Sunday, July 29, 2007

Mr. Harper, Strengthen the Diefenbaker Bill of Rights!

Russ Brown blogs about the Ontario Court of Appeal's decision in Authorson #2. In a nutshell, the federal government screwed over some war veterans by not investing their pensions so that they got no interest. The pensioners eventually found out and threatened to sue. The government then enacted the F--k You Veterans Act,* which provided that the federal government would pay no compensation whatever for its screw up and the veterans would get no interest.

The Charter of Rights provides no protection for property rights. However, there is another quasi-constitutional document binding on the federal government, the Diefenbaker Bill of Rights. Section 1(a) recognizes and affirms "the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law." The pensioners tried to argue that the depriviation of their right to compensation offended this section. They lost at the Supreme Court of Canada. Any act of Parliament, by definition, complies with "due process of law."

Russ Brown's comment relates to the aftermath of the SCC decision. Amazingly, an Ontario superior court judge allowed the pensioners to bring an identical lawsuit to the one that had been dismissed. As Brown notes, this is contrary to our system of court hierarchy, and pretending otherwise doesn't really do the pensioners any good.

But the larger, political question is why there hasn't been a bigger backlash against the SCC decsion, comparable to that after the Supreme Court of the United States upheld the expropriation (with compensation) of someone's home for an "integrated development plan" in Kelo. The situation of the veterans seems more outrageous. While the SCC's decision was consistent with the anemic manner in which the Bill of Rights has been interpreted historically, it would have driven Mr. Diefenbaker himself to paroxysms of indignation.

The Bill of Rights is a statutory instrument, and it could be rewritten by a majority in Parliament. The Harper Conservatives could sensibly make it a priority. The key would be to include language that parallels that in the Charter, thereby importing the stronger tests for the protection of property rights. I've made an attempt at drafting below:

1. The Canadian Bill of Rights guarantees the rights and provides for the obligations set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society with a market economy.

Economic Rights and Responsibilities

2. Every person has the right:

(a) To lawfully acquire, use and dispose of private property without unreasonable interference.
(b) To enter into contracts with other willing persons and to have those contracts respected.
(c) To practice any trade or profession.
(d) To associate with other persons for the purposes of commerce or labour relations.

3. The Government must not:

(a) Deprive any person of property except for public use and with full compensation, or for an offence prescribed by law as determined by an unbiased tribunal after a fair hearing.
(b) Interfere with an existing civil right or obligation, including a right or obligation under a contract or collective agreement, except for a public purpose and with full compensation.
(c) Discriminate in the awarding of public employment or contracts on any basis other than obtaining value for the public, and in particular, on the basis of residence or any ground of discrimination prohibited under s. 15 of the Canadian Charter of Rights and Freedoms.
(d) Enact a retroactive law, except a tax measure retroactive to the beginning of the taxation year on which it is introduced.

4. (a)Parliament may expressly declare in an Act of Parliament that the Act shall operate notwithstanding a provision included in this Bill.
(b) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Bill referred to in the declaration.
(c) A declaration made under subsection (a) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(d) Parliament or the legislature of a province may re-enact a declaration made under subsection (a).
(e) Subsection (c) applies in respect of a re-enactment made under subsection (d).

*Actual name of statute may differ. Image of J.G. Diefenbaker CP Staff Photo.

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