Angry in the Great White North
The Canadian government does not tolerate freelancers
Thursday, June 09, 2005 at 10:10 AM

Read other posts by Steve Janke published by the National Post
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The Authorson case was a landmark in Canada. The case dealt with a situation in which the government owed disabled veterans benefits and interest, and the bigger issue of the right to private property, which was left out of the Charter of Rights and Freedoms written by Prime Minister Pierre Trudeau of the Liberal Party, and that was signed into law in 1982.

A lower court ruled that the government owed the money and interest, but the government appealed. They did not appeal on the basis of whether these men, and their widows, were owed this money. The government already agreed that the money belonged to the veterans and was owed to them.

The facts of this appeal are not at issue. Joseph Authorson and thousands of veterans received pension and other benefits from the Crown for decades. The Department of Veterans Affairs (the "DVA") would often administer the funds on behalf of those who were deemed incapable of managing their money. However, these accounts were not credited with interest. The subject of this appeal is the Crown's liability for that interest.

No, the problem was that the government passed a law saying they did not need to pay the money they admitted they owed. The veterans (and their widows) argued that they were being deprived their property.

The law was passed in 1990:

It is not in dispute that the respondent is owed interest, and that this omission continued until legislation changing government practice was enacted in 1990. The appellant, while agreeing that the respondent is owed money, argues that Parliament has, by enacting legislation to that effect, made the debt unenforceable.

The class sued the Crown, alleging breach of fiduciary duty and claiming that the s. 5.1(4) bar was inoperative under the Canadian Bill of Rights, because it was inconsistent with the right not to be deprived of the enjoyment of property except by due process of law (s. 1(a)) and the right to a fair hearing in accordance with the principles of fundamental justice for the determination of one's rights and obligations (s. 2(e)).

So this one we can lay at the feet of the Progressive Conservative government of Brian Mulroney (though I can't find any record online of how the other parties in 1990 voted on this legislation).

But it is significant that the class action lawsuit was launched in 1999, six years after Jean Chretien's Liberals came into power. And instead of repealing the legislation passed by the Progressive Conservatives nine years earlier, the Liberals fought this tooth and nail, finally taking it to the Supreme Court in April of 2003, and winning the decision in July of that year.

This is what the court said:

The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary.

In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights, which I am far from finding, the Legislature had the power to take them away. The prohibition, 'Thou shalt not steal,' has no legal force upon the sovereign body. And there would be no necessity for compensation to be given.

So there you go -- that is what passes for property rights in Canada. If the government passes a law that says they want your house, and they won't give you a dime for it, too bad.

This got me thinking. Why do we prosecute theft in this country? A thief takes my property. But it isn't really my property. Inasmuch as I own anything, it is at the pleasure and sufferance of the government. If I don't fundamentally own it, then how can I claim that it was stolen?

Put aside the practicalities of the social anarchy that would result from people just grabbing stuff willy-nilly. I'm philosophizing here.

It has occurred to me why we continue to prosecute theft. The government can take anything it sees fit to take, without offering compensation. As the court ruled, 'Thou shalt not steal' has no legal force upon the sovereign body. But that power is jealously guarded.

When you or I take something, we're freelancing. Stealing is a federal monopoly in this country.

If you want to be a thief, you need to be a member of the federal civil service.

But let's look at that line again:

In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine.

Makes a mockery of the Constitution and the Charter of Rights, doesn't it.

When the Conservative Party of Canada comes into power, I'd like to see this miscarriage of justice perpetrated by the old PC party and the Liberal Party in power today corrected. First, the veterans and their survivors are owed that money. Second, the unlimited power of the legislature is an affront to all the principles of a true democracy. If we can't commit ourselves as a nation to reworking the constitutional roles and limits of the various branches of government, and to enshrining our full spectrum of natural rights into the fundamental law of the land, then we've made a mockery of the sacrifices made by those same veterans that have been so shamefully mistreated.

[From the CBC: Joseph Patrick Authorson died at the age of 88 on June 5, 2002. He was a veteran of the Second World War. After returning from the war, he was diagnosed with schizophrenia and post-traumatic stress disorder (shell shock) and spent most of the rest of his life in mental hospitals in London, Ont.

In 1991, a doctor found Authorson fit to control his own money. He received $188,000 in pension funds and $166,000 of personal funds (from an inheritance). However, he did not received interest on his pension from 1943 to 1991. Lawyers estimated Ottawa owed him $500,000 to $2 million.]

[Update: The Kelo ruling in the United States has given the government more power in taking people's property. But even so, property ownership is a right, and compensation must be provided. As bad as the situation has become in the United States, it's still better than here. Here's a round-up of US blogs considering this situation:

Captain's Quarters
Professor Brainbridge
Michelle Malkin
Ranting Right Wing Howler
Arguing with Signposts
Instapundit
The Age of Reason
Say Uncle
Brain Shavings
Vodkapundit
GOP Bloggers
Wizbang]

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