Christopher Rusko, lawyer for the appellant, discusses implications of Drover v. Canada
A Canada Elections Act provision that imposes a residency requirement for federal election returning officers is contrary to the Canadian Charter of Rights and Freedoms, the Ontario Court of Appeal has ruled in a split decision.
Released on June 26, the appellate court decision overturned a 2023 Ontario Superior Court of Justice verdict, declaring that s. 24(4) of the Canada Elections Act is of no force or effect because it is contrary to s. 7 of the Canadian Charter of Rights and Freedoms.
The majority opinion was written by Justice Sally Gomery, supported by agreement from Justice Alison Harvison Young. Justice Bradley Miller wrote the dissent.
Paul Drover was a federal election returning officer who lost his job in 2015 after he moved a few kilometres outside the boundaries of the Rideau Carleton riding he had been administering. Under the rules outlined at the time in s. 22(4) of the Canada Elections Act, election officers are required to reside in their electoral districts.
Drover challenged the residency requirement in court, arguing it infringed upon his s. 7 Charter rights to life, liberty, and security of the person.
Christopher Rusko, a Vancouver-based lawyer with Miller Titerle + Company who represents the appellant, describes Drover v. Canada (Attorney General) as a “principled case from day one.”
The case “has been really focused on the development of the law for its own sake. At this stage, Mr. Drover has nothing to gain," Rusko says. "There’s no monetary advantage to him. He’s not recovering his employment in any way as a returning officer. He really has been with us since day one to test the Charter and to develop the Charter." Rusko adds that the case was supported through the federal Court Challenges Program, which facilitates cases of national significance.
In October 2023, Justice Sylvia Corthorn of the Ontario Superior Court of Justice found that the residency requirement didn’t infringe on Drover’s s. 7 right to liberty and dismissed his application to have it declared contrary to s. 7. Drover appealed with the OCA.
The OCA’s 109-page decision invoked grammar and semantics, American and Canadian constitutional history, international law, legal philosophy, and Canadian precedents and case law. The majority disagreed with the trial court, writing that the trial judge failed to look at the factors behind Drover’s decision to move – factors that Gomery and Harvison Young said go directly toward supporting Drover’s human dignity. The criteria that Drover and his spouse sought when house hunting included a newly built and smaller home that wouldn’t require constant maintenance, and that would allow them to age in place without excessive physical demands.
Gomery said that to date, the Supreme Court of Canada hasn’t specifically stated whether the right to liberty under s. 7 protects a person's choice of residence. “I conclude it should,” she said of the high court.
While the majority affirmed the idea that the Constitution should be viewed as “a living tree capable of growth and expansion within its natural limits” – an interpretation originated in 1930 by Lord Sankey in Edwards v. A.-G. Can – and that the same approach should apply to the Charter, Rusko said there is no fear that the interests of liberty under s. 7 will grow to be too numerous or too unwieldy.
The majority reasoning was very clear that s. 7 only concerned itself with principles of fundamental justice and any infringements upon those particular liberties, he says. In particular, Rusko draws attention to paragraph 162 of the decision, which references a 1985 decision authored by Justice Antonio Lamer.
“It’s saying that the concerns that this is now just open season to go around and declare that liberty attaches to absolutely everything is a bit overwrought, and that really what we have here is a structure or a mechanism that continues to ensure that we don’t have frivolous liberty claims that are going to now start seeping through because the further away from the traditional adjudicative context, the harder it will be for a principle of fundamental justice that can be identified.”
This interpretation of s.7 and its application departs from how Miller views that part of the Charter. One of the primary arguments in his dissent is that s. 7 “has no application to claims of right that do not arise from interactions with the administration of justice." He adds, "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).”
A key case referenced in both the majority opinion and the dissent was Godbout v. Longueuil (City), which similarly dealt with a residency requirement and its unjustifiable infringement under s. 5 of the Quebec Charter. That decision was written by Justice Gérard Vincent La Forest, who passed away on June 12.
“Just as a coda… it’s a kind of interesting coincidence of timing that we have the Ontario Court of Appeal affirming his reasoning while he was also in in the news for his own contributions to the development of the jurisprudence. I thought that was a nice coincidence,” offers Rusko.
Rusko praises opposing counsel. “I want to commend them [and say] that they did a fantastic job,” he says. “Clearly, this was an important case, and I think all of the work that they were doing – that we were doing – had value because you see in the judgment how important and how live these issues remain.”
He says he’s thrilled with the decision. “An alternative would have been to just change the first step of the s. 7 analysis and remit it back to the trial court for rehearing,” he says. “We were delighted that [Gomery’s] analysis went further and engaged with the principles of fundamental justice arguments that we made and ultimately found them persuasive.”
In a statement on Monday, a Privy Council Office spokesperson confirmed to Law Times that the OCA “found that subsection 24(4) of the Canada Elections Act is of no force or effect as it is contrary to section 7 of the Canadian Charter of Rights and Freedoms and not saved by section 1.”
The spokesperson noted the deadline for leave to appeal to the SCC is in September and declined to comment further.
