rights which hasnever been viewed by the courts as being constitutional in character.

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integrity, 95 or it could be interpreted widely to include personal dignity,privacy and economic and property rights. 96 A leading Canadian aca-demic has suggested that a liberal interpretation of security of the person ismore in keeping with the purpose of the Charter. On an intuitive basis hesuggests that the minimum content of the expression includes the right tobe free from government action that takes away shelter and food, and tothat extent at least, protects the right to property. 97 Whatever the merits ofthis position, it is largely speculative and is more an argument in support ofthe inclusion of an express right to property than an argument in support offinding such a right included in the words "security of the person".

Limited support for the position that the right to security of the personincludes the right to property is found in the decision of Re Estabrooks.98

The issue in that case was whether property possessed by a tax debtor, butowned by third parties, could be seized and liquidated by the provincialCrown in satisfaction of the tax liability of the debtor. The Court held, interalia, that a right to property was necessarily implied in the expression"security of the person" and the property was ordered to be returned to thethird party. However, for a number of reasons, the case is weak authorityfor this proposition. First, the meaning of "security of the person" wasrather boldly stated as "comprising the right to enjoyment of ownership ofproperty". There was no analysis, nor was any supporting authority cited.Second, the judicial statements made by the trial judge were obiter dictaand followed on the heels of eight alternate grounds for the decision.Finally, the judicial creation of the right to property was specificallyrejected by the Court of Appeal. 99

It has also been suggested that the right to liberty included in section 7of the Charter provides constitutional protection for the right to property.In Halpert'00 four individuals were charged with selling gasoline byimperial measure contrary to the Weights and Measures Act. 10' Ross Prov.J., in obiter dicta, noted that the actions of an agent of the federal Crown insealing the gasoline pumps of the defendants was a violation of thedefendants' rights to property protected in the right to liberty in section 7 of

95 J. Whyte, supra note 47 at 474. R. v. Operation Dismantle Inc., [1983] 1 F.C.745, 3 D.L.R. (4th) 193 (App. D.).

96 ReR.L. Crain, supra note 80;R. v. Morgentaler, 47 O.R. (2d) 353 at 394 (H.C.1984).

97 1. Whyte, supra note 47 at 474-75. See W. Tarnopolsky, supra note 60 at 17concerning the decision to exclude any express reference to economic rights from theCharter.

98 Supra note 33 (Q.B.).99 Re Estabrooks, supra note 33 at 213, 7 C.R.R. 46 at 54 (C.A.) that affirmed the

trial decision on other grounds.100 Supra note 49. This case subsequently proceeded to appeal where both the legal

reasoning and conclusions of the trial judge were overturned. The appellate decisionprovides no support whatsoever for reading a right to property into the right to liberty in s.7. See R. v. Halpert, 48 O.R. (2d) 249, 15 C.C.C. (3d) 292 (Cty. Ct. 1984).

101 S.C. 1970-71-72, c. 36.

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the Charter.l02 Two authorities were relied upon: Mr. Justice MacKin-non's admonition to give the Charter a "large and liberal construction" 10 3

and an American decision 10 4 interpreting the word "liberty" in the Four-teenth Amendment. Such authority is tantamount to no authority at all.The reliance upon the American decision is particularly misleading, giventhat the Fourteenth Amendment is not analogous to section 7 of theCharter, as the Fourteenth Amendment expressly includes the right toproperty. As well, the Fourteenth Amendment has a unique jurisprudentialhistory based upon the "due process" clause contained therein.' 05 Inaddition to the paucity of convincing reasoning to support the inclusion ofa right to property in the right to liberty, it is noteworthy that the actualdecision is based upon a traditional division of powers analysis. Thejudicial statements concerning the Charter are obiter dicta.

In other cases, the courts have emphatically refused to find theexistence of any protection of the right to property in the Charter. InBalkan v. Gagnon10 6 the Court held that "[t]he section of the Charterrelied on [section 7] does not cover property rights which are the onlyrights in question in this case." 10 7 Similarly, in Becker v. Alberta'0 theCourt compared the words of the Fifth Amendment of the United StatesConstitution to section 7 of the Charter, noted the absence of any referenceto property rights in the latter and concluded that the Charter did notprotect the right to property. Finally, the Court of Appeal decision in ReEstabrooks'0 9 provides strong authority that section 7 does not provideconstitutional protection for the right to property. There, Mr. JusticeLaforest stated that not only was the right to property not expresslyprotected by the Charter, but its omission was intentional in order to avoidsubstantive judicial review of legislative measures. 110

In summary, section 7 of the Charter has been interpreted both asproviding and not providing protection for the right to property. However,in light of the level of the courts that have considered section 7 in thiscontext, the importance of this issue to the actual decisions and the qualityof the reasoning supporting those decisions, the caselaw to date does not infact support an express or implied right to property.

A further basis for the protection of property rights may be found inthe concluding expression of section 7 - "principles of fundamental

102 Halpert, supra note 49 at 430, 6 C.R.R. at 156.103 Southam, supra note 82.

104 Board of Regents of State Colleges v. Koth, 92 S. Ct. 2701 (1972).105 See note 54 and accompanying text supra. See also Public Service Alliance of

Canada v. The Queen, [1984] 2 F.C. 562 at 602, 9 C.R.R. 248 at 281 (Trial D.) where theright to liberty was given a restrictive interpretation excluding freedom of contract andother economic rights.

106 23 Man. R. (2d) 217 (Cty. Ct. 1983).107 Id. at 220.108 45 A.R. 37, 7 C.R.R. 232 (Q.B. 1983).109 Supra note 33 at 213, 7 C.R.R. at 54 (C.A.).110 Id.

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justice". This expression was used instead of the words "due process oflaw" that are used in the Canadian and American Bills of Rights. Thissubstitution was intended to limit the scope of judicial review to pro-cedural, rather than substantive matters."' Notwithstanding twenty-fiveyears of "procedural due process" in Canada and fifty years of "pro-cedural due process" in the United States, the drafters of the Charterfeared that the term "due process", when used in a constitutional docu-ment, would receive a substantive interpretation from the Canadian judici-ary. 112 The drafters' apprehensions were based upon statements made byLaskin C.J.C. in Curr where, after refusing to give "due process" asubstantive interpretation in the Canadian Bill ofRights, he suggested thatsuch an interpretation might be appropriate in a constitutional humanrights document."13

In Duke v. The Queen"14 the term "fundamental justice", asemployed in subsection 2(e) of the Canadian Bill of Rights was given aprocedural definition:

Without attempting to formulate any final definition of the words [fundamen-tal justice], I would take them to mean, generally, that the tribunal whichadjudicates upon his rights must act fairly, in good faith, without bias and in ajudicial temper, and must give him the opportunity adequately to state hiscase. 115

Unfortunately, the definition of "fundamental justice" in Duke is subjectto the same weakness as the "due process" definition in Curr: both termsare contained in a statutory, as opposed to a constitutional, instrument. Thedefinition of "fundamental justice" in Duke is subject to the additionalcriticism that it was enunciated in a case dealing specifically with aprocedural deficiency. As well, one must remember that "fundamentaljustice" was used in a procedural context in the Canadian Bill of Rights.Notwithstanding the significant change in context, the drafters of theCharter were convinced that "fundamental justice" meant the same thingas "natural justice" and would be so interpreted by the Canadian judiciary.The interpretation ultimately given to "fundamental justice" is of theutmost importance in determining the viability of the right to propertywithin the existing words of the Charter. On a substantive construction,the right to property might be found to exist, to one extent or another,within the right to "security of the person"" 6 or in the right to "lib-

III Minutes of the Proceedings and Evidence of the SpecialJoint Committee, supranote 87.

112 This fear of substantive due process was so deep-seated and so contrary to therecent judicial experience that one academic writer described it as "oxymoronic". J.Whyte, supra note 47 at 456.

113 Curr, supra note 46 at 614.114 [1972] S.C.R. 917, 28 D.L.R. (3d) 129.115 Id. at 923, 28 D.L.R. (3d) at 134. Note: sub. 2(e) oftheBill ofRights deals with

the right to a fair hearing.116 See Re Estabrooks, supra note 33 (Q.B.); J. Whyte, supra note 47 at 474.

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erty". 117 Conversely, a procedural interpretation would require the judici-ary to concentrate solely upon the fairness of the legal procedure andwould likely prevent the right to property from being read into the existingwords of the Charter.ll8 A recent Supreme Court of Canada decision hassquarely addressed the issue of the interpretation which should beaccorded the term "fundamental justice". 119 Before analyzing that deci-sion, it is useful to survey the previously decided caselaw.

The cases which addressed this issue prior to the recent SupremeCourt of Canada decision failed to produce a clear line of authority. Anumber of cases gave "fundamental justice" a substantive interpretation.In Reference re S. 94(2)120 the British Columbia Court of Appeal held thatthe term "fundamental justice" gave the court a right to review the contentof legislation and found that the section was "inconsistent with the princi-ples of justice". The Court relied upon the constitutional character of theCharter and distinguished the Curr, Morgentaler and Duke decisions asrelating solely to a statutory instrument. However, the Court did notprovide any positive authority as a basis for its substantive interpretation,nor did the decision enunciate any guidelines or standards which mightlimit its right of substantive review. A substantive definition was also givento the term "fundamental justice" in R. v. Carrierel21 where the Courtheld that, by virtue of section 52 of the Charter and the substantive importof "fundamental justice" as compared with "due process", the courtswere "deliberately granted supervisory powers over the substantive con-tent of legislation". 122 In Re R.L. Crain Inc. 123 the trial judge noted theconstitutional character of the Charter, distinguished the Canadian Bill ofRights and the cases interpreting it as relating to a mere statutory instru-ment and, following Reference re S. 94(2), Campagna and Carriere, gave"fundamental justice" a substantive definition.

The four cases set out above provide clear examples of the applicationof the substantive interpretation of "fundamental justice". In all four casesthe legislature had considered a social problem (driving while suspended,procuring evidence in drug prosecutions and procuring evidence in com-mercial investigations) and made a determination as to the seriousness ofthat problem and the extent to which it was prepared to permit the legaldevices employed to overcome that problem to encroach upon the civilliberties of individual members of the society. In all four cases the judgesconsidered the substantive content of the legislation and held that in the

117 See, e.g., Halpert, supra note 49; W. Tamopolsky, supra note 60 at 224; J.Whyte, supra note 47 at 474.

118 See, e.g., Re Estabrooks, supra note 33 (C.A.); Becker, supra note 108.119 Reference re S. 94(2), supra note 77.120 42 B.C.L.R. 364, 147 D.L.R. (3d) 539 (C.A. 1983). For a discussion of the

S.C.C. decision in this case see note 130 and accompanying text infra. See also R. v.Campagna, 70 C.C.C. (2d) 236, 141 D.L.R. (3d) 485 (B.C. Prov. Ct. 1982).

121 32 C.R. (3d) 117, 4 C.R.R. 97 (Ont. Prov. Ct. 1983).122 Id. at 129, 4 C.R.R. at 107.123 Supra note 80.

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circumstances of those cases the law in question interfered with personalliberties to an extent which, in their subjective opinion, was unreasonable.

There have also been a number of cases which gave "fundamentaljustice" a procedural interpretation. If accepted, this interpretation wouldrender the judiciary's perception of the reasonableness of a given policyirrelevant. The court would be limited to ensuring that the proceduralsafeguards available in the circumstances of the particular case wereobserved.

In R. v. Holman,124 following a detailed examination of the history of"due process" and "fundamental justice" in Canada and a review of thelegislative background of section 7, "fundamental justice" was given aprocedural definition. In both Jamieson v. The Queen125 and Re Mason, 126

after noting the comment of Assistant Deputy Minister Strayer that "fun-damental justice" can be equated to "natural justice", the court adopted aprocedural definition.

The Manitoba Court of Appeal reached the same conclusion in R. v.Hayden,127 holding that "fundamental justice" did not go beyond therequirement of fair procedure. Finally, in Public Service Alliance ofCanada,12s after a careful review of many of the previous decisions andvarious textual authorities, a Federal Court judge held, albeit in obiterdicta, that "the better view does seem to be that section 7 relates only toprocedural fairness". 129

After reviewing the caselaw, it is clear that there existed little judicialconsensus as to whether "fundamental justice" should receive a pro-cedural or a substantive interpretation. This issue has now been addressedby the Supreme Court of Canada in Reference re S. 94(2).130 In the well-reasoned majority decision, Mr. Justice Lamer elevates the judicial debatefrom the morass of the substantive/procedural dichotomy and attempts tofocus on the development of an appropriate legal analysis to guide thecourts in applying section 7 of the Charter.

At the outset of the decision, Lamer J. criticizes the judicial debate todate as having restricted itself to the "all or nothing proposition" ofsubstantive or procedural judicial review. He then clearly expresses what ismeant by the term "substantive" judicial review: the expression permitsthe judiciary to measure the content of legislation against the guaranteesset out in section 7 of the Charter. He expressly excludes from thedefinition any right to pass judgment upon the appropriateness of thepolicies underlying legislative enactments. Having defined substantive

124 Supra note 77.125 3 C.R.R. 193 (Que. C.S. 1982).126 43 O.R. (2d) 321, 35 C.R. (3d) 393 (Ont. H.C. 1983).127 23 Man. R. (2d) 315, 7 C.R.R. 325 (C.A. 1983).128 Supra note 105.329 Id. at 602, 9 C.R.R. at 281.130 Supra note 77. The decision of the Supreme Court of Canada in this appeal was

rendered after the submission of this article. This discussion was inserted shortly beforepublication and is not meant to be exhaustive.

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judicial review in these restrained terms, the Court has little difficulty infinding that "fundamental justice" should receive a substantive interpreta-tion for the following reasons:(a) Canadian courts have always considered the content of legislative

enactments. The effect of the Charter is simply to expand the scope ofthat adjudication from the examination of the distribution of govern-ment powers to the protection of human rights;

(b) the entrenchment of the Charter and the express statement ofsupremacy in section 52 elevate the adjudication beyond mere pro-cedure;

(c) section 7 of the Charter deals with rights of the most fundamentalnature and to restrict the adjudication of infringements of these rightsto mere procedural protection would be to place greater limits onsection 7 than on the other sections of the Charter; and,

(d) the provisions of the Charter are, by their constitutional nature, and onstrong authority, to be afforded a broad, rather than a restrictedinterpretation.

The Court also provided the following reasons for rejecting a purelyprocedural definition:(a) the Canadian Charter is a radically different document from the

United States' Bill of Rights and any attempts to import the Americanconcept of procedural due process ignores the significance of sections1, 33 and 52 of the Charter;

(b) the expression "natural justice" is a term generally defined to effectprocedural protection and it was available to, but not used by, thedrafters of the Charter;

(c) the decisions interpreting the expression "fundamental justice" in theCanadian Bill ofRights are distinguishable as relating to a proceduralprovision in a mere legislative enactment interpreted by an uncertainand ambivalent judiciary; and,

(d) statements made by senior civil servants such as the Assistant DeputyMinister of Justice, although admissible, are to receive the lightestpossible weight.Thus, the analysis of the Court with respect to its definition of

"fundamental justice" relies primarily upon the Charter itself and expres-sly disapproves contrary definitions that are based primarily upon materialextraneous to the Charter. The reasoning is legally and logically satisfyingand the result, it is submitted, is conclusive: "fundamental justice" in thecontext of section 7 of the Charter empowers the judiciary to adjudicateupon the content of legislation vis- -vis the guarantees set out in section 7,provided always that the judiciary remain within the sphere of judicialactivity and do not cross the line into the realm of legislative policy-making.

The decision is important for its analysis of the Charter and itsattempt to satisfy Laskin C.J.C.'s admonition in Curr131 that the judiciary

131 Supra note 46 at 899-900, 26 D.L.R. (3d) at 614.

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must develop objective and manageable standards for substantive judicialreview. While the decision does permit substantive judicial review andplaces reasonable parameters upon the scope of that review, it is deficientin that it is not helpful in setting out the cognitive process for a court tofollow when substantively reviewing legislative enactments. Lamer J.recommends use of the "purposive" analysis set out by the Court in R. v.Big MDrugMart Ltd. 132 However, this analysis involves little more than adirection to the judiciary to look to the words and purpose of the Charter.

It is submitted that greater assistance can be gained from the ana-lytical model devised by Rand J. to interpret the expression "due process"in the Canadian Bill ofRights. 133 The approach is equally applicable to theexpression "fundamental justice" in the Charter and has been adopted in anumber of Charter decisions. 134 The formula permits the courts substan-tive review but requires the courts to address the following issues inrelation to the factual circumstances of the individual case:

(a) the existence of an evil to be curbed or a benefit to be provided in thepublic interest;

(b) the appropriateness of what is proposed as regulation to the end sought;(c) the extent to which individual privileges and liberties are encroached

upon; and,(d) the relationship betwen the degree of imposition and the good

achieved.13 5

This approach confines the degree of judicial review within theparameters of what the judiciary can reasonably and objectively justify asexcessive infringements of civil liberties in the circumstances of theparticular case. It is suggested that the application of such an objectiveformula by the judiciary would result in the rapid development of objectiveand manageable standards to guide the judiciary when exercising theirpower of substantive judicial review.

In conclusion, based upon the Supreme Court of Canada's decision inReference re s. 94(2), section 7 of the Charter would appear to have beenconclusively, and it is submitted rightly, interpreted as granting a right ofsubstantive judicial review. The analysis that the judiciary should employwhen applying substantive review requires further and more detailedenunciation by the courts. Unfortunately, in light of the restrained defini-tion of substantive judicial review articulated and the Court's reference to a

132 [198511 S.C.R. 295 at 344.133 I. Rand, supra note 50. Rand emphatically states his own position concerning

the protection of the right to property when he says: "At certain dimensions we can withoutdoubt pronounce legislation outside the bounds of traditional process .... [such as]legislation that would take property for an exclusively private purpose, or for a publicpurpose without compensation .... [It is such action that gives us a clue as to the characterof] action which due process condemns." Id. at 190.

134 Campagna, supra note 126; Re R.L. Crain Inc., supra note 80; Reference re S.94(2), supra note 77; Holman, supra note 77 (in obiter dicta).

135 I. Rand, supra note 50.

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"purposive" analysis of the Charter, it is most unlikely that the Canadianjudiciary will utilize their expanded right of judicial intervention to provideconstitutional protection for rights, such as the right to property, that arenot expressly included in the Charter.

Another possible means of incorporating a right to property within theCharter is to find such a right implied within section 8 of the Charter.Section 8 reads as follows:

Everyone has the right to be secure against unreasonable search or seizure.

In Becker v. Alberta136 the plaintiff based his application for judicialreview of expropriation of his real estate upon the allegation that he was thesubject of an unreasonable seizure contrary to section 8. The Courtcompared section 8 of the Charter with the Fourth Amendment andconcluded that the right to be secure from unreasonable seizure does notgive rise to a right to property. Following academic commentary,' 37 theCourt held that if the legislature had wished to introduce property rightsinto the Charter it would have done so in section 7, and having failed to doso, section 8 did not give rise to such a right.138 This case appears to be theonly case on the subject to date and provides satisfactory authority for theproposition that no right to property arises by virtue of section 8 of theCharter.

The final section of the Charter that has been relied upon as givingrise to a right to property is section 26 which reads:

The guarantee in this Charter of certain rights and freedoms shall not beconstrued as denying the existence of any other rights or freedoms that exist inCanada.

This provision is of great importance as it ensures that rights and freedomswhich predated the Charter are not abolished or impugned. At the sametime it is important to recognize that section 26 does not increase the statusof these earlier freedoms or "constitutionalize"' 139 them in any way.

Section 26 was considered in Re Estabrooks. At trial, Dickson J. erredwhen he suggested that section 26 incorporated the right to property intothe Charter. This error was implicitly addressed and corrected onappeal. 140 Section 26, by itself, does not in any way alter the rights orfreedoms it refers to. It is included in the Charter in order to ensure that thecreation of the Charter does not displace pre-existing rights and freedoms.

136 Supra note 108.137 W. Tarnopolsky & G. Beaudoin, supra note 82 at 298. See also Halpert, supra

note 100.138 See also Re Workers' Compensation Bd. of N.S. and Coastal Rentals, Sales and

Serv. Ltd., 12 D.L.R. (4th) 564 (N.S.S.C. Trial D. 1983), which approves and followsBecker, supra note 108, and expressly disapproves Re Estabrooks, supra note 33.

139 P. Hogg, supra note 34 at 70. See also R. v. Morgentaler, 41 C.R. (3d) 193 at234, 12 D.L.R. (4th) 502 at 540 (Ont. H.C. 1984).

140 Supra note 33 (C.A.).

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A number of Canadian commentators have agreed with this interpreta-tion. 141

In conclusion, the right to property is not expressly protected by theCharter. Nor does such constitutional protection exist by implication insections 7, 8 or 26.

VIII. EUROPEAN CONvENTION OF HUMAN RIGHTS

The European Convention on Human Rights,142 unlike the CanadianCharter, provides express protection of the right to property in Article 1 ofProtocol No. 1.143 While the scope of this article does not permit anextensive comparative analysis between the Convention and the Charter, itis instructive to briefly examine the manner in which the right to propertyhas been protected in the Convention and to consider some of the cases inwhich the right to property has been raised.

Article 1 of Protocol No. 1 reads as follows:

Every natural or legal person is entitled to the peaceful enjoyment of hispossessions. No one shall be deprived of his possessions except in the publicinterest and subject to the conditions provided for by law and by the generalprinciples of international law.

The preceding provisions shall not, however, in any way impair the rightof a State to enforce such laws as it deems necessary to control the use ofproperty in accordance with the general interest or to secure the payment oftaxes or other contributions or penalties.

Unlike the Charter, Protocol No. 1 expressly protects the right to property.The inclusion of specific' 44 and general' 45 exceptions allows interests ofproperty holders and sovereign governments to be appropriately balanced.

Following this Protocol, the European Court of Human Rights firstdetermines whether there is a deprivation of property or a restriction on theuse of property. Normally the deprivation or restriction is obvious and notseriously in dispute. Hence, the majority of cases involve only a deter-mination of whether a deprivation or restriction can be legally justified. 46

In order to justify a law depriving a person of property or restricting aperson's use of property, the defendant government usually attempts to

141 P. Hogg, supra note 34 at 70-71; G. Brandt, supra note 58 at 405; J. Whyte,supra note 47 at 471; P. Bender, The Canadian Charter of Rights and Freedoms and theUnited States Bill of Rights: A Comparison, 28 McGill L.J. 811 at 846 (1983).

142 The Convention came into force on September 3rd, 1953 and has been ratifiedby 21 European countries.

143 Article I of Protocol No. I came into force on May 18, 1954.144 The specific exceptions include: "[T]he payment of taxes or other contributions

orpenalties".145 The general exception reads: "[S]uch laws as it deems necessary to control the

use of property in accordance with the general interest ......146 See, e.g., Hauer v. LandRheinland-Pflaz, 3 E.H.R.R. 140 at 145-49 (Eur. Ct. of

Justice 1979).

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demonstrate that such a law is "necessary to control the use of property inthe general interest". A brief review of several decisions of both theEuropean Court of Human Rights and the European Commission ofHuman Rights will demonstrate the wide application of the right toproperty and the manner in which the Court and Commission haveattempted to balance the competing interests of property owners andsovereign governments.

In Hauer v. Land Rheinland-Pfalz'47 the applicant, a German citizen,applied to a local planning authority for permission to grow vines on herproperty. While her application was being considered, Germany adopted aEuropean Economic Community Regulation prohibiting all planting ofnew vineyards for a period of three years. Later, the local planningauthority stated its willingness to grant permission to the applicant to growvines when the prohibition was lifted. The applicant complained that theright to enjoyment of her property was infringed. The European Court heldthat under Article 1 of Protocol 1, the applicant had not been deprived of herproperty, but that she had been restricted in the use of her property. TheCourt went on to hold that this restriction was justified in the generalinterest as it was necessary to end wine production surpluses and toimplement a structured policy of wine production. It further held that suchrestriction of property rights, in view of its limited duration, did notconstitute a disproportionate or intolerable interference with the propertyrights of the applicant. Accordingly, the application was dismissed.

In Sporrong v. Sweden 148 two individuals applied to the EuropeanCourt concerning interference with their right to the enjoyment of their realproperty. The applicants' properties were subject to expropriation permits,although they were never in fact expropriated, for twenty-three and eightyears respectively, and were also subject to construction prohibitions foreven longer periods of time. In this case the Court held by a majority of tento nine that the applicant's right to the enjoyment of their property had beeninterfered with and that the demands of the general interest of the com-munity were excessive and did not constitute a justification for the viola-tion of the property rights of the applicants. The excessive length of timeinvolved and the onerous restriction of having both expropriation permitsand construction prohibitions simultaneously applied were emphasized inthe decision. In spite of the obviously severe interference with the use ofthe applicants' property, it is noteworthy that the applicants receivedjudgment on the matter by only the slimmest of majorities.

In Marckx v. Belgium149 the Court dealt with a Belgian law thatrestricted the amount of money a mother could give to an illegitimate childto a sum which was less than that which a legitimate child was entitled toreceive. The Court held that the unfettered right to dispose of one'sproperty was a fundamental aspect of the right to property, that the statute

147 Id.148 5 E.H.R.R. 35 (Eur. Ct. of Human Rights 1982).149 2 E.H.R.R. 330 (Eur. Ct. of Human Rights 1979).

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in question constituted an interference with the applicant's right to prop-erty and that this interference was not justified by any "general interest ofthe state".

The issue of nationalization of private property has been raised in aseries of cases brought before both the Court and the Commission. Thecase of Sir Lithgow v. United Kingdom150 is representative of these cases.In Lithgow the applicant owned twenty-eight percent of the shares of alimited company carrying on business in the aviation industry. The com-pany was nationalized on July 1, 1977 by the Aircraft and ShipbuildingIndustries Act, 1977.151 After protracted negotiations, the stockholders'representative and the Secretary of State agreed that, subject to share-holders' approval, the value of the shares nationalized by the governmentwas £3,809,375. The plaintiff did not approve the settlement but themajority of the shareholders did so in a ratification vote. It was agreed byall parties appearing before the Commission that the compensation was soinadequate as to be "grossly unfair". The Commission ruled that the issueof the adequacy of the compensation was an admissible issue. It is notewor-thy, however, that in all seven cases involving this issue, the Commissionfound that Article I of Protocol No. 1 had not been breached.

The cases interpreting Article 1 of Protocol No. 1 illustrate the diversefactual circumstances within which the right to property may be applied.Although the Court has been fairly conservative in its application of theright to property,152 it has used this provision of the Convention to overrideboth legislative' 53 and administrative 154 interference with property rights.This judicious application of the right to property has resulted in a develop-ing body of caselaw which logically and directly addresses the competingclaims of state and citizen and sets out in increasingly clear terms the limitbeyond which a state may not interfere with the property of its citizens.This is so notwithstanding the absence of any words guaranteeing a right tocompensation.

The jurisprudence under Protocol No. 1 is in sharp contrast to theCanadian jurisprudence concerning property rights. The absence of anyexpress protection of the right to property in the Charter makes it impossi-ble for the Canadian judiciary to clearly -address and balance the compet-ing claims of state and citizen over private property in Canada.Furthermore, Canadian judicial consideration of property rights involvescomplicated arguments of judicial interpretation and judicial implicationwhich are largely irrelevant to the property issues in dispute. As a result,Canadian caselaw concerning the right to property is confusing anduncertain.

150 5 E.H.R.R. 491 (Eur. Comm'n of Human Rights 1983).'15 U.K. 1977, c. 3.152 See, e.g., Handyside v. United Kingdom, I E.H.R.R. 737 (Eur. Ct. of Human

Rights 1976).153 Marckx, supra note 149.154 Sporrong, supra note 148.

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IX. CONCLUSION

The right to life, liberty and property are the three fundamental rightswhich modem liberal democracies have sought to protect. Both of Can-ada's founding nations valued the right to property sufficiently highly toensure that it received special legal protection. 155 The United States hasprovided constitutional protection of the right to property on two separateoccasions in its history 156 and its judiciary has actively expanded thisprotection and ensured that a right to compensation is enjoyed by all itscitizens. The democratic nations of Europe have created a well-balancedprovision for the protection of property rights and are in the process ofdeveloping a very clear and useful body of jurisprudence addressingproperty rights issues.

In civil rights issues Canada has advanced considerably from the daysof the implied bill of rights when a few Supreme Court of Canada Justicesattempted to protect civil rights. Today Canadians enjoy full constitutionalprotection of almost all of their civil rights. The one glaring exception isthe protection of the right to property. It was initially omitted from theCharter to obtain a short-term political advantage and to ensure that thejudiciary did not attempt to dramatically expand the scope of constitutionalprotection provided under the Charter. The first concern has long sincepassed and the second one has proved to be ill-founded as the Canadianjudiciary continues to make responsible use of the Charter and to confinetheir substantive review of legislation within reasonable and objectivelydefined limits. It is, therefore, strongly recommended that Canadajoin theother western democracies and return to its own legal tradition by provid-ing constitutional protection for property rights. No doubt an amendmentto the Charter will require lengthy negotiations between the federal andprovincial governments. If twenty nations of Europe can reach an agree-ment on this subject, however, it should not prove an insurmountablematter for the eleven governments of Canada.

The presence of constitutional protection of the right to property inCanada is absolutely vital in order to ensure that a proper balance ismaintained between the protection of the property interests of individualand corporate Canadians and the advancement of the general interests ofCanadian society. The European Convention on Human Rights and itsjurisprudence vividly illustrates the shortcomings of the Charter andsuggest means of remedying this omission. The inclusion of a provisionsimilar to Article 1 of Protocol No. 1 in the Charter would appear appropri-ate for a federal state such as Canada. Coupled with a right to compensa-

155 The right to property is included in all of Great Britain's constitutional docu-ments. See note 12 and accompanying text supra concerning the status of these documentsin Canadian constitutional law. See also previous comments at supra note 60.

156 U.S. Const., amends. V, XIV (s. 1).

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tion, such provision would permit the Canadian judiciary to focus on thefundamental questions at issue when dealing with the competing claims ofstate and citizen over the control, possession and ownership of privateproperty. In the meantime, the sovereign legislatures of Canada willcontinue to be legally unfettered by the admonition "Thou shalt not steal."