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Malcolm Lavoie: Our lack of property rights make Canadians uniquely vulnerable to digital jail

Commentary

The short-lived “national emergency” that Canadians endured in mid-February is already starting to fade in the public consciousness. That is no doubt partly due to the vivid images from Ukraine showing what a truly unqualified national emergency looks like. Yet while it is no longer front of mind, the government’s decision to invoke the Emergencies Act in response to the trucker protests may have an enduring legacy in our public life. One aspect of the government’s response that could have particularly significant implications going forward is the use of “digital jail”, or the freezing of bank accounts and digital assets. The government’s moves to target the assets of those connected to the protests demonstrated both the potency of such measures, as well as the dearth of applicable legal protections.

As Howard Anglin recently emphasized, the effects of freezing someone’s digital assets in our largely cashless society can be far-reaching. Stop and ask yourself what would happen to you if you suddenly lost access to your bank accounts and credit cards. Maybe you have some cash stashed under a floorboard, but probably not. If you are like me, you rely on electronic payment systems for essentially all of your transactions with the outside world. This dependency on modern financial technology has given rise to significant concentrations of power. With a few clicks, governments and banks can take away an individual’s ability to function in society. This kind of digital erasure could amount to a restriction of liberty that is in some ways just as fundamental as a jail sentence.

You might think, then, that important legal protections would exist to prevent the unfair, abusive, or even simply mistaken application of financial sanctions against an individual. Not necessarily. As Jamie Sarkonak pointed out shortly after the emergency was declared, the financial measures initially failed to provide for even the most basic procedural protections for individuals whose assets had been frozen, such as informing affected individuals as to why their account had been targeted and providing a process for disputing frozen accounts.

Could such measures really be consistent with Canada’s Charter of Rights and Freedoms? The answer is a complicated one, largely because of a fundamental gap in the constitutional rights provided for under the Charter. Put simply, the Charter does not protect property rights. Though asset freezes can potentially be challenged on other Charter grounds, they cannot be challenged directly on the basis that they deprive an individual of what belongs to her. And that leaves the door open to potentially abusive or unfair financial measures subject to limited constitutional scrutiny.

While property rights were included in the initial drafts of the Charter put forward by the government of Pierre Trudeau, they were eventually dropped in the negotiation process, apparently due to pressure from some provinces and the federal NDP caucus. The absence of a property rights clause makes the Charter something of an “outlier” among liberal constitutions around the world, according to a leading comparative study of this question. That fact may become increasingly significant if governments continue to wield the powerful financial tools that modern technology has put at their disposal. The regulations enacted under the Emergencies Act have since been revoked, but in an era of increasing polarization and disaffection, it likely will not be long before a government is again tempted to resort to such extraordinary measures in response to social unrest. The absence of property rights protections from our Charter—previously an interesting quirk—may become an increasingly salient feature of our system of government.

Outright acts of government confiscation have historically been quite rare in Canada. However, the absence of constitutional protections for property rights has sometimes allowed for egregious abuses of government power. The case of Authorson v. Canada provides an illustrative example. For decades, the federal government held pension funds on behalf of disabled military veterans without crediting those funds with any interest. This gave rise to a straightforward financial liability to the veterans based on existing law. Rather than pay what it owed, the government of Brian Mulroney passed legislation immunizing itself against any claims by the veterans. Because of the absence of property rights protections under the Charter, there was no way to challenge this law on constitutional grounds. The veterans attempted to rely instead on the 1960 Canadian Bill of Rights, which is ordinary federal legislation and not part of the Constitution. Unfortunately, the Supreme Court of Canada gave a narrow reading of the property rights protections under the Bill of Rights and the government’s confiscatory law was upheld.

What does all this mean for financial measures like those enacted under the Emergencies Act? Well, to be blunt, if the government can pass legislation to take money from disabled military veterans, then it can probably do the same to less sympathetic groups. That does not mean there are no restrictions at all. Property rights are not directly protected under the Charter, but a deprivation of property can still indirectly infringe another Charter right. For instance, freezing someone’s assets based on their choice to support a political cause might give rise to a Charter claim based on the section 2(b) right to freedom of expression, but the focus of the inquiry would be on expressive activity, not property per se. As long as the limit on expressive activity is found to be reasonable, even ruinous effects on property interests could be upheld.

Other Charter rights could conceivably be given a broad interpretation that would protect property rights. However, courts have been wary of any interpretation that would bring property rights into the Charter through the back door. It is generally accepted, for instance, that liberty under section 7 does not include the freedom to hold property, and that the section 8 right against unreasonable search or seizure protects privacy, not property. Accordingly, if property rights are to be added to the Charter, it will most likely have to be done through a formal constitutional amendment, rather than through the judicial interpretation of existing rights.

There may be legitimate doubts as to whether a constitutional amendment adding property rights to the Constitution is necessary or wise. For one thing, property rights in Canada are protected by a constitutional tradition that is much older than the Charter. That tradition, which can be traced back at least to the time of John Locke, is based on a combination of common law protections and Parliamentary supremacy. Although Parliament has the ultimate power to infringe property rights by enacting clear legislation to that effect, it is expected that it will do so only to the extent that it finds such infringements to be truly justified. For most of Canada’s history, that system has worked reasonably well. However, it relies on Parliamentarians to act as vigilant guardians of the rights of the citizenry. It remains to be seen if legislators are up to that task in an era when governments will increasingly be tempted to use digital jail as a means of social control.

It may be, then, that the spectre of digital jail will eventually prompt renewed calls for the inclusion of property rights in the Charter. On the one hand, such a move would address a fundamental gap in our system of constitutional rights, a gap that sets Canada apart from many other liberal democracies. On the other hand, though, it would further constitutionalize our politics, shifting another set of decisions from elected legislators to unelected judges.

A property rights amendment to the Constitution seems unlikely in the short term, given the high level of national consensus that would be required. But there is nothing to stop Parliament (or provincial legislatures) from enacting ordinary legislation to provide protection against the unfair use of asset freezes and other restrictions on property rights. The Canadian Bill of Rights would be a good place to start. Recall that it is ordinary federal legislation, subject to amendment by Parliament. The Bill of Rights could easily be amended to bolster the protections for property rights that proved inadequate in the Authorson case. Reinforcing the Bill of Rights would demonstrate that Parliament takes seriously its traditional role in upholding the rights of the people. Digital jail is a relatively new problem, but it could potentially be solved in old ways, by recourse to an ancient rights tradition that long predates the Charter.

Malcolm G. Bird: Reflections on a protest movement

Commentary

Let us step back, take a deep breath, and think about the events that have transpired in Canada over the last six weeks. We have seen a grassroots political movement form, ostensibly against mandated vaccine requirements, but quickly morphing into a wider movement questioning the government’s response to the Covid-19 pandemic, the intrusion of the state into the daily lives of Canadians, and, more generally, the critical issues of freedom, choice, and the exercise of power in a democracy.

Regardless of one’s views on the truckers’ message, or their messaging, they have garnered considerable support amongst a substantial minority of the Canadian population. This truckers’ group—broadly speaking since it was far from a coherent body—blocked bridges and border crossings, and occupied downtown Ottawa for over three weeks. Their libertarian-inspired views and concerns with state-over reach have now entered the political sphere—where it belongs—via the Conservative Party, as its current leadership turmoil illustrates. The blockades of key infrastructure are gone, and the occupation of Ottawa is over.

And nobody died. There were no serious injuries or physical violence. There was no rampant lawlessness, no rioting, no looting, and there were very few arrests. Ottawa residents were inconvenienced as were others related to the obstruction of transit conduits, but it was all orderly and peaceful. This is nothing short of a miracle. This is due to the discipline and organization of the protesters themselves and, most critically, to the professionalism and restraint demonstrated by the on-the-ground police forces—they are to be lauded. The final efforts to clear Ottawa of protesters were methodical with very few violent confrontations.

The occupation of Ottawa and the blocking of key infrastructure had to come to an end as it is unreasonable for a group to dictate to an elected government its policy; an indefinite occupation of downtown Ottawa was also not viable, and it had to come to an end. Which it did. If this is what an “insurrection” looks like in Canada, we are doing well. Such a fact illustrates the ability of Canada’s public institutions to mitigate and manage conflicts between groups and to resolve such differences in a peaceful manner.

Such success of the state apparatus compensates for a total failure of leadership, as responsibility for these events ultimately lies with the polarization and hypocrisy of our politics. The government largely tolerated railway and pipeline blockades in 2020 and continues to ignore lawlessness in other parts of the country, including an organized attack on construction equipment in northern British Columbia. At one point Prime Minister Justin Trudeau joined a protest movement on Parliament Hill. The government has been intolerant of dissenting views, and instead of engaging with such perspectives, has denigrated both dissenters and their messages. If we wish to lecture other nations, such as China, to engage with peaceful protests, we must not fail to do the same here. Much of this could have been avoided had the prime minister walked to Parliament Hill and listened to these people and their concerns.

The Covid-19 pandemic has exacerbated divisions within our society, particularly along class and occupational lines. For those of us with white-collar, work-from-home jobs, often ensconced in the public sector, the pandemic has been tolerable, and sometimes even enjoyable. Business can often be conducted while in pajamas and slippers. For others, especially working-class individuals in the service sector, it has been more difficult. Those who have kept their jobs have stayed in their usual workplace and taken on personal and health risks in doing so. Moreover, most of the lockdown-related job losses occurred amongst working Canadians. The working-class dynamic of this protest, and the intolerance shown to it, is evidence of these cleavages and, at the same time, have exacerbated these divisions.

Mainstream Canadian media has consistently denigrated these protesters and taken considerable pains to highlight radical, fringe elements, which are not representative of the movement as a whole. Media coverage of it, very generally, has differed considerably from the reporting afforded to past protest movements. The government’s blocking of their funding, and the media’s publication of leaked donor lists, obtained illegally, further illustrates the divergent treatment towards various protest groups. Ultimately, the truckers were tired of being told what to do and how to think by a relatively privileged, urban, educated group of elites who, while ostensibly preaching tolerance, are wholly intolerant of views that differ from their own. This movement, and the government’s response to it, illustrates how well, or not, we tolerate minority perspectives—especially those that are not comfortably “progressive”.

There are some important lessons here to be learned by all potential protest movements. These truckers were very effective. They were able to (briefly) seize territory because trucks are valuable protest tools: they are big, they can block things, they are hard to move, and you can live in them, even in the middle of winter. They had effective logistical systems and significant financing; they were able to keep their BBQs and dance parties going. Such organization, and their presence at the doorstep of Parliament, was humiliating to the Liberal government. The use of the Emergencies Act, then, should be seen as a great compliment to this movement; they were exerting enough real power to generate a response—heavy-handed as it was—from the Canadian government. The tools afforded by the Emergencies Act were not required to manage other protests. While future protest groups can and should learn from the effective tactics of the truckers, at the same time, they must be wary that such draconian measures could now be used on them.

And what happens if another like-minded group draws on these tactics and is joined by thousands of newly unemployed civil servants to stage renewed demonstrations—a plausible scenario given the financial pressures we face—but this time in the middle of the summer? Shutting them down may be an even harder task. Hopefully by then we will have learned some lessons on tolerating different groups and their views.