Drover & "Liberty"

What is "living tree constitutionalism" in 2025?

My last post was about the dissenting opinion in Frank v Canada, issued almost 7 seven years ago. This post is about a much more recent decision, released in June of this year by the Ontario Court of Appeal: Drover v Canada. It may seem strange to focus on an ONCA decision. The Crown has sought leave to appeal the ruling to the Supreme Court of Canada, but no decision has been made yet.

Yet, for at least two reasons, I think it is worthwhile to consider the case at some length. First, it is about the meaning of “liberty” in section 7 of the Charter; and, in particular, whether the liberty interests protected by section 7 are only engaged by deprivations (real or threatened) that result from an individual’s interaction with the justice system. A majority of the ONCA said no. Justice Miller, in a spirited and thoughtful dissent, said yes.

This sounds technical, but it is a question of profound importance. If a person’s section-7 liberty interests are conceivably engaged whenever a person’s ‘liberty’ to do anything is constrained by law, then the only serious question is whether the “deprivation” of liberty was in accordance with “principles of fundamental justice”. And we have seen that the focus at this stage of analysis tends to be on principles of instrumental rationality - which is to say proportionality. An expansive understanding of “liberty” in section 7 represents a further broadening of Charter review on philosophically shallow grounds. (See my post “Broad but Shallow”.) And as I have stressed, this broad but shallow approach to Charter litigation has real drawbacks.

Second, Drover has important implications for how we should interpret the provisions of the Charter. As I observed in the very first post of this series, the Supreme Court of Canada in Hunter endorsed “living tree constitutionalism”. The Court has never expressly resiled from that position. But as I also noted, the Court has sometimes - especially in recent years - occasionally toyed with a more originalist or textualist approach to constitutional interpretation; an approach that is less freewheeling (or “discretionary”), and that sometimes bears a resemblance to the way we go about interpreting statutes.

Now, the more than constitutional interpretation resembles statutory interpretation, the less one can sensibly accuse the courts of imposing their own moral values upon the rest of us. (Yes, yes, this does presuppose that courts are doing statutory interpretation in a restrained fashion, and I admit I’m not sure that’s always been true of the Wagner Court. Indeed, it has sometimes seemed that at least some members of the Court - such as Justice Abella before her retirement - preferred to approach the interpretation of statutes as if statutes were “living trees”. Consider, say, Abella’s dissent in DLW; or the majority’s opinion in Jarvis, about which I have been critical.)

I also think this has significance for how we choose a theory of constitutional interpretation. The more one conceives of constitutional interpretation as an enterprise that is fundamentally no different from statutory interpretation, the more we can find (as Baude and Sachs suggest) unwritten sources of the law of interpretation in our legal system that should affect our choice of interpretive methodology. Obviously, there is some bootstrapping at work here: we ostensibly know that unwritten laws of statutory interpretation offer guidance about how to do constitutional interpretation because we have already decided that constitutional interpretation is like statutory interpretation. But I’m not sure that we can avoid bootstrapping altogether: in the end, if we are to know what unwritten laws of interpretation matter to our choice of constitutional interpretive theory, we need to have some idea of what other legal instruments are relevantly similar to a constitution. If we can’t start there, then we really are just left, as Sunstein suggests, with a more-or-less pure normative question.

Here is where Drover comes in. Justice Miller, writing in dissent, interprets “liberty” by drawing extensively upon textual and historical sources. He downplays the idea that “living tree constitutionalism”, as such, even is a methodology for constitutional interpretation. The majority, by contrast, engage in a much less tethered analysis that makes overt nods to the Charter as a “living tree”. So the argument in Drover cuts to the bone of what courts in 2025 are even supposed to be doing when they purport to “interpret” the Charter.

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What is Drover about? The case concerns sections 22(4) and 24(4) of the Canada Elections Act. Section 22(4) reads as follows:

Qualifications

22(4) An election officer [including a Returning Officer] …. must reside in the electoral district in which he or she is to exercise powers or perform duties under this Act or in an adjacent electoral district.

Section 24(4) provides that, where a Returning Officer “ceases to reside in the electoral district”, the office becomes vacant.

Paul Drover was the Returning Officer for the federal district of Rideau Carleton. He moved to another district (knowing full well about the residency requirement). As a result, he lost his position as Returning Officer for Rideau Carleton. Drover challenged the residency requirement under section 7 of the Charter, arguing that it violated his right not to be deprived of liberty except in accordance with the principles of fundamental justice. The alleged liberty interest in question was Drover’s liberty to choose his place of residence.

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Drover’s argument rests on the premises that (a) the “right to liberty” articulated in section 7 is engaged whenever a statute burdens or circumscribes a “decision of fundamental importance”; and (b) that choice of residence falls into that class of deeply personal decisions. The second proposition was entertained by Justice La Forest in Godbout v Longueuil, but it has not been definitively accepted or rejected by the Supreme Court of Canada. A majority of the Ontario Court of Appeal in Drover accepted both premises, holding that Mr Drover’s section 7 rights were indeed violated.

What is more interesting (to me anyway) is the debate within the Court of Appeal about the first proposition. Justice Miller, writing in dissent, vigorously argued that the “right to liberty” is only engaged in the context of the administration of justice. There is, thus, a “threshold” question that one must address before the right to liberty is in play.

In part, Justice Miller’s argument is based on an analysis of Supreme Court precedent - in particular, its decision in G(J). Writing for a 6:1 majority, Chief Justice Lamer stated:

[R]estrictions on liberty … that s. 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system and its administration. In other words, the subject matter of s. 7 is the state’s conduct in the course of enforcing and securing compliance with the law, where the state’s conduct deprives an individual of his or her right to life, liberty, or security of the person.

The italicized portions of the passage are not obviously qualified or hedged - and were seemingly endorsed by a large majority (albeit on a panel of 7). Moreover, the Supreme Court endorsed those remarks in Blencoe. Thus, these cases might seem to have settled the question of whether the right to liberty can be engaged outside the administration of justice context.

One must, however, be careful: Lamer CJ wrote the above passage in the course of explaining whether and why section 7 might be engaged outside the criminal justice context; not principally to explain why it could only be engaged in the (broader) administration of justice context. For the same reason, Blencoe is somewhat problematic as authority: the issue there, too, was whether section 7 applied beyond the criminal justice system - not whether it could apply outside the administration of justice more broadly.

It was no doubt for this reason that a majority of the Supreme Court, in Gosselin, observed:

[T]he dominant strand of jurisprudence on s. 7 sees its purpose as guarding against certain kinds of deprivation of life, liberty and security of the person, namely, those “that occur as a result of an individual’s interaction with the justice system and its administration”: …. “[T]he justice system and its administration” refers to “the state’s conduct in the course of enforcing and securing compliance with the law” …. This view limits the potential scope of “life, liberty and security of the person” by asking whom or what s. 7 protects against. Under this narrow interpretation, s. 7 does not protect against all measures that might in some way impinge on life, liberty or security, but only against those that can be attributed to state action implicating the administration of justice….

As the emphasis on “dominant” suggests, the majority recognized an alternative point of view on the ambit of section 7: “Can s. 7 apply to protect rights or interests wholly unconnected to the administration of justice? The question remains unanswered.” Likewise, in Association of Justice Counsel v Canada, a majority of the Court observed: “The extent to which s. 7 of the Charter applies outside the context of the administration of justice has yet to be settled in this Court”.

Justice Miller did not take these remarks as having overruled G(J) - only as expressing potential willingness to overturn G(J) at some point in the future. In light of the core issue that G(J) purported to resolve, I am inclined to see Gosselin and Association of Justice Counsel as having simply clarified the narrowness of the holding in G(J) and Blencoe. To this extent, I think that the majority has the better of the argument (specifically, at paras 172-4).

At the same time, Justice Miller is certainly right that there is no clear authority to support a broader reading of the “right to liberty” - i.e., one untethered to the administration of justice. A court would have to make new law to expand “liberty” in such a way. And, of course, that is precisely what the majority in Drover went on to do. (More on this towards the end.)

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Let us suppose, only for the sake of argument, that it is an “open question” whether the section 7 liberty interest can be triggered outside the administration of justice context. On that basis, Justice Miller proceeded to argue that it should be given a narrow reading. His discussion of constitutional interpretation deserves attention.

Justice Miller emphasized that constitutional interpretation is no less tied to the text, context, and original intentions of the framers than statutory interpretation. It is certainly not a matter of free-form political theorizing:

It is not a matter of fixating on the concept of liberty and freely selecting whatever conception seems broadest or best aligned with a political theory that could be attributed to the Charter. It is, rather, a matter of applying a settled interpretive methodology to understand the constitutional settlement that was arrived at in enacting s. 7. It is less a matter of selecting or defining an attractive concept of liberty, than of understanding how a right to liberty is meant to function as one component in a complex constitutional provision, stated as a right to “life, liberty, and security of the person” nested within a greater constitutional whole. It is an act of analysis and retrieval, not a free choice among theoretical possibilities.

This way of thinking about constitutional interpretation might seem to be flatly incompatible with living tree-ism - and many would say that it is. But it is in keeping with several recent Charter decisions by the Supreme Court; in particular, 9147-0732 Quebec Inc., and City of Toronto. In 9147-0732 Quebec Inc., Justices Brown and Rowe pointedly observed: “[W]ithin the purposive approach, the analysis must begin by considering the text of the provision.” They continued:

This is so because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text. Indeed, while constitutional norms are deliberately expressed in general terms, the words used remain “the most primal constraint on judicial review” and form “the outer bounds of a purposive inquiry”: B. J. Oliphant, “Taking purposes seriously: The purposive scope and textual bounds of interpretation under the Canadian Charter of Rights and Freedoms ” (2015), 65 U.T.L.J. 239, at p. 243. The Constitution is not “an empty vessel to be filled with whatever meaning we might wish from time to time”... Significantly, in Caron, the Court reiterated this latter passage and reasserted “the primacy of the written text of the Constitution”: para. 36; see also para. 37.

Justices Brown and Rowe did not suggest that they were departing from prior authorities on constitutional interpretation. But their emphasis on the text of the Charter was a definite shift in tone - one that was not lost on Justice Abella:

Instead of using the text as the beginning of the search for purpose, the majority has given it “primacy” and assigned a secondary role to the other contextual factors, thereby erasing the difference between constitutional and statutory interpretation.

Later, in City of Toronto, Chief Justice Wagner and Justice Brown, writing for the majority, stated: “A purposive interpretation of Charter rights must begin with, and be rooted in, the text … and not overshoot the purpose of the right but place it in its appropriate linguistic, philosophic and historical contexts”. They referred to their method of constitutional interpretation as “purposive textual interpretation”.

Justice Miller’s approach to constitutional interpretation in Drover should be seen as very much in this vein. This is made all the clearer in the “epilogue” to his opinion. There, Justice Miller took issue with the notion that “living tree constitutionalism” is a theory of statutory interpretation at all. It is, rather, “post-interpretive, what is sometimes called constitutional construction.”

Without getting too deep in the weeds, Justice Miller here is drawing a distinction famously (among law professors anyway) articulated by Larry Solum. Whereas ‘interpretation’, properly so-called, is concerned with linguistic meaning, ‘construction’ is concerned with the ‘legal effect’ of statutory or constitutional words, terms, provisions, etc. In the statutory context, we often rely on “canons of construction” in order to resolve ambiguities in the text - and, to some extent, bend the text in recognition of values deeply rooted in the legal system. Most of these canons (e.g., the canon of strict construction) are deployed only after the usual interpretive techniques have been exhausted - hence, construction is, in an important sense, post-interpretive.

(There may be exceptions. In the criminal context, the presumption of subjective fault applies at the front end as a kind of defeasible rule. This can effectively bend, even warp, the analysis of criminal offences - in service of widely held ideas of blameworthiness and fair labelling. Here, then, we would seem to have a canon of construction that is, if anything, pre-interpretive. Still, I think the point about the interpretation-construction ‘order of operations’ by and large holds.)

Along the same lines, we can speak of ‘constitutional construction’. Insofar as we find the text of the Charter ambiguous, we can resolve that ambiguity by reaching for values beyond the text. As Justice Miller says, this is a quasi-legislative activity - but in itself not problematic. Indeed, it is sometimes essential for judges to impose meaning on the constitutional text, so that legislators, prospective claimants, and judges in future cases are given concrete guidance about what is constitutional and what is not. This was the thrust of the argument by Justice Antonin Scalia in his classic paper “The Rule of Law as a Law of Rules”: if judges are to be constrained, they need rules, and if the rules in the Constitution run out, it must fall to (Supreme Court) judges to impose them.

But my point is that talk of ‘construction’ at the back end of the analysis presupposes a strong emphasis on ‘purposive textual interpretation’ at the front end. And in suggesting that “living tree constitutionalism” just is a theory of constitutional construction - a theory that only becomes activated or relevant insofar as purposive textual interpretation does not yield a dispositive answer - Justice Miller is doing something aggressive: moving the “living tree” into the background.

In characterizing his analysis in Drover as ‘aggressive’, I certainly don’t mean to imply that he’s doing anything illegitimate. On the contrary, he is doing what the Supreme Court of Canada, in several recent decisions, has told him (and the rest of us) to do. I have not even mentioned Justice Martin’s opinion in Poulin. She observed, there, that we should approach constitutional interpretation somewhat differently when we are dealing with relatively open-ended normative standards (e.g., “reasonable”, “unreasonable”, “cruel and unusual”, “fundamental justice”) as opposed to comparatively concrete, all-or-nothing rules that apply in determinate contexts. With respect to the former, Justice Martin suggested that there was relatively greater room for large, generous, evolving interpretations. With respect to the latter, interpretation must be comparatively “strict”. One way of making sense of the distinction she draws is that, although interpretation stays the same for both constitutional rules and standards, the “construction zone” with respect to standards is much greater than for rules. All to say that Poulin, too, may offer strong support for what Justice Miller is doing in Drover. Moreover, there are in any case solid, principled reasons for judges to approach constitutional interpretation in a restrained fashion.

Nonetheless, all of the recent Supreme Court authorities I have mentioned were relatively shy about suggesting that they were, in any way, altering the law of constitutional interpretation that has been around since Hunter v Southam. Justice Miller’s opinion is not shy.

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How did purposive textual interpretation play out in Justice Miller’s opinion?

As I noted earlier, much of Justice Miller’s interpretation of “liberty” would look familiar to a student of statutory interpretation. He rested his narrow reading on 6 considerations.

1. Reading the right to liberty in light of the right to life and the right to security of the person (“noscitur a sociis”), the right to liberty protects only the “physical and mental integrity” of persons as “embodied” persons - not “a natural person’s disembodied ‘spirit, aspirations, conscience, beliefs, personality, or more generally, the expression or realization of what makes up the person’s non-corporeal entity’” (citing Chief Justice Lamer’s opinion in B(R)).

2. Given section 7’s subsequent reference to "the principles of fundamental justice”, “the right to liberty” presupposes some connection to the “justice system”. Justice Miller observed:

[Principles of fundamental justice] are rooted “in the inherent domain of the judiciary as the guardian of the justice system,” and are “essential elements of a system for the administration of justice”… [T]his definition establishes a “strong relationship between the right and the role of the judiciary,” thus closely tying the principles to the administration of justice... This inseparable connection explains why so many of the principles are procedural. This is a feature, not a bug, because the justice system has long protected liberty through procedural rules…

Now, of course, we know that principles of fundamental justice encompass substantive principles as well as procedural ones. Nonetheless, Justice Miller argued that this “does not sever the link [to] the justice system” - it merely acknowledges that there are substantive principles running through the justice system (e.g., those concerning fault). In any event, the fact that "principles of fundamental justice” are tied to the justice system suggested to Justice Miller that “the right to liberty” is too.

3. Section 7 is situated under the “Legal Rights” heading of the Charter, alongside section 8 (concerning search and seizure); section 9 (arbitrary detention); section 10 (right to counsel); section 11 (a range of discrete procedural rights in the criminal process); section 12 (cruel and unusual punishment); section 13 (right not to incriminate oneself); and section 14 (right to a translator in legal proceedings). All concern the administration of justice.

4. A broad reading of “liberty”, disconnected from the administration of justice, would threaten to make section 2 redundant or superfluous. To avoid such a result, one must proceed on the footing that, whereas section 2 confers upon individuals “spheres of sovereignty” with which the state cannot interfere, the section-7 “right to liberty” imposes a positive obligation on the state duty “to provide certain procedures and observe certain principles of fundamental justice in its interactions with the rights-holder” - but this only makes sense in the limited context of the administration of justice.

5. The historical origins of section 7 are revealing. Use of the term “principles of fundamental justice” was intended to signal that section 7 should not be read as functionally equivalent to the 14th Amendment, or as allowing for socio-economic rights. Insofar as the wording of section 7 was influenced by international instruments - e.g., Article 9(1) of the International Covenant on Civil and Political Rights; or Article 3(1) of the Universal Declaration of Human Rights - the choice of language also suggests that “the right to liberty” can only be engaged in the administration of justice context.

6. An untethered reading of the “right to liberty” would unduly interfere with the state’s ability to govern “for the common good”. Justice Miller stated:

There is much that would be lost if the right to liberty were to be interpreted as synonymous with a free-standing right to privacy or autonomy. Every legislative provision that might result in the frustration of desire would need to be assessed in terms of whether, to use the language of La Forest J., it interferes with “a choice of fundamental importance”. The hazard of this – outside of floodgates considerations – is that constitutional jurisprudence lacks any articulation of a criteria or methodology for assessing what is fundamental. This is not an accident. Determining what is and is not “fundamental” would necessarily rest on a comprehensive anthropology of what constitutes a good life and what does not, a metaphysical judgment that would be – over some range at least – inherently controversial and well outside the primarily technical judicial function of deciding cases according to rules and standards authoritatively determined by others in past acts of law-making.

Yes, the courts can draw lines distinguishing those choices that are “fundamental” from those that aren’t. But the practical reality is that those lines would be drawn haphazardly, inconsistently, and unpredictably - according only to the individual judge or court’s subjective attitudes and opinions.

My feeling is that this is an impressive attempt at interpreting a Charter provision in a way that looks like how we would go about interpreting an ordinary statute. I admit that I have often been skeptical of the idea that a constitutional ‘bill of rights’ is amenable to the sort of treatment we give to statutes - because, among other reasons, there is so much more to work with in the four walls of a statute, and because it is often tolerably clear what concrete ‘mischief’ a statute was intended to address, whereas the aims of constitutions are much more diffuse and difficult to pin down.

(I don’t want to overstate how easy it is to pinpoint the mischief of statutes. Even if a court grasps the legislature’s objective, it may miss the fact that the legislature did not intend to pursue that objective to the exclusion of other objectives or side-constraints: see, e.g., the SCC’s recent decision in Wilson. Moreover, there may be room for confusion on, say, whether the legislature intended to combat perception of harm as well as the actualized harm. See, e.g., Carson. The SCC’s decision in the Nadon Reference is also instructive. But then I would say that.)

In any case, Justice Miller’s analysis works well. I don’t find every aspect of the analysis equally compelling. For example, I don’t find the move from “fundamental justice” to “justice system” terribly persuasive by itself. By contrast, I found myself nodding along when Justice Miller noted the connection between section 7 and the other “legal rights” in sections 8-14; as well as the distinction between section 7 and section 2. Does all of this categorically - leave no room for doubt - about the inapplicability of “the right to liberty” outside the administration of justice context? Probably not, especially when one considers that substantive rights have been read into “the principles of fundamental justice”. But asking for no doubt at all would be asking for much too much.

And let’s be real: Justice Miller’s interpretive analysis certainly looks more structured, restrained, and careful than the majority’s opinion. The majority’s analysis provides little sense that they regarded themselves as constrained by text or history. If what we are looking to do is convey the message that judges are as bound by law as legislatures and the rest of us, Justice Miller’s opinion conveys that much, much better than that of the majority.

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What about the majority opinion?

Writing for the majority, Justice Gomery held that “the right to liberty” can apply outside the administration of justice context. Moreover, the choice of residence is a matter of “fundamental importance” to the individual. That being the case, Mr. Drover was deprived of his right to liberty. The deprivation was not in accordance with principles of fundamental justice because the residency requirement was overbroad - i.e., it did not advance the objectives that animated the requirement in every case where it applies. Thus, the majority found that Mr Drover’s section 7 rights were violated. Justice Gomery went on to hold that the violation was not “saved” under section 1.

I will chiefly focus on the majority’s argument concerning the meaning of “liberty”. As I noted earlier, Gomery JA took the view that there was no clear authority restricting “the right to liberty” to the administration of justice context. But even if there had been, she argued, such holdings should be revisited, particularly in light of the Supreme Court’s articulation of principles of instrumental rationality. It would, the majority seemed to say, make little sense to narrowly construe the ambit of “liberty” - thereby limiting review on grounds of arbitrariness, overbreadth, or gross disproportionality.

That reasoning is not at all obvious. The mere fact that the Supreme Court has expanded judicial review at the ‘back end’ of the section 7 analysis by no means implies that there should also be expanded review at the ‘front end’. Yet the reasoning of the majority makes a degree of sense if we remember that the arc of the Charter has bent towards more and more review, though on the philosophically shallow grounds of proportionality.

In fairness, simply removing the ‘administration of justice’ condition does not, by itself, throw the door wide open. But it is, as Justice Miller noted, hard to see how a bare criterion of “fundamental importance” would, without more scaffolding, impose much of a brake. The very fact that the majority in Drover had little trouble finding that choice of residence was a matter of “fundamental importance” to the individual seemed to Justice Miller to illustrate the point.

Now, again in fairness to the majority, I don’t see anything crazy in the abstract notion that where I live is a matter of fundamental importance to me. The problem is surely the level of abstraction at which we are expressing this notion. If we express it at a more concrete level - one that more snugly fits the facts in Drover - we seem to have a rather trivial “right” indeed: the choice to live in “one suburb rather than another”, where the claimant, fully aware of the eligibility conditions in the statute, voluntarily opted to move in the first place.

Justice Miller, then, has a point when he observes that the majority’s opinion lends itself to a vast inflation of Charter rights. I predict that the Supreme Court of Canada will want to hear the appeal in Drover. If it does, it will need to find a way to impose hard limits on what can trigger “liberty” interests under section 7 - either by accepting Justice Miller’s argument; or by providing significantly more guidance on when choices pertain to matters of “fundamental importance”.

Beyond that, the Court might conceivably wish to clarify the relationship between “purposive textual interpretation” and “living tree constitutionalism”. The distinction between the Drover majority’s purist approach to “living tree constitutionalism” - in which text and history apparently were given little to no weight - and the approach of Justice Miller is quite stark. We could use some guidance.

I am not, however, optimistic about the Court’s willingness to expressly say anything especially illuminating on interpretive technique. I think there are real fissures within the Court on the extent to which “living tree constitutionalism” should be made to recede into the background - and, with it, an important through-line stretching across the entirety of Charter jurisprudence. As Colin Feasby has observed - and I have hammered ad nauseum - an express alteration of the law of constitutional interpretation would at least call into question the correctness of many prior holdings. That might (and probably should) make the Court nervous. We will, therefore, need to pay less attention to what the Court says it’s doing than to the technique it is demonstrating in the four walls of its analysis.

If the Court grants leave, that is. We shall see. But this is a case to watch.

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