Section 6 of the Canadian Charter of Rights and Freedoms
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Section 6 of the ''
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
'' is the section of the
Canadian Constitution The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
that protects the
mobility rights Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country,Jérémiee Gilbert, ''Nomadic Peoples and Human Rights' ...
of
Canadian citizens Canadian nationality law details the conditions in which a person is a national of Canada. With few exceptions, almost all individuals born in the country are automatically citizens at birth. Foreign nationals may naturalize after living in C ...
, and to a lesser extent that of
permanent residents Permanent residency is a person's legal resident status in a country or territory of which such person is not a citizen but where they have the right to reside on a permanent basis. This is usually for a permanent period; a person with such ...
. By mobility rights, the section refers to the individual practice of entering and exiting
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, and moving within its boundaries. The section is subject to the section 1 Oakes test, but cannot be nullified by the
notwithstanding clause Section 33 of the ''Canadian Charter of Rights and Freedoms'' is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (french: clause dérogatoire, links=no or ), sometimes referred to as the override power, and ...
. Along with the language rights in the ''Charter'' ( sections 1623), section 6 was meant to protect Canadian unity.


Text

Under the heading "Mobility Rights", the section reads,


Background

Before the adoption of the ''Charter'' in 1982, mobility rights had existed by virtue of section 91 of the ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', which gave the federal government full jurisdiction over citizenship. Citizens were free to move across provincial borders and live wherever they chose to. Only the federal government could limit this right. This implied right was recognized by the Supreme Court in ''
Winner v. S.M.T. (Eastern) Limited ''Winner v SMT (Eastern) Ltd'' is the last case of the Judicial Committee of the Privy Council that affected Canadian constitutional jurisprudence. The Supreme Court of Canada case, from which it arose, is also notable for summarizing the essence ...
'',''
Canadian Egg Marketing Agency v. Richardson ''Canadian Egg Marketing Agency v Richardson'', 9983 S.C.R. 157 is a decision of the Supreme Court of Canada on standing to challenge a law as a violation of the Constitution of Canada. The Court expanded the exception first established in '' R. v ...
'',
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3 S.C.R. 157, 1997 CanLII 295 (SCC),
where Rand J. observed: Aside from this, section 121 of the Constitution Act, 1867 allows for goods to be freely moved from province to province. Before the
patriation Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the Parliament o ...
of the Constitution in 1982 the governments considered extending this section to allow mobility rights for individuals. However, today the two sections are considered to be geared toward separate purposes. Section 121 remains concerned with keeping Canada economically united, and section 6 is primarily concerned with an individual's freedom of movement. The Supreme Court has compared section 6 to section 2(a) of the 1960 '' Canadian Bill of Rights'', which bars "the arbitrary detention, imprisonment or exile of any person." However, section 6 expands on this right to also protect rights to leave and move within Canada.


Purpose

Along with the language rights in the ''Charter'' (sections 16–23), section 6 was meant to protect Canadian unity.
French Canadian French Canadians (referred to as Canadiens mainly before the twentieth century; french: Canadiens français, ; feminine form: , ), or Franco-Canadians (french: Franco-Canadiens), refers to either an ethnic group who trace their ancestry to Fren ...
s, who have been at the centre of unity debates, are able to travel throughout all Canada and receive government and educational services in their own language. Hence, they are not confined to
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
(the only
province A province is almost always an administrative division within a country or sovereign state, state. The term derives from the ancient Roman ''Roman province, provincia'', which was the major territorial and administrative unit of the Roman Empire ...
where they form the majority and where most of their population is based), which would polarize the country along regional lines. According to the Supreme Court in ''
Canadian Egg Marketing Agency v. Richardson ''Canadian Egg Marketing Agency v Richardson'', 9983 S.C.R. 157 is a decision of the Supreme Court of Canada on standing to challenge a law as a violation of the Constitution of Canada. The Court expanded the exception first established in '' R. v ...
'' (1998), section 6 is also "rooted in a concern with human rights." It allows for individual independence and thus
dignity Dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Enlightenment-era concepts of inherent, inalienable ...
. This contrasts with implied mobility rights under the Constitution Act, 1867. Section 6 also grants Canadians economic rights, but only insofar as one has equal rights to pursue work. The safeguards against discrimination in subsection 6(3) shows mobility rights are "largely predicated on the right to equal treatment." This was connected with mobility rights in the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
, which, under article 2, are guaranteed "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Dissenting in ''Canadian Egg Marketing Agency v. Richardson'', Justice
Beverley McLachlin Beverley Marian McLachlin (born September 7, 1943) is a Canadian jurist and author who served as the 17th chief justice of Canada from 2000 to 2017. She is the longest-serving chief justice in Canadian history and the first woman to hold the p ...
wrote that section 6 is not only meant to protect individual rights but also to "promote economic union among the provinces," and in this way was related to section 121 of the Constitution Act, 1867. A person's mobility rights are a natural consequence of having a unified economy, though section 6, motivated by rights concerns, also expands these mobility rights to guard against discrimination. When the ''Charter'' was negotiated in 1981, there was general agreement that section 6 would not affect extradition. As one politician named Mr. Tassé explained, This interpretation was upheld by the Supreme Court of Canada in 2012 in '' Sriskandarajah v. United States of America''. The application of extradition laws to try individuals in countries where constitutional standards are lower or sentences higher remains a controversial practice, and was used by the Canadian government against
Holocaust denier Holocaust denial is an antisemitic conspiracy theory that falsely asserts that the Nazi genocide of Jews, known as the Holocaust, is a myth, fabrication, or exaggeration. Holocaust deniers make one or more of the following false statements: * ...
Ernst Zundel Ernst is both a surname and a given name, the German, Dutch, and Scandinavian form of Ernest. Notable people with the name include: Surname * Adolf Ernst (1832–1899) German botanist known by the author abbreviation "Ernst" * Anton Ernst (1975 ...
, alleged war criminal Michael Seifert, and marijuana seed vendor
Marc Emery Marc Scott Emery (born February 13, 1958) is a Canadian cannabis rights activist, entrepreneur and politician. Often described as the "Prince of Pot", Emery has been a notable advocate of international cannabis policy reform, and has been active ...
, none of whom were convicted of a crime in Canada. Canadian courts have demonstrated an ongoing lack of willingness to apply constitutional remedies in such cases.


Application

Some rights in the Charter, such as
freedom of expression Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
in section 2, are held by any person in Canada, including a
corporation A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and r ...
. Other rights, like those in section 23, are limited to certain citizens. Section 6 rights to enter and exit Canada, and to move within its boundaries are held by citizens, but rights to move within its boundaries and to pursue employment in another province are also held by permanent residents. Permanent residents are those described in the 1977
Immigration Act Immigration Act (with its variations) is a stock short title used for legislation in many countries relating to immigration. The Bill for an Act with this short title will have been known as a Immigration Bill during its passage through Parliament ...
as "a person who (a) has been granted landing, (b) has not become a Canadian citizen..." This definition would exclude corporations. If the Supreme Court defined permanent residency as simply living in Canada permanently, a corporation might have rights under section 6, since for the purposes of
income tax An income tax is a tax imposed on individuals or entities (taxpayers) in respect of the income or profits earned by them (commonly called taxable income). Income tax generally is computed as the product of a tax rate times the taxable income. Tax ...
es corporations already are considered "residents". However, the Supreme Court might be unwilling to do this, due to tradition that corporations only have full rights in the province where their corporate status was first recognized. Subsection 6(2) refers to moving from province to province. By virtue of section 30, however, this can also be interpreted as granting a right to move to and from the
territories A territory is an area of land, sea, or space, particularly belonging or connected to a country, person, or animal. In international politics, a territory is usually either the total area from which a state may extract power resources or a ...
. During the
COVID-19 pandemic in Canada The COVID-19 pandemic in Canada is part of the ongoing worldwide pandemic of coronavirus disease 2019 (). It is caused by severe acute respiratory syndrome coronavirus 2 (). Most cases over the course of the pandemic have been in Ontario, Que ...
, some anti-mask activists have tried to use Section 6 to avoid mandatory testing upon arrival back into Canada.


Subsection 6(1)

Like section 7, section 6 is relevant to laws dealing with
extradition Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdict ...
. The precedent, however, has been that even though extradition violates section 6, it is usually justifiable under section 1. Allowing for Canadians to be extradited has been legally upheld in Canada since before
Confederation A confederation (also known as a confederacy or league) is a union of sovereign groups or states united for purposes of common action. Usually created by a treaty, confederations of states tend to be established for dealing with critical issu ...
;
Sir William Buell Richards Sir William Buell Richards (May 2, 1815 – January 26, 1889) was the first Chief Justice of Canada. Richards was born in Brockville, Upper Canada, to Stephen Richards and Phoebe Buell. He earned law degree at the St. Lawrence Academy in Po ...
approved of it in ''
Re Burley ''Re Burley'' (1865), 1 U.C.L.J. 34, was a decision on extradition by the Court of Common Pleas of Upper Canada. Though made two years before Confederation, the case has been cited by the Supreme Court of Canada in mobility rights and extradition ...
'' in 1865 as a matter of
treaty law The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined ...
.'' United States v. Burns'', 0011 S.C.R. 283; 2001 SCC 7 (CanLII); 195 DLR (4th) 1; 0013 WWR 193; 151 CCC (3d) 97; 39 CR (5th) 205; 81 CRR (2d) 1; 85 BCLR (3d) 1 In ''
United States of America v. Cotroni ''United States v Cotroni'' 9891 S.C.R. 1469 was a decision by the Supreme Court of Canada on extradition and freedom of movement under section 6 of the ''Canadian Charter of Rights and Freedoms''. The Court found that extradition violates se ...
'' (1989) it was found extradition violates section 6 rights to stay in Canada, but fighting illegal activities was considered important under a section 1 test, and in ''
Kindler v. Canada (Minister of Justice) ''Kindler v Canada (Minister of Justice)'' was a landmark decision of the Supreme Court of Canada that held that the government policy that allowed for extradition of convicted criminals to a country in which they may face the death penalty was va ...
'' (1991) it was added that Canada should not attract criminals seeking to escape harsher foreign laws. In the case ''
Re Federal Republic of Germany and Rauca Re or RE may refer to: Geography * Re, Norway, a former municipality in Vestfold county, Norway * Re, Vestland, a village in Gloppen municipality, Vestland county, Norway * Re, Piedmont, an Italian municipality * Île de Ré, an island off the we ...
'', an extradition of an individual so old that he would probably die in prison, was technically a denial of his rights to return to Canada as well as to stay, but it was upheld; likewise, in '' United States v. Burns'', it was found extradition of Canadian citizens who might face the death penalty violated section 6 but this was justifiable under section 1, despite arguments that their citizenship and consequent section 6 rights against
exile Exile is primarily penal expulsion from one's native country, and secondarily expatriation or prolonged absence from one's homeland under either the compulsion of circumstance or the rigors of some high purpose. Usually persons and peoples suf ...
reinforced their rights under section 7 (the rights claimants won their case anyway, but under section 7). Since '' Canada v. Schmidt'', it is indeed rights to
fundamental justice In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...
under section 7 that are generally used to evaluate whether a particular case of extradition is fair.


Subsection 6(2)

Section 6 has also been held to protect the right of a person to be
employed Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any oth ...
outside his or her resident province. Specifically, in the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
case ''
Law Society of Upper Canada v. Skapinker ''Law Society of Upper Canada v Skapinker'',
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1 S.C.R. 357 is a leading Supreme Court of Canada decision on mobility rights protected under Section Six of the Canadian Charter of Rights and Freedoms, section 6 of the Canadian Charter of Rights ...
'' (1984), it was found that one does not actually have to settle in another province to be able to invoke section 6(2) (b) rights to "pursue the gaining of a livelihood in any province."Canadian Charter of Rights Decisions Digest – s. 6(2)
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Subsections 6(3) and (4)

Section 6(2), the rights of citizens and permanent residents to move to and pursue work in any province, has a number of limits provided by sections 6(3) and (4). Section 6(3) apparently recognized and affirmed laws that limited rights to pursue certain careers for persons who had recently entered the province. As Professor
Peter Hogg Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurispru ...
remarked in 1982, when section 6 came into force, some of the laws upheld by section 6(3) could even be discriminatory towards a person based upon where he or she had moved from; this discrimination only becomes unconstitutional when it is "primarily" the reason for the limits on section 6(2) rights. Section 6(3)(b) addresses rights to
social services Social services are a range of public services intended to provide support and assistance towards particular groups, which commonly include the disadvantaged. They may be provided by individuals, private and independent organisations, or administe ...
, suggesting that a denial of services to persons who have newly arrived should be "reasonable."Hogg, Peter W. ''Canada Act 1982 Annotated.'' Toronto: The Carswell Company Limited, 1982. Subsection 6(3) thus requires a comparative analysis to determine if there is discrimination. This may be a difficult analysis to perform given that one can pursue work in a number of different ways, but in general a newcomer will be compared with those who have lived in the province for longer. Laws and regulations that appear neutral on their face, but in fact are meant to allow discrimination in practice or have discriminatory consequences, are also considered to violate section 6. This is the same approach the Supreme Court has taken to equality rights in section 15 of the Charter. Section 6(4) was added to the Charter in November 1981 to appease the government of
Newfoundland and Labrador Newfoundland and Labrador (; french: Terre-Neuve-et-Labrador; frequently abbreviated as NL) is the easternmost province of Canada, in the country's Atlantic region. The province comprises the island of Newfoundland and the continental region ...
, making it possible to allow Newfoundlanders who had been in the province for longer a better opportunity to find work in offshore
oil An oil is any nonpolar chemical substance that is composed primarily of hydrocarbons and is hydrophobic (does not mix with water) & lipophilic (mixes with other oils). Oils are usually flammable and surface active. Most oils are unsaturated ...
than newcomers. This limit allowing for disparity in opportunity applies anywhere else where
unemployment Unemployment, according to the OECD (Organisation for Economic Co-operation and Development), is people above a specified age (usually 15) not being in paid employment or self-employment but currently available for Work (human activity), w ...
in the province is worse than in the country as a whole.


Comparison with other human rights instruments

As the Supreme Court noted in ''Canadian Egg Marketing Agency v. Richardson'', section 6 is connected with similar provisions in international bills of rights that Canada has recognized. The Universal Declaration of Human Rights (1948), for example, states under article 13 that "Everyone has the right to freedom of movement and residence within the borders of each State," and under article 23 that "Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment." Later, the
International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly (GA) on 16 December 1966 through GA. Resolution 2200A (XXI), and came in force from 3 January 197 ...
recognized under article 6 that "the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts." In ''United States of America v. Cotroni'', the Court wrote that "the International Covenant on Political Rights, Article 12... contains no right to remain in one's own country, although it contains all the other rights listed in ss. 6(1) and 6(2)(a) of the Charter."


References

{{DEFAULTSORT:Section Six Of The Canadian Charter Of Rights And Freedoms Section 06 Freedom of movement