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Is This Bylaw the Equivalent of Slavery?

09/20/2013 05:31 EDT | Updated 11/20/2013 05:12 EST

Richard Hykawy believes he is being treated unconstitutionally by the City of Winnipeg and is asking the courts to vindicate his rights. He plans to argue in court that a bylaw forcing him to mow the city's grass on the boulevard surrounding his home amounts to forced labour, or in his words, slavery. To date, Mr. Hykawy has been fined on multiple occasions for failing to comply with the bylaw.

Cheryl Milne, a law professor at the University of Toronto and Executive Director of the David Asper Centre for Constitutional Rights, told the National Post that the term "slavery" must be used cautiously. "Slavery isn't just making somebody do something," and that compelling Mr. Hykawy to maintain the boulevard adjacent to his property without compensation "certainly impacts on his liberty, but whether or not it's justifiable is something that the court will have to decide."

Ms. Milne is certainly right that the bylaw impacts on Mr. Hykawy's liberty and that the courts will determine his rights on this matter. And she is correct to advise caution when using the word "slavery" --after all, the City of Winnipeg makes no claim to own Mr. Hykawy.

That being said, it would be unwise to disregard Mr. Hykawy's argument merely because he has couched it in incendiary language. Compelling someone to work without compensation is one of the hallmark characteristics of slavery.

Slavery is immoral because it interferes with the slave's right of property in his own person. Slavery occurs when someone else compels you to expend your own resources -- time, effort, abilities, etc. -- for his or her benefit against your will. Losing control over how you use your own resources frustrates your ability to freely choose how to pursue your own good. This sort of compulsion is inimical to liberty.

But section 7 of the Canadian Charter of Rights and Freedoms purports to protect the right to liberty. It reads, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Shouldn't this section offer Mr. Hykawy some protection against a bylaw that forces him to maintain the City of Winnipeg's property?

After the Charter was adopted in 1982, it took less than 10 years for the Canadian courts to effectively define the right to liberty out of existence.

In the 1985 BC Motor Vehicle decision, Justice Bertha Wilson of the Supreme Court of Canada acknowledged that even the smallest of regulatory offences impact on individual liberty. But instead of upholding a common sense reading of section 7, she worried that liberty--if defined broadly--would "trivialize" the Charter. Subsequent court decisions followed her advice by greatly circumscribing the right to liberty to avoid any risk of trivializing the Charter.

By the 1988 Morgentaler decision, the Charter's guarantee of liberty meant that individuals have "a degree of autonomy in making decisions of fundamental personal importance." In practice, this means that the government's laws may strip nearly all your freedom away so long as you are left with some modicum of autonomy when making important, once-in-a-lifetime type decisions. It should be no surprise then that it is nearly impossible to prove in court that a law has violated your right to liberty when it is understood this way.

There is a sad irony here. In 1985, when Justice Wilson opined about the trivialization of the Charter, she likely did not anticipate the result of her words of caution: it is not the Charter that has been trivialized, but liberty itself.

The Charter's promise of liberty offers no protection from those numerous day-to-day violations of freedom to which we have grown accustomed. And this means that Mr. Hykawy's court challenge is in dire straits if he intends to rely on his so-called right to liberty.