Article 17 of UDHR in the Canadian Charter of Rights and Freedoms?

Would Article 17 of the UDHR be a reasonable add-on to the CCRF?

  • Yes.

    Votes: 2 40.0%
  • No.

    Votes: 1 20.0%
  • Other answer.

    Votes: 2 40.0%

  • Total voters
    5

Machjo

Hall of Fame Member
Oct 19, 2004
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Would the following article of the Universal Declaration of Human Rights be a reasonable add-on to the Canadian Charter of Rights and Freedoms:

Article 17.

  • (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.
 

FiveParadox

Governor General
Dec 20, 2005
5,875
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Vancouver, BC
No, I don't think that it would be a reasonable add-on.

The Canadian Charter of Rights and Freedoms is only one aspect of our constitution--a constitution which states that it is similar, in principle, to that of the United Kingdom. To add "private property" rights to the Charter would confuse the rights and privileges of the Crown of Canada.
 

Machjo

Hall of Fame Member
Oct 19, 2004
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Notice though how Article 17 does use the word "arbitrarily", which suggests to me that under certain circumstances, as long as there is a valid reason, and that reasonable compensation be given as appropriate, that one could still be deprived of his property. One clear example would be a person defrauding people of more than the value of his entire estate, or cases where his ownership of said property could be detrimental to others owing to his ability to monopolize resources owing to the ownership of that property, etc.

That one word, "arbitrarily", seems to make it more than reasonable to me. How in your mind would this undermine the rights and privileges of the Crown of Canada if we're not talking about an absolute right to property, but merely a right within the confines set out in the OP. Honestly, i think Article 17 of the HDHR strikes a well thought out and more than reasonable balance.

And besides, our Constitution can be rewritten, right 5P?
 

taxslave

Hall of Fame Member
Nov 25, 2008
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Suppose the government decides to build a new highway right through your property. They would not be able to expropriate your land because where the road is proposed is an arbitrary decision in that it could just as easily be built 100 meters away. Have to watch how it is worded.
 

Machjo

Hall of Fame Member
Oct 19, 2004
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Suppose the government decides to build a new highway right through your property. They would not be able to expropriate your land because where the road is proposed is an arbitrary decision in that it could just as easily be built 100 meters away. Have to watch how it is worded.

Perhaps. That word "arbitrary" though at least puts the private citizen and the government on a more equal footing. As it stands right now, the private citizen would not stand a chance in court against the Crown. Adding Article 17 of the UDHR into it would at least give the private citizen a fighting chance in that he could try to argue that the government's decision is arbitrary. The government could try to argue that it's not arbitrary. But then at least he and the government are on an equal footing in that the government still has to at least defend its case to forcefully buy his property from him for example, and so cannot take that right for granted.
 

Mowich

Hall of Fame Member
Dec 25, 2005
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Suppose the government decides to build a new highway right through your property. They would not be able to expropriate your land because where the road is proposed is an arbitrary decision in that it could just as easily be built 100 meters away. Have to watch how it is worded.

Of several that have been drafted, I like the wording of this amendment by the then federal government for the 1980 First Ministers Conference.
9.(1) Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.
(2) Nothing in this section precludes the enactment of or renders invalid laws controlling or restricting the use of property in the public interest or securing against property the payment of taxes or duties or other levies or penalties.




 

Machjo

Hall of Fame Member
Oct 19, 2004
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Suppose the government decides to build a new highway right through your property. They would not be able to expropriate your land because where the road is proposed is an arbitrary decision in that it could just as easily be built 100 meters away. Have to watch how it is worded.

And as per this example, we are assuming that it could just as easily be built 100 metres away. In some cases, that might not be possible, in which case the Crown might still have a valid reason. However, at least it ensures the Crown needs a valid reason to do so and must be able to defend its case.
 

taxslave

Hall of Fame Member
Nov 25, 2008
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Of several that have been drafted, I like the wording of this amendment by the then federal government for the 1980 First Ministers Conference.
9.(1) Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.
(2) Nothing in this section precludes the enactment of or renders invalid laws controlling or restricting the use of property in the public interest or securing against property the payment of taxes or duties or other levies or penalties.





Makes more sense than the UNHR one. Since only the rich can afford to fight the government anyway.
 

Machjo

Hall of Fame Member
Oct 19, 2004
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Of several that have been drafted, I like the wording of this amendment by the then federal government for the 1980 First Ministers Conference.
9.(1) Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.
(2) Nothing in this section precludes the enactment of or renders invalid laws controlling or restricting the use of property in the public interest or securing against property the payment of taxes or duties or other levies or penalties.







Wordier, but also a possibly reasonable amendment.
 

Machjo

Hall of Fame Member
Oct 19, 2004
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Makes more sense than the UNHR one. Since only the rich can afford to fight the government anyway.

Though that's a problem in its own right. ONe would think access to a lawyer ought to be a right, or alternatively restructure the process so that without a lawyer one can still have equal access to justice. One possible solution I suppose would be that for the government to take one's property, it must first seek approval from a judge, meaning that even before one knows that the government is planning to seize his property, a judge would already have ensured that there was a valid reason to do so beyond any reasonable doubt. This would mean that in most cases, you wuold never know the government ever even tried to take your property since it would already have been denied by a judge. Or in even more cases that the government did not even bother trying to take it to a judge knowing their argument was too flimsy. This would mean that should your property be confiscated, it would already have been proven beyond reasonable doubt that there was a valid reason for it, with appropriate compensation having to be given along with all other rights being respected.

Sometimes wordier is better as it leaves no doubt as to the meaning and hence no interpreting by lawyers

True enough.

Makes more sense than the UNHR one. Since only the rich can afford to fight the government anyway.

I should point out too that even this one could still lead to a court-case should there be disagreement on its interpretation. But you are right that it is at least more precise.
 

Corduroy

Senate Member
Feb 9, 2011
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Of several that have been drafted, I like the wording of this amendment by the then federal government for the 1980 First Ministers Conference.
9.(1) Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.

This doesn't seem to give property rights at all. "Except in accordance with law." So you have the right to your property unless the government makes a law saying you don't. And reasonable compensation to be determined by.... the government.
 

Machjo

Hall of Fame Member
Oct 19, 2004
17,878
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This doesn't seem to give property rights at all. "Except in accordance with law." So you have the right to your property unless the government makes a law saying you don't. And reasonable compensation to be determined by.... the government.

Good point.

Article 17.
  • (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.
Looking at Article 17 of the UDHR in light of what you just said, Corduroy, I guess not only is it more concise and less wordy, but does in fact grant a stronger right to property than the other proposal while still ensuring via the word "arbitrarily" that that right not be absolute.

It's a fine balancing act between ensuring the right of the government to confiscate property under reasonable conditions, but not otherwise; and Article 17 of the UDHR does seem to strike the right balance.
 

Corduroy

Senate Member
Feb 9, 2011
6,670
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Vancouver, BC
If the government can confiscate your property for anything other than a crime then you really have no right to property.

I'm a tenant. I have a contract with my landlord and have legal rights as a tenant. My landlord can kick me out but is limited by law in how he may do so and why. He is also limited in his access to the property while I occupy it. Unless there's an emergency he can't even come to the property without giving me notice and a good reason (good reason as in he can't come over to take a shower no matter how much notice he gives.) And I can't make any major changes to the property without his permission

Does this mean I own the property? Of course not.

Does it mean he does? Well, let's look at the his relationship with the government.

He has more rights to use the property as he sees fit than I do. It is harder for the government to take the property from him than it is for him to evict me. But the government still can, if it wanted to. There are legal limits, but the government could deprive him of his property with good enough reasons. One reason I can be kicked out of my rented home is if the landlord decides he wants to occupy it himself. Same for the government. It can deprive my landlord of his property if it wants to use that property for its own purposes.

Can my landlord make major changes to the property without government permission? He couldn't turn it into a restaurant or build a condo on the land without the government's say so.

I have to pay rent. My landlord has to pay property taxes.

The property owner / government relationship is a lot more lucrative for the property owner than the tenant / landlord relationship, but at least in the latter the landlord doesn't make the laws. In the former, the government does make the laws. It ultimately has all the power.

Do we even have ownership of property? (I'm speaking of just land, of course). Seems that, in a way, property owners kinda just rent their property from the government, or rather are given special privileges to use property.
 

Machjo

Hall of Fame Member
Oct 19, 2004
17,878
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48
Ottawa, ON
If the government can confiscate your property for anything other than a crime then you really have no right to property.

I'm a tenant. I have a contract with my landlord and have legal rights as a tenant. My landlord can kick me out but is limited by law in how he may do so and why. He is also limited in his access to the property while I occupy it. Unless there's an emergency he can't even come to the property without giving me notice and a good reason (good reason as in he can't come over to take a shower no matter how much notice he gives.) And I can't make any major changes to the property without his permission

Does this mean I own the property? Of course not.

Does it mean he does? Well, let's look at the his relationship with the government.

He has more rights to use the property as he sees fit than I do. It is harder for the government to take the property from him than it is for him to evict me. But the government still can, if it wanted to. There are legal limits, but the government could deprive him of his property with good enough reasons. One reason I can be kicked out of my rented home is if the landlord decides he wants to occupy it himself. Same for the government. It can deprive my landlord of his property if it wants to use that property for its own purposes.

Can my landlord make major changes to the property without government permission? He couldn't turn it into a restaurant or build a condo on the land without the government's say so.

I have to pay rent. My landlord has to pay property taxes.

The property owner / government relationship is a lot more lucrative for the property owner than the tenant / landlord relationship, but at least in the latter the landlord doesn't make the laws. In the former, the government does make the laws. It ultimately has all the power.

Do we even have ownership of property? (I'm speaking of just land, of course). Seems that, in a way, property owners kinda just rent their property from the government, or rather are given special privileges to use property.

I wasn't limiting myself to land only though, but you are right that that is a more elusive right to property owing to various problems with giving absolute right to land. After all, imagine if I bought property right in a narrow passageway in the Rocky Mountains and then decided to build a road on it and charge a fortune for anyone using it. Obviously not too fair seeing that I'm essentially monopolizig on a passage and a key transporation route.

However, there should still be some right to property granted in general. For example, if your roommate is charged with a crime, does the government have the right to confiscate your computer without good reason and compensation?

I remember one case like that. As it turned out, my colleagues... someone other (I can't remember the details whether it was roommate, roommate's brother, or someone else) was charged with the possesssion of child pornography. Since she lived with him, and the police believed that, with or without her knowledge he may have had access to her computer and may have downloaded pornographic images into it, the police therefore confiscated it.

She needed use of her computer plus access to many documents in that computer. First off, the police would not provide her with an alternative computer in the meantime, nor would it even allow her to copy the contents of her computer onto a disk so as to be able to transfer it to anotehr computer to keep working on it, even if under police supervision, or even if the police should do so for her.

As a result, she'd gone a few months without access to her computer nor the documents on it, thus holding her back from working on some of those documents and having to borrow a computer from a friend. She did get it back after a year, but with no compensation for the inconvenience it caused her

I have much valuable information om my notebook computer too, and I work on it most days. I'd be mightily ticked off if the police should confiscate my computer without reasonable compensation. I could certainly understand that they may need it for a criminal investigation. But at the very least, they could lend me a similar computer for personal use in the meantime until I get mine back, just as they could also, under strict supervision of course, allow me to download information from the confiscated computer into the new temporary one, or at least have someone else do so under my supersition, or something of the cort, simply to not disrupt my work owing to this loss of my property. This unfortunately is what happened to by colleague because she was at the wrong place at the wrong time.

Something in the Constitution similar to Article 17 of the UDHR would not prevent the police from having confiscated her computer necessarily, since that confiscation was not arbitrary. However, she could have argued for reasonable compensation, not necessarily financial, but material none-the-less such as the provision of a similar computer for use in the meantime and allowance to access to the information on the old computer before it be taken in for investigation, etc.

Also, right to own property and right to use property are not the same either. Certainly the government is well within its rights to regulate the use of property while still protecting one's right to own it.

Of several that have been drafted, I like the wording of this amendment by the then federal government for the 1980 First Ministers Conference.
9.(1) Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.
(2) Nothing in this section precludes the enactment of or renders invalid laws controlling or restricting the use of property in the public interest or securing against property the payment of taxes or duties or other levies or penalties.







Property rights and the Constitution (BP-268E)

It's interesting to note that the reason for the so watered-down version above was opposition from certain provinces. And it still did not pass, even in this watered-down version.



 

Mowich

Hall of Fame Member
Dec 25, 2005
16,649
998
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This doesn't seem to give property rights at all. "Except in accordance with law." So you have the right to your property unless the government makes a law saying you don't. And reasonable compensation to be determined by.... the government.

Then this might reassure you.

Finally, the inclusion of property rights protection in the Charter would mean that the government could not disregard these rights unless it could justify its actions and satisfy the onus set forth in s. 1 of the Charter, which stipulates that:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
By virtue of this section, a person who felt that his or her property rights had been infringed by legislation would have to establish a prima facie case; once this had been established, the onus would shift to the enacting body to demonstrate that the legislation was a reasonable limit upon rights and freedoms, and was justified in a free and democratic society.

I wasn't limiting myself to land only though, but you are right that that is a more elusive right to property owing to various problems with giving absolute right to land. After all, imagine if I bought property right in a narrow passageway in the Rocky Mountains and then decided to build a road on it and charge a fortune for anyone using it. Obviously not too fair seeing that I'm essentially monopolizig on a passage and a key transporation route.

However, there should still be some right to property granted in general. For example, if your roommate is charged with a crime, does the government have the right to confiscate your computer without good reason and compensation?

I remember one case like that. As it turned out, my colleagues... someone other (I can't remember the details whether it was roommate, roommate's brother, or someone else) was charged with the possesssion of child pornography. Since she lived with him, and the police believed that, with or without her knowledge he may have had access to her computer and may have downloaded pornographic images into it, the police therefore confiscated it.

She needed use of her computer plus access to many documents in that computer. First off, the police would not provide her with an alternative computer in the meantime, nor would it even allow her to copy the contents of her computer onto a disk so as to be able to transfer it to anotehr computer to keep working on it, even if under police supervision, or even if the police should do so for her.

As a result, she'd gone a few months without access to her computer nor the documents on it, thus holding her back from working on some of those documents and having to borrow a computer from a friend. She did get it back after a year, but with no compensation for the inconvenience it caused her

I have much valuable information om my notebook computer too, and I work on it most days. I'd be mightily ticked off if the police should confiscate my computer without reasonable compensation. I could certainly understand that they may need it for a criminal investigation. But at the very least, they could lend me a similar computer for personal use in the meantime until I get mine back, just as they could also, under strict supervision of course, allow me to download information from the confiscated computer into the new temporary one, or at least have someone else do so under my supersition, or something of the cort, simply to not disrupt my work owing to this loss of my property. This unfortunately is what happened to by colleague because she was at the wrong place at the wrong time.

Something in the Constitution similar to Article 17 of the UDHR would not prevent the police from having confiscated her computer necessarily, since that confiscation was not arbitrary. However, she could have argued for reasonable compensation, not necessarily financial, but material none-the-less such as the provision of a similar computer for use in the meantime and allowance to access to the information on the old computer before it be taken in for investigation, etc.

Also, right to own property and right to use property are not the same either. Certainly the government is well within its rights to regulate the use of property while still protecting one's right to own it.



Property rights and the Constitution (BP-268E)

It's interesting to note that the reason for the so watered-down version above was opposition from certain provinces. And it still did not pass, even in this watered-down version.



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Same doc I have been reading, Machjo. It is also interesting to see how opposition parties wanted to add so much to the amendment in the way of social rights, can just imagine what the final wording of that document would have been - pages and pages for sure. ;-)
 

Machjo

Hall of Fame Member
Oct 19, 2004
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Then this might reassure you.

Finally, the inclusion of property rights protection in the Charter would mean that the government could not disregard these rights unless it could justify its actions and satisfy the onus set forth in s. 1 of the Charter, which stipulates that:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

By virtue of this section, a person who felt that his or her property rights had been infringed by legislation would have to establish a prima facie case; once this had been established, the onus would shift to the enacting body to demonstrate that the legislation was a reasonable limit upon rights and freedoms, and was justified in a free and democratic society.


Possibly, but still quite watered down compared to UDHR 17, which still does not guarantee absolute property rights but does guarantee them more firmly than the other one at least.
 

cranky

Time Out
Apr 17, 2011
1,312
0
36
voucher users can be a burden on the government, lets create a special voucher tax .