BWA: Drover v. Canada (Attorney General)

Yael Bienenstock (00:08:36)

Welcome to Breakfast With Appeal, Torys’ quarterly series on the cases you want to know about. We offer our thoughts on the appellate law that's shaping Canadian conversations. Let's dive in.

Andrew Bernstein (00:23:22)

The last case is called Drover and the Attorney General of Canada. So, David, the facts are quite straightforward. So instead of setting it up, just, what is this case about? What did the Court decide?

David Outerbridge (00:36:30)

I think we should note that he's right here. The attorney general is—

Andrew Bernstein (00:39:24)

The Attorney General of Canada?

[Laughter]

Well, he was at the time of this case.

David Outerbridge (00:41:35)

Yeah that's right. So—

Andrew Bernstein (00:43:47)

Arif is in our studio audience.

[Laughter]

Jeremy Opolsky (00:46:25)

Arif is our studio audience.

David Outerbridge (00:47:44)

Yeah, that's right.

Andrew Bernstein (00:48:25)

A little unfair to our executive producer, Janelle.

[Laughter]

David Outerbridge (00:52:01)

So, Mr. Drover was appointed by Elections Canada as the returning officer in the federal electoral riding of Rideau Carleton near Ottawa. At the time, he lived in the town of Stittsville, which is within that riding. And at the time, the Canada Elections Act required that a returning officer had to reside in the riding that they were the returning officer for.

And then a constitutional crisis arose because Mr. Drover moved to Carp.

[Laughter]

So, Carp, for those who don't know the Ottawa area, is a few kilometers away.

Yael Bienenstock (01:21:02)

In case anyone was wondering what David really thinks about the case.

[Laughter]

David Outerbridge (01:24:15)

Yeah. Yeah, I, I have my doubts about this one, but if you know Ottawa, you know, that Stittsville and Carp are a few kilometers away from each other. But the important fact is that Carp is not in the riding of Rideau Carleton. And so, Mr. Drover was no longer eligible under the Canada Elections Act to be the returning officer and Elections Canada terminated his position as returning officer.

And so, as you would, he brought a challenge under section 7 of the Canadian Charter of Rights and Freedoms saying that his right to liberty had been infringed by this statutory requirement, and that he had been deprived of his liberty to move to Carp, in violation of the principles of fundamental justice. And the applications judge did what I would have done, which is dismiss the application on the basis that that was not the right analysis.

It went to the Court of Appeal. The Court of Appeal split. Two judges ruled that section 7 of the Charter does protect the right of a person to move from Stittsville to Carp. And the dissent ruled in detailed and impassioned reasons that if the right to liberty is so broad that you can't pass a statute creating or—a requirement for a, for an employment position or a public position that has some policy basis that, that section 7 is getting out of control and government is being unduly constrained by the Charter.

But in terms of what the majority decided, they, their ruling was that section 7 protects the right to liberty. The right to liberty is all about personal autonomy and the dignity of the individual. And that personal autonomy includes choices, very personal choices, about where you want your house to be and where you want to live.

And the majority looked at it and said, “So liberty interest is engaged, this person’s not free to move if they want to have this job. And the job is under a statute, so we’re under the Charter.” And then they said—so the question is, was this restriction in the statute consistent with the principles of fundamental justice? And they looked at the case law in this area, which is predominantly, but not entirely, in the criminal law sphere. And in that body of case law, it says that if a statute is vague or overbroad or arbitrary, that those, those types of provisions are contrary to the principles of fundamental justice.

And in this case, they concluded that this was overbroad. The statute was overbroad because there was another provision in the statute that didn't require the residency requirement for in a similar context, and so they said Parliament recognized that this wasn't actually an important requirement, and therefore it was overbroad, and the Court should find it to be in violation of section 7 and not reasonably justified under section 1. So that's where we are. They found a section 7 breach based on where you live.

Andrew Bernstein (04:15:14)

You know, I wanna, I'm just going to say that it's, it is not the case that I pick cases for the, for this, for Breakfast With Appeal on the basis that David's going to think that they're wrongly decided. But I always enjoy [laughter] when we have cases, because he’s—

Yael Bienenstock (04:31:47)

There's nothing better than David's dry sarcastic—

[Laughter]

Andrew Bernstein (04:34:27)

Yeah, exactly. Like we really just so—

David Outerbridge (04:36:30)

Did I give it away?

[Laughter]

Andrew Bernstein (04:38:03)

We want more cowbell, like, that's the “more cowbell” that I want. I want more cases that David Outerbridge thinks are wrong.

[Laughter]

Yael—

Yael Bienenstock (04:47:31)

That means Dave has to start choosing all the cases.

Andrew Bernstein (04:49:21)

Yeah.

[Laughter]

Yael there’s a lot going on here. There's this administration of justice versus section 7 at large debate. There's what does “liberty” mean? And there's what the heck are principles of fundamental justice anyway? What's going on in this?

[Laughter]

Yael Bienenstock (05:09:08)

Okay, so definitely a lot going on here, especially for a case about, you know, whether someone's moving from one location to another that are a couple of kilometres—

Andrew Bernstein (05:18:09)

Stittsville to Carp—

Yael Bienenstock (05:19:41)

Stittsville to Carp, I was going to say Stittsville to Carp but then I'm like, let's say I get it wrong. Okay. So definitely a lot going on here. And it's certainly been a while, I think, since we've seen, like, this full-throated, passionate debate in a court about an issue. But, you know, setting Stittsville and Carp aside, the idea of the right to liberty and what's included in the right to liberty is certainly, I think, worthy of robust debate, which is what we see here.

So just going back to your question: I actually I'm not sure I see three things. I kind of see one big thing, which is: what is the scope? How far do you go in terms of the liberty interest that is protected under section 7 and so on. And all of these issues—principles of fundamental justice, the administration of justice, threshold, which we'll talk about—I think all of that is going back to the question of: what are the contours of the rights that are protected under section 7?

So under one side of the spectrum, I think it's pretty clear and everybody agrees, that section 7 protects physical liberty: the right to be free from imprisonment, detention, the right to move around freely, like, not to be physically constrained.

And these are rights that if they are infringed, the infringement is typically happening in the criminal context. And the classic case that we think about here is the BC Motor Vehicle case. Dave, you were just talking about that before we started, and that's about minimum prison sentences for driving without a license. And one of the things the Court says in that case is that a law with the potential of convicting a person who really has done nothing wrong violates a person's right to liberty under section 7 and offends the principles of fundamental justice.

And I think to me, that's the easy case, where everyone agrees this is the kind of thing that section 7 is supposed to protect. Then on the total other side of the spectrum, and I don't think anybody thinks that section 7 is about this—although I think this case might come closer—is that section 7 is the right to do what you want: the right to make your own decision, at all times and in all circumstances. And once again, like, I don't think people think that—

David Outerbridge (07:20:20)

Also known as anarchy.

[Laughter]

Yael Bienenstock (07:22:02)

Right!

Jeremy Opolsky (07:23:09)

Tell us what you really think, David.

[Laughter]

Andrew Bernstein (07:24:54)

I was going to say did you read Berta Wilson's concurrence in the Morgentaler case? She kind of gets at that.

[Laughter]

Yael Bienenstock (07:31:53)

Well, what I was going to say is if section 7 protected that, then the government would be doing an awful lot of infringing and justifying under principle, but then it would all come down to the principles of fundamental justice, because everything would be included and there would be a lot of infringements and it would be all about justification.

So I think the question is, if liberty is broader than just, you know, kind of imprisonment but is nevertheless limited in some way, then how do you define its common source? And this is where we see this kind of passionate debate between the majority and the dissent.

And the dissent was written by Justice Miller. It is a very interesting read, I would commend it. He has a very definitive answer. He says there's a threshold requirement to section 7 for—forget about like, even before you get to the principles of fundamental justice, there's a threshold requirement that tells us whether or not this is the sort of thing that is protected. And that is, the right has to implicate rights that are connected to the administration of justice.

He says, “Section 7 has no application to claims that do not arise from interactions with the administration of justice.” So, I, you know, I was thinking of Law & Order: you know, these are the people who—these are the—what is the thing when it starts at the beginning?

[Laughter]

Anyways, Law & Order. If you're not in the world of law and order, according to Justice Miller, then section 7 doesn't apply. And he supports this view by going through a very detailed review of the case law. He calls this the “long march of doctrinal development that settled the threshold issue, that section 7 rights are restricted to the administration of justice, and that that establishes a binding precedent on this Court.”

And because the move that we're talking about here is not something that involves the administration of justice, he says, you know, that really should be the end of the story, and we should have gotten rid of this a long time ago. And, you know, I'm, I'm not going to go through all of the case law that he discusses. But one thing that struck me, especially when I read the majority—the dissent is written first—is that many of these cases have dissents and then either the majority or the dissents or the concurring opinions get picked up by later cases, and so it's actually a bit of an intellectual exercise to try to follow through, you know, what is the law in this case when you have so many split decisions? And Justice Miller, I think, works very hard to untangle all of that: to show that the case law is very clear that section 7 has an administrative—administration of justice threshold requirement before it's engaged

And just in case you aren’t persuaded by his march through the case law, he then goes back to first principles and interprets the Charter, and he comes to the same conclusion: that section 7 is about interactions with the coercive power of the state. And the limitation that's embodied in the principles of fundamental justice circumscribes the scope of those rights to situations where the principles of fundamental justice can be assessed and applied. And where is that? That's when you're talking about the administration of justice. And so this is, I think, a really, very—it is a bit technical, but it's a fascinating approach to section 7.

Now, the majority takes a completely different approach, both philosophically, and on the case law. I think philosophically, the majority says, you know, we need to take a broad and progressive approach to section 7. And none of this is very clear. And when the majority goes through, I want to say many of the same cases, it actually says, comes to the conclusion that, yes, in many, many times the section 7 cases have to do with administration of justice, but not always. And the law says that we haven't actually, the courts have not actually, decided this.

So she says that point is undecided. And what she says, you know, if you're looking at the majority decision, then you have to come back to the question, okay, well, if you're not putting in this threshold requirement about rights being tied to the administration of justice, then how do you stop section 7 being about, you know, the ability to do whatever you want at all times?

And there is, I think—not withstanding David's skepticism—an attempt to, it possibly doesn't go far enough, but an attempt to limit, an attempt to limit the rights under section 7. And what Justice Gomery says is that the heavy lifting here is done by circumscribing section 7 rights according to the principles of fundamental justice. It's inherently about capturing bad laws: laws that take away life, liberty and security of the person in a way that runs afoul our basic values, and our basic values are the principles of fundamental justice.

So it's, I would say, much mushier and easier to apply. And then, of course, she does make the point that, that David talked about earlier, which is that this—it’s not every decision that's captured, it's decisions that are important to our personal autonomy that goes to the core of, of how we live our lives.

And just one thing I found interesting is that...

Andrew Bernstein (12:26:12)

Nope.

Yael Bienenstock (12:26:18)

No? Okay—

[Laughter]

Andrew Bernstein (12:28:17)

Sorry, we're way over time. Not that that's entirely your fault, but we are.

[Laughter]

Jeremy, many years ago, there was a case called Wilson and BC Medical Services Commission, in which the Government of British Columbia said to doctors, basically, “If you want to bill a provincial insurance plan, we will tell you where to live. And by the way, you can't practice medicine and not bill the provincial insurance plan.” The BC Court of Appeal said this was a section 7 violation. The decision has gotten a lot of shade over the years. Does this decision of the Ontario Court of Appeal vindicate BC Medical Services Commission?

Jeremy Opolsky (13:04:43)

No.

Andrew Bernstein (13:05:25)

Okay.

[Laughter]

Thank you, you saved time. Yael, what were you going to say?

Yael Bienenstock (13:08:57)

It's okay, it's okay.

[Laughter]

Jeremy Opolsky (13:09:53)

I think I'll give a 45-second spiel. Yeah, I, I think it's like Home Alone 3, which is, you know, it exists, but no one wants to go look at it again.

Andrew Bernstein (13:17:46)

Yeah, I get it.

Jeremy Opolsky (13:18:32)

Wilson was an early Charter case from 1998. And you really feel it because it doesn't have the depth of rigour or analysis that certainly this case does, or a recent case does. It, it basically says, you have the liberty to practice your profession. And you should be able to do that wherever you want. And because profession is core to your dignity and work has inherent aspects of self-worth, you should be able to practice and you can't restrict where a doctor can practice, because that means if the doctor doesn’t want to practice there, they can't practice medicine.

I had a whole thing, but I'll, I'll keep it to two very brief points. One, it’s of note that despite the heavy lift that the majority does of this decision in Drover, they do not cite Wilson, and that is for a reason.

Andrew Bernstein (14:02:09)

Yeah.

Jeremy Opolsky (14:02:29)

And the second thing I note is that the really heavy lift in Wilson I don't actually think is on liberty. That is a very heavy lift, but the heaviest lift is on principles of fundamental justice, where they say that because there is a mobility right in section 6 of the Charter, it cannot be consistent with the principles of fundamental justice to restrict liberty rights in, mobility rights under section 7. It creates a circularity in its ontology that really doesn't work. And that's why this case basically belongs in the dustbins of history.

Andrew Bernstein (14:32:25)

Wilson does.

Jeremy Opolsky (14:33:15)

Wilson does.

Andrew Bernstein (14:33:51)

Okay.

Jeremy Opolsky (14:34:15)

Yeah.

Andrew Bernstein (14:34:25)

We'll see what happens to Drover. I have a sense to be honest, that, David's prediction may come true, or David's sentiment may prevail at the Supreme Court.

Jeremy Opolsky (14:43:10)

Yes.

Andrew Bernstein (14:43:22)

But I think it's probably fair to say that one never knows when leave will be granted. And one never knows what will happen if leave is granted.

That about wraps up our conversation. Before we go, I want to remind our listeners that they can find the webinar version of this edition of Breakfast With Appeal, along with previous episodes on torys.com, and that our BWA program is eligible for one substantive hour of continuing professional development.

Thanks again for joining us and take care.