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Wednesday, December 9, 2020

Canadian Restaurant Owner Charged With ‘Trespassing’ After Reopening in Defiance of Lockdown Orders

How can you ‘trespass’ on your own property?

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At 11:00 a.m. on Tuesday, November 24, Adam Skelly opened his BBQ restaurant in Toronto and began serving customers. Under ordinary circumstances, this would have been unremarkable. But on that day, it was an act of political defiance, because a recent lockdown order prohibited restaurants like his from providing indoor and outdoor dining services.

Skelly, a 33-year-old husband and father of two, was specifically ordered to close by Toronto Public Health later that day, but he opened again on Wednesday and made it clear that he would continue operating as normal. Then, early Thursday morning the police changed the locks on the restaurant to bar his access, and when Skelly showed up later that morning he was met by a significant police presence

Police allowed him into a back part of the building behind the restaurant, but then he and his employees secretly broke into the restaurant from the back and kicked down the newly locked front door. A scuffle broke out as the crowd of customers briefly blocked the police from entering, but shortly thereafter the operation was shut down and Skelly was arrested.

Furious customers, staff, and other supporters held a protest against the arrest. Skelly was released on bail 30 hours later, with one of his bail conditions being that he isn’t allowed to post on social media. In the days following the incident, a GoFundMe campaign for Skelly’s legal defense raised over $320,000, demonstrating just how much support he has garnered.

As expected, Skelly is facing a number of charges, including intent to obstruct police and holding an illegal gathering. But what’s surprising—and quite frankly confusing—is that he’s also facing a charge of trespassing. Sure, he violated police orders and broke into the restricted area, yet this still brings up a really interesting question.

How can you “trespass” on your own property?

From a legal perspective, the answer is fairly straightforward, because Toronto Public Health has been given the authority to shut down businesses that fail to comply with their edicts. But philosophically, the answer is much more nuanced, because it forces us to grapple with our notion of property rights.

In theory, property rights are the idea that you can do whatever you want with your property as long as it doesn’t interfere with someone else’s property. It’s yours, after all, and what makes it yours is that you alone have the right to control its use

The most basic property right is the right to be sovereign over your own body, which is known as self-ownership. As economist Murray Rothbard once said, “A man’s right to per­sonal freedom is his prop­erty right in himself.” Rothbard’s point was that property rights are paramount because they constitute the necessary foundation of all other human rights.

The implication of self-ownership is that we also have a right to exercise sovereignty over the things we create or peacefully acquire. If you own a phone, for example, you can determine how you configure it and where you keep it. If you own a car, you get to decide who drives it and where it goes. And if you own land, you have the right to decide how it’s used and who is allowed on the property—in theory.

In practice, property rights are not fully respected, even in many Western cultures, and Adam Skelly’s story is a perfect example of this. 

If Skelly had full property rights, no one, not even the government, could dictate whether he could open his restaurant or who he could allow on the property. But sadly, that’s exactly what they did, and when all was said and done they actually seized (stole) the building. 

What’s interesting about this framework is that it challenges us to reconsider how we classify certain government actions. If full property rights were the law of the land, and assuming the government is not above the law, then even the police would have to respect Skelly’s sovereignty over his property. The implication of such a framework is that police officers should be held accountable for violating rights just as much as if any private person had done it. Ironically, then, their interference with Skelly’s business could itself be construed as trespassing.

Property rights are undermined even in the best of times, but they tend to be especially disregarded when governments play the “emergency” card. As Nobel-Prize-winning economist F. A. Hayek once remarked, “‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded.”

In light of this, we need to reflect on the wisdom of creating massive exception clauses to limitations on governments that allow them to assume “emergency powers” whenever they feel like it. Because what inevitably happens is that governments peddle fear and throw around the word “emergency” as an excuse to exercise more and more control.

But as we’ve all now experienced, the “state of emergency” has become the new normal, and the government is perfectly happy to keep their excessive powers in perpetuity. As Hayek added, “…once [the safeguards of individual liberty] are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency persists.”

Skelly’s story, and countless others like it, are a reminder that it is not enough to merely pay lip service to freedom and property rights. We must stand up for them, even (and especially) in times of crisis, or they will eventually be eroded away completely.

  • Patrick Carroll is the Managing Editor at the Foundation for Economic Education.