7 Things Canadians Get Wrong About Property Rights

Property Rights in Canada

Christine, interim executive director of the Canadian Constitution Foundation (CCF), argues that property rights are an important but often overlooked part of civil liberty in Canada. Although property rights were left out of the Canadian Charter of Rights and Freedoms, she says Canadians still have protections rooted in common law, legislation, and constitutional traditions.

These protections are less consistent and less entrenched than Charter rights, and some can be changed by ordinary legislation. The video’s central point is that property rights support personal independence, economic security, and autonomy. They also intersect with other freedoms, including privacy and freedom of expression.

Governments may regulate or take private property, but they must follow legal limits. The presenter argues that governments cannot avoid obligations such as compensation simply by imposing restrictions that deprive owners of reasonable use.

Seven Property-Rights Misconceptions

1. “Canadians have no property rights because they are not in the Charter.” — False

Property rights were excluded from the Charter in 1982, but the presenter says other protections exist. She points to common law, legislation, and constitutional traditions, including traditions associated with the Magna Carta.

Examples include:

• The federal Canadian Bill of Rights, which recognizes the right to enjoyment of property and protection from deprivation without due process. It applies only to federal laws.
• The Quebec Charter of Human Rights and Freedoms, which protects the peaceful enjoyment and free disposal of property, subject to legal limits.
• Various provincial laws.

These protections are fragmented and generally not entrenched in the same way as Charter rights such as freedom of expression.

2. “Government can take property for public purposes if it is legal and compensation is paid.” — Generally true, with conditions

The legal term for government taking property for public use is expropriation. The presenter says expropriation is subject to legal procedures and compensation requirements.

Government interference may also amount to a taking without physically transferring ownership. If regulation deprives an owner of reasonable uses of land while the government benefits, it may be considered de facto expropriation, or a regulatory or constructive taking.

The presenter discusses the Annapolis and Halifax case, in which Halifax treated private land as a public park while preventing its owner from developing it. The CCF intervened. According to the presenter, the Supreme Court of Canada set out the applicable test and agreed that it should not be too restrictive.

3. “If I own property, I can do whatever I want with it.” — False

Ownership generally includes the rights to possess, use, exclude others, sell, or transfer property, but those rights have limits. Zoning bylaws, building codes, environmental rules, and safety regulations can restrict how property is used.

The presenter recognizes that some restrictions serve legitimate purposes, while arguing that others may go too far or lack adequate justification.

4. “Property rights apply only to land and physical objects.” — False

Property can also be intangible, including copyrights, patents, trademarks, and business goodwill.

In Manitoba Fisheries, the Supreme Court of Canada treated the goodwill of a private fishing business as property after a federal monopoly effectively destroyed its value. The presenter says the company was entitled to compensation.

5. “Someone who occupies land for 10 years automatically owns it.” — False

The presenter describes this as a simplified version of adverse possession, sometimes called “squatters’ rights.” Rules vary across Canada, and many provinces have limited or abolished the doctrine.

She says Alberta has effectively abolished adverse possession as a way to acquire property rights. Ontario’s land-registration changes have made new claims much harder or potentially impossible. Where claims remain possible, strict legal requirements apply; simply occupying land for a period of time does not automatically transfer ownership.

6. “Indigenous peoples can have constitutionally protected land-ownership rights.” — True

The presenter says Aboriginal title is recognized under section 35 of the Constitution Act, 1982. She describes it as a collective Indigenous interest in land that includes rights to use and control it, distinct from ordinary private ownership.

She notes uncertainty about how Aboriginal title may interact with private ownership:

• The Cowichan case in British Columbia concluded, according to the presenter, that Aboriginal title and private ownership can coexist. The decision was under appeal.
• A New Brunswick decision, Wôlastôkwi, reached a different conclusion.

7. “Police always need a warrant to enter private property.” — False

The general rule is that police need a warrant. Section 8 of the Charter protects against unreasonable searches and seizures, with strong protections for homes.

The presenter says there are exceptions, including the pursuit of a suspect or an emergency posing a serious threat to someone’s safety. Police may also approach a home to make contact, subject to legal limits. Government officials do not have unlimited authority to enter private property simply because they are investigating something.

CCF Cases and Examples

The presenter describes the CCF’s property-rights litigation and advocacy, including:

• Emergencies Act litigation: The CCF challenged the freezing of bank accounts and other assets connected with the 2022 protests. The presenter says the Federal Court and Federal Court of Appeal found the government’s use of the Act unreasonable and contrary to section 8 of the Charter. She says the government is challenging the result at the Supreme Court of Canada.
• The Rael family property: The owners found ancient human remains while renovating property near Lake Erie. A government order required archaeological research that could cost hundreds of thousands of dollars or more, and financial assistance was denied. The case raises questions about the financial burdens governments can impose on owners.
• The Riley family and civil forfeiture: The CCF supported owners whose rental property was seized because of alleged drug activity by tenants. The presenter says the owners were not accused of wrongdoing and that the government ultimately agreed to compensate them.
• The Norwood Estate: The CCF argued that the government could not dispose of seized assets through civil forfeiture without first establishing a legal basis. The presenter says the CCF succeeded.
• Firearms regulation: The presenter describes a CCF case concerning the federal government’s 2020 firearms restrictions and the RCMP’s firearms reference table. She says the CCF is asking the Supreme Court to clarify when government policies or directives have the force of law, emphasizing clear laws and legal certainty.
• Property and expression: The presenter mentions cases involving Wolf Rak’s garden, which local authorities demolished, and political signs placed on private property. She says the CCF succeeded in both matters.

The presenter also promotes a free CCF online course on property rights, covering topics such as their origins, the Charter, Aboriginal title, civil forfeiture, and expropriation. She emphasizes that understanding rights is important to defending them.

Speakers and Sources

• Speaker: Christine, interim executive director of the Canadian Constitution Foundation.
• Organization: The Canadian Constitution Foundation, whose litigation, advocacy, and free educational course are discussed.
• Legal authorities and cases mentioned: The Magna Carta; the Canadian Bill of Rights; the Quebec Charter of Human Rights and Freedoms; the Constitution Act, 1982, including sections 8 and 35 as discussed; Annapolis and Halifax; Manitoba Fisheries; the Cowichan case; Wôlastôkwi; the Emergencies Act litigation; the Norwood Estate case; and the firearms case involving the Canadian Coalition for Firearms Rights. The Rael and Riley matters, and the cases involving Wolf Rak and political signs, are also described.