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>>> 'Something Big' Home
>>>>>>>>>> Homelessness Irony: A Charter Right to Where Your Home is Located (If You Have a Home) ... But None to a Home. Drover v. Canada (Attorney General)
In Drover v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here from a denied application seeking "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".
The court usefully walks through respective historical Charter s.7 ['life, liberty and security of the person'] doctrine, here on whether: "where to live is a liberty interest protected under s. 7" [much to my surprise the CA says it is, which - unless the SCC reverses (which I think is highly likely) - is going to spawn a bunch of interesting litigation ...]. Whee ... interesting litigation!:Note: This case offends me for it's result - ie. holding a Charter s.7 'right' to where one has their home, but (in other cases) essentially 'giving up' [ie. holding as non-justiciable] as to whether one has a home to live in at all [Restoule v. Canada (Attorney General) (Ont CA, 2021), para 209]. Section 7 law enables this outcome by protecting again 'state action' that infringes 'liberty' - that is, a restriction on where one resides is undeniably state action. Where this gets SCC-iffy (in my mind) is the further proposition that it negatively impacts "a quintessentially private decision going to the very heart of personal or individual autonomy" [Godbout, para 66], which is the acknowledged essence of 'liberty'.
But - sticking with this ruling as it stands after this case, what offends me is that where one does not have the choice of living anywhere (ie. you are homeless), you have no similar s.7 Charter rights to a home - even though a 'choice' of homes lies at "the very heart of personal or individual autonomy". Again, if you have the choice it's a constitutionally protected one, but you don't have a constitutionally protected right to the choice.
Ironically (though maybe optimistically?), there is no mention of this homelessness issue and how the underlying s.7 principles in the case can impact on the many ways in which the law positively (ie. through undeniably 'state action') can prevent one from even having a home. Those further issues include zoning, building codes, parks law, trespass law, break & enter [CCC 348] and it's extensive police enforcement. Most significant are the vast, vast statutory and common law underpinnings of 'other-excluding' property law - law which protects the exclusive real property rights of those who (not only built their own homes, which is morally laudable) but in the vast majority of cases where the owner did no more for their entitlement than to possess the monetary wealth that bought it, regardless of the degree of excess material wealth they possess (and thus exclude others from). So what if a citizen made the "quintessentially private decision going to the very heart of [their] personal or individual autonomy" that they want to live in any of those unorthodox (and generally law-violating) lands and/or buildings? No 'state action' problem with Charter s.7 then ... hmm, interesting ...
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