In a June 26 majority decision in Drover v. Canada (Attorney General), 2025 ONCA 468, Justices Sally Gomery and Alison Harvison Young overturned a 2023 application decision by Ontario Superior Court Justice Sylvia Corthorn in Drover v. Canada (Attorney General), 2023 ONSC 5529, ruling that an individual’s choice of residence is a “quintessentially private decision” at the core of personal autonomy and dignity protected by s. 7.
In an epilogue addressing the ruling, dissenting Justice Bradley Miller argued that the majority decision could have far-reaching impact.
“My colleague proposes the establishment of a judicially enforced, freestanding right to liberty,” he wrote.
“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,” he added. “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.”
According to facts detailed in the decision, the appellant, Paul Drover, was appointed as a returning officer for the Carleton electoral district in 2014. In 2017, he moved from Stittsville to Carp, outside the Carleton boundaries, resulting in the termination of his appointment under the residency requirements. Drover challenged the constitutionality of these requirements, arguing they deprived him of his s. 7 right to liberty to choose his place of residence.
In its 2023 decision, the Superior Court dismissed the appellant’s application, holding that the choice of residence does not fall within the scope of the liberty interest protected by s. 7 of the Charter — a finding upheld in Justice Miller’s detailed dissenting opinion.
Section 7 does not create a freestanding right to liberty, argued Justice Miller, but is limited to deprivations of liberty occurring in the context of the administration of justice. This threshold requirement is well-established in Supreme Court jurisprudence, he noted, including New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.
The appellant’s reliance on former Supreme Court of Canada Justice Gérard La Forest’s minority reasons in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 was misplaced, added Justice Miller, because those reasons have not been adopted as binding authority.
“G. (J.) continues to bind this court because the Supreme Court has followed it ever since,” he wrote.
But the majority differed. While agreeing that the Supreme Court has not yet determined whether s. 7 protects an individual’s choice of where to live, Justices Gomery and Harvison Young found that s. 7 liberty rights should protect personal autonomy and that the residency requirement in s. 24(4) of the Canada Elections Act is overbroad.
“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,’” wrote Justice Gomery.
“I accordingly conclude,” she added, “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.”
It made no difference, the majority argued, that Drover was aware of the residency requirement when he accepted his appointment.
“Nothing turns on this,” responded Justice Gomery. “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.”
Likewise, a 2019 amendment to s. 22(4) that allows a returning officer to move to an adjacent riding does not change the overbroad nature of the residency requirement, the majority ruled.
“This argument,” wrote Justice Gomery, “assumes that Elections Canada is allowed to ignore the clear terms of s. 24(4).”
Christopher Rusko, a Vancouver-based lawyer with Miller Titerle + Company who served as counsel for the appellant, Paul Drover, said the decision goes to the heart of longstanding questions about the scope of the Charter’s s. 7 liberty rights.
“The vigorous and fundamental disagreement between the majority and minority in the Drover case shows how live these issues remain almost three decades later,” Rusko wrote in an email to Law360 Canada. “In this context, Mr. Drover’s worthy and interesting case has provided a much-needed opportunity for courts to weigh in on this important issue. We are very happy with the outcome and on the majority’s affirmation Mr. Drover’s right.”
The sharp split in the court on such a fundamental Charter issue could potentially attract the interest of the Supreme Court if leave to appeal is sought, he added.
“It would not at all be surprising if the Supreme Court of Canada wanted to have its say,” he said. “And if that should come, we very much look forward to continuing to work on this important case.”
Counsel for the respondent, the Attorney General of Canada, were Justice Department lawyers Sanam Goudarzi and Julie Chung. The Privy Council Office did not respond to a request for comment before press time.
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