From the Frontier Centre for Public Policy

By Joseph Quesnel

Most pundits missed it, but Alberta’s revised Bill of Rights just strengthened property rights in a big way. Senior research fellow Joseph Quesnel breaks down how new amendments could protect landowners from regulatory takings—government actions that restrict property use without compensation. He examines key Supreme Court of Canada rulings and explains why every Canadian jurisdiction should take note. Could this be a game-changer for property rights?

Property rights amendments prevent governments from seizing land or restricting its use without compensation

Alberta is one of the few Canadian jurisdictions with a citizen’s bill of rights outlining fundamental freedoms. In 1972, the Lougheed government introduced the Alberta Bill of Rights, which supersedes other laws and requires provincial legislation to be consistent with it.

Premier Danielle Smith faced controversy last year for amending Alberta’s Bill of Rights. While most commentators focused on the amendments protecting the right to refuse vaccinations, they overlooked the significance of changes that strengthen property rights.

Section 1 now states: “The right to the enjoyment of property and the right not to be deprived thereof to the extent authorized by law and except by due process of law.”

Another new clause reads: “The right not to be subject to a taking of property except to the extent authorized by law and where just compensation is provided.”

The law defines a “taking” in two ways: as “a transfer of property ownership without the consent of the owner (expropriation)” and as a situation where “an owner of property [is] being deprived of all reasonable uses of that property.”

Unlike the United States, Canada lacks constitutional protections for property rights. While Canadians have some legal safeguards, they are not as extensive as those in the U.S. In the British common law tradition, there is a presumption that if the government takes a citizen’s property, it must follow legal procedures and provide compensation.

This principle dates back to the Magna Carta of 1215, which opposed arbitrary seizure, and extends to the 1920 British case Attorney General v. De Keyser’s Royal Hotel, which ruled: “Unless the words of the statute clearly so demand, a statute is not to be construed to take away the property of a subject without compensation.”

Following this precedent, federal, provincial and territorial governments in Canada must provide fair compensation when expropriating property. While provinces and territories have different expropriation laws, they all require due process.

However, a legal loophole allows governments to deprive citizens of their property without compensation. Courts refer to this as a “regulatory taking” when government regulations restrict land use to the point that it is effectively expropriated.

The Supreme Court of Canada ruled on regulatory takings in two cases: Canadian Pacific Railway Co. v. Vancouver (2006) and Annapolis Group Inc. v. Halifax Regional Municipality (2022). The court determined that compensation for regulatory takings requires two conditions: the government must acquire a beneficial interest in the property, and the regulation must remove all reasonable uses of the land. A beneficial interest means the government gains a financial share or the right to occupy a property without legally owning it.

Peter Russell, one of Canada’s top constitutional law scholars, argued that the requirements established in the CPR case are nearly impossible to meet. Proving the removal of “all” reasonable uses sets a high bar, granting governments broad discretion to restrict land use without compensation.

The Annapolis ruling clarified this issue. The Supreme Court determined that municipalities do not need to gain a proprietary interest in a property to constitute a regulatory taking. Instead, a claimant only needs to prove the government received “a benefit or advantage accruing to the state” due to regulatory activity. This means the government can deprive a titleholder of potential economic use without taking legal ownership.

The Annapolis decision also established that courts must consider future-oriented land uses when determining whether a regulatory taking has occurred. The amended Alberta Bill of Rights now explicitly includes both expropriations and regulatory takings, strengthening property rights protections.

This amendment is significant because it expands safeguards for Albertans by applying not only to provincial laws but also to municipal bylaws. While Alberta cannot enforce laws that conflict with the amended Bill of Rights, the revisions give courts more authority to ensure governments treat citizens fairly.

The updated Bill of Rights is now law in Alberta. Other provinces and territories should follow its lead and strengthen protections for their citizens.

Joseph Quesnel is a senior research fellow with the Frontier Centre for Public Policy.

From the Frontier Centre for Public Policy

By Lee Harding

Alberta moves to remove books after disturbing content, too graphic for media to view, was found in schools

Should elementary school children be given books to read with harsh insults against minorities, depictions of oral sex, and other disturbingly graphic and explicit content?

Such books have been in some Alberta elementary schools for a while, and in many school libraries across Canada.

In late May, the Alberta government announced it would establish new guidelines regarding age-appropriate materials in its schools. A government press release included quotes with disturbing content, but at a press conference, Education Minister Demetrios Nicolaides said some book illustrations could not be shown.

“I would show these images to all of you here and to the media, but they are too graphic for a live-stream media event. These examples … illustrate the kind of content that raises concerns amongst parents,” Nicolaides said.

You don’t say? This seems like the sort of stuff no one, except a pervert in a park, would dream of showing to a child. Ironically, the inability to publicize such graphic materials is part of the reason they have been shown to children with little public awareness.

Citizens’ group Action4Canada (A4C) has claimed its activism played a pivotal role in the Alberta decision. The organization has compiled a 36-page document online with examples of objectionable content in Canadian schools. Among the worst is Identical by Ellen Hopkins, which includes graphic descriptions of a little girl being molested by her father.

A4C founder Tanya Gaw has repeatedly tried to raise concerns about objectionable books with school boards, often without success. In some cases, she isn’t even allowed on the agenda if she states her topic upfront. When she is permitted to speak, she’s frequently cut off as soon as she begins quoting from the books, preventing the content from entering the public record.

In January 2023, Gaw made an online presentation to a school board in Mission, B.C. regarding materials in their schools. As she began to screenshare what was there, some board members objected, saying such permission had not been given in advance.

One month later, the board banned Action4Canada from making any further presentations. In later media interviews, the board chair justified the decision by saying Gaw’s PowerPoint contained some graphic and “inappropriate images.”

Exactly, and that is the problem. A recent check showed Mission’s school division only removed four of 15 books A4C objected to. Gaw is just glad “Identical” is one of them.

Pierre Barns, a father from Abbotsford, B.C., made it his mission to notify school boards across Canada what was on their school shelves. An online search was all it took to confirm. A “reply all” from a board member at the Halton School District in Ontario was most ironic.

“I am concerned. This individual has included links to publications and videos which may contain illegal content,” she wrote.

“I’m not sure how to investigate the content of the email safely. Would you please advise us whether or not this person ought to be reported to police? Is there some action we should take?”

There probably was action they should have taken, such as removing the books, but that never happened. Later, they defended a biologically male teacher in their school division who made international headlines by wearing large prosthetic breasts to school.

The Alberta government has committed to conducting public consultations before implementing new policies. It’s a good time for parents and citizens there and in other provinces to speak up. A young mind is a terrible thing to corrupt, but unfortunately, some schools are part of this corrosive effort.

Lee Harding is a research fellow with the Frontier Centre for Public Policy.