Constitutional Property Rights: A Missing Element in Canada's Charter
The ongoing debate about property rights in Canada's constitutional framework continues to gain momentum, particularly as citizens and legal experts examine what might have been if different choices had been made during the Charter's creation. This discussion follows a previous examination of the historical circumstances that led to the omission of property rights from Canada's Charter of Rights and Freedoms, raising important questions about how constitutional protection might have shaped Canadian property law and individual rights.
International Perspectives on Constitutional Property Protection
Looking beyond Canada's borders reveals how other nations have approached this fundamental issue. The United States Constitution's Fifth Amendment provides explicit protection against unjust government seizure of property, though legal experts note this protection is not absolute. Professor Eric Claeys of George Mason University explores this complexity in his 2025 book "Natural Property Rights," using the infamous 2005 Supreme Court case of Kelo v. City of New London as a central example.
In that landmark case, municipal officials were permitted to expropriate private homes to transfer the property to a pharmaceutical developer, with the court accepting the argument that economic development constituted sufficient public interest. This decision sparked widespread criticism that such a lenient standard could essentially render constitutional protections meaningless, allowing almost any government taking to proceed under the guise of public benefit.
The Power of Public Response and Electoral Vigilance
Professor Claeys emphasizes that the Kelo case, while resulting in approval of the seizure, generated a powerful public response that ultimately strengthened property protections. The public outcry led to electoral consequences, with many legislators involved in the expropriation losing their positions. More significantly, over a dozen states amended their constitutions to forbid similar seizures, and nearly every state tightened eminent domain regulations.
"Kelo shocked a lot of people," Claeys notes in an interview, "and that made them more vigilant." He argues that the fundamental lesson from this experience is that constitutional guarantees only function effectively when they reflect broad consensus among both political elites and ordinary voters. The judiciary's interpretive scope means that without this consensus, constitutional protections can become vulnerable to erosion through legal interpretation.
Ireland's Constitutional Approach to Property Rights
Ireland offers a contrasting perspective, having incorporated both individual property rights and institutional protection for private ownership into its 1937 constitution. This inclusion emerged from Ireland's historical struggle for independence and what Professor Sarah Hamill of Trinity College Dublin describes as the nation's deep connection to land ownership.
"Ireland is quite obsessed with our land," Hamill explains, noting how this cultural attitude has shaped constitutional interpretation. Two landmark court cases in the 1980s established that landlords are generally entitled to market rents, making permanent rent control measures potentially unconstitutional. This constitutional framework has created what Hamill describes as a situation where "politicians will often use the constitution as an excuse to avoid doing more" when responding to tenant advocacy.
The Canadian Context and Future Considerations
The examination of international examples raises important questions about Canada's current constitutional framework and whether the absence of explicit property rights protection represents a significant gap. While vigilant voters remain the ultimate safeguard for property rights, as demonstrated by the American response to the Kelo decision, many legal scholars argue that constitutional protection could provide an additional layer of security.
The Irish experience shows how constitutional property rights can shape housing policy and landlord-tenant relationships, while also revealing how such protections can become focal points for political debate. In Ireland, progressive activists have begun advocating for constitutional amendments to include a "right to housing" to balance existing landlord protections, illustrating how constitutional frameworks evolve in response to changing social priorities.
As Canada continues to debate the role of property rights in its constitutional order, these international examples provide valuable insights into how different approaches function in practice and what consequences might follow from constitutional changes. The discussion remains particularly relevant as property values, housing affordability, and government regulatory powers continue to be central issues in Canadian public policy.
