COURT FILE NO.: CV-20-84164 DATE: 2023/10/05 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

PAUL DROVER Applicant – and – HIS MAJESTY THE KING as represented by the ATTORNEY GENERAL OF CANADA Respondent

Counsel: Madelaine Mackenzie and Christopher Rusko, for the Applicant Helene Robertson and Julie Chung, for the Respondent

HEARD: January 12, 13, 24 and 25, March 21 and 22, April 14 and 29, and October 4, 5, and 6, 2022 (By Videoconference)

RULING ON APPLICATION

Corthorn J.

Introduction

[1] Pursuant to s. 7 of the Canadian Charter of Rights and Freedoms, “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.” The Charter does not define the ambit or scope of the rights protected under s. 7.

[2] On this application, the court is asked to determine whether residency requirements for certain election officer positions under the federal Elections Act, S.C. 2000, c. 9 (“the Act”) infringe an individual’s liberty interests.

Legislative Context

[3] The Act is a comprehensive statute regulating federal elections in Canada. The Chief Electoral Officer is responsible for administering the Act. That individual’s responsibilities include providing general direction over the conduct of elections; ensuring election officers act with fairness, impartiality, and in compliance with the Act; and issuing instructions to election officers.

[4] Elections Canada is an independent, non-partisan agency with its headquarters in the National Capital Region of Canada. The primary role of Elections Canada is to ensure federal elections are conducted fairly and uniformly across all federal electoral districts in accordance with the Act.

[5] The impugned provisions are ss. 22(4) and 24(4) of the Act. Those sections outline the qualifications of election officers and the conditions under which the office of Returning Officer becomes vacant. Section 22(4) applies to both Returning Officers and Assistant Returning Officers; section 24(4) applies only to Returning Officers.

[6] The impugned provisions read as follows, with the bold font as in the original:

Qualifications Qualité d’électeur des fonctionnaires électoraux

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.

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.

Vacancy Vacance

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.

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.

[7] The focus of this application is the residency requirements in both sections.

Factual Background

[8] In the latter half of 2013, the applicant applied for a position as a Returning Officer in the federal electoral district of Rideau Carleton. At the time, the applicant resided in the district.

[9] In early 2014, the applicant received a letter from the Assistant Director of Recruitment and Evaluation for Elections Canada. The applicant was informed he “demonstrated the necessary qualifications” for the position of Returning Officer; another individual would, however, be appointed to that position. Within a month or two following receipt of that letter, the applicant was hired by Elections Canada as an Assistant Returning Officer for the district of Rideau Carleton.

[10] After being hired as an Assistant Returning Officer, the applicant attended both an orientation session with a Field Liaison Officer and a workshop at the Elections Canada headquarters. On his own initiative, the applicant read manuals related to positions within an electoral district.

[11] In the spring of 2014, the Returning Officer for the district of Rideau Carleton resigned. The applicant was appointed to the position of Returning Officer for a ten-year period. At the time of his appointment, the applicant and his wife resided in Stittsville – a suburban community within the district of Rideau Carleton.

[12] The applicant took the oath required of Returning Officers. The oath included the following declaration: “I reside in the … district [of Rideau Carleton], where I will perform the duties of a Returning Officer. I undertake to notify the Chief Electoral Officer if my residence changes and if that new residence is outside the electoral district.”

[13] In June 2014, the district of Rideau Carleton was renamed the district of “Carleton”.

[14] In 2015, the applicant and his wife began looking for a new home. The couple carefully considered their decision to move. They weighed both the advantages and disadvantages of searching for and, if successful with their search, moving to a smaller residence.

[15] The applicant and his wife identified advantages such as a reduction in the property maintenance required and lower property taxes, insurance premiums, and utility bills. The disadvantages the couple identified included that they might not find a suitable neighbourhood into which to move. The downsides of a move, if made, included the expenses of moving and the risk of the applicant losing his position as Returning Officer for the district of Carleton if the couple moved to a location outside the district.

[16] Because of the latter downside, specifically, the applicant and his wife initially restricted their search to the district of Carleton. Unable to find a suitable home in the district, the couple expanded their search. They found a new-build home in Carp, located in the district of Kanata-Carleton. The applicant and his wife made the decision to move to Carp, aware the move would result in the applicant losing his position as Returning Officer for the district of Carleton.

[17] The applicant’s efforts to preserve his position as Returning Officer for the district of Carleton, despite the impending move to Carp, were unsuccessful. Elections Canada informed the applicant his employment in that position would be terminated effective the date of his move outside the district.

[18] On October 19, 2017, the applicant and his wife moved to a home in Carp, where they continue to reside. On October 25, 2017, the applicant received a letter from the Chief Electoral Officer informing the applicant of the termination of his employment as Returning Officer for the district of Carleton.

Standing

[19] The applicant moved outside the district of Carleton and was terminated from his position as Returning Officer for that district in October 2017. Termination of the applicant’s employment was based on the residency requirements set out in the predecessor to the current version of s. 22(4), quoted in para. 6, above, and on s. 24(4). The earlier version of s. 22(4) required that an election officer “reside in the electoral district” to which they were appointed.

[20] It was not until June 2019 that s. 22(4) was amended to include, as part of the residency requirement, “or in an adjacent electoral district”. Despite the timing of the termination of the applicant’s employment as a Returning Officer – specifically in relation to the date on which the amendment to s. 22(4) came into force – the respondent does not question the applicant’s standing to challenge the constitutionality of the current version of s. 22(4). The respondent concedes the applicant has standing on the basis of public interest, to advance his challenge of that section.

[21] The June 2019 amendments to the Act did not result in any change to the language of s. 24(4). The respondent concedes the applicant has standing to challenge the constitutionality of that section.

Relevant Constitutional Provisions

[22] The applicant’s position is that the residency requirements under ss. 22(4) and 24(4) of the Act deprive individuals of the liberty interest protected by s. 7 of the Canadian Charter of Rights and Freedoms. The protections under s. 7 are expressed as follows: “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.”

[23] This application is brought pursuant to s. 24(1) of the Charter, which provides, “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

[24] I turn next to the general principles applicable to a challenge under s. 7.

Section 7 – General Principles

[25] On a challenge under s. 7, a two-step analysis is required. The first stage is a determination of whether “the interest in respect of which the [applicant] assert[s] his claim falls within the ambit of s. 7”: Blencoe v. B.C. (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 47.

[26] If an interest in the applicant’s life, liberty or security of the person is implicated, then the court moves to the second stage of the analysis. At that stage, the court determines whether the impugned provisions infringe an individual’s rights in a manner not in accordance with the principles of fundamental justice: Blencoe, at para. 47.

The Liberty Interest

[27] The Supreme Court of Canada has repeatedly emphasized that “life, liberty and security of the person” are three distinct interests: Blencoe, at para. 48, citing Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 204-05; and Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 485, at p. 500.

[28] The liberty interest protected by s. 7 “is rooted in fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being”: Blencoe, at para. 50, citing R. v. Morgentaler, [1988] 1 S.C.R. 30.

[29] At para. 49 of Blencoe, Bastarache J. summarizes the liberty interest as follows: “In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference.” Bastarache J. concludes his review of the liberty interest, stating that “personal autonomy is not synonymous with unconstrained freedom”: at para. 54.

Disposition

[30] The issue raised on this application is whether an individual’s liberty interests are implicated by the residency requirements of the impugned provisions:

• The applicant asserts that the right to choose where to live is fundamental to personal autonomy and the residency requirements in the impugned provisions deprive election officers of their liberty in a manner not in accordance with fundamental justice; and
• The respondent’s position is that choice of residence is far removed from the types of profound personal decisions that attract the protection of the liberty interest under s. 7.

[31] The applicant relies on the reasons of La Forest J. in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844. La Forest J. concludes that choosing where to establish one’s home falls within the ambit of the liberty interest protected by s. 7.

[32] After reviewing the decision in Godbout, the treatment it received in subsequent decisions of the Supreme Court of Canada, and the treatment it received in lower court decisions, I am not convinced that the reasons of La Forest J. regarding choice of residence and the liberty interest in s. 7 settle the law on the issue.

[33] I find that choice of residence does not rise to the profound level or nature of personal decisions recognized to date by the Supreme Court of Canada as attracting the protection of the liberty interest under s. 7. In the language of Bastarache J., at para. 50 of Blencoe, choice of residence is not a decision “regarding an individual’s fundamental being”.

[34] An individual’s liberty interests are not implicated by the residency requirements of the impugned provisions. Therefore, the analysis of the applicant’s s. 7 challenge ends at stage one. It is not necessary to move to stage two of the analysis.

[35] The application is dismissed.

Analysis

a) The Decision in Godbout

[36] The starting point for consideration of the applicant’s position is the Supreme Court of Canada decision in Godbout.

i) Overview

[37] In Godbout, the Supreme Court considered a resolution adopted by the city of Longueil, Quebec (“the City”), requiring all new permanent employees to reside within city limits. Ms. Godbout obtained a permanent position with the City. As a condition of obtaining the position, Ms. Godbout signed a declaration in which she made two promises.

[38] First, Ms. Godbout promised she would establish her principal residence in the City. Second, she promised to continue to live in the City for as long as she remained in the City’s employ. The declaration provided that if, for any reason, Ms. Godbout moved outside the city limits, the City could terminate her employment without notice.

[39] Approximately one year after Ms. Godbout obtained permanent employment with the City, she moved to a new house she had purchased in a neighbouring municipality. The City afforded Ms. Godbout the opportunity to move back to a house within the city limits. She refused to do so, following which the City terminated Ms. Godbout’s employment.

[40] Ms. Godbout pursued an action for damages and an order requiring the City to reinstate her. Ms. Godbout’s position was that the residence requirement, imposed in the resolution adopted by the City, infringed her rights as protected under two statutes: (a) her right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, without justification under s. 9.1 of that statute, and (b) her rights under s. 7 of the Canadian Charter of Rights and Freedoms.

[41] Ms. Godbout’s action was dismissed at trial before the Quebec Superior Court of Justice. The trial judge concluded (a) the residence requirement did not contravene s. 5 of the Quebec Charter, and (b) the Canadian Charter did not apply to the circumstances because the City was acting in a private, not a public, capacity as an employer.

[42] The Quebec Court of Appeal allowed Ms. Godbout’s appeal, concluding that the residence requirement was invalid, mainly because it was contrary to public order. The City was ordered to reinstate Ms. Godbout and she was awarded limited damages.

[43] The City appealed to the Supreme Court of Canada on the substantive issues; Ms. Godbout cross-appealed on the damages issues. Before the Supreme Court, the parties made submissions as to whether the residence requirement infringed one or both of s. 5 of the Quebec Charter and s. 7 of the Canadian Charter. The parties did not make submissions on the issue of whether the Canadian Charter applies to municipalities.

[44] Three separate sets of reasons were released by the Supreme Court. The first set of reasons was written by La Forest J. for himself, L’Heureux-Dubé and McLachlin, JJ. A second set of reasons was written by Cory J. for himself, Gonthier and Iacobucci JJ. The third set of reasons was written by Major J. for himself, Sopinka J. and Lamer C.J.

[45] The Supreme Court was unanimous in its decision that the residence requirement infringed Ms. Godbout’s right to privacy under s. 5 of the Quebec Charter and was not justified under s. 9.1 of that statute. In that regard, all of the Justices agreed with the reasons of La Forest J.

[46] Only La Forest J. addressed whether the Canadian Charter applies to municipalities and, if so, whether the residence requirement infringed Ms. Godbout’s s. 7 liberty interest.

[47] At para. 118, Cory J. explained why he chose not to consider s. 7 of the Canadian Charter:

Although I would not consider s. 7 of the Canadian Charter, I cannot adopt the conclusion of the Court of Appeal that it is simply not applicable. This Court has recognized that the Charter can be applicable to municipal by-laws. See for example Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084. Yet I would prefer to withhold consideration of the application of s. 7 to a situation such as that presented in this case. The case raises important questions as to the scope of s. 7. Further, its application may have a significant effect upon municipalities. Before reaching a conclusion on an issue that need not be considered in determining this appeal I would like to hear further argument with regard to it including the submissions of interested parties and intervening Attorneys General of the provinces and Territories. Those submissions might well serve to change, vary or modify the approach the Court will take on this issue. Without hearing further argument on this question I would prefer not to hazard an opinion upon it.

[48] Major J. also chose not to address s. 7 of the Canadian Charter. At para. 1, Major J. said the following:

With respect to those of my colleagues who hold the contrary view, I agree with Cory J. that 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 and I too express no opinion on this issue.

[49] I turn next to consider the reasons of La Forest J. as to why the City’s residence requirement infringed s. 7 of the Canadian Charter.

ii) The Reasons of Justice La Forest

[50] First, La Forest J. accepts Ms. Godbout’s argument that the right she asserted as protected by the liberty interest in s. 7 – the right to choose her place of residence as she saw fit – is not a “right to employment” or any other “economic right”: at para. 61.

[51] Next, La Forest J. considers whether the right to choose where to establish one’s home falls within the ambit of the s. 7 liberty interest. At para. 66, La Forest J. expresses the following opinions on the extent to which personal autonomy and the freedom to make inherently personal choices are protected under s. 7:

• Section 7 “protects within its ambit the right to an irreducible sphere of personal autonomy”;
• Within that sphere of autonomy, “individuals may make inherently private choices free from state interference”;
• The sphere of autonomy is not, however, “so wide as to encompass any and all decisions that individuals might make in conducting their affairs”; and
• In any organized society, individuals cannot “be guaranteed an unbridled freedom to do whatever they please.”

[52] At para. 66, La Forest J. also begins his analysis of the types of matters that fall within the ambit of s. 7:

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.

[53] At para. 67, La Forest J. continues his analysis of matters that fall within the ambit of s. 7 by “reflecting upon some of the intensely personal considerations that often inform an individual’s decisions as to where to live”. Those considerations are said by La Forest J. to include proximity to one or more of the following: the countryside, an individual’s place of work, a place of worship, commercial establishments, medical facilities, family members, and friends. La Forest J. also notes that one’s choice of place to live may be dictated by financial means or even maintaining a personal relationship.

[54] After reviewing the above-listed and other considerations, at para. 67, La Forest J. concludes as follows regarding the nature or character of choice of place to live:

In my opinion, factors such as these vividly reflect the idea that choosing where to live is a fundamentally personal endeavour, implicating the very essence of what each individual values in ordering his or her private affairs; that is, the kinds of considerations I have mentioned here serve to highlight the inherently private character of deciding where to maintain one’s home. In my view, the state ought not to be permitted to interfere in this private decision-making process, absent compelling reasons for doing so.

[55] La Forest J. summarizes his view of the nature or character of the choice of place to live as “inextricably bound up in the notion of personal autonomy” and “fall[ing] within the narrow class of decisions deserving of constitutional protection”: at para. 68.

[56] At para. 26 of his factum, the applicant before this court acknowledges that the majority in Godbout chose not to address the alleged infringement of Ms. Godbout’s s. 7 liberty interest. The applicant adds that the majority “did not reject the Charter analysis offered by La Forest J.”

[57] Given that the majority chose not to address the s. 7 liberty interest issue, the lack of an explicit rejection of the Charter analysis of La Forest J. cannot be said to be an implicit acceptance of that analysis.

[58] What treatment have the reasons of La Forest J. received in subsequent decisions of the Supreme Court of Canada and in lower court decisions?

b) Subsequent Treatment of the Reasons of Justice La Forest in Godbout

i) Supreme Court of Canada Decisions

[59] At para. 27 of his factum, the applicant submits the Supreme Court “subsequently affirmed La Forest J.’s reasoning with respect to the scope of s. 7 liberty interests.” In oral argument, the applicant’s counsel submitted that, in several of the Supreme Court’s subsequent decisions, the Supreme Court “followed” the reasons of La Forest J. on that issue. In that regard, the applicant relies on the decisions in 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.

[60] I find the applicant’s written and oral submissions overstate the extent to which the reasons of La Forest J. in Godbout have been affirmed or followed in subsequent decisions of the Supreme Court. I prefer the respondent’s characterization of the treatment those reasons subsequently received: that they 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.

[61] A review of the three decisions upon which the applicant relies follows immediately below.

▪ Blencoe v. B.C. Human Rights Commission

[62] The issue before the Supreme Court in Blencoe did not involve place of residence; the issue was whether a lengthy delay in processing sexual harassment complaints made to the British Columbia Human Rights Commission infringed Mr. Blencoe’s rights, under s. 7, to liberty and security of the person.

[63] In Blencoe, when reviewing what is meant by the liberty interest in s. 7, Bastarache J. contrasts the more generous approach taken in prior decisions of the Supreme Court with the more cautious approach discussed by Professor Hogg in his constitutional law text: at paras. 49-54, citing Peter W. Hogg, Constitutional Law of Canada, vol. 2, (Scarborough, ON: Carswell, 1992) (loose-leaf updated 1999, release 1), at p. 44-9. Bastarache J. refers to several decisions of the Supreme Court in which the more generous approach is taken to the meaning of liberty in s. 7; included in those decisions is Godbout.

[64] At para. 51 of Blencoe, Bastarache J. reviews the reasons of La Forest J. in Godbout regarding the sphere of personal autonomy protected by the s. 7 liberty interest. Bastarache J. concludes that review with the following summary of La Forest J.’s reasons: “La Forest J. therefore spoke in Godbout of a narrow sphere of inherently personal decision-making deserving of the law’s protection. Choosing where to establish one’s home fell within that narrow class according to three members of this Court.”

[65] That review and the summary statement made by Bastarache J. neither individually nor collectively amount to an affirmation by the Supreme Court of La Forest J.’s conclusion that place of residence falls within the sphere of personal autonomy protected by the s. 7 liberty interest. To the contrary, Bastarache J. was careful to point out that only three members of the Supreme Court agreed on that conclusion.

[66] Addressing the more cautious approach to the s. 7 liberty interest, Bastarache J. highlights that Professor Hogg addresses the deliberate omission of “property” from the rights listed and protected in s. 7: at para. 53. Bastarache J. quotes the following passage from p. 44-12 of Professor Hogg’s text: “It also requires … that those terms [liberty and security of the person] be interpreted as excluding economic liberty and economic security; otherwise, property, having been shut out of the front door, would enter by the back.”

[67] In summary, I find that the decision in Blencoe does not support either the submission made at para. 27 of the applicant’s factum or the related submission made during oral argument from the applicant’s counsel. I move on, then, to the second of the three Supreme Court of Canada decisions upon which the applicant relies.

▪ R. v. Malmo-Levine

[68] The two accused in this matter were each convicted of possession of marijuana, contrary to the provisions of the Narcotic Control Act, R.S.C. 1985, c. N-1. The issue on the appeal was whether the prohibition against the possession of marijuana infringed the s. 7 and/or s. 15 rights of the two accused.

[69] The majority decision was delivered by Gonthier and Binnie JJ. on their behalf and on behalf of four other members of the court.

[70] The appellant, Caine, argued that the decision whether or not to possess marijuana is analogous to decisions about what to eat and what not to eat; is of fundamental personal importance; and involves individual personal autonomy.

[71] The applicant before this court submits that in para. 85 of Malmo-Levine, the Supreme Court “adopts” the reasoning of La Forest J. in Godbout regarding s. 7 interests. I agree with that submission, but only to the extent that the majority in Malmo-Levine quotes two passages from para. 66 of Godbout, both of which emphasize the fundamentally or inherently personal nature of the types of decisions that attract protection under the s. 7 liberty interest.

[72] The majority in Malmo-Levine does not in any way address the issue of place of residence or whether place of residence is afforded protection under the s. 7 liberty interest. The majority in no way adopts, nor does it affirm, the reasoning of La Forest J. on that specific issue. The decision in Malmo-Levine does not support the submission made at para. 27 of the applicant’s factum or the related submission made during oral argument from the applicant’s counsel.

▪ Association of Justice Counsel v. Canada (Attorney General)

[73] At issue in this matter was an employer directive making standby shifts mandatory – as opposed to voluntary, which they were prior to the directive being issued. The directive affected lawyers working in the Immigration Law Directorate in the Quebec Regional Office of the Department of Justice Canada. The Association of Justice Counsel (“AJC”) filed a grievance.

[74] The labour adjudicator agreed with the AJC and held the directive (a) was not a reasonable or fair exercise of management rights, and (b) violated the s. 7 liberty interests of the lawyers. The employer appealed to the Federal Court of Appeal. On appeal, the decision at first instance was set aside. The Federal Court of Appeal directed another labour adjudicator to find that the directive represented a fair and reasonable exercise of management rights. In addition, the Federal Court of Appeal held that the directive did not engage the lawyers’ s. 7 liberty interests. The AJC appealed to the Supreme Court.

[75] The majority decision of the Supreme Court was delivered by Karakatsanis J., writing for herself and six other members of the court. The appeal was allowed in part. The majority restored the adjudicator’s decision that the directive was not a fair and reasonable exercise of management’s rights: at para. 53. The majority agreed with the Federal Court of Appeal that the lawyers’ s. 7 rights were not implicated by the directive: at para. 53.

[76] Karakatsanis J. addresses the s. 7 issue in five paragraphs: at paras. 48-52. In doing so, she makes limited mention of the decision in Godbout.

[77] At para. 49, Karakatsanis J. refers to the decisions in Godbout and Malmo-Levine. She cites Godbout, at para. 66, emphasizing the “inherently private choices … going to the core of what it means to enjoy individual dignity and independence.” At para. 50, Karakatsanis relies on the same two decisions to emphasize “that not all activities that an individual happens to define as central to his or her lifestyle are protected by s. 7.”

[78] Karakatsanis J. summarizes her view of the employer’s directive by highlighting that it “requires [the lawyers] to be potentially less available to their families for, at most, two to three weeks a year. This does not fall within the scope of s. 7”: at para. 51.

[79] The majority decision in Association of Justice Counsel does not support the submission made at para. 27 of the applicant’s factum or the related submission made during oral argument from the applicant’s counsel.

[80] There is, however, one decision of the Supreme Court of Canada in which a majority of the court explicitly addresses the reasons of La Forest J. in Godbout on place of residence and the s. 7 liberty interest: Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670.

▪ Alberta (Aboriginal Affairs and Northern Development) v. Cunningham

[81] In this decision, the Supreme Court considered the constitutionality of two sections of the Alberta Metis Settlements Act, R.S.A. 2000, c. M-14 (“the MSA”). The claimants were members of a Métis community in Alberta. They registered as status Indians in order to obtain medical benefits under the Indian Act, R.S.C. 1985, c. I-5.

[82] The MSA provided that voluntary registration under the Indian Act precluded membership in a Métis settlement. Based on the impugned provisions of the MSA, the claimants’ respective memberships in their Métis settlement were revoked. The claimants sought a declaration that the impugned provisions were unconstitutional pursuant to ss. 2(d), 7 and 15 of the Charter.

[83] The s. 15 equality claim was dismissed. The court found the record did not provide an adequate basis upon which to assess the s. 2(d) freedom of association claim. Writing for the majority, McLachlin C.J. addressed the s. 7 claim; she did so in four paragraphs.

[84] First, McLachlin C.J. acknowledged the claimants’ right to reside on a specific settlement was not eliminated but had been circumscribed: at para. 92. Second, the Chief Justice recognized that the claimants could, in the future, find themselves excluded from their settlement: at para. 92.

[85] Addressing the s. 7 claim, at para. 93, McLachlin C.J. said, “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 Supreme Court, suggested that it was, but the issue remains unsettled.”

[86] There is an element of irony to the second sentence quoted in the preceding paragraph. McLachlin J. (as she then was) was one of the “two other members of the Court” for whom La Forest J. wrote in Godbout. Perhaps it is more telling than it is ironic, to have one of the members of the Supreme Court for whom La Forest J. wrote, some fourteen years earlier, subsequently opine that the issue of whether place of residence is a protected liberty interest under s. 7 “remains unsettled.”

[87] I agree with the submission from the respondent before this court that the statement made by McLachlin C.J., quoted in para. 85, above, is a clear caution that, at least as of 2011, the Supreme Court had not recognized place or choice of residence as falling within the ambit of the liberty interest protected under s. 7.

▪ Summary – Supreme Court of Canada Decisions

[88] The applicant has not identified a decision in which the Supreme Court of Canada affirmed or followed the conclusion of La Forest J. that place of residence falls within the ambit of the s. 7 liberty interest.

ii) Lower Court Decisions

[89] The applicant relies on three decisions – one from each of Alberta, British Columbia, and Ontario – in support of his submission, at para. 27 of his factum, that lower courts have followed La Forest J.’s conclusion that place of residence falls within the ambit of the s. 7 liberty interest:

• Reference Re By-Law No. 2794/A-97 of Red Deer (City), 1999 ABQB 30, 240 A.R. 89;
• B.C. Teachers’ Federation v. School District No. 39 (Vancouver), 2003 BCCA 100, 11 B.C.L.R. (4th) 119; and
• Mathur v. Ontario, 2020 ONSC 6918.

[90] The three lower court decisions are reviewed below, in chronological order based on the year in which they were decided.

▪ Reference Re By-Law No. 2794/A-97 of Red Deer (City)

[91] A city by-law prohibited the issuance of a license for the operation of a dating and escort service to anyone who had not “resided in the City continuously six months prior to making application for the licence”: City of Red Deer, by-law No. 2794/A-97, Dating and Escort Service Bylaw Amendment, s. 9(10)(1). The applicant challenged the residence requirement on the basis that it infringed his s. 7 interests and was not saved under s. 1 of the Charter.

[92] The decision at first instance is only twenty-two paragraphs. The applicant relied exclusively on the reasons of La Forest J. in Godbout: at para. 10. The respondent relied on the reasons of Cory and Major JJ. and asked the application judge to do as those Justices had done – to “express no opinion as to whether the residency requirement of the by-law before [the court] infringes s. 7”: at para. 12.

[93] For several reasons, the application judge concluded he was unable to accede to the respondent’s request:

• The respondent had not invited others to intervene (at para. 12);
• The respondent had not presented any arguments that “constrained” the application judge to disagree with the reasoning of La Forest J. (at para. 12); and
• Unlike the majority in Godbout, the application judge did not have another basis upon which to decide the matter (i.e., s. 5 of the Quebec Charter) (at para. 13).

[94] Based on the limited arguments before him, the application judge reached the following conclusion: “Although the remarks of the majority may cause some doubt in my mind, I nevertheless find myself satisfied on the balance of probabilities, by the analysis of La Forest J., that the tenancy requirement in the by-law before me infringes section 7.”

[95] I pause to note that the application judge referred to a “tenancy requirement”, yet the impugned provision required that the license applicant have resided in Red Deer for six continuous months prior to making their application. The significance, if any, of the use of the descriptor “tenancy” is not explained by the application judge.

[96] For two reasons, I choose not to follow the decision of the application judge. First, it is a decision at first instance from another province and this court is not bound by the decision.

[97] Second, the respondent in the matter before this court presented arguments, which I find persuasive, as to why the reasons of La Forest J. on the issue of whether place of residence falls within the ambit of the s. 7 liberty interest are not binding on this court. I am not constrained as the application judge in Red Deer considered himself to be.

▪ B.C. Teachers’ Federation v. School District No. 39 (Vancouver)

[98] A teacher refused to undergo a medical examination requested by the employer board of education (“the Board”); the teacher’s employment with the Board was terminated. The Board relied on ss. 92(2) and (3) of the School Act, R.S.B.C. 1996, c. 412, respectively to (a) request the medical examination, and (b) terminate the teacher’s employment.

[99] The union grieved the termination of the teacher’s employment. An arbitrator upheld the dismissal and concluded that ss. 92(2) and (3) did not infringe the teacher’s rights under s. 7 of the Charter.

[100] On appeal to the British Columbia Court of Appeal, the union argued that ss. 92(2) and (3) violated both ss. 7 and 8 of the Charter. Infringement of s. 8 was not argued before the arbitrator. Writing for the majority, Hall J. concluded that “neither the provisions of s. 7 [n]or s. 8 of the Charter can be successfully invoked by the appellants in the circumstances of this case”: at para. 211.

[101] At paras. 204-05, Hall J. quoted extensively from the reasons of Bastarache J. in Blencoe – specifically the contrast between a generous approach to the s. 7 liberty interest and Professor Hogg’s more cautious approach to that interest. Hall J. inferred that, by referring to the cautious approach of Professor Hogg, Bastarache J. “was suggesting that economic matters such as a right to any specific employment would not be within the purview of s. 7”: at para. 205.

[102] In summary, the majority in B.C. Teachers’ Federation did not follow the reasoning of La Forest J., as it relates to place of residence and the s. 7 liberty interest.

[103] It is not surprising, then, that the applicant before this court relies on the minority reasons of Prowse J. At para. 143, Prowse J. emphasized that the teacher, like Ms. Godbout, did not argue that the loss of her employment implicated her s. 7 liberty interest, but rather her s. 7 liberty interest was implicated because of the basis upon which her employment was terminated. The applicant before this court makes the same argument – that place of residence was the Charter infringing basis upon which his employer relied to terminate his employment.

[104] At para. 148, Prowse J. relied on Godbout and concluded “the teacher’s liberty interest was infringed by the state mandating that she forego her right to personal and psychological integrity or forfeit her means of livelihood.”

[105] In her reasons, Prowse J. addressed the boundaries of the s. 7 liberty interest. At para. 158, she said the following: “While the Court must be wary of pushing the boundaries of s. 7 too far, too fast, it should not treat those boundaries as being fixed and inflexible. The second stage of the s. 7 analysis remains available to protect valid societal interests which are found to outweigh the interests of the individual in any particular case.”

[106] This court is not bound by the decision in B.C. Teachers’ Federation and, specifically, not by the minority reasons of Prowse J. I am not, in any event, persuaded by the minority reasons as they relate to the issue before me. I agree, however, with Prowse J.’s recommendation that caution be exercised when considering whether to push the boundaries of s. 7 in any matter. The applicant before this court has not persuaded me that the circumstances in this case warrant pushing those boundaries.

[107] Last, I review the 2020 decision of this court in Mathur v. Ontario.

▪ Mathur v. Ontario

[108] The applicants sought declaratory and other mandatory orders regarding Ontario’s target and plan for the reduction of greenhouse gas emissions in the province by the year 2030. One of the grounds upon which the applicants relied was that the provincial target violated the rights of Ontario’s youth under s. 7 of the Charter, in a manner not in accordance with the principles of fundamental justice.

[109] Ontario brought a motion, pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asking that the application be dismissed on the basis that it had no reasonable prospect of success.

[110] At para. 154 of her decision, the motion judge, citing para. 54 of Blencoe, emphasizes that the s. 7 liberty interest protects “the right to make fundamental personal choices free from state interference”.

[111] The applicant before this court relies on para. 155 from the decision of the motion judge in Mathur. The motion judge therein refers to the decision in Godbout, as follows:

Additionally, in Godbout … , the Supreme Court found that the right to choose where to establish one’s home falls within the scope of the liberty interest guaranteed by s. 7 of the Charter, since this right is so fundamentally or inherently personal such that, by its very nature, it implicates basic choices going to the core of what it means to enjoy individual dignity and independence: at para. 66.

[112] For the reasons already given, I do not share the motion judge’s view of the outcome in Godbout. The motion judge overstated the outcome in Godbout. She failed to account for the reasons of Cory and Major JJ., writing for six members of the Supreme Court as to why they did not address the s. 7 liberty interest.

▪ Summary – Lower Court Decisions

[113] None of the lower court decisions upon which the applicant relies persuade me that I am required to follow the reasons of La Forest J. in Godbout regarding the inclusion of place of residence within the ambit of the s. 7 liberty interest.

[114] Leaving the reasons of La Forest J. in Godbout aside, for the reasons which follow in the next section of this ruling, I find that place of residence is not the type of personal decision that attracts the protection of the s. 7 liberty interest.

c) The Types of Decisions Implicating the Section 7 Liberty Interest

[115] The judicial decisions discussed in the previous section of this ruling provide guidance as to the types of personal decisions which attract the protection of the s. 7 liberty interest:

• “[F]undamentally or inherently personal [matters] such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”: Godbout, at para. 66; and
• “[F]undamental life choices” and “fundamental personal choices”: Blencoe, at paras. 49 and 54.

[116] At para. 50 of Association of Justice Counsel, Karakatsanis J. cautioned “not all activities that an individual happens to define as central to his or her lifestyle are protected by s. 7.”

[117] The decision in Malmo-Levine addresses lifestyle choices. Writing for the majority, Gonthier and Binnie JJ. accept that smoking marijuana was central to the accused’s lifestyle. At para. 86, they address lifestyle choices and protection under the Charter:

[T]he Constitution cannot be stretched to afford protection to whatever activity an individual chooses to define as central to his or her lifestyle. One individual chooses to smoke marihuana; another has an obsessive interest in golf; a third is addicted to gambling. The appellant Caine invokes a taste for fatty foods. A society that extended constitutional protection to any and all such lifestyles would be ungovernable. Lifestyle choices of this order are not, we think, “basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout, supra, at para. 66).

[118] The majority conclude that the desire to build a lifestyle around the recreational use of marijuana does not attract Charter protection. On the other hand, the majority conclude that the risk of being sent to jail invoked the accused’s s. 7 liberty interest: at para. 89.

[119] What types of fundamental life choices or fundamental personal choices has the Supreme Court determined implicate an individual’s s. 7 liberty interest? In several decisions, the Supreme Court determined that life choices or personal choices related to medical treatment implicate the s. 7 liberty interest:

• The right to choose to have an abortion: Morgentaler;
• A parent’s decision-making arising from the deep personal interest individuals have in fostering the growth of their children, including medical treatment: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at p. 372;
• In the context of seeking medical assistance in dying, the right to make decisions concerning an individual’s bodily integrity and medical care, consistent with lifelong values and reflecting individual life experiences: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64-69; and
• The right to possess marijuana for medical purposes: R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602.

[120] I find that an individual’s decision regarding their place of residence is far removed from the types of decisions listed immediately above.

[121] 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.

[122] 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”.

[123] The applicant submits that, because a consequence of an election officer’s choice of residence can be the loss of employment, the impugned provisions interfere in a fundamental aspect of a person’s life – employment. The applicant relies on three decisions from the Supreme Court of Canada which consider work and/or employment to be fundamentally important in the following contexts:

• Compulsory arbitration provisions and exclusion from collective bargaining units (Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, “Alberta Reference”);
• The standard for assessing whether and in what circumstances employee dishonesty amounts to just cause for dismissal (McKinley v. B.C. Tel, 2001 SCC 38, [2001] 2 S.C.R. 161); and
• Preference given to Canadian citizens for employment in the federal Public Service (Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769).

[124] In Alberta Reference, at para. 91, the importance of work to an individual is addressed as follows:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identify, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.

[125] In McKinley, at para. 53, Iacobucci J. considered the balance that “must be struck between the severity of an employee’s misconduct and the sanction imposed.” Relying on the above-quoted passage from Alberta Reference, Iacobucci J. emphasized that because of “the integral nature of work to the lives and identities of individuals in our society, care must be taken in fashioning rules and principles of law which would enable the employment relationship to be terminated without notice”: at para. 54.

[126] The applicant before this court submits the threat of loss of employment (i.e., based on place of residence) constitutes a grave punishment that interferes with the right to choose where to live. The applicant submits he is not asserting that the impugned provisions interfere with an economic right. I disagree – that is in fact exactly what he is doing. The applicant is attempting to dress up an economic right simply by choosing to call it the right to choose one’s place of residence.

[127] I find that the hardship or hindrance experienced by the applicant or any other election officer considering where to live is analogous to that experienced by Mr. Blencoe. At para. 86 of Blencoe, Bastarache J. described the situation in which Mr. Blencoe found himself, pending the outcome of the complaint against him, as “confined to his personal hardship”. Bastarache J. concluded that the state had “not interfered with [Mr. Blencoe’s] and his family’s ability to make essential life choices”: at para. 86.

[128] The s. 7 interest allegedly infringed in Blencoe was security of the person. The conclusions reached by Bastarache J. are equally applicable to the infringement alleged before this court of an election officer’s s. 7 liberty interest. Nothing 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.

Conclusion

[129] At para. 53 of Blencoe, Bastarache J. described the level of state interference required to implicate a s. 7 interest as occurring “only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual”.

[130] I find that place or choice of residence does not fall within the scope of the “profoundly intimate and personal choices” the s. 7 liberty interest is intended to protect. As a result, it is not necessary to move to stage two of the s. 7 analysis.

[131] At the outset of the hearing, counsel informed the court of the parties’ agreement that neither party is seeking costs.

[132] The application is dismissed without costs.

Madam Justice Sylvia Corthorn Released: October 5, 2023