COURT OF APPEAL FOR ONTARIO
Miller, Harvison Young and Gomery JJ.A.
BETWEEN
Paul Drover
Applicant (Appellant)
and
His Majesty the King as represented by the Attorney General of Canada
Respondent (Respondent)
Christopher Rusko, for the appellant
Sanam Goudarzi and Julie Chung, for the respondent
Heard: July 15, 2024
On appeal from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 5, 2023, with reasons reported at 2023 ONSC 5529.
B.W. Miller J.A. (dissenting):
1Federal election Returning Officers were formerly required to live in the ridings they administer. Did this statutory requirement violate the right to liberty guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms? The appellant chose to move to a residence outside of his riding and was accordingly disqualified from continuing to hold office. He argued that his right to liberty was thereby infringed. The application judge found otherwise and dismissed the application. The appellant now argues that the application judge erred by not following binding authority to the contrary. The appellant is, however, mistaken. Section 7 has no application to claims of right that do not arise from interactions with the administration of justice. That means that s. 7 does not confer a free-standing right to liberty, but only governs a person’s interactions with the justice system (broadly conceived). Explaining why this is so requires a significant survey of the development of s. 7 doctrine, and an explanation of how settled doctrine – which ought to have allowed for this case to be dismissed at the pleadings stage – was obscured from the appellant’s view by a failure to distinguish between majority holdings on the one hand, and dissents, concurrences, and obiter dicta on the other.
2As explained below, what the appellant is seeking from s. 7 of the Charter is contrary to binding authority. And even if there was no controlling authority and the scope of the s. 7 liberty right was entirely open, a purposive interpretation of s. 7, as I explain, would yield the same result. The contrary interpretation promoted by the appellant would leave s. 7 doctrine misshapen by diverting constitutional questions to s. 7 from other sections of the Charter that are better resourced to engage with them. The fundamental freedoms enumerated in s. 2 – particularly freedoms of conscience and association – were established for this very purpose. I would dismiss the appeal.
Background
3In the spring of 2014, the Returning Officer for the federal electoral district of Rideau Carleton resigned, creating a vacancy. The appellant, who was at that time the Assistant Returning Officer for the district, was appointed as the replacement Returning Officer for a 10-year period.
4The qualifications for the office of Returning Officer (and other election officers) are set out in s. 22(4) of the Canada Elections Act, S.C. 2000, c. 9, whichprovides:
Qualifications
(4) An election officer must be qualified as an elector, and an election officer referred to in any of paragraphs (1)(a.1) or (b) must reside in the electoral district in which he or she is to exercise powers or perform duties under this Act or in an adjacent electoral district.1
5Section 24(4) lists events that operate to create a vacancy in the office of returning officer. It specifies that the office becomes vacant if the returning officer “ceases to reside in the electoral district”.
6The appellant was aware of the residency requirement when he applied for appointment, and when he took the oath of office he swore “I reside in the … electoral district [Rideau Carleton], where I will perform the duties of Returning Officer. I undertake to notify the Chief Electoral Officer if my residence changes and if that new residence is outside of this electoral district.”
7In 2015, the appellant and his wife decided to relocate to a smaller, newer home. They were aware that if they moved outside the district the appellant would lose his position. Accordingly, they began their search by looking for something suitable in the Carleton district.2 They were looking for a suitable neighbourhood; the warranty protection that a new home would provide; a reduction in property maintenance expenses; and lower property taxes, insurance premiums, and utility bills.
8They were ultimately unable to find what they were looking for in Carleton and purchased a home in Carp in the electoral district of Kanata-Carleton. The appellant was aware that the move would result in the loss of his position as Returning Officer. He had sought an accommodation from Elections Canada, but was advised that his position would be terminated effective the date of his move. Ultimately, the appellant and his wife moved to Carp on October 19, 2017, and days later he received a letter from the Chief Electoral Officer advising him of the termination of his position.
The reasons below
9The appellant brought an application challenging the constitutionality of ss. 22(4) and 24(4) of the Canada Elections Act. In particular, he argued that the residency requirement violated the rights set out in s. 7 of the Charter, particularly the right to liberty:
- 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.
10The application was dismissed. The application judge followed Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2002] 2 S.C.R. 307, in applying a two-stage analysis for s. 7 claims: (1) a determination of whether the interest asserted falls within the scope of s. 7, and if it does, (2) a determination of whether the infringement is in accordance with principles of fundamental justice. With respect to the scope of the concept of liberty protected by s. 7,3 the application judge adopted Blencoe’s concise summary that “[i]n our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference”, with the caveat that “personal autonomy is not synonymous with unconstrained freedom”.
11The appellant argued before the application judge that a person’s choice of residence is a decision of fundamental importance and is therefore protected from state interference by the right to liberty. He further argued that the Canada Elections Act placed limits on this right, and that these limits were arbitrary and overbroad and therefore contrary to principles of fundamental justice. The appellant grounded his argument in the minority reasons of La Forest J. in Godbout v. Longueuil (City), 1997 335 (SCC), [1997] 3 S.C.R. 844, which would have decided that the choice of where to establish one’s residence comes within the class of decisions of fundamental importance that La Forest J. argued were protected by s. 7. The appellant acknowledged that La Forest J.’s reasons did not attract majority support at that time. But he noted that the majority did not expressly reject La Forest J.’s analysis, instead choosing to resolve the appeal on other grounds, and that salient passages of La Forest J.’s reasons had subsequently been adopted in several majority judgments of the Supreme Court – particularly Blencoe; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; and Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, [2017] 2 S.C.R. 456. He argued that this subsequent treatment of La Forest J.’s reasons in Godbout rendered them binding authority for the proposition that place of residence constitutes a decision of fundamental importance protected by s. 7.
12The application judge rejected this argument, finding that La Forest J.’s reasons in Godbout “have been followed only to the extent of the general principles discussed by La Forest J., but not the conclusion about place or choice of residence falling within the ambit of the s. 7 liberty interest.”
13Having rejected the argument that La Forest J.’s reasons in Godbout constituted controlling precedent, and finding that it remained an open question whether place of residence comes within the type of self-constituting personal decision of fundamental importance protected by the s. 7 right to liberty, the application judge concluded that it did not. She reasoned that place of residence is “far removed” from the types of decisions the Supreme Court has recognized as decisions of fundamental importance: decisions primarily involving medical treatment for oneself or one’s children.
14Furthermore, the application judge rejected the appellant’s characterization of his claim as primarily a matter of protecting choice of residence. She found that he was, fundamentally, asserting an economic right, and that “[n]othing in the impugned provisions of the Act interferes with the ability of an election officer to choose where to live. Election officers are free to choose where to live; their decision may, however, have an impact on their economic interests in the form of employment, but such an interest is not protected under s. 7 of the Charter.”
15In the result, the application judge found that choice of residence does not fall within the scope of “profoundly intimate and personal choices” protected by the s. 7 right to liberty, and it was not necessary to address whether such a deprivation of that right would be in accordance with principles of fundamental justice. The application was dismissed.
Grounds of appeal
16On appeal, the appellant renewed the arguments rejected by the application judge, arguing that she erred in finding that the choice of residence does not engage the s. 7 liberty interest. He also argued that she ought to have continued her analysis to find that the deprivation was not in accordance with the principles of fundamental justice, and this infringement of s. 7 could not be justified under s. 1 of the Charter.
17In particular, the appellant argued that the application judge erred in finding that La Forest J.’s reasons in Godbout do not constitute a binding precedent for the proposition that choice of residence is protected as a personal choice under the right to liberty in s. 7, and in the alternative, if there is no controlling precedent, that the application judge erred in not following the reasoning of La Forest J. to the conclusion that choice of residence is protected under s. 7.
Analysis
18I agree with the result reached by the application judge, and particularly with her conclusion that the minority reasons of La Forest J. in Godbout do not have the controlling force the appellant attributes to them. Her reasons are careful and detailed and she is correct in holding that La Forest J.’s reasons in Godbout “have been followed only to the extent of the general principles discussed by La Forest J., but not the conclusion about place or choice of residence falling within the ambit of the s. 7 liberty interest.” That is, where La Forest J.’s reasons are quoted or cited by the Supreme Court in subsequent decisions, it is with respect to his conceptual analysis of the branch of the right to liberty that is concerned with protecting the exercise of personal decisions, and not for the proposition that choice of residence is included in this concept. The Supreme Court expressly noted as much in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670, at para. 93.
19But as I explain below, the application judge overstates the extent to which subsequent cases endorse La Forest J.’s general principles regarding the right to liberty. The application judge’s initial framing of s. 7 jurisprudence – a framing provided by counsels’ submissions – overlooks the foundational threshold issue that the specific right to liberty posited in s. 7 only addresses deprivations of liberty occurring in the context of the administration of justice. Section 7 does not posit a free-standing right to liberty, and this is fatal to the appellant’s claim regardless of whether place of residence can plausibly be characterized as a decision of fundamental importance.
20To demonstrate how the appellant’s claim fails, it is necessary to survey the doctrinal development of the right to liberty in s. 7, including: (1) an early period of pronounced doctrinal division on the Supreme Court that produced much insightful analysis on this point but no binding authority, (2) New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, a decision in which a majority first held that s. 7 rights are properly restricted to the context of the administration of justice, (3) subsequent obiter and dissenting reasons that expressed a measure of scepticism without overturning G. (J.), and finally (4) an explanation why – even if the issue were not resolved by precedent – an analysis from first principles leads to the same result.
This threshold issue
21The doctrinal question of whether the s. 7 liberty right applies outside of the context of the administration of justice cannot be avoided on this appeal; it is a threshold issue: Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 214 (per Bastarache J., dissenting, but not on this point). For convenience, I will refer to this as the “administration of justice threshold requirement”. The Supreme Court has always acknowledged the threshold requirement, even in those cases where it simply assumed without analysis that the threshold requirement was satisfied because the claim failed on other grounds in any event: G. (J.), at paras. 65-67; Blencoe, at paras. 45-46; and Gosselin, at paras. 77-83.
22Statements made in obiter post-G. (J.) may have obscured the administration of justice threshold requirement. Expressly affirming the requirement would declutter the law and enhance clarity and predictability, important aspects of the rule of law and, as the Supreme Court held in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 3, an important function of Charter adjudication.
23Conversely, lingering uncertainty about the administration of justice threshold requirement produces the damaging consequences the Supreme Court warned of in Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420. As that case underscored, leaving important questions of law unresolved “leav[es] judges and litigants confused,” causing both to waste time and resources: at para. 21. Here, doubt about the resolution of this threshold question or the durability of the resolution invites litigants to bring ambitious claims in the hopes that sympathetic facts might shift the law, requiring courts to hear a mass of evidence to decide claims that could be promptly and efficiently resolved on the pleadings were there greater confidence in the settlement. This wastes the resources of litigants and courts, and forces governments to manage legal risks that ought not to be present. See, for example, Grant Huscroft, “A Constitutional ‘Work in Progress’? The Charter and the Limits of Progressive Interpretation” (2004) 23 S.C.L.R. (2d) 413, at pp. 434-437, and Philip Bryden, “Section 7 of the Charter outside the Criminal Context” (2005) 38 U.B.C. L. Rev. 507, at pp. 525-526 and 530.
249147-0732 Québec inc. and Atlantic Lottery’s more recent guidance supersedes Gosselin’s dated suggestion, at para. 79, that it is better to leave threshold questions unresolved until sympathetic facts arise. Rather than promoting the predictability that 9147-0732 Québec inc. urges, accepting Gosselin’s suggestion would perpetuate the undesirable uncertainty that Atlantic Lottery condemns. As well, this suggestion conflates questions of law with questions of fact, a mistake that Atlantic Lottery rebuked at paras. 18-20; see also Bryden, at p. 525. Section 7 either imposes a threshold administration of justice requirement or it does not, and no amount of “unforeseen [factual] circumstances” (Gosselin, at para. 79) can change the answer to that fundamental legal question.
The argument from precedent
25I turn, then, to the long march of doctrinal development that settled the threshold issue that s. 7 rights are restricted to the administration of justice, establishing a precedent that remains binding on this court.
The debate about the scope of s. 7
26The doctrinal framework for delimiting the rights to life, liberty, and security of the person (and their qualification by principles of fundamental justice) is a relatively stable body of law. Nevertheless, there were some doctrinal disputes that appeared intractable and remained unresolved for a time.
27The administration of justice threshold requirement was one of them. For more than a decade after the seminal s. 7 case of Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, individual members of the court – primarily Wilson J., La Forest J., and Lamer C.J. – debated the requirement.
28Wilson J. argued that s. 7 protected a free-standing right to privacy or personal decision-making. She asserted that the framers intended to give the liberty aspect of “life, liberty, and security of the person” a meaning similar to the interpretation given by the Supreme Court of the United States to “life, liberty, and property” in the Fourteenth Amendment to the Constitution of the United States: see, for example, Jones v. The Queen, 1986 32 (SCC), [1986] 2 S.C.R. 284, at pp. 317-319, and R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, at pp. 164-171. Her expansive view implicitly rejected the administration of justice threshold requirement, which is incompatible with a conception of s. 7 providing a free-standing liberty right.
29Later, La Forest J. made that implicit rejection of the administration of justice requirement explicit. After adopting Wilson J.’s interpretation of s. 7 in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, and Godbout, he rejected the requirement, asserting that s. 7 “should always be interpreted broadly” rather than narrowly: B. (R.), at para. 120.
30But Lamer C.J. rejected Wilson and La Forest JJ.’s interpretation of the liberty interest on the grounds that it was not faithful to the constitutional settlement. As he explained, there was no reason to believe that the framers had intended that the American interpretation of the Fourteenth Amendment should have any bearing on the interpretation of an entirely different provision in a different constitutional document governing a different political community. The claim was simply ahistorical and unsupported. He was also concerned that Wilson J.’s interpretation would denature the complex of rights protections in the Charter by expanding the ambit of s. 7 to the neglect of the fundamental freedoms established in s. 2 – particularly freedom of conscience. The consequence would be that judges deciding conscience claims, which are ill-suited for adjudication under s. 7, would be denied the resources that would have been provided by the historical context of the development of s. 2(a). See, for example, Reference re ss. 193 & 195.1(1)(c) of the Criminal Code, 1990 105 (SCC), [1990] 1 S.C.R. 1123, at pp. 1162-1171 (the “Prostitution Reference”), and B. (R.), at paras. 13-14, 26-32.
31Lamer C.J. proposed a different interpretation: that the text of s. 7, when considered within the structure of the Charter as a whole, addressed the right to life, liberty, and security of the person to deprivations brought about through the coercive power of the state. He reasoned that life, liberty, and security of the person, structurally, had to be interests that “may be limited through the operation of some mechanism that involves and actively engages the principles of fundamental justice”: B. (R.), at para. 20.
32Lamer C.J. acknowledged that this mechanism was not restricted to the criminal law and could include processes analogous to the power the state wields in criminal law: B. (R.), at para. 22; see also Prostitution Reference, at pp. 1175-1176. Over time, the administration of justice as a concept has been broadened to include claims arising in an adjudicative context, including the child welfare system, human rights adjudication, and state-imposed medical treatment.
33Neither Wilson and La Forest JJ., nor Lamer C.J., attracted majority support for their contending interpretations, and for a time the debate languished. Lamer C.J. and Wilson J. wrote only for themselves, and La Forest J., while securing some support, fell short of a majority in both B. (R.) and Godbout.
G. (J.) resolved the debate
34In 1999, the Supreme Court resolved the debate in G. (J.). Writing for a near-unanimous court, Lamer C.J. adopted his position in the Prostitution Reference and B. (R.) that “the restrictions on liberty and security of the person that s. 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system and its administration.” As he explained, while the administration of justice is broader than “purely criminal or penal matters,” it still requires “state[] conduct in the course of enforcing and securing compliance with the law”: at para. 65. Applying this test, he concluded that the state’s application for custody of the appellant’s children “directly engages the justice system and its administration” because it required a judicial hearing: at para. 66.
35G. (J.) could not have been clearer – the “subject matter of s. 7 is the state’s conduct in the course of enforcing and securing compliance with the law”: at para. 65. This court has long recognized as much, affirming that G. (J.) “[o]n its face … appears to limit resort to the s. 7 right to an individual’s interaction with the justice system and its administration”: Jackson v. Canada (Attorney General) (2006), 2006 32311 (ON CA), 215 O.A.C. 96 (C.A.), at para. 8, citing G. (J.), at para. 65.
36The holding from G. (J.) binds this court because it is part of the ratio decidendi, “the process of judicial reasoning that was necessary in order for the court to reach [the] result”: Canada (Attorney General) v. Bedford, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 57 (quotation omitted), aff’d in part, rev’d in part, 2013 SCC 72, [2013] 3 S.C.R. 1101. The court had to resolve this threshold question to determine whether the child custody application triggered s. 7. It not only adopted that requirement but applied it, reasoning that s. 7 was engaged because the application “directly engage[d]” the administration of justice: G. (J.), at para. 66.
37This court must follow G. (J.) under the doctrine of vertical precedent. That strict doctrine has only two narrow exceptions: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at paras. 29, 41. Neither applies here: the appellant has neither identified any evolving legislative or social facts, nor pointed to any novel s. 7 principles that postdate and justify re-evaluating G. (J.).
38It does not matter that the claim in this case, termination from public sector employment, is factually distinct from the child custody application G. (J.) considered. The ratio of G. (J.) enunciates a legal rule that applies to any fact situation posing the same legal issue: Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, 153 O.R. (3d) 465, at paras. 57-61; see also R. v. Kirkpatrick, 2022 SCC 33, 471 D.L.R. (4th) 440, at para. 127, per Côté, Brown and Rowe JJ. (dissenting, but not on this point). That is the case here. By its very nature, the threshold requirement G. (J.) established must apply beyond its facts to every s. 7 claim, otherwise it could not achieve its stated purpose of defining s. 7’s subject matter.
G. (J.) remains authoritative
39G. (J.) continues to bind this court because the Supreme Court has followed it ever since. The very year after it was decided, the Supreme Court reaffirmed and applied its holding that the trigger for s. 7 is state action that “directly engages the justice system and its administration”: Blencoe, at paras. 46, 58, quoting G. (J.), at para. 66. Two years later, the court acknowledged that although there were dissenting views, the administration of justice requirement constituted the “dominant” and “majority” view. More recently, in 9147-0732 Québec inc., the court unanimously affirmed that s. 7, together with the Charter’s other legal rights in ss. 8-14, are “essential elements of a system for the administration of justice” whose purpose is “to maintain the repute and integrity of our system of justice”: at paras. 126-127, per Abella J. (speaking for a unanimous court on this point; quotations omitted).
40Despite this, the Supreme Court has occasionally suggested that it might extend s. 7’s protection beyond the administration of justice if presented with an unspecified set of compelling facts. For instance, McLachlin C.J. in Gosselin suggested this threshold requirement was still “unanswered,” labelling it an “open … question” that should be resolved “incrementally, as heretofore unforeseen issues arise”: at paras. 79-80. Citing these comments from Gosselin, the court recently described this question as “yet to be settled” in Association of Justice Counsel, at para. 49.
41It is important not to confuse an expression of openness to future reconsideration of a doctrine with an actual reversal of that doctrine. Gosselin clearly acknowledged that G. (J.) addressed the issue and that although there were dissenting views, the administration of justice requirement was the dominant view. That is to say, it acknowledged that the majority had stated the law. To reverse that holding, Gosselin would have had to overturn G. (J.).
42Overturning precedent is “a step not to be lightly undertaken,” especially here where the administration of justice requirement “represents the considered views of firm majorities” in G. (J.) and Blencoe: Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 24. Taking this step would have required the court to articulate “compelling reasons that the precedent was wrongly decided”: Craig, at para. 25 (quotation omitted). As well, “[a] precedent overruled is definitively and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old”: P.J. Fitzgerald, Salmond on Jurisprudence, 12th ed. (London: Sweet & Maxwell, 1966), at p. 147. Thus, to overrule G. (J.), Gosselin would have had to definitively nullify its doctrine and replace it with an authoritative new principle.
43Gosselin did not overturn G. (J.) because it did not do any of these things. Instead, it acknowledged G. (J.) as the “dominant” and “majority” view and did not define any new principle to take its place: at para. 77.
44Rather, McLachlin C.J.’s comments in Gosselin are best read as a suggestion that, in the future, the Supreme Court might be willing to overturn G. (J.) – a signal the Supreme Court has occasionally given prior to overturning other precedents. See, e.g., Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at paras. 34-41. But instead of taking up that suggestion after Gosselin and Association of Justice Counsel, the court unanimously affirmed that, consistent with G. (J.), s. 7 is an essential element of a system for the administration of justice: 9147-0732 Québec inc., at paras. 126-127. Absent some definitive act of law making and unmaking by the Supreme Court, G. (J.) continues to bind this court.
45Tellingly, the only Supreme Court judges who would have overturned G. (J.) have written in dissent, namely Arbour J. in Gosselin, as well as Binnie and LeBel JJ. in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791. See Gosselin, at paras. 314-318; Chaoulli, at paras. 194-199.
46Of course, it is the majority that states the law, not the minority: Kirkpatrick, at para. 95, per Martin J., and at para. 140, per Côté, Brown and Rowe JJ. (dissenting, but not on this point). Rather than endorse Arbour J.’s critique, the Gosselin majority affirmed G. (J.) as the “dominant” and “majority” view: at para. 77. Likewise, the sole majority opinion in Chaoulli, by Deschamps J., declined to address Binnie and LeBel JJ.’s critique and instead resolved the case on non‑Charter grounds: at para. 33.4 McLachlin C.J. and Major J.’s concurrence did not adopt that critique either. Instead of accepting the dissent’s conclusion that the statutes at issue did not engage the administration of justice (at para. 195), they concluded that Québec enforced sanctions on lawbreakers through an administrative penalty scheme: at paras. 119, 121.5 This shows that, in their view, G. (J.)’s threshold requirement of “state[] conduct in the course of enforcing and securing compliance with the law” was met: at para. 65.6
47Moreover, none of the decisions sometimes invoked in support of a free-standing doctrine of personal autonomy have ever applied s. 7 outside of the administration of justice context. The Supreme Court has never done so. It has never held that s. 7 provides a freestanding right to make personal choices.
48The four supposedly contrary decisions the Gosselin majority offered (at para. 80 of that decision) prove this point. The first two involved criminal or penal statutes that punished violations with imprisonment, so the administration of justice threshold requirement had been satisfied and was not at issue. See Morgentaler; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, at pp. 964-965. As the Gosselin majority acknowledged, the remaining two examples also triggered this requirement on their facts: at para. 80, citing B. (R.) and Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 336 (SCC), [1997] 3 S.C.R. 925. The same is true of more subsequent cases such as Malmo-Levine; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, each of which involved criminal sanctions.
49The additional examples offered by Arbour J. in Gosselin and Binnie and LeBel JJ. in Chaoulli are no better. They each pointed to Blencoe and Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519: Gosselin, at paras. 315 and 318; Chaoulli, at para. 197. But the Gosselin majority did not agree that Blencoe undermined G. (J.). Instead, the majority concluded that Blencoe “affirmed” G. (J.)’s approach: Gosselin, at para. 80. Nor was the state action in K.L.W.“disconnected from the justice system” as Arbour J. asserted: Gosselin, at para. 315. To the contrary, K.L.W.’s context was adjudicative because the statute at issue only authorized the state to apprehend a child from parental care if it either obtained prior or subsequent judicial authorization: at para. 83. Even absent that judicial role, as Bastarache J. observed, seizing a parent’s child is a “determinative government action” to enforce and secure compliance with the law that meets G. (J.)’s threshold requirement: Gosselin, at para. 212.
50Finally, Blencoe’s holding that the s. 7 liberty interest protects “the right to make fundamental personal choices free from state interference” does not overturn G. (J.) either. Rather, Blencoe held that G. (J.)’s administration of justice threshold requirement shapes the scope of the rights that s. 7 protects. Thus, decisions of fundamental personal importance are safeguarded, but only against “state action which directly engages the justice system and its administration”: Blencoe, at paras. 46, 58, quoting G. (J.), at para. 66.
The Argument from Principle
51Even assuming, for the purpose of argument, that this court were not bound by the clear holding in G. (J.) and it remained an open question whether s. 7 has any application outside of the context of the administration of justice, a purposive interpretation of s. 7 following established interpretive methodology would nevertheless return the same result: it does not.
The purposive approach and the question to be answered
52The methodology that guides this inquiry is the purposive approach to constitutional interpretation articulated in Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, and refined in cases such as R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344; 9147-0732 Québec inc., at paras. 7-12; and Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845. Under this approach, a court is to interpret a provision of the Charter by beginning with the text in the context of the surrounding provisions. The language of Big M, at p. 344, remains canonical. A provision of the Charter is to be interpreted:
[B]y reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter.
53As Lamer J. summarized it in B. (R.), “the wording of the provision, its structure, the context in which it is found, and the relationship there may be between it and the other provisions, as well as the historical context in which the Charter was adopted, are all factors that must be taken into consideration in seeking to identify the purpose of a protected right or freedom, in order to preserve the coherence of the entire constitutional text and maintain the integrity and intention of Parliament”: at para. 17. That purposive interpretation “must not overshoot (or, for that matter, undershoot) the actual purpose of the right”: 9147-0732 Québec inc., at para. 10. Purposive interpretation begins with the specific language of the provision to be interpreted, rather than a highly general or abstract statement of the purpose of the Charter as a whole – say, to promote “human dignity” – and then attributing to the text whatever would best seem to promote that purpose. The latter approach – what Professor Mark Mancini calls “the purpose error” – overlooks that the framers chose not only ends, but means: Mark P. Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022) 59 Alta. L. Rev. 919, at pp. 941-942. As the Supreme Court affirmed at para. 65 of Toronto (City), the Constitution is not “an empty vessel to be filled with whatever meaning we might wish from time to time”: at para. 65, citing Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, at p. 394.
54For his celebrated essay on the concept of liberty, Sir Isaiah Berlin selected for study two central conceptions of liberty out of the more than 200 that he claimed had been identified by historians of ideas: “Two Concepts of Liberty” in Henry Hardy and Roger Hausheer, eds., The Proper Study of Mankind (New York: Farrar, Straus and Giroux, 1998) 191, at pp. 193-94. The court’s task in interpreting s. 7 is very different. It is not a matter of fixating on the concept of liberty and freely selecting whatever conception seems broadest or best aligned with a political theory that could be attributed to the Charter. It is, rather, a matter of applying a settled interpretive methodology to understand the constitutional settlement that was arrived at in enacting s. 7. It is less a matter of selecting or defining an attractive concept of liberty, than of understanding how a right to liberty is meant to function as one component in a complex constitutional provision, stated as a right to “life, liberty, and security of the person” nested within a greater constitutional whole. It is an act of analysis and retrieval, not a free choice among theoretical possibilities.
55The interpretation of s. 7, then, is neither a matter of interpreting the meaning of “life, liberty, and security of the person” in isolation, nor is it a matter of interpreting s. 7 in a way that would give effect to some broader purpose of the Charter as a whole. Instead, this court must interpret the scope of everyone’s right to “life, liberty, and the security of the person, and the right not to be deprived thereof except in accordance with principles of fundamental justice” in the context of its place in the Charter as a whole.
56Applying Big M’s purposive approach, (1) the text of the right, (2) its location inside the Charter, and (3) its historical origins all point towards a single answer: s. 7 requires the administration of justice threshold.
Interpretation of the text of s. 7
(1) The three interlinked rights
57To begin with, the right to liberty’s link to the rights to life and security of the person shapes its meaning. These three rights, while distinct, are related because “the framers deliberately placed [them] in sequence, in a single provision”: B. (R.), at para. 33; see also B.C. Motor Vehicle, at p. 500. Thus, they must be read together and “as a whole” to determine each right’s scope: Irwin Toy, at p. 1004. The Supreme Court did precisely that in Irwin Toy, reasoning that, on a global reading, s. 7 only “confer[s] protection on a singularly human level” to natural persons, not corporations: Irwin Toy, at p. 1004; see also 9147-0732 Québec inc., at paras. 14-15.
58Because the right to liberty is shaped by this association, it refers, like them, to physical and mental integrity: Prostitution Reference, at p. 1167 (citation omitted); see also Morgentaler, at p. 54, per Dickson C.J. As Lamer C.J. wrote, the commonality of the three rights is that all relate to the person “as a corporeal entity,” as opposed to a natural person’s disembodied “spirit, aspirations, conscience, beliefs, personality, or more generally, the expression or realization of what makes up the person’s non-corporeal entity”: B. (R.), at para. 33.
59Liberty’s close textual association with life and security of the person is thus inconsistent with Wilson and La Forest JJ.’s attempt to import the American conception of liberty under the 14th Amendment into s. 7. This approach wrongly reads the liberty right in isolation rather than “in light of the rest of the section” as the Supreme Court instructed in Irwin Toy, at p. 1004.
60That does not deny that the right to liberty is broader than simply physical constraint. It protects (using the language of Blencoe) “the right to make fundamental personal choices,” and is engaged “where state compulsions or prohibitions affect important and fundamental life choices”: at para. 54. But in every case – from Jones, through Morgentaler, B. (R.), and Godbout – the court has also emphasized that the right to liberty is not synonymous with licence, that its scope is narrower than the right to privacy in American constitutional law, and that limits are necessary for the common good and indeed the very possibility of governance.
61And one of these limits, which respects s. 7’s focus on human beings as embodied persons, is the administration of justice requirement. This requirement distinguishes human beings from corporations because only the former, not the latter, can be detained, imprisoned, put to death, treated inhumanely, or subjected to pain and suffering “through the operation of some mechanism that involves and actively engages the principles of fundamental justice”: B. (R.), at para. 20; see also Irwin Toy, at pp. 1002-1004; 9147-0732 Québec inc., at paras. 14-15.
(2) The connection to principles of fundamental justice
62Because s. 7 must be read as a whole, the principles of fundamental justice also shape the meaning of liberty. These principles, which “establish the parameters” of the three s. 7 rights (B.C. Motor Vehicle, at p. 501), are also an “invaluable key to determining the nature” of those rights: Prostitution Reference, at p. 1173. It would make no sense to define those rights so broadly as to make the principles incapable of restricting them, since this would make the latter irrelevant to the former: B. (R.), at para. 21.
63As their name implies, the principles of fundamental justice concern the justice system. They are rooted “in the inherent domain of the judiciary as the guardian of the justice system,” and are “essential elements of a system for the administration of justice”: B.C. Motor Vehicle, at p. 503. As Bastarache J. observed in Gosselin, this definition establishes a “strong relationship between the right and the role of the judiciary,” thus closely tying the principles to the administration of justice: at para. 215. This inseparable connection explains why so many of the principles are procedural. This is a feature, not a bug, because the justice system has long protected liberty through procedural rules: B.C. Motor Vehicle, at pp. 512-513.
64The extension of the principles of fundamental justice beyond procedure does not sever the link between them and the justice system. B.C. Motor Vehicle recognized that they stretch beyond the “judicial process” to include “the other components of our legal system” (at p. 512), a category which the Supreme Court later expanded to include the three principles of “instrumental rationality” derived from the proportionality test set out in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. Although Binnie and LeBel JJ. asserted in Chaoulli that this extension negates the administration of justice threshold requirement (at para. 198, quoting B.C. Motor Vehicle, at p. 512), the principles must still be rooted in the “legal system,” a term which B.C. Motor Vehicle uses interchangeably with the justice system and the administration of justice: at pp. 503, 512. Thus, rather than cut the cord tying the principles to the justice system, B.C. Motor Vehicle was merely recognizing that the system includes more than just procedure: at pp. 502-503.
65Because the principles of fundamental justice are tied to the justice system, liberty is too. Thus, “the restrictions on liberty … that s. 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system, and its administration”: Prostitution Reference, at p. 1173. As Lamer C.J. explained in B. (R.), this linkage respects the limits on the judicial role, keeping the judiciary within its “inherent domain … as guardian of the justice system” and out of “the realm of general public policy”: at para. 20, quoting B.C. Motor Vehicle, at p. 503.
66Thus Binnie and LeBel JJ.’s assertion in Chaoulli that the principles of fundamental justice do not limit the rights to the administration of justice context is unsupported. Their statement that breach of the principles of fundamental justice is “[t]he real control over the scope and operation of s. 7” severs those principles from the rights to which they relate, reading each in isolation from the other: at para. 199. This is inconsistent with B.C. Motor Vehicle’s direction that the rights and principles must be read together because the latter “establish the parameters” of the former: at p. 503. As well, it is inconsistent with Irwin Toy’s direction to read s. 7 “as a whole”: at p. 1004. Just as Irwin Toy interpreted s. 7’s starting reference to “everyone” by looking to the rights that followed that word, so too must the rights be interpreted in light of the principles that follow them.
The structure of the Charter and s. 7
(1) The location within “Legal Rights”
67Like section 7’s text, the other rights that the Charter associates with s. 7 demonstrate that the right to liberty is properly confined to the administration of justice.
68The Charter groups s. 7 along with ss. 8-14 under the heading “Legal Rights.” As Lamer J. recognized in the Prostitution Reference, this term has a narrower meaning than all rights recognized by law: at p. 1172. It refers, rather, to rights that are the “essential elements of a system for the administration of justice,” whose purpose is to “maintain the repute and integrity of our system of justice”: 9147-0732 Québec inc., at paras. 126-127 (quotations omitted). The rights that ss. 8-14 enumerate match the heading’s meaning: B. (R.), at para. 25. The common thread linking them together is the role of courts as defenders of the justice system, whether by granting individuals a right to have a judicial officer intervene, as with ss. 8-10, or by regulating justice system proceedings, as in the case of ss. 11-14: Prostitution Reference, at pp. 1174-1175.
69Section 7 thus takes its colour from the other “Legal Rights” that ss. 8-14 enumerate. Just as s. 7 shapes the interpretation of s. 12 because they share a common heading and broad purpose (9147-0732 Québec inc., at paras. 126-127, and 132-135), so too ss. 8-14 shapes the interpretation of s. 7. B.C. Motor Vehicle confirmed as much, stating that ss. 8-14 are “an invaluable key” to the meaning of s. 7’s principles of fundamental justice, which in turn shape the scope of the three rights: at p. 503. Thus, because ss. 8-14 concern the administration of justice, s. 7 does too: Prostitution Reference, at pp. 1172, 1174-1175; B. (R.), at paras. 23-25.
70Accordingly, the assertion offered in dissent in Gosselin and Chaoulli that the “Legal Rights” heading cannot shape s. 7’s scope cannot be correct: Gosselin, at para. 316, per Arbour J.; Chaoulli, at para. 198, per Binnie & LeBel JJ. It overlooks another interpretative rule, that Lamer C.J. followed, which requires courts to “take [headings] into consideration” because the framers “systematically and deliberately included [them] as an integral part of the Charter”: B. (R.), at paras. 24-25, quoting and applying Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357, at pp. 376-377.
71Similarly, the argument that using ss. 8-14 to interpret s. 7 departs from Big M’s purposive approach to interpretation (Gosselin, at para. 316, per Arbour J.; Chaoulli, at para. 198, per Binnie & LeBel JJ.) and must be rejected. Far from prohibiting the use of the architecture of the Charter to interpret particular rights, Big M requires it. As Dickson C.J. emphasized, “the purpose of the right or freedom in question is to be sought by reference to … the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter”: at p. 344; see also 9147-0732 Québec inc.: at paras. 7 and 13, per Brown & Rowe JJ., and at para. 126, per Abella J. The purposive approach is not a search for a right’s broadest conceivable interpretation: R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at paras. 53-55.
(2) The interaction of liberty with the fundamental freedoms
72Consideration of the s. 2 fundamental freedoms which the Charter does not associate with s. 7 provides further confirmation. As Lamer C.J. commented in B. (R.), the Charter segregates ss. 2 and 7 by placing them under different headings, which shows that the framers intended to create “different categories of rights and freedoms” whose “meaning, scope and nature … must be different”: at para. 25.
73Consistent with Lamer C.J.’s observation, the nature of the protections that ss. 2 and 7 grant differ. Following the standard grammar of rights, liberty rights in s. 7 are claim-rights: Grégoire Webber, “Rights and Persons” in Grégoire Webber et al., eds., Legislated Rights: Securing Human Rights Through Legislation (Cambridge: Cambridge University Press, 2018) 27, at pp. 41-42. Claim-rights entail that the state has a duty to the rights holder to do or provide something. In the central case of the criminal justice sphere as well as adjacent fields of administration of justice, the state has a duty to provide certain procedures and observe certain principles of fundamental justice in its interactions with the rights-holder. These duties are exemplified – but not exhausted – by the rights further specified as legal rights in ss. 8-14 of the Charter.
74By contrast, the fundamental freedoms of s. 2 serve a very different purpose. Rather than creating claim-rights, they establish entitlements to liberty within a defined sphere of action, enabling “every individual to choose … as he or she sees fit, free of any constraints” imposed by the state: B. (R.), at para. 25; see also Dwight Newman, “Recovering Forgotten Freedoms” in Dwight Newman et al., eds., The Forgotten Fundamental Freedoms of the Charter (Toronto: LexisNexis Canada Inc., 2020) 47, at p. 49. Under the standard grammar, the fundamental freedoms of s. 2 are understood as freedoms or liberties.
75What the appellant seeks to achieve through s. 7 is more properly addressed through the fundamental freedoms set out in s. 2. Correlative to a person having a freedom, or liberty, to do something, is the state having no power to interfere to prevent it. The distinction between rights and freedoms in the Charter has been well marked by Professor Newman:
Whereas a Charter right can pertain to various sort of entitlements, a Charter freedom … marks out a jurisdiction or a sphere of sovereignty not subject to determination by the state. …[T]he significance of the fundamental freedoms is as a set of limits on the jurisdiction of the state and a corresponding recognition of the empowerment of individuals and groups or intermediate associations. Such an understanding, I might note, makes sense of there being both a “right to liberty” in section 7 of the Charter and a set of “freedoms” in section 2 that could have been subsumed within the terminology of a general “right to liberty” but for the fact that “freedoms” and “liberty” are different in kind – the natural reading is that the Charter recognizes both the fundamental freedoms as spheres of sovereignty and also a right to liberty.
Thinking of fundamental freedoms in this way explains why it is important that holders of fundamental freedoms are able to use those freedoms in ways with which others disagree – they act within a jurisdiction of their own and are not subject to state regulation of whether they have made the “right” choices.
See Newman, “Recovering Fundamental Freedoms,” at p. 51.
76The line of argument developed by Professor Newman has a foundation in the reasons of Lamer J. in the Prostitution Reference and repeated in B. (R.). In the Prostitution Reference, Lamer J. expressed concern that if the right to liberty was understood to apply outside of the context of the administration of justice and to protect all morally significant choices, it would strip freedom of conscience protection in s. 2(a) of any function: at p. 1170. Indeed, freedom of conscience – like many of the nine fundamental freedoms enumerated in s. 2 – remains juridically undeveloped, and this has led constitutional scholars to express concern about the sustainability of rights protection provided in this section: see generally, Mary Anne Waldron, Q.C., “Putting Conscience Rights in a Box: Can We Take Off the Lid?” in Newman et al., eds., Forgotten Fundamental Freedoms 177. It would be a mistake to allow a path-dependency to develop – one which Lamer C.J. cautioned against – in which s. 2 claims are routinely transposed onto s. 7 and s. 2 jurisprudence is never fully developed: B. (R.), at paras. 27-30.
The historical origins of s. 7 and its interpretation
77The historical origins of the concepts s. 7 enshrines also confirm the administration of justice threshold requirement that its text and context adopt. The provision’s drafting history, extrinsic evidence of the framers’ intent, and similar provisions of international and foreign instruments predating the Charter may all shed light on its meaning and purpose: Poulin, at paras. 70-84; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144, at paras. 73-80; 9147-0732 Québec inc.: at paras. 21, 41, per Brown and Rowe JJ., and at para. 96, per Abella J.
(1) Section 7’s Canadian origins
78Like the Charter itself, s. 7 is a “made in Canada” provision: 9147-0732 Québec inc., at para. 20. To form it, the framers fused together two provisions of the Canadian Bill of Rights, S.C. 1960, c. 44, but shed certain American-inspired rights that document granted along the way. To begin with, they adopted the right to life, liberty, and security of the person from s. 1(a) of the Bill of Rights (itself inspired from the Universal Declaration on Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948)). But they dropped two Fourteenth Amendment analogues that document contained, namely the right to the enjoyment of property and the use of the phrase “due process of law” to set the protected rights’ parameters. Instead, they chose the phrase “principles of fundamental justice” from s. 2(e) of the Bill of Rights to play that role.7
79The framers’ selection of the term “principles of fundamental justice” tethered s. 7 to the administration of justice. At the time, this phrase was inextricably linked to the justice system because, as Walter Tarnopolsky noted, it referred to “standards used by courts to supervise administrative agencies”: The Canadian Bill of Rights, 2nd rev. ed. (Toronto: Macmillan, 1975), at p. 259; see also Stephens, at pp. 186-188.
80The framers made these choices because they did not want to imitate the United States’ Fourteenth Amendment jurisprudence. The deletion of “due process” proves the point. While the federal government was initially open to incorporating this phrase, the provinces would not have it. The problem was, as the Special Joint Parliamentary Committee on the Constitution pointed out in 1972, that it “has no tradition in our law.” Thus, it seemed to invite courts to look for inspiration south of the border, where, at its worst, the right to due process “gave judges leeway to substitute their socio-economic views for those of legislatures.”8 Provinces balked at taking a risk that judges, if unmoored from Canada’s own traditions, might take up the invitation to emulate American jurisprudence. Bowing to provincial opposition, the federal government replaced “due process” with “principles of fundamental justice” in the revised draft of the Charter it sent the provinces in September 1980, and it was enacted in this form: see Stephens, at pp. 218-224.
81Section 7’s origin story thus undermines Wilson and La Forest JJ.’s theory that the right to liberty imports American 14th Amendment substantive due process jurisprudence. Like the interpretations rejected in Poulin and Stillman, it finds no support in the right’s historical context because the framers considered and rejected it. Instead, the drafting choices they made support Lamer C.J.’s conclusion that s. 7 is inextricably linked to the administration of justice. This underscores the wisdom of Lamer C.J.’s caution not to “simply allow the American debate to define the issue for us”: B.C. Motor Vehicle, at p. 498.
82Of course, s. 7’s origins cannot rewrite its words or supplant its textual context. That is why B.C. Motor Vehicle rejected calls to restrict the principles of fundamental justice to procedural protections. While drawing some support from certain statements by Department of Justice legislative drafters, this extrinsic evidence could not “overcome … the textual and contextual analyses” that Big M’s purposive approach required: at p. 512. The text was not amenable to this interpretation since the framers had not used a more clearly process-only term like “natural justice” and declined to import the “right to a fair hearing” qualification from s. 2(e) of the Bill of Rights into s. 7. So did the context and structure of the Charter: the ss. 8-14 rights that accompany s. 7 are not purely procedural: at pp. 503, 511.
83But B.C. Motor Vehicle did not establish a broader rule against considering s. 7’s origins in interpreting that section. Rather, it counseled courts to pay close attention to the words chosen and the Bill of Rights terms that could have been included but were not: at pp. 503, 511. This same reasoning favours respecting the choice to use the words “principles of fundamental justice” rather than “due process of law.”
84B.C. Motor Vehicle’s caution against treating s. 7 as a mere re-codification of the Bill of Rights does not prohibit considering its origins either. As Abella J. underscored in 9147-0732 Québec inc., such cautions do not detract from the Bill of Rights’ relevance as a seminal human rights document that inspired many of the rights the Charter later constitutionally enshrined: at paras. 93-97; see also at para. 16, per Brown & Rowe JJ.
(2) Section 7’s international origins
85Unlike certain other rights in ss. 8 and 11 that were directly inspired by international instruments, s. 7 is, as noted above, a uniquely made in Canada provision, inspired by the Bill of Rights: see Proposed Resolution, at pp. 16 and 18. Nonetheless, to the extent that international instruments are relevant to the interpretation of the Charter, they support or confirm the administration of justice threshold requirement: 9147-0732 Québec inc., at para. 28.
86As 9147-0732 Québec inc. held, the meaning of international instruments is most useful in interpreting Charter provisions when they predate the Charter, are ratified by Canada, and contain similarly worded provisions: at paras. 31, 41. The International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, meets all three criteria. Ratified by Canada in 1976, six years before the Charter was enacted, this treaty contains Article 9(1), which guarantees the right to liberty and security of the person. Aside from omitting the right to life, this provision is “strikingly similar” to s. 7: B. (R.), at para. 38.9
87Article 9(1) of the International Covenant confirms the administration of justice threshold requirement. Like s. 7’s reference to the principles of fundamental justice, Article 9(1)’s text ties it to the justice system, linking it to protection against the deprivation of liberty through arbitrary arrest and detention. So it should come as no surprise that, as Lamer C.J. observed, the United Nations Human Rights Committee has “invoked [it] in cases of allegedly unlawful arrest, detention, [and] imprisonment,” all acts that concern “the physical dimension of the person” and are part and parcel of the administration of justice: B. (R.), at para. 38.
88So does Article 3(1) of the Universal Declaration on Human Rights, which declares that “Everyone has the right to life, liberty and security of the person.” Considering this provision is proper because Canada voted to adopt the foundational human rights document in which it is found and its wording is very similar to s. 7: 9147-0732 Québec inc., at para. 41. As Lamer C.J. observed, Article 3(1) has the “same effect” as Article 9(1) of the International Covenant, which it helped inspire: B. (R.), at para. 38; see also 9147-0732 Québec inc., at para. 41.
89Unlike Lamer C.J., and contrary to 9147-0732 Québec inc.’s more recent guidance, Wilson and La Forest JJ. looked to dissimilar provisions of international instruments to interpret s. 7. For instance, Wilson J. considered Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 211, which protects the right to respect for private and family life, just as La Forest J. drew on the International Covenant’s freedom of movement provision, Article 12(1): Jones, at pp. 319-320; Godbout, at para. 69. But neither of these provisions resemble s. 7 because they do not mention the rights to liberty and security of the person. While Article 12(1) of the International Covenant may have inspired the mobility rights that s. 6 of the Charter guarantees: Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157, at para. 24, it did not inspire s. 7. And to the extent the European Convention bears on interpreting s. 7, the relevant provision is Article 5(1)’s guarantee of the right to liberty and security of the person (B. (R.), at para. 38), not Article 8(1)’s strikingly different right to respect for private and family life.
The character and larger objects of the Charter
90This brings the analysis to the character and larger objects of the Charter.
91Justice Gonthier supplied the basic answer in Gosselin: the text and context of s. 7 cannot support this interpretation. As he wrote, concern with promoting human dignity or the other overarching human goods sometimes called “Charter values” cannot supplant the text or confer authority on judges to establish new, stand-alone rights. Doing so would overstep the legitimate judicial role: at para. 214. Straying outside of these settlements is an error: Toronto (City), at para. 65.
92But this question has a complementary and deeper answer. It presupposes that overexpansion of rights does not impair the possibility of governing for the common good. There is much that would be lost if the right to liberty were to be interpreted as synonymous with a free-standing right to privacy or autonomy. Every legislative provision that might result in the frustration of desire would need to be assessed in terms of whether, to use the language of La Forest J., it interferes with “a choice of fundamental importance”. The hazard of this – outside of floodgates considerations – is that constitutional jurisprudence lacks any articulation of a criteria or methodology for assessing what is fundamental. This is not an accident. Determining what is and is not “fundamental” would necessarily rest on a comprehensive anthropology of what constitutes a good life and what does not, a metaphysical judgment that would be – over some range at least – inherently controversial and well outside the primarily technical judicial function of deciding cases according to rules and standards authoritatively determined by others in past acts of law-making.
93To be sure, courts could always resolve litigation by simply characterizing some choices as fundamental and others not, but in the absence of legally defined criteria, the criteria that will be used will not be based in law, may be idiosyncratic, and may not be fully visible. As Lamer C.J. recognized in B. (R.), there will be subjectivity in play: at para. 35. The lack of a methodology for assessing what constitutes a fundamental personal choice – and the inevitable controversy of such analysis – is evident in Malmo-Levine. In that case, Gonthier and Binnie JJ. had no hesitation in concluding that a life centred around recreational drug use did not involve a fundamental choice; although there is a great variety of reasonable plans of living, this is not one of them: at paras. 86-87. The conclusion was not that the decision to centre one’s life on recreational drug use is trivial, but that the choice does not go “to the core of what it means to enjoy individual dignity and independence”. But this conclusion can only proceed from some conception – not articulated in the judgment – about what it means to be human, and what it means to have dignity. Beyond the differentiation between lifestyle choices and fundamental personal choices, the court provided no guidance as to how it made its decision, or – significantly – what methodology lower courts should follow when endeavouring to answer similar questions.
94These sorts of conclusions about the nature of human good are, of course, endemic to governing: “it is the goal of all political action to enable individuals to pursue valid conceptions of the good and to discourage evil or empty ones”: Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), at p. 133, as cited by Gonthier J. in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 112. But while these sorts of legislative choices need to be made, our constitutional order does not leave them to the idiosyncrasies of individual judges. Judges are to follow the guidance provided in past acts of lawmaking, particularly the guidance provided by constitutional settlements, rather than treating the constitution as “an empty vessel to be filled with whatever meaning we might wish from time to time”: Toronto (City), at para. 65 (quotation omitted).
95So the criterion of fundamentality provides no guidance unless it is nested in a robust account of human good, which will inevitably be controversial. What other resources are available to guide judicial reasoning aside from dueling aphorisms: on the one hand, that Charter rights, including the right to liberty, are to be read broadly (but not so broadly as to overshoot the actual purpose), and on the other, that liberty is not unlimited and must not be mistaken for licence?
96The historical origins of s. 7 cannot supply these resources. As I have described, both its Canadian and international roots support limiting it to the administration of justice. They do not support more sweeping conceptions of liberty under the Fourteenth Amendment or dissimilar provisions of international instruments, which the framers did not adopt and, in the Fourteenth Amendment’s case, expressly rejected.
97This historical deficit confirms the wisdom of Lamer C.J.’s caution against shoehorning conscience claims into s. 7. This is not a formal problem of ticking the wrong box. Addressing a s. 2 claim under s. 7 abandons courts to idiosyncratic improvisation, unguided by the analytical resources that s. 2 would provide. Purposive interpretation of s. 2(a) would allow for judicial and other interpreters to draw on the origins of Charter conscience protection in our own constitutional tradition, in English, French, American constitutional traditions, the drafting history of the Universal Declaration of Human Rights, and the immediate drafting history of the Charter. This is what is referred to by Dickson C.J. in Big M as the “historical origins of the concepts enshrined”. These resources offer courts a rich starting point that they cannot find under s. 7, just as many of them guided the Supreme Court to discern the purpose of freedom of religion in Big M, at pp. 344-349.10
98As well, abandoning the administration of justice requirement would produce the very concerns about overstepping the judicial role that led Lamer C.J. to adopt it in the first place. Severed from their “inherent domain … as guardian of the justice system,” judges would be drawn into “the realm of general public policy”: B.C. Motor Vehicle, at p. 503. There, they would be tasked with addressing “broader social, political and moral issues” about which personal choices are sufficiently fundamental. Because the law does not provide a determinate answer to these questions, they “are much better resolved in the political or legislative forum,” at least when they fall outside of the judiciary’s role as defender of the justice system: Prostitution Reference, at p. 1177; see also B. (R.), at para. 35.
Conclusion
99For the reasons above, I conclude that s. 7 of the Charter is not engaged by state conduct of general application, outside of the administration of justice. The rights enshrined in s. 7 relate to the embodied person and their physical and mental integrity in interactions with the coercive power of the state, while the limitation embodied in the principles of fundamental justice circumscribes the scope of those rights to those situations wherein the principles of fundamental justice can be plainly assessed and applied: the administration of justice. The location of s. 7 within other Legal Rights, and the extensive conceptual overlap s. 7 would have with the Fundamental Freedoms if it was applied outside the bounds of the administration of justice, also confirm that it ought not to be applied to all state action and conduct. Finally, this interpretation accords with that found in the Canadian Bill of Rights, conceived of by the Charter’s drafters, and developed in the Charter’s antecedent international instruments.
100Applying that holding to this case, the appellant’s claim is far removed from the administration of justice. The Canada Elections Act contained a prohibition on certain officials residing outside of an electoral district, backed up by a consequence: the loss of the official’s status as office holder. The law in question is not concerned with the administration of justice in any sense. On these facts, s. 7 is not engaged, and the appellant’s rights to liberty under s. 7 cannot have been violated, regardless of whether or not place of residence is a decision of “fundamental importance” either to the appellant or as a matter of general application.
101For this reason, I would not take up the invitation to speculate on whether a right to liberty would include a free-standing right to choose one’s residence if the Charter had indeed provided such a right. Whether there is a freedom to choose one’s place of residence under s. 2, in a context like the appellant’s, remains an open question to be addressed another day. I would only note that the appellant rests his argument not on the compelling nature of his own reasons for moving, but on the self-constituting nature of the choice generally, and the reasons that other returning officers could conceivably have. It is an extension of the argument from reasonable hypotheticals under s. 12 Charter doctrine. However, this is an area of constitutional doctrine that has drawn significant criticism and extending it further risks alienation from the rule of law. I would not take up the invitation.
102I would dismiss the appeal. As the parties agreed not to seek costs of the appeal, I would not make any order as to costs.
Epilogue
103I have read the reasons of my colleague, Gomery J.A., which raise important issues that warrant a reply.
104The apparent triviality of the ultimate issue in this appeal – whether a public office holder must reside in the geographic area the officer serves – masks the massive expansion of judicial power required to allow the appeal. The consequences of this expansion must be faced squarely.
105My colleague proposes the establishment of a judicially enforced, free‑standing right to liberty. Establishing an individual right of this nature would alter the balance of power in our constitutional order – a balance achieved through careful negotiation of the constitutional settlements of 1867 and 1982. The right to liberty she proposes would, in essence, render many of the particularized Charter rights redundant, while greatly expanding the power of judicial supervision to cover the full breadth of public policy.
106The reason for this is that almost all legislation restricts the exercise of personal autonomy: it necessarily frustrates the desires of some to secure the conditions needed for the flourishing of all. The Charter has, of course, long placed restrictions on government action, prohibiting, for example, wrongful discrimination and unjustified limits on fundamental freedoms. But it does so by means of relatively particular and specific rights, the terms of which were enshrined in the Charter following extensive debate and deliberation. Nothing in the Charter circumscribes policy decisions on the sole ground that they burden someone’s desires.
107My colleague, of course, does not believe that the proposed change in constitutional law has this transformative effect, and relies on two constraining principles extant in s. 7 jurisprudence. But, as I will explain, neither principle is capable of providing the required constraint.
108The first constraining principle is normative in nature: the right to liberty is to be restricted to those choices that can be described (variously but synonymously), as “inherent to autonomy and dignity”, inherent to “dignity and independence”, and, in my colleague’s formulation, impacting “autonomy, dignity, and quality of life”. But, as I remarked in addressing Malmo-Levine, this proposed constraining principle is incapable of guiding, let alone constraining, the exercise of judicial discretion. The apparent triviality of the instant case provides sufficient illustration. My colleague accepts the appellant’s argument that the exercise of the choice to live in one suburb rather than another is not trivial – is a matter of human dignity – because the “decision about where to live generally is one that profoundly impacts an individual’s autonomy, dignity, and quality of life.” But all exercises of free choice have this structure. All free choices are self-constituting. All free choices are the means by which persons establish their individual character and identity, whether that character is noble, frivolous, or even debased. The natural, rights-inflating terminus of this argument has already been reached in those jurisdictions where courts have recognized the free-standing right to liberty my colleague favours. To take one example, more or less at random, the German Federal Constitutional Court has held that the autonomy provision in its Basic Law for the Federal Republic of Germany, Article 2(1), extends to a right to feed pigeons in the park: Bundesverfassungsgericht, May 23, 1980, Zur Verfassungsmäßigkeit eines ortsrechtlichen Taubenfütterungsverbotes, BVerfGE 54, 143 (Germany).
109The experience of other jurisdictions amply illustrates the difficulty of avoiding this sort of trivializing, rights-inflating outcome. Even apart from the experience of other jurisdictions, there is no reason to believe the proposal to restrict a liberty right to those choices that are “inherent to dignity” can succeed. A judge can, ex post facto, always label some choices as “fundamental” or “inherent to dignity” and others not. But the rule of law requires something more. Essential to judicial reasoning is the application of criteria posited through rules set out in advance, using criteria that are sufficiently determinate, such that the decision reached will not be merely the idiosyncratic projection of an individual judge. The contested concept of human dignity has a very poor track record in this regard: proposed as a “philosophical enhancement” to s. 15(1) jurisprudence in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, at paras. 53-54, it was repudiated in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 22, as “an abstract and subjective notion” that had proved to be “confusing and difficult to apply”.
110The second proposed limiting principle – the application of the principles of fundamental justice – is similarly unable to provide meaningful guidance or constraint in this context. In particular, the principle of instrumental rationality applied in this appeal – overbreadth – can be readily engaged in challenges to legislation across the board. All legislation is overbroad to some extent. That is the nature of laws of general application. A finding of overbreadth is virtually always open to a court. All that is required is “one hypothetical instance in which the law applies in a manner that does not forward the objectives of the legislation”: Colton Fehr, Constitutionalizing Criminal Law (University of British Columbia Press, 2022), pp. 72-75. The salient question, then, is what degree of strictness a reviewing court will choose to apply the overbreadth requirement. The appellant’s application of the standard is strict indeed; no legislation could be drafted with any degree of confidence that the legislative line drawing could withstand a s. 7 challenge. It would effectively require the Crown to solve the sorites paradox.
111That is sufficient to illustrate the problems with broadening the right to liberty coupled with the absence of any means of controlling the right using the techniques of legal reasoning as opposed to discretion.
112That leaves the problem of the absence of authority to make the proposed change.
113My colleague locates the authority for the proposed doctrinal innovation in the concept of the constitution as a living tree. As I explain below, that doctrine cannot be used to support what in effect would be a re-authoring of s. 7.
114The doctrine of living tree constitutionalism is not a theory of constitutional interpretation. That is, it is not concerned with ascertaining the semantic meaning of a constitutional text. Its domain is post-interpretive, what is sometimes called constitutional construction. Constitutional construction – taking the intentionally vague or general text and specifying it to resolve concrete disputes – has both legislative and adjudicative aspects. The Oakes test is a good example of adjudicative construction; it creates a rule-based, analytical structure to implement the “reasonable limits” concept set out in s. 1 of the Charter.
115Living tree constitutionalism – properly understood – is a doctrine of both legislative and adjudicative construction. It provides that, where the constitutional text runs out, or where its provisions are (often intentionally) general, vague, or underdeterminate such that it does not provide answers to the questions posed, construction of constitutional legal doctrine begins. As circumstances change over time, existing law may prove inadequate and new answers may be required for new questions.
116But there are constraints on legitimate constitutional construction. Construction is not legitimate if it contradicts what has been settled in the constitutional text. Constitutional amendment is required for that: no new answers are permitted to questions authoritatively settled by the text.
117Additionally, construction must be in service of the common good of the nation. As Lord Sankey pointed out in Edwards v. Attorney-General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124 (P.C.), the living tree that the Constitution Act, 1867, planted in Canada – the thing “capable of growth and expansion within its natural limits” – is a nation of people, “a responsible and developing State”. Accordingly, Lord Sankey cautioned that where there are genuinely open interpretive questions, such as whether the “qualified persons” the Governor General was authorized to appoint to serve in the Senate could include women, a “large and liberal” interpretation is to be preferred, such that the living tree might grow.
118But this principle articulated by Lord Sankey as an assertion of the scope of executive power to serve the common good is commonly misunderstood as entailing an ever-expanding conception of individual rights that necessarily limits the ability to legislate for the common good. The Supreme Court has repeatedly warned against this error, most recently in Poulin, at para. 53:
[A] Charter right must be interpreted purposively — that is, in a manner that is justified by its purposes. This bears repeating because, as this Court has observed, “purposive” can be mistakenly conflated with “generous” (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 17; see also P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at p. 36-30). This is despite this Court’s instruction in Big M that, in applying a generous — rather than legalistic — lens, “it is important not to overshoot the actual purpose of the right or freedom in question” (p. 344). As was reiterated in Grant, “[t]he purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose” (para. 17). This is because an overly generous reading of a right risks protecting “behaviour that is outside the purpose and unworthy of constitutional protection” (Hogg, at p. 36-30). Indeed, “[i]n the case of most rights . . . the widest possible reading of the right, which is the most generous interpretation, will ‘overshoot’ the purpose of the right” (ibid.).
119This is the problem with my colleague’s invocation of the living tree doctrine: her proposed innovation of expanding s. 7 liberty rights to a free-standing right to make decisions overshoots the purpose of s. 7 discerned by reading that section in its larger context. It is not a matter of natural growth or development of constitutional doctrine to address some new circumstance (indeed, no new circumstances are even identified), but a repudiation of the existing constitutional settlement in favour of a different one.
120To sum up, neither the doctrine of living tree constitutionalism nor any other doctrine of interpretation or construction provides any warrant for the expansion of the right to liberty my colleague proposes. Such an expansion would be unprecedented, inconsistent with the structure of the Charter and the constitutional settlement, and illegitimate. It would subject nearly all acts of governing – legislative and executive – to judicial scrutiny on non-legally controlled grounds. Embracing it would be a profound mistake.
“B.W. Miller J.A.”
Gomery J.A.:
Overview
121In 2014, the appellant, Paul Drover, was appointed by Elections Canada to a ten-year term as the returning officer in the federal electoral riding of Rideau Carleton (since renamed Carleton). At the time, he lived in Stittsville, a community in the riding. Three and a half years later, he and his wife moved about 12 kilometres to a new home in the village of Carp, just outside the Carleton riding. They did so after first searching for, but failing to find, a suitable house for their needs in their immediate neighbourhood.
122At the time, s. 22(4) of the Canada Elections Act, S.C. 2000, c. 9, (the “Elections Act”) required a returning officer to reside in the riding to which they were appointed, and s. 24(4) provided that their office would become vacant if and when they ceased to reside in the riding. When Elections Canada learned that Mr. Drover had moved outside the riding of Carleton, it terminated his appointment as returning officer.
123Section 7 of the Canadian Charter of Rights and Freedoms provides that:
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.
Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
124After losing his appointment, Mr. Drover sought a declaration that residency requirements for returning officers and other senior election officials in the Elections Act are contrary to s. 7 of the Charter. He contends that he should have the liberty to choose his place of residence and that the requirements deprived him of that liberty contrary to the principles of fundamental justice, because they are arbitrary, overbroad and vague.
125The parties agreed that Mr. Drover’s application could proceed notwithstanding an amendment to s. 22(4) in 2019 that now permits Elections Canada to appoint returning officers who reside either in the riding of their appointment or in an adjacent riding. The respondent conceded before the application judge that the applicant had public interest standing to challenge s. 22(4) as amended despite that section coming into force after his appointment was terminated. Section 24(4), which deems the office of a returning officer vacant if the incumbent ceases to reside in the riding to which they are appointed to exercise their functions, remains unchanged. The respondent also conceded that the applicant had standing to challenge the constitutionality of that section.
126The application judge dismissed Mr. Drover’s application on the basis that the right to liberty in s. 7 of the Charter does not protect an individual’s choice of where to live.
127I would grant the appeal.
128I have read my colleague Miller J.A.’s reasons. With respect, I do not agree with his s. 7 analysis or his conclusion that Mr. Drover’s application should be dismissed.
129The Supreme Court of Canada has ruled that the right to liberty in s. 7 of the Charter protects an irreducible, core sphere of personal autonomy wherein individuals may make fundamental and inherently private choices free from state interference. This ambit of the s. 7 right to liberty reflects the foundational principle that Charter rights should be interpreted in a progressive and purposive manner, as mandated by the Supreme Court in and the Court’s rejection of an understanding of s. 7 rights as a mere extrapolation of other legal rights in ss. 8 to 14 of the Charter. The right to liberty in s. 7 does not prevent the state from restricting lifestyle choices, even if those choices may be subjectively important for some individuals. It restricts the state from depriving individuals from exercising those choices inherent to personal autonomy and dignity where such deprivation is contrary to the principles of fundamental justice and not demonstrably justifiable in a free and democratic society.
130As the text of s. 7 states, the control over the scope of the protected right to liberty is the requirement that a claimant prove that the state deprived them of the right contrary to the principles of fundamental justice. The concept of fundamental justice has come to be understood to encompass not only procedural guarantees in the context of adjudicative proceedings involving the state, but a safeguard from state restrictions on personal liberty that are arbitrary, overbroad, or vague. An “administration of justice” threshold requirement was proposed as a limiting principle before our current understanding of the concept of fundamental justice had developed. Recent s. 7 appellate decisions have not applied such a threshold.
131To date, the Supreme Court has not determined whether the right to liberty in s. 7 protects an individual’s choice of residence. I conclude that it should, and does, for reasons I will explain below. Although the concurring reasons of La Forest J. in Godbout v. Longueuil (City), 1997 335 (SCC), [1997] 3 S.C.R. 844, are not binding precedent, I am persuaded that an individual’s right to decide where to live is essential to maintain personal autonomy and dignity, and it therefore falls within the core sphere of deeply personal decisions protected by s. 7.
132I am also of the view that the residency requirement imposed by the Elections Act is overbroad, and therefore inconsistent with the principles of fundamental justice. On its face, s. 24(4) continues to require returning officers to live in the electoral district to which they are appointed despite the amendment to s. 22(4). The requirement in s. 24(4) is overbroad because it requires the termination of the appointment of qualified elections officers, like Mr. Drover, despite the respondent’s acknowledgment that their place of residence is not what qualifies them to exercise their functions under the Act. As a result, the application of s. 24(4) deprived Mr. Drover of a s. 7 liberty right contrary to the principles of fundamental justice. The respondent has not established that this violation was justified under s. 1 of the Charter.
133As I have found that, by operation of s. 24(4), the Elections Act continues to impose a residency requirement that is more restrictive than what would be mandated by s. 22(4) as amended on its own, and because Mr. Drover lost his appointment through the operation of s. 24(4), I decline to address the constitutionality of this more permissive requirement.
The application judge’s reasons
134The application record consisted of an agreed statement of facts supplemented by affidavits filed on behalf of the parties and answers to written cross-examination questions.
135In determining whether residency requirements for certain election officer positions in the Elections Act infringed an individual’s liberty interests, the application judge considered two questions:
(1) Does binding appellate precedent establish that a person’s choice of a place of residence falls within the ambit of the liberty interest protected by s. 7?
(2) If not, is a person’s choice of a place of residence a fundamental life or personal choice that, based on the Supreme Court of Canada’s jurisprudence, implicates a s. 7 liberty interest?
136On the first issue, the application judge concluded that there is no binding appellate precedent establishing that s. 7 protects an individual’s choice of a place of residence. On her review of the caselaw, a majority of the Supreme Court has never explicitly endorsed La Forest J.’s view in his concurring reasons in Godbout. It has instead affirmed that the question of whether place of residence is a protected liberty interest remains unsettled.
137On the second issue, the application judge focused on the evidence of what motivated Mr. Drover’s choice of residence when he moved to Carp. Based on this evidence, she concluded that an individual’s decision regarding their place of residence is “far removed” from the types of decisions that the Supreme Court has held to warrant protection under s. 7. Although she accepted La Forest J.’s approach to delineating the ambit of s. 7 liberty interests in Godbout, she rejected his conclusion about the ultimate scope of these interests, finding that: “Place or choice of residence does not go to what La Forest J. described in para. 66 of Godbout as ‘the core of what it means to enjoy individual dignity and independence’.” In the application judge’s view: “Election officers are free to choose where to live; their decision may, however, have an impact on their economic interests in the form of employment, but such an interest is not protected under s. 7 of the Charter.”
138The application judge did not consider whether the liberty interests protected by s. 7 are subject to an “administration of justice” threshold requirement. This argument was not advanced by the respondent at the original application hearing or on this appeal.
The issues on appeal
139In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 47, the Supreme Court held that a court must conduct a two-stage analysis when government action is challenged under s. 7. First, the court must determine whether the interest asserted falls within the ambit of s. 7. Second, the court must determine whether an individual’s s. 7 right is infringed in a manner not in accordance with the principles of fundamental justice.
140In the circumstances of this appeal, I must also consider whether, as the appellant contends, there is binding precedent on this issue and, as Miller J.A. contends, whether s. 7 claims are limited to claims arising in the context of the “administration of justice”, that is, as my colleague has suggested, “a person’s interactions with the justice system (broadly conceived)”.
141If Mr. Drover’s claim cannot be disposed of on either of these bases, and I conclude that the impugned Elections Act residency requirement deprived Mr. Drover of his s. 7 rights contrary to the principles of fundamental justice, I must determine whether the residency requirement can be justified under s. 1 of the Charter.
142I must accordingly answer five questions:
(1) How is the right to liberty in s. 7 circumscribed?
(2) Is there binding precedent establishing that an individual’s choice of a place of residence is a liberty interest protected under s. 7 of the Charter?
(3) If not, is the appellant’s choice of where to live a liberty interest protected under s. 7?
(4) Did the residency requirement for returning officers in the Elections Act deprive the appellant of his s. 7 right contrary to the principles of fundamental justice?
(5) If the Act deprives the appellant of a liberty right, has the respondent proved that the deprivation was justified under s. 1 of the Charter?
(1) The principles of fundamental justice, not an administration of justice threshold, circumscribe s. 7 rights
The evolution of the Supreme Court’s approach to the scope of s. 7 rights
143Before reviewing the Supreme Court’s s. 7 jurisprudence, I will briefly set out the overarching principles that govern its interpretation.
144The rights guaranteed by the Charter should be interpreted in a progressive and purposive manner. In Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 156, Dickson J. (as he then was), writing for a unanimous court, adopted Lord Sankey’s classic formulation of constitutional interpretation in Edwards v. Attorney-General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136:
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada… Their Lordships do not conceive it to be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation.
145This passage is accepted as the foundational principle that guides Charter interpretation. In Constitutional Law of Canada, 5th ed. supplemented (Toronto: Thomson Reuters Canada, 2020) (loose-leaf release 1, 7/2024), at § 36:18, Peter W. Hogg and Wade K. Wright observed that:
A constitution differs from an ordinary statute in that a constitution is expressed in language sufficiently broad to accommodate a wide and unpredictable range of facts; a constitution is difficult to amend; and a constitution is likely to remain in force for a long time. These considerations call for a flexible interpretation, so that the constitution can be adapted over time to changing conditions. That is the source of the doctrine of progressive interpretation, which was elegantly captured in Edwards v. A.-G. Can. (1930) by Lord Sankey’s metaphor of “a living tree capable of growth and expansion within its natural limits”. The requirement of flexibility or progressive interpretation obviously applies to the Charter of Rights no less than other constitutional provisions …. It is never seriously doubted that progressive interpretation is necessary and desirable in order to adapt the Constitution to facts that did not exist and could not have been foreseen at the time when it was written. [Emphasis added; footnotes omitted.]
146In Hunter, at p. 156, Dickson J. expressly adopted the approach taken in Minister of Home Affairs v. Fisher, [1980] A.C. 319 (P.C., Bermuda), at p. 328, that called for “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism,’ suitable to give individuals the full measure of the fundamental rights and freedoms referred to”.
147The caselaw on the scope of the right to liberty supports the view that s. 7 is subject to broad and progressive interpretation. It reveals an evolution from an understanding of the right as one of mainly procedural guarantees to a bulwark against indiscriminate or overbroad state action that deprives individuals of their freedom to make deeply private decisions on matters of core importance. This evolution has paralleled the development of a clearer understanding of the concept of fundamental justice. As a result, in assessing whether a claimant has advanced a viable s. 7 liberty claim under the two-stage Blencoe analysis, courts must consider, first, whether an impugned state action or law threatens the claimant’s liberty to freely make decisions that fall within a core sphere of personal autonomy and, second, whether the state conduct or law causing the deprivation of the claimant’s liberty contravenes the principles of fundamental justice. This test, on its face and considered in light of the evolution of the scope of s. 7 in the jurisprudence, does not include an “administration of justice” threshold.
148In two early s. 7 cases, Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486 (“Motor Vehicle Reference”) and Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123 (“Prostitution Reference”), Lamer J. (later Lamer C.J.) acknowledged that s. 7’s scope was not confined to criminal matters, but expressed the view that it should be read together with ss. 8-14 of the Charter to “protect individuals against the state when it invokes the judiciary to restrict a person’s physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm”: Prostitution Reference, at pp. 1173-74.
149In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, the scope of the s. 7 liberty right continued to be a live issue. The respondent, a children’s aid society, had obtained a temporary wardship order to apprehend an infant for a blood transfusion, contrary to her parents’ wishes. The parents, who were Jehovah’s Witnesses, challenged the provisions of the Child Welfare Act, R.S.O. 1980, c. 66 that permitted the aid society to obtain the order, arguing their right to choose medical treatment for their infant in accordance with their faith was protected under s. 2(a) and s. 7 of the Charter. The Court unanimously upheld the impugned provisions.
150The bench split, however, on the issue of whether the s. 7 liberty interest protected the parents’ right to decide which medical treatment should be administered to their infant. Justice La Forest, joined by three other members of the Court, endorsed Wilson J.’s approach to the scope of the s. 7 liberty right in R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, stating at p. 368 of B.(R.) that:
Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.
151In La Forest J.’s view, the Child Welfare Act deprived the parents of their right to liberty under s. 7 because it intruded into “a protected sphere of parental decision-making … rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself.” He further explained that including this form of decision-making within the ambit of s. 7 did not end the matter:
This is not to say that the state cannot intervene when it considers it necessary to safeguard the child’s autonomy or health. But such intervention must be justified. In other words, parental decision-making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter.
152On the facts of B. (R.), La Forest J. concluded that the state’s actions did not deprive the parents of their rights in a manner that was contrary to the principles of fundamental justice, for two reasons. First, the common law recognizes the state’s parens patriae jurisdiction to intervene to protect children whose lives are in jeopardy and to promote their well-being. Second, the procedure under the Child Welfare Act was consistent with the principles of fundamental justice, for example by putting the onus on the state to prove why it was necessary to intervene, and by giving the parents notice and an opportunity to present evidence and argument.
153Chief Justice Lamer, writing for himself, concluded that s. 7 did not guarantee parents the right to make educational or medical decisions on behalf of their children without undue interference by the state. He reiterated his view that the principles of fundamental justice qualified the right to life, liberty and security of the person, and that s. 7’s inclusion under the heading of “Legal Rights” in the Charter reflected its limited purpose. This led him to conclude that:
The liberty in question must … be one that may be limited through the operation of some mechanism that involves and actively engages the principles of fundamental justice. Principles of fundamental justice pertain to the justice system. They are designed to govern both the means by which one may be brought before the judicial system and the conduct of judges and other actors once the individual is brought within it.
154Consequently, in Lamer C.J.’s view, “the type of liberty s. 7 refers to must be the liberty that may be taken away or limited by a court or by another agency on which the state confers a coercive power to enforce its laws”.
155None of the remaining four justices in B. (R.) fully endorsed the view expressed by either La Forest J. or Lamer C.J. on the ambit of the right to liberty under s. 7. Justices Iacobucci and Major, joined by Cory J., agreed that s. 7 could encompass the right of parents to have input into the education and medical treatment of their child, but were of the view that it could not extend to a right to deny a child medical treatment for which there is no legitimate alternative. Justice Sopinka, writing for himself, was of the view that it was unnecessary to determine if the s. 7 liberty interest was engaged because “the threshold requirement of a breach of the principles of fundamental justice was not met”. He otherwise agreed with La Forest J.
156In the Court’s 1997 decision in Godbout, a majority of judges again declined to consider whether the right to liberty in s. 7 of the Charter was engaged. Justice La Forest, in his reasons, noted that, a plurality of the Court in B. (R.) had agreed that s. 7 must be interpreted “in light of the values reflected in the Charter as a whole, and not just those embodied by the other provisions described as ‘legal rights’”: Godbout, at para. 63. He reiterated about the scope of s. 7 at para. 66:
[T]he right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that … I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea … that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”. Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. [Emphasis added.]
157In 1999, in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 (“G. (J.)”), a majority of the Court again declined to determine the ambit of the liberty right in s. 7. The Court unanimously held that the province was under a constitutional obligation to provide state-funded counsel in certain child protection proceedings to ensure a fair hearing consistent with s. 7 of the Charter. Chief Justice Lamer, writing for the majority, found that proceedings in which the state seeks to obtain custody of a parent’s child implicate the parent’s security of the person, and s. 7 guarantees them the right to a fair hearing. But he expressly declined to address whether the parent’s right to liberty was also engaged, as “there [had] been differing views expressed about the scope of the right to liberty in the Court’s previous judgments”. Justice L’Heureux-Dubé, writing for three justices, endorsed the ambit of s. 7 liberty interests advocated by Wilson J. in Morgentaler and La Forest J. in B. (R.) and Godbout.
158In Blencoe, Bastarache J., writing for the majority, affirmed that s. 7’s protection is not confined to the penal context, citing the reasons of Lamer C.J. in G. (J.) for the proposition that s. 7 “can extend beyond the sphere of criminal law, at least where there is ‘state action which directly engages the justice system and its administration’”: Blencoe, at para. 46. This passage arguably implied that a connection with the administration of justice was required to mount a s. 7 claim.
159Yet, two years later in Gosselin v. Québec (Attorney General), 2002 SCC 84, 2002 SCC84, [2002] 4 S.C.R. 429, the Court distanced itself from this proposition. Writing for the majority, McLachlin C.J. acknowledged the past debate about the scope of protected rights under s. 7. She considered Lamer C.J.’s narrow interpretation in G. (J.), which saw the purpose of s. 7 as guarding against deprivations of life, liberty and security of person “as a result of an individual’s interaction with the justice system and its administration”, that is, “the state’s conduct in the course of enforcing and securing compliance with the law”: Gosselin, at para. 77.
160Although McLachlin C.J. characterized this narrow interpretation of s. 7 as the “dominant strand”, she concluded that the ambit of the s. 7 liberty right was not a settled point of law. On her reading of the s. 7 jurisprudence, “an adjudicative context might be sufficient, but we have not yet determined that one is necessary in order for s. 7 to be implicated”: Gosselin, at para. 78 (emphasis in original). She instead endorsed a careful, incremental approach:
In my view, it is both unnecessary and undesirable to attempt to state an exhaustive definition of the administration of justice at this stage, delimiting all circumstances in which the administration of justice might conceivably be implicated. The meaning of the administration of justice, and more broadly the meaning of s. 7, should be allowed to develop incrementally, as heretofore unforeseen issues arise for consideration. The issue here is not whether the administration of justice is implicated — plainly it is not — but whether the Court ought to apply s. 7 despite this fact.
Can s. 7 apply to protect rights or interests wholly unconnected to the administration of justice? The question remains unanswered. [Emphasis added.]
161In Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, three members of the Supreme Court held that the administrative restriction imposed by Quebec on purchasing private medical insurance violated s. 7 and could not be justified not under s. 1. Another three held that it would be a “rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings” but did not conclusively resolve the matter since they found the claimants had not identified a breach of a principle of fundamental justice. Justice Deschamps, writing for herself, declined to address the Canadian Charter.
162The three judge-plurality that would have dismissed the s. 7 claim nevertheless held that “the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system”, quoting from Lamer C.J.’s reasons in the Motor Vehicle Reference, at p. 512 (emphasis added in Chaoulli, at para. 198 (per Binnie, LeBel and Fish JJ.)). It explicitly rejected the idea Lamer C.J. articulated in the Prostitution Reference, that the scope of s. 7 is dictated by its placement under the heading of “Legal Rights” in the Charter, as this would be “unduly formalistic and inconsistent with the large, liberal and purposive interpretation of s. 7 that has been the hallmark of this Court’s approach”: Chaoulli, at para. 198. It concluded that: “The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link”: Chaoulli, at para. 199 (emphasis in original). This statement shows acceptance of a wider concept of the liberty right and the idea that the “heavy lifting” in circumscribing the right falls to the principles of fundamental justice.
163Finally, in Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, [2017] 2 S.C.R. 456, at para. 49, the majority cited Gosselin and Chaoulli and reaffirmed that: “The extent to which s. 7 of the Charter applies outside the context of the administration of justice has yet to be settled in this Court”.
164The result of this shift in focus is apparent in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 (“Cunningham”). After the claimants’ right to membership in a Métis settlement was revoked because they had registered as status Indians, they sought a declaration that the statutory provisions that underlay the revocation offended their rights under ss. 15, 7 and 2(d) of the Charter. The Court held that it did not need to decide whether place of residence is a protected liberty interest under s. 7, as any impact on the claimants’ liberty in that case had not been shown to be contrary to the principles of fundamental justice. It did not, however, refer to an administration of justice threshold, and the revocation did not involve an adjudicative process. It ultimately reinstated the trial judge’s decision, who had held that: “In Chaoulli, the majority of the court accepted that s. 7 can apply outside of the context of the administration of justice, but suggested that, the more distant a challenged action is from the adjudicative context, the more difficult it will be for the claimant to make the essential link to s. 7”: Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development), 2007 ABQB 517, 424 A.R. 271, at para. 113.
165Likewise, in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, a challenge to the constitutionality of Criminal Code provisions that criminalized aiding and abetting suicide, the Court limited its s. 7 analysis to the effects of those provisions on the rights of individuals who were never at any risk of prosecution. The Court did not conclude that an administration of justice threshold precluded their s. 7 claim. Rather, it found that, by interfering with the ability of people suffering from grievous and irremediable medical conditions to make decisions concerning their bodily integrity and medical care, the impugned provisions trenched on their liberty and impinged on their security of the person: at paras. 66-68, and 70. While the Court recognized the liberty interests of those who could be prosecuted for assisting another’s suicide may have been engaged by the threat of criminal sanctions, it declined to address this issue when it was not the focus of the arguments raised at trial: at para. 69.
166This court has similarly analyzed s. 7 liberty claims without any reference to the need for an administration of justice context. For example, in Doe v. Canada (Attorney General), 2007 ONCA 11, 84 O.R. (3d) 81, the appellant argued that Ontario’s assisted conception regime infringed her right to liberty and security of the person under s. 7 of the Charter by restricting her right to determine who would father her child. At para. 32, MacPherson J.A. stated that the s. 7 liberty interest “is engaged when state compulsions or prohibitions affect fundamental life choices” such as a woman’s right to choose with whom to conceive a child, citing Morgentaler, Blencoe, and R. v. Malmo Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. He nonetheless concluded that s. 7 does not protect a right “to attempt to conceive using a semen donor’s semen through assisted conception without that semen being screened or tested for infectious diseases” and that the impugned regime was neither overbroad nor arbitrary: Doe, at paras. 33, 36. There is no mention of an administration of justice threshold requirement anywhere in the court’s decision. Nor is there any such reference in other recent decisions of our court that have addressed the essential elements of a viable s. 7 claim, such as Leroux v. Ontario, 2023 ONCA 314, 166 O.R. (3d) 321, leave to appeal refused, [2023] S.C.C.A. No 284 and Mathur v. Ontario, 2024 ONCA 762, 173 O.R. (3d) 81, leave to appeal refused, [2025] S.C.C.A. No. 534.
Mr. Drover’s claim is not foreclosed due to an administration of justice threshold
167The respondent did not argue, either at first instance or on appeal, that Mr. Drover was foreclosed from asserting a s. 7 right because his claim arose outside of any adjudicative or administrative process. I will nonetheless address the question of an administration of justice threshold as it is central to my colleague’s reasons.
168Justice Miller contends that G. (J.) and Blencoe are binding authority for the principle that s. 7 claims are subject to an administration of justice threshold, that the Supreme Court “always acknowledged” this, and that it recently reaffirmed this requirement in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, 2020 SCC 426, [2020] 3 S.C.R. 426 (“9147-0732 Québec inc.”).
169I respectfully disagree.
170Chief Justice Lamer’s reasons in G. (J.) focused on the security interest in s. 7. He explicitly declined to consider whether a liberty right was also engaged in that case. As he himself recognized, and as the Court has consistently affirmed, security and liberty rights are conceptually and legally distinct. The rights to life, liberty and security are “independent interests, each of which must be given independent significance by the Court”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 45, citing Morgentaler, at p. 52.
171Accordingly, to the extent that an administration of justice threshold requirement is part of the ratio decidendi of G. (J.), it does not circumscribe s. 7 liberty claims.
172Although Blencoe involved a s. 7 liberty claim, in the portion of the judgment on which my colleague relies, the majority did nothing more than observe that s. 7 “can extend beyond the sphere of criminal law, at least where there is ‘state action which directly engages the justice system and its administration’”: Blencoe, at para. 46, citing G. (J.), at para. 66. This statement describes the limits of the s. 7 rights that had been recognized at that time. It does not preclude a recognition that they might extend further.
173In 9147-0732 Québec inc., the Court held that s. 12 of the Charter does not apply to corporations. In concurring reasons, Abella J. noted that s. 12 is grouped under the heading “Legal Rights”, which “have been recognized as essential elements of a system for the administration of justice”: 9147-0732 Québec inc., at para. 126, citing Motor Vehicle Reference, at p. 503. Justice Abella’s reasons do not address or even touch on the scope of s. 7; her observations in relation to that section of the Charter were also not necessary to dispose of the issues before the Court and were therefore made in obiter.
174As already noted, in decisions since G. (J.) and Blencoe, the Supreme Court has repeatedly denied that an administration of justice threshold necessarily applies to s. 7 claims. In Gosselin and Chaoulli, it affirmed that the ambit of s. 7 rights has yet to be settled. Moreover, those decisions show that the salient question is not whether a s. 7 claim arises in the context of the administration of justice but whether the state’s interference with a liberty right is consistent with the principles of fundamental justice as such principles are currently understood. The Supreme Court and this court have rendered s. 7 decisions that contain no reference to an administration of justice requirement.
175For argument’s sake, even if G. (J.) and Blencoe had imposed an administration of justice threshold on s. 7 liberty claims, this question is now ripe for re-examination.
176Chief Justice Lamer’s reasoning for limiting the scope of s. 7 through the threshold administration of justice requirement in G. (J.) flowed from his belief that the principles of fundamental justice exist to protect individuals subject to coercive state action. His view was that the qualification of rights in s. 7 by the principles of fundamental justice should be interpreted in light of the procedural guarantees set out in ss. 8-14. As a result, the principles of fundamental justice – and the rights set out in s. 7 – would serve only to “protect individuals against the state when it invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm”: Prostitution Reference, at pp. 1173-74; see also B. (R.), at p. 339.
177The Court rejected this limited view of s. 7 rights in Gosselin, however. It held that the scope of s. 7 is not dictated by its placement alongside ss. 8-14. It has also articulated a much broader conception of the principles of fundamental justice. As stated in Bedford, at para. 96: “The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values” (emphasis added).
178Since the Motor Vehicle Reference, the Court has explicitly affirmed that the principles of fundamental justice are not limited to procedural guarantees in the context of an adjudicative proceeding or administration of justice context. Laws that restrict the life, liberty and security interests protected by the Charter must be substantively consistent with the principles of fundamental justice. This includes requirements that a law that restricts an individual’s Charter rights must not be substantively overbroad, arbitrary, grossly disproportionate, or vague: see Bedford, at paras. 110-123.
179Additionally, none of the criteria that principles of fundamental justice must satisfy suggest that their applicability could be limited to the context of the administration of justice. What is required of a principle of fundamental justice is that: (1) it be a legal principle; (2) there be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and (3) it be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person: see R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46.
180The Supreme Court has recognized that this expanded conception of the principles of fundamental justice sometimes dictates that previous determinations of Charter claims be revisited. While stare decisis is a cornerstone of our legal system that provides certainty while permitting orderly development of the law in incremental steps, it is “not a straitjacket that condemns the law to stasis”: Carter, at para. 44. Settled rulings of higher courts may be reconsidered where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”: Bedford, at paras. 42, 44.
181The evolution in the understanding of the breadth of the principles of fundamental justice drove reconsideration of the Court’s previous holdings in the areas of prostitution and physician-assisted death. As the Court observed in Bedford, at para. 45, relevant principles of fundamental justice such as arbitrariness, overbreadth, and gross disproportionality had, “to a large extent, developed only in the last 20 years”. Similarly, the Court in Carter justified revisiting its earlier decision in Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519 on the basis that “the principles of overbreadth and gross disproportionality had not been identified at the time of the decision in Rodriguez and thus were not addressed in that decision”: at para. 28.
182Likewise, the interpretation of s. 7 as limited to claims arising in an administration of justice context is of questionable authority since, to borrow the words of the Supreme Court in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, 446 C.C.C. (3d) 1, it “rests on eroded legal foundations.” The analytical framework for the application of the principle of fundamental justice most relevant to this appeal – overbreadth – has evolved significantly since G. (J.) and Blencoe were decided: see R. v. Boutilier, 2016 BCCA 235, 388 B.C.A.C. 264, at paras. 33-42, aff’d 2017 SCC 64, [2017] 2 S.C.R. 936. While the Supreme Court may not have fully and explicitly refuted aspects of these decisions that suggest an administration of justice threshold, it has decisively embraced a conception of the principles of fundamental justice different than the limited conception of such principles that underlies the reasoning in G. (J.) and Blencoe.
183I therefore think that it is open to this court, if necessary, to reconsider whether an administration of justice threshold limits the ambit of s. 7. Since this threshold, as described by my colleague, was developed in the context of a different, more limited understanding of the principles of fundamental justice, there is a principled basis for reconsidering whether such a threshold remains necessary.
184On a fresh consideration of whether an administration of justice threshold is necessary, I come to a different conclusion than my colleague.
185Section 7 circumscribes claims that may be asserted by requiring claimants to show that the state has deprived them of their rights in a manner that is contrary to the principles of fundamental justice. An administration of justice threshold would have functioned as a proxy for the principles of fundamental justice when they were understood to apply only in the context of adjudicative or administrative proceedings. But the principles of fundamental justice that have driven the outcome of more recent cases where the Supreme Court recognized a s. 7 breach, such as overbreadth, gross disproportionality and arbitrariness could, in principle, apply to review any justiciable state conduct. An administration of justice threshold is therefore out of step with contemporary s. 7 jurisprudence binding on this court, and serves no real purpose except to debar otherwise viable s. 7 claims.
(2) The Supreme Court of Canada has not determined if an individual’s choice of a place of residence is protected under s. 7 of the Charter
186As the application judge correctly found, the Supreme Court of Canada has not yet determined whether s. 7 protects an individual’s choice of place of residence. This question was raised in Godbout, but a majority of the Court decided the case on a different basis. The question has not been meaningfully revisited by the Supreme Court since Godbout, and the Court has not explicitly endorsed the minority reasons of La Forest J. on this precise issue.
187The facts in Godbout parallel the facts in this case in many respects. Ms. Godbout was hired by the City of Longueuil, Quebec. A municipal resolution required all new permanent employees to reside within city limits as a condition of being hired and of continuing to be employed by Longueuil. Ms. Godbout undertook that she would maintain her primary residence in Longueuil when she was hired. When she moved to a neighbouring municipality a year later, Longueuil fired her.
188Ms. Godbout sued Longueuil, seeking an order reinstating her employment and damages. Among other things, she contended that the residency requirement infringed her right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, and her right to liberty under s. 7 of the Canadian Charter. Ms. Godbout lost at first instance, but the Quebec Court of Appeal allowed her appeal on the basis that the residence requirement was unreasonable and contrary to public order. On further appeal by Longueuil, the Supreme Court unanimously held that Longueuil’s residency requirement unjustifiably violated Ms. Godbout’s right to privacy under the Quebec Charter. Three judges – La Forest J., who wrote concurring reasons, and McLachlin and L’Heureux-Dubé JJ., who adopted them – found that the requirement also violated s. 7 of the Canadian Charter.
189Justice La Forest began by explaining why Ms. Godbout was not attempting to assert an economic “right to employment”, noting at para. 61 that:
[She] does not challenge the very fact of her termination as being contrary to her s. 7 liberty interest; rather, she seeks to impugn the basis upon which that termination was purportedly justified; viz., the residence restriction itself. Put another way, the respondent’s real complaint is not simply that she was dismissed from the appellant’s employ, but rather that she was dismissed because she exercised (what she claims is) a constitutionally protected right to choose her place of residence as she sees fit. [Emphasis in original.]
190In La Forest J.’s view, an individual’s choice of residence falls within the ambit of liberty protected by s. 7, because it is “a quintessentially private decision going to the very heart of personal or individual autonomy”: Godbout, at para. 66. Choice of residence may moreover have a “determinative effect” on an individual’s qualify of life. As a result, “the state ought not to be permitted to interfere in this private decision-making process, absent compelling reasons for doing so”: Godbout, at para. 67.
191Having concluded that Longueuil’s residency requirements deprived Ms. Godbout of her choice of where to live, La Forest J. considered whether this deprivation was consistent with the principles of fundamental justice. He concluded that it was not. He found that the public interests argued by Longueuil to justify the requirement did not outweigh Ms. Godbout’s protected interest, and that there was no evidence that she could not perform her functions adequately while living outside the municipality.
192Justice La Forest dismissed Longueuil’s argument that Ms. Godbout had waived her constitutionally-protected right by signing an undertaking, when she was hired, to reside in the municipality and acknowledging that she would be terminated if she moved outside of it. At para. 72, he observed that “[b]y its very nature, waiver or renunciation of any right must be freely expressed if it is to be effective”. Since Ms. Godbout had no choice but to accept this term if she wanted to keep her job, she could not be held to have waived her right in signing the undertaking:
Stated simply, the respondent in this case had no opportunity to negotiate the mandatory residence stipulation and, consequently, she cannot in any meaningful sense be taken to have freely given up her right to choose where to live. In civilian parlance, her acquiescence in signing the residence declaration was … tantamount to accepting a contract of adhesion and, as such, it cannot properly be understood to constitute waiver.
193Finally, La Forest J. held that the residency requirement could not be saved under s. 1 of the Charter: Godbout, at para. 91. He noted that “a violation of s. 7 will normally only be justified under s. 1 in the most exceptional of circumstances, if at all”, and that such circumstances did not exist in this case.
194In their respective concurring reasons, Cory J. (joined by Gonthier and Iacobucci JJ.) and Major J. (joined by Lamer C.J. and Sopinka J.) did not reject La Forest J.’s characterization of the ambit of the s. 7 liberty right, but deemed it imprudent to adjudicate Ms. Godbout’s claim on this basis. Justice Cory expressly rejected the Quebec Court of Appeal’s finding that s. 7 did not apply to Longueuil’s regulations, but stated: “Without hearing further argument on this question I would prefer not to hazard an opinion upon it”. Justice Major likewise wrote: “It is unnecessary and perhaps imprudent to consider whether the residence requirement infringes s. 7 of the Canadian Charter of Rights and Freedoms in the absence of submissions from interested parties”.
195The appellant argues, as he did before the application judge, that on the facts of his appeal, La Forest J.’s judgment in Godbout should be treated as binding precedent recognizing that s. 7 protects an individual’s choice of place to live. I disagree.
196Justice La Forest wrote for a minority of the panel on Godbout, and the majority did not endorse his conclusion that s. 7 protects the choice of where to live. His analytical approach to defining the sphere of the liberty interest protected under s. 7 was affirmed in later Supreme Court caselaw, as will be seen below. The Court has, however, neither accepted nor rejected his determination that the choice of where to live falls within this sphere. This was explicitly stated in Cunningham, at para. 93, where McLachlin C.J. wrote for a unanimous Court that: “It is not clear that place of residence is a protected liberty interest under s. 7 of the Charter. In Godbout … La Forest J., writing for himself and two other members of the Court, suggested that it was, but the issue remains unsettled.”
197As noted above, in Cunningham, the Court declined to decide the issue because it found that any impact on the appellants’ liberty was in any event not contrary to the principles of fundamental justice.
198This appeal therefore cannot succeed on the basis of binding appellate precedent in favour of the appellant’s claim. Justice Miller and I agree on this point.
(3) The appellant’s choice of where to live is a liberty interest protected under s. 7
199Although Godbout did not decide the issue, I find that an individual’s decision about where to live falls within the sphere of “quintessentially private decision[s] going to the very heart of personal or individual autonomy”. Consequently, the state cannot deprive individuals of this liberty except in accordance with the principles of fundamental justice.
200I reach this conclusion by first considering how the Supreme Court of Canada has circumscribed the liberty interest protected by s. 7 and, second, by considering what factors inform a person’s choice of where to live.
The ambit of the s. 7 liberty interest
201In almost three decades of jurisprudence since Godbout, the Supreme Court has repeatedly affirmed La Forest J.’s view that the right to liberty in s. 7 protects an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference.
202In its 2000 decision in Blencoe, the Court rejected a claim that a human rights investigation unduly deprived Mr. Blencoe of his s. 7 rights. Justice Bastarache, writing for the majority at paras. 49-54, endorsed the personal autonomy definition of the liberty interest La Forest J. articulated in Godbout, but found that the state had not prevented Mr. Blencoe from making any “fundamental personal choices”.
203In Malmo‑Levine, a majority of the Court affirmed the approach to the liberty interest protected under s. 7 in Godbout and Blencoe, stating that the protection extends to such matters as “can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”: Malmo-Levine, at para. 85. It concluded, however, that smoking marijuana, or other “lifestyle choices” such as playing golf, gambling, or eating fatty foods, are not included in this sphere.
204In Carter, a unanimous Court held that s. 7 protects individuals from undue state interference with “fundamentally important and personal medical decision-making”. The Court stated that a blanket prohibition against physician-assisted suicide “interferes with [the] ability to make decisions concerning … bodily integrity and medical care and thus trenches on liberty”: at paras. 65-66. Similarly, in R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, at paras. 18-20, the Court unanimously held that the medical access regime that only permitted access to dried marijuana arbitrarily inhibited individuals’ right to make “reasonable medical choices” and therefore violated s. 7.
205Lastly, in Association of Justice Counsel, lawyers working for the Department of Justice were subject to a directive that required them to remain within an hour of the office while “on call” during evenings and weekends, without pay. At para. 49, citing Malmo-Levine and Godbout, the majority accepted that s. 7 protects a sphere of personal autonomy involving “inherently private choices” where “they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”. The majority concluded that “[t]he [impugned] directive’s incursion into the private, after-work lives of the lawyers does not implicate the type of fundamental personal choices that are protected within the scope of s. 7”: Association of Justice Counsel, at para. 50.
The approach to determining whether the choice of residence attracts s. 7 protection
206The application judge focussed narrowly on some of Mr. Drover’s reasons for his choice of residence, as opposed to considering all the evidence about his motivations or the range of factors that may otherwise influence an individual’s decision about where to live. It was this narrow focus that led the application judge to distinguish choice of residence from the types of decisions the Supreme Court has identified as implicating an individual’s s. 7 liberty interest and reject Mr. Drover’s claim. She wrote:
Consider some of the factors at play in Mr. Drover’s decision to downsize from his home in Stittsville to a smaller home. A reduction in property maintenance tasks and overall expenses, while understandably important to Mr. Drover and his wife, fall short of the deeply personal factors at play in parental decision-making. The factors considered by Mr. Drover and his wife may reflect their approach to personal financial management; those factors do not, however, fall within the type of “lifelong values” about which the Supreme Court of Canada spoke in Carter.
207The application judge committed two errors in her assessment, in my respectful view.
208First, the application judge focussed solely on Mr. Drover’s financial motivations for his choice of residence, ignoring evidence of other factors that affected his decision. In his affidavit, Mr. Drover stated that he and his wife decided to downsize their house in favour of a “smaller, more manageable property to enjoy a better quality of life”, as well as “to decrease house-related expenses.” He detailed what led them to move and what specific characteristics they sought in selecting a new home:
In 2015, my wife and I began to discuss whether our house in Stittsville was right for us. We discussed whether we needed a large, four-bedroom house on a large lot when it was just the two of us living there.
My wife and I spent a lot of time discussing a possible move and weighed the decision carefully. We considered the advantages of having a smaller property that would require less maintenance, the benefits of a newly built house with warranty protection, and a reduction in property tax, insurance costs, and utilities charges. On the other hand, we considered the expenses associated with moving (including legal fees, moving fees, and storage fees), the risk of not being able to find the right neighbourhood, and the risk of me losing my position as Returning Officer if we moved outside of the district of Carleton.
209Mr. Drover and his wife originally confined their search to houses in the Carleton electoral district but expanded the search because they did not find a house there that “met [their] personal needs”.
210Based on this evidence, Mr. Drover and his wife’s choice of where to live was influenced not only by financial considerations but also personal preferences. Mr. Drover gave weight to finding the “right” neighbourhood and a residence that would give him a “better quality of life”. He and his wife were drawn to the house in Carp because it was only a short distance from their old neighbourhood, and the house was of “manageable” size, on a private lot, and had “country views”.
211Second, the application judge failed to consider that the determination of this appeal will affect not only Mr. Drover’s claim, but the scope of the s. 7 liberty interest for other individuals seeking to challenge state-imposed restrictions on their choice of residence. Mr. Drover’s specific reasons for his choice of residence are therefore not the only relevant consideration. For anyone who has debated downsizing their residence when they get older, these considerations might include whether they remain physically active enough to maintain a larger home and property; whether, quite aside from any physical constraints, they would like to devote their leisure time to other activities; and, more generally, whether they are comfortable remaining in a house that is larger than needed.
212As stated in G. (J.), at para. 60, the effects of state interference with security of the person “must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.” Similarly, in Godbout, La Forest J. considered not just Ms. Godbout’s reasons for moving to a residence outside the City of Longueuil, but the broader range of private considerations that may affect an individual’s choice of where to live as well as how that choice impacts their quality of life.
213In assessing whether an individual’s ability to choose their place of residence is the type or category of exercise of personal liberty that should be protected under s. 7, I must therefore consider not only Mr. Drover’s reasons for choosing his residence, but the range of considerations that may reasonably influence such a choice and the impact of that choice on the individual.
The choice of where to live is a quintessentially private decision going to the very heart of personal autonomy
214As La Forest J. observed at para. 67 of Godbout, an individual’s choice of residence is often based on “intensely personal considerations”:
Some people choose to establish their home in a particular area because of its nearness to their place of work, while others might prefer a different neighbourhood because it is closer to the countryside, to the commercial district, to a particular religious institution with which they are affiliated, or to a medical centre whose services they require. Similarly, some people may, for reasons dearly important to them, value the historical significance or cultural make-up of a given locale, others again may want to ensure that they are physically proximate to family or to close friends, while others still might decide to reside in a particular place in order to minimize their cost of living, to care for an ailing relative or … to maintain a personal relationship.
215In this case, Mr. Drover and his wife’s decision about where to live reflected serious consideration of their needs, values, and preferences. Their choice factored a range of considerations that were, in their view, critical to their well-being.
216In general, the choice of where to live is a deeply personal, deeply consequential decision that affects an individual’s life, opportunities, health, personal development and quality of life. It determines an individual’s proximity to family members and friends; their access to groceries, employment opportunities, medical facilities, schools, religious, cultural and leisure amenities; the nature and extent of their immediate social circle; and their physical environment.
217In the application judge’s view, the choice of where to live is qualitatively different than choices that the courts have found attract protection under s. 7. She found that an individual’s decision regarding their place of residence is “far removed” from a decision to have an abortion, or how to raise a child, or to seek medical assistance in dying. She compared Mr. Drover’s decision to move to a new residence to an individual’s lifestyle choice to consume marijuana, a choice that the Supreme Court held was not protected under s. 7 in Malmo-Levine.
218This finding is, in my view, a product of the application judge focusing only on Mr. Drover’s financial incentives for moving, instead of considering the full range of considerations that played into his decision, as well as the range of motives that may generally inform the choice of an individual’s choice of residence. In determining whether a decision falls within the sphere of the s. 7 protected liberty interest, the court must consider the nature of the decision and how it impacts an individual who makes it. This is one of the principles from La Forest J.’s reasons in Godbout that the application judge accepted as having been followed in subsequent Supreme Court jurisprudence. She did not, however, apply it to the facts in this case.
219The question is accordingly not whether Mr. Drover’s reasons for choosing his new residence are specifically worthy of protection, but whether the decision about where to live generally is one that profoundly impacts an individual’s autonomy, dignity, and quality of life.
220I agree with and adopt La Forest J.’s conclusion at para. 68 of Godbout that “the ability to determine the environment in which to live one’s private life and, thereby, to make choices in respect of other highly individual matters (such as family life, education of children or care of loved ones) is inextricably bound up in the notion of personal autonomy”. It implicates “the very essence of what each individual values in ordering his or her private affairs”. Given its profound implications, a person’s decision about where to live is an inherently personal decision that goes “to the core of what it means to enjoy individual dignity and independence”: Godbout, at para. 66; see also Malmo-Levine, at para. 85.
221I accordingly conclude that an individual’s choice of where to live falls within the irreducible sphere of deeply personal decision-making with which the state should not interfere except in accordance with principles of fundamental justice.
(4) The residency requirement imposed by s. 24(4) of the Elections Act deprived the appellant of his s. 7 right contrary to the principles of fundamental justice
222Having concluded that s. 7 does not protect an individual’s right to choose where to live, the application judge did not consider whether Mr. Drover’s claim would have otherwise succeeded. This court has jurisdiction to make an order or decision that ought to or could have been made in the court below pursuant to section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, where appropriate.
223In this case, I am of the view that it is appropriate to proceed with the s. 7 and s. 1 analyses. The application was commenced five years ago. The parties relied, for the most part, on an agreed statement of facts. There was no viva voce testimony. In the circumstances, this court is as well placed as the court below to make the necessary findings: see L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 54; D’Costa v. Mortakis (2000), 2000 5676 (ON CA), 47 O.R. (3d) 417, at para. 46.
The residency requirements in the Act
224Federal elections in Canada are administered by Elections Canada, an independent, non-partisan agency mandated to ensure that elections are conducted fairly and in accordance with the Elections Act. Elections Canada is led by a Chief Electoral Officer appointed by the House of Commons. Among other things, the Chief Electoral Officer appoints a returning officer for the preparation and conduct of an election in each federal electoral district or riding, based on prescribed qualifications and an external appointment process.
225A returning officer is an election officer under s. 22(1)(b) of the Elections Act. When Mr. Drover’s appointment as returning officer for the riding of Carleton was terminated, s. 22(4) required that such officers reside in the riding in which they were appointed to exercise their functions under the Act:
Qualifications
22 (4) An election officer must be qualified as an elector and an election officer referred to in any of paragraphs (1)(a), (b), (d) to (g) and (j) must reside in the electoral district in which he or she is to perform duties under this Act.
Qualité d’électeur des fonctionnaires électoraux
22 (4) Les fonctionnaires électoraux doivent avoir qualité d’électeur et ceux visés aux alinéas (1)a), b), d) à g) et j) doivent résider dans la circonscription pour laquelle ils sont nommés.
226Section 24(4) set out when the office of a returning officer becomes vacant:
Vacancy
24 (4) The office of returning officer does not become vacant unless the returning officer dies, resigns, is removed from office, reaches the end of his or her term of office or ceases to reside in the electoral district, or unless the boundaries of the electoral district are revised as a result of a representation order made under section 25 of the Electoral Boundaries Readjustment Act.
Vacance
24 (4) Le poste de directeur du scrutin ne devient vacant qu’au décès, à la démission, à la révocation ou à l’expiration du mandat de celui-ci, si celui-ci cesse de résider dans la circonscription ou si les limites de la circonscription sont modifiées en raison d’un décret de représentation électorale pris au titre de l’article 25 de la Loi sur la révision des limites des circonscriptions électorales.
227Following the 2015 general election, the Chief Electoral Officer submitted a report to Parliament recommending the amendment of the residency requirements for election officers. The report stated:
The requirement that [returning officers, assistant returning officers, and additional assistant returning officers] reside within the boundaries of their electoral district restricts the pool of potential candidates for these positions, and is not as important a requirement as that these election officers have a sophisticated understanding of their electoral district. In urban centres, someone can live across the street from an electoral district and be extremely familiar with it.
228On this reasoning, the report recommended that s. 22(4) be amended to allow the election officers subject to the residency requirement to live either in the riding to which they were appointed or an adjacent electoral district.
229As of June 13, 2019, pursuant to the Elections Modernization Act, S.C. 2018, c. 31, s. 22(4) of the Elections Act was amended to read as follows:
Qualifications
22 (4) An election officer must be qualified as an elector, and an election officer referred to in paragraph (1)(a.1) or (b) must reside in the electoral district in which he or she is to exercise powers or perform duties under this Act or in an adjacent electoral district. [Emphasis added.]
Qualité d’électeur des fonctionnaires électoraux
22 (4) Les fonctionnaires électoraux doivent avoir qualité d’électeur et ceux visés aux alinéas (1)a.1) ou b) doivent résider dans la circonscription pour laquelle ils sont nommés ou dans une circonscription adjacente. [Je souligne.]
230There was no equivalent change made to s. 24(4). As a result, s. 22(4) now permits Elections Canada to appoint an individual as a returning officer to an electoral district in which they do not reside, so long as they reside in an adjacent riding, but s. 24(4) continues to provide that a returning officer’s office becomes vacant if they cease to live in the electoral district in which they exercise their functions.
The purpose of the residency requirements
231Protecting the integrity of the democratic process is a central purpose of the Elections Act: Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 11, citing Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76. As stated in Opitz, at para. 38:
The same procedures that enable entitled voters to cast their ballots also serve the purpose of preventing those not entitled from casting ballots. These safeguards address the potential for fraud, corruption and illegal practices, and the public’s perception of the integrity of the electoral process. Fair and consistent observance of the statutory safeguards serves to enhance the public’s faith and confidence in fair elections and in the government itself, both of which are essential to an effective democracy [Citations omitted.]
232In assessing the constitutionality of a statutory provision that restricts a Charter right, however, the relevant state objective is that of the infringing measure, not that of the provision or law as a whole: Frank, at para. 46; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 20. As observed in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, at para. 144, “If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised.” In characterizing the purpose of impugned legislation in the context of a s. 7 overbreadth analysis, care must be taken not to frame the objective either excessively narrowly, which blurs any distinction between the underlying legislative purpose and the means used to achieve it, or excessively broadly, which would provide no meaningful check on the means employed: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 28; see also R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 25-29.
233In his affidavits and answers to interrogatories, Elections Canada’s representative stated that the objective of the residency requirements in ss. 22(4) and 24(4) of the Elections Act is to ensure that election officers have sufficient local knowledge and the ability to be physically present in the district to run an effective and fair election. I find that this is the objective of the residency requirement for the purpose of my analysis.
234The respondent argues that, notwithstanding the sworn evidence of Elections Canada’s affiant, this court should find that the objective of the residency requirements is to “ensure that elections are effectively and fairly run within each district”. It contends that the parties agreed, at first instance, that this was the objective of the residency requirements, and the respondent might have adduced additional evidence on this subject had it realized that Mr. Drover would take a different position on appeal.
235I do not accept this argument. The determination of a statute’s purpose is not dictated by an agreement between the parties, assuming such an agreement existed. The infringing measure is the residency requirement imposed by s. 24(4) of the Elections Act. The parties filed evidence directly on this issue. The respondent has not suggested what other evidence it might have brought had Mr. Drover narrowed the focus of his argument at first instance. It has not persuaded me that framing the question before the court correctly results in any unfairness.
236In my view, the respondent’s proposed framing of the objective restates a general purpose of the Act as a whole, rather than the purpose of the impugned provision. I am satisfied that the statement of purpose reflected in the affidavits and responses to interrogatories – that is, ensuring that returning officers have sufficient local knowledge and the ability to be physically present in the district to run an effective and fair election – is the objective relevant to the overbreadth analysis.
The residency requirement at s. 24(4) is overbroad
237In my view, s. 24(4) of the Elections Act deprives returning officers of the right to freely choose where to live, based on an overbroad residency requirement. As a result, it violates s. 7.
238A law is overbroad if it “goes too far and interferes with some conduct that bears no connection to its objective”: Bedford, at para. 101. As explained by McLachlin C.J. at para. 113:
Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. [Emphasis in original.]
239Determining whether an impugned provision is overbroad requires the court to ask “whether the evidence establishes that the law violates basic norms because there is no connection between its effect and its purpose. This is a matter to be determined on a case-by-case basis, in light of the evidence”: Bedford, at para. 119.
240In his evidence in response to Mr. Drover’s application, the Acting Assistant Director, Recruitment of Electoral Administrators, of Elections Canada acknowledged that “it is not necessary for a [returning officer] to reside in an electoral district to be able to successfully perform the duties of that office”. He testified that a candidate can demonstrate the requisite knowledge in the interview process, during which “questions are asked about the various communities and associations” in the district and candidates can explain how they would reach out to them. Elections Canada’s concession on this point was affirmed at para. 16 of the parties’ agreed statement of facts, which states:
Although Elections Canada takes the position that it is not necessary for a [returning officer] to reside in an electoral district to be able to successfully perform the duties of that office, it is of the view that it is still necessary for a person to have knowledge of the district in order to be qualified for the position and to conduct a successful electoral event. Local knowledge of the district is assessed during the selection process by an Elections Canada selection committee composed of Elections Canada managers and the Field Liaison Officer … for the region.
241Mr. Drover indisputably had the required knowledge and ability to be present to perform his duties as the returning officer for Carleton in 2017 when his appointment was terminated. His knowledge of the Carleton electoral district was evaluated and deemed satisfactory by Elections Canada when he was hired in 2014. He became more knowledgeable thereafter about his role and electoral district. Mr. Drover testified in his affidavits that he had received extensive training from Elections Canada, and he informed himself of the facilities in the district that could be used during an election. He also acquired a network of professional relationships with other election workers, local business owners, and community leaders.
242There is no suggestion that, by moving a few kilometres outside the district’s boundary three years later, Mr. Drover suddenly became unable to perform his duties as returning officer. Mr. Drover’s change of residence would not have compromised his ability to hire staff or secure facilities for an election, to confirm candidate nominations, to set up a local office, and to supervise and validate the voting process on behalf of Elections Canada. It did not cause him to lose the knowledge and know-how that secured his appointment.
243My colleague points out that Mr. Drover was aware of the residency requirement when he accepted his appointment. Nothing turns on this. As held in Godbout, an individual cannot legally waive a constitutionally protected right by acquiescing to the non-negotiable terms of a contract of adhesion that obliges them to choose between their job and their home.
244The respondent contends that the residency requirement is not overbroad because it impacts only the most senior election officials “with significant leadership and oversight responsibility”. This misses the point. A requirement can be overbroad even if it applies only to a limited number of individuals.
245The respondent also argues that the residency requirements are not overbroad because, following the 2019 amendment to s. 22(4), a returning officer no longer loses their appointment if they move outside of their riding so long as their new residence is in an adjacent riding. This argument assumes that Elections Canada is allowed to ignore the clear terms of s. 24(4).
246Section 24(4) unequivocally states that a returning officer’s office becomes vacant if and when the incumbent ceases to live in the appointed riding. Elections Canada says that it interprets s. 24(4) as though it was amended, like s. 22(4), to permit a returning officer to reside in an adjacent riding. I do not see how the clear language of s. 24(4) permits such an interpretation, particularly given that Parliament opted not to amend this provision in 2019, when it amended s. 22(4).
247Mr. Drover contends that, even if I were to accept that Elections Canada had the discretion to interpret s. 24(4) as it suggests, the relaxed residency requirement is impermissibly vague. The term “adjacent electoral district” is not defined in the Elections Act. Elections Canada has interpreted “adjacent” to mean geographically proximate rather than contiguous. Its affiant testified that:
Elections Canada has operationalized [its] interpretation by implementing a policy that where the returning office of an electoral district during the most recent election was within 50 kilometres of the returning office for another electoral district, the two electoral districts will be treated as “adjacent” for the purposes of appointing election officers, including [returning officers].
248Although I agree with Mr. Drover that the term “adjacent riding” is ambiguous and the application of Elections Canada’s interpretation of it could yield incongruous results, it is not clear that it is so vague that it offends the principles of fundamental justice. Given my finding on overbreadth, it is unnecessary to resolve this issue.
249I conclude that s. 24(4) of the Elections Act, which mandates the automatic termination of a returning officer’s appointment if they cease to reside in the riding to which they were appointed, is unnecessary to achieve the residency requirement’s objective. The requirement is not completely arbitrary; there is at least some relationship between the requirement and the purpose of ensuring sufficient local knowledge and the ability to be physically present in the district to run an effective and fair election. But, in the language of Bedford, the residency requirement goes too far, because it is clear, and indeed acknowledged by the respondent, that the requirement of actual residence goes beyond what is necessary to achieve the objective. The requirement unduly deprives returning officers, like Mr. Drover, who are fully qualified to fulfil their duties under the Act, of the liberty to choose a place of residence.
250The residency requirement may in fact undermine the purpose of retaining qualified election officials by arbitrarily limiting the candidate pool, particularly in urban areas where ridings may be geographically modest. This is presumably why Parliament, on the recommendation of the Chief Electoral Officer, loosened the residency requirement at s. 22(4) of the Elections Act.
251There are many ways in which the state could legitimately restrict an individual’s choice of residence without offending the principles of fundamental justice. The context of Mr. Drover’s claim is unusual, however, because the respondent has effectively conceded that the residency requirement imposed by s. 24(4) is overbroad.
252Elections Canada, the agency responsible for administering the Elections Act, concedes that a returning officer may be fully able and qualified to carry out their duties despite living outside the riding. Because of this, the Chief Electoral Officer advocated for an amendment that would allow him to appoint returning officers who reside in the riding or an adjacent riding. Parliament accepted this recommendation and amended s. 22(4) accordingly. But because Parliament did not amend s. 24(4), the Act continues to mandate the removal of a returning officer in circumstances where, by Elections Canada’s own admission, this serves no legitimate purpose. Elections Canada has tried to work around the resulting injustice by interpreting s. 24(4) – improperly, in my view – as though it were amended. In doing so, it has again implicitly acknowledged the overbreadth of the existing residency requirement.
253For these reasons, I conclude that s. 24(4) of the Elections Act violates the s. 7 right to liberty of returning officers, contrary to the principles of fundamental justice.
(5) The violation is not justified under s. 1 of the Charter
254The respondent has the onus of showing that the rights infringement caused by s. 24(4) of the Elections Act is justified under s. 1 of the Charter.
255A violation of s. 7 will normally only be justified under s. 1 in the most exceptional of circumstances, if at all: Motor Vehicle Reference, at p. 518; Godbout, at para. 91; and Carter, at para. 95; R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 81, leave to appeal refused, [2015] S.C.C.A. No. 450. That said, s. 7 and s. 1 ask different questions, work in different ways, and are analytically distinct: Bedford, at paras. 125-28.
256In this case, the respondent has not adduced any evidence specific to s. 1. It relies entirely on evidence and arguments I have already reviewed in the context of determining that the termination of Mr. Drover’s appointment was inconsistent with the principles of fundamental justice. Based on the record, it is clear to me that the respondent’s justification argument would fail at least the minimal impairment test: the amendment to s. 22(4) shows that there are less drastic means of achieving the purpose of the residency requirement. I express no opinion on whether the relaxed residency requirement in the amended provision would withstand a Charter challenge, for reasons already stated.
257As a result, I find that the respondent has not met its burden under s. 1.
Disposition
258I would grant the appeal, set aside the application judge’s order, and grant an order pursuant to s. 52(1) of the Constitution Act, 1982, declaring that s. 24(4) of the Canada Elections Act is of no force or effect as it is contrary to s. 7 of the Canadian Charter of Rights and Freedoms.
259Consistent with the parties’ agreement, I would not make any order as to costs of the appeal.
Released: June 26, 2025 “B.W.M.”
“S. Gomery J.A.”
“I agree. A. Harvison Young J.A.”
Footnotes
- At the time of the appellant’s change of residence, the Act restricted residence to the returning officer’s electoral district. In June 2019, subsequent to the appellant’s removal from office, the relevant provision was amended to allow for residence “in an adjacent electoral district”. The application judge held that the appellant nevertheless had public interest standing to bring the application.
- The district of Rideau Carleton was renamed Carleton in June 2014.
- There are many provisions in the Charter that protect rights to liberty. This appeal only engages in the right to liberty specified in s. 7, influenced by the concepts of life and security of the person, and limited by the principles of fundamental justice.
- Because the court split 3-3 on the s. 7 issue, only Deschamps J.’s reasons allowing the appeal on non-Charter grounds garnered a majority and are binding: at para. 15, per Deschamps J., and at para. 102, per McLachlin C.J. and Major J. (concurring on this point); see Gross v. FBL Financial Services, Inc., 577 U.S. 167 (2009), at p. 188.
- As the judgment below in Chaoulli observed, the statutes at issue created penal offences that were punishable by fines: Chaoulli c. Québec (Procureur général), 2002 33075 (QC CA), [2002] R.J.Q. 1205 (C.A.), at para. 18 & n.10.
- Because the court also split 3-3 on this issue, which Deschamps J. similarly did not resolve, McLachlin C.J. and Major J.’s view that the Quebec statutes engaged the administration of justice is not binding.
- See, for example, Canada, The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada (Ottawa: Government of Canada, 1980), at p. 16 (addressing s. 1(a) of the Bill of Rights); K. Michael Stephens, “Fidelity to Fundamental Justice: An Originalist Conception of Section 7 of the Canadian Charter of Rights and Freedoms” (2002) 13 N.J.C.L. 183, at pp. 219-220, 224 (addressing s. 2(e) of the Bill of Rights); Peter W. Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 S.C.L.R. 195, at pp. 195-196 & n.4 (addressing the omission of property rights and due process of law).
- Canada, Final Report of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada (Ottawa: Queen’s Printer for Canada, 1972), at p. 19.
- Article 9(1) provides: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
- See, for example, the following essays from the Fundamental Freedoms collection – Newman, “Recovering Fundamental Freedoms” 47; Brian Bird, “The Reasons for Freedom of Conscience” 111; Barry W. Bussey, “Blazing the Path: Freedom of Conscience as the Prototypical Right” 145; Waldron, “Putting Conscience Rights in a Box” 177; and Monica Fitzpatrick and Dwight Newman, “Freedoms of Thought, Belief and Opinion as Protected Inner Freedoms” 249 – as well as Paul Yowell, “Natural Law and the Universal Declaration of Human Rights,” in Tom Angier et al., eds., The Cambridge Handbook of Natural Law and Human Rights (Cambridge: Cambridge University Press, 2023) 100.