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Charter - s.7 Legal Rights (8). Drover v. Canada (Attorney General) [a Charter s.7 right on 'where' to live]
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".
Here 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].
But - sticking with this ruling as it stands after this CA ruling, 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 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 might 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, trespass, 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 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 ... The court considers continues:(3) The appellant’s choice of where to live is a liberty interest protected under s. 7
[199] Although 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.
[200] I 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
[201] In 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.
[202] In 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”.
[203] In 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.
[204] In 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.
[205] Lastly, 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
[206] The 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. [207] The application judge committed two errors in her assessment, in my respectful view.
[208] First, 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. [209] Mr. 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”.
[210] Based 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”.
[211] Second, 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.
[212] As 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.
[213] In 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
[214] As 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. [215] In 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.
[216] In 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.
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[219] The 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.
[220] I 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.
[221] I 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
[222] Having 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.
[223] In 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 CanLII 5676 (ON CA), 47 O.R. (3d) 417, at para. 46.
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[255] A 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.
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