Section Six of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution
's Charter of Rights
that protects the mobility rights
of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice of entering and exiting Canada
, and moving within its boundaries. The section is subject to the section 1 Oakes test
, but cannot be nullified by the notwithstanding clause
.
Along with the language rights in the Charter (sections 16
-23
), section 6 was meant to protect Canadian unity.
, 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) Ltd., [1951] S.C.R. 887.
Aside from this, section 121 of the Constitution Act, 1867 allows for goods to be freely moved from province to province. Before the patriation
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 freedom of movement.
The Supreme Court has compared section 6 to section 2(a) of the Canadian Bill of Rights
, implemented in 1960. That section guarantees rights against exile
. However, section 6 expands on this right to also guard rights to leave and move within Canada.
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
(the only province
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
(1998), section 6 is also "rooted in a concern with human rights." It allows for individual independence and thus dignity
. 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
, 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
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,
, are held by any person in Canada, including a corporation
. 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
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
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
.
, section 6 is relevant to laws dealing with extradition
. 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
; Sir William Buell Richards approved of it in Re Burley
in 1865 as a matter of treaty law.
In United States of America v. Cotroni
(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)
(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, 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
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
under section 7 that are generally used to evaluate whether a particular case of extradition is fair.
outside his or her resident province. Specifically, in the Supreme Court
case Skapinker
(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."
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, suggesting that a denial of services to persons who have newly arrived should be "reasonable."
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
, making it possible to allow Newfoundlanders who had been in the province for longer a better opportunity to find work in offshore oil
than newcomers. This limit allowing for disparity in opportunity applies anywhere else where unemployment
in the province is worse than in the country as a whole.
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
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."
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
's Charter of Rights
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that protects the mobility rights
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice of entering and exiting Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, and moving within its boundaries. The section is subject to the section 1 Oakes test
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
, but cannot be nullified by the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
.
Along with the language rights in the Charter (sections 16
Section Sixteen of the Canadian Charter of Rights and Freedoms
Section Sixteen of the Canadian Charter of Rights and Freedoms is the first of several sections of the Charter dealing with Canada's two official languages, English and French...
-23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
), 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, 1867Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, 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) Ltd., [1951] S.C.R. 887.
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
Patriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. Up until 1982, Canada was governed by a constitution that was a British law and could be changed only by an Act of the British Parliament...
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 freedom of movement.
The Supreme Court has compared section 6 to section 2(a) of the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
, implemented in 1960. That section guarantees rights against exile
Exile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
. However, section 6 expands on this right to also guard 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 CanadianFrench Canadian
French Canadian or Francophone Canadian, , generally refers to the descendents of French colonists who arrived in New France in the 17th and 18th centuries...
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
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
(the only province
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
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
Canadian Egg Marketing Agency v. Richardson, [1998] 3 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. Big M Drug Mart to allow corporations to invoke the...
(1998), section 6 is also "rooted in a concern with human rights." It allows for individual independence and thus dignity
Dignity
Dignity is a term used in moral, ethical, and political discussions to signify that a being has an innate right to respect and ethical treatment. It is an extension of the Enlightenment-era concepts of inherent, inalienable rights...
. 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
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, 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 McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
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,
Application
Some rights in the Charter, such as freedom of expression in section 2Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
, are held by any person in Canada, including a corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
. Other rights, like those in section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
, 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, 1976
The Immigration Act in Canada was created in 1976 by then Prime Minister Pierre Trudeau. It focused on who should be allowed into Canada, not on who should be kept out. The Act came into force in 1978 along with new Immigration Regulations. This Act gave more power to the provinces to set their own...
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
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...
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
Section Thirty of the Canadian Charter of Rights and Freedoms
Section Thirty of the Canadian Charter of Rights and Freedoms is a section of the Charter that, like other provisions within the section 25 to section 31 bloc, provides a guide as to how Charter rights should be interpreted and applied by Canadian courts. Section 30's particular role is to address...
, however, this can also be interpreted as granting a right to move to and from the territories
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
.
Subsection 6(1)
Like section 7Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
, section 6 is relevant to laws dealing with extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
. 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
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
; Sir William Buell Richards approved of it in Re Burley
Re Burley
Re Burley , 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 cases over a century later.-Decision:The decision was made by...
in 1865 as a matter of treaty law.
In United States of America v. Cotroni
United States of America v. Cotroni
United States of America v. Cotroni; United States of America v. El Zein [1989] 1 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...
(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)
Kindler v. Canada was a landmark decision of the Supreme Court of Canada where it was held that the government policy that allowed for extradition of convicted criminals to a country where they may face the death penalty was valid under the Canadian Charter of Rights and Freedoms...
(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, 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
United States v. Burns
United States v. Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms...
, 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
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
reinforced their rights under section 7 (the rights claimants won their case anyway, but under section 7). Since Canada v. Schmidt
Canada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
, it is indeed rights to fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
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 employedEmployment
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
outside his or her resident province. Specifically, in the Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case Skapinker
Law Society of Upper Canada v. Skapinker
Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 is a leading Supreme Court of Canada decision on mobility rights protected under section 6 of the Canadian Charter of Rights and Freedoms...
(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."
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 HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
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, suggesting that a denial of services to persons who have newly arrived should be "reasonable."
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 Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
.
Section 6(4) was added to the Charter in November 1981 to appease the government of Newfoundland and Labrador
Newfoundland and Labrador
Newfoundland and Labrador is the easternmost province of Canada. Situated in the country's Atlantic region, it incorporates the island of Newfoundland and mainland Labrador with a combined area of . As of April 2011, the province's estimated population is 508,400...
, making it possible to allow Newfoundlanders who had been in the province for longer a better opportunity to find work in offshore oil
Oil
An oil is any substance that is liquid at ambient temperatures and does not mix with water but may mix with other oils and organic solvents. This general definition includes vegetable oils, volatile essential oils, petrochemical oils, and synthetic oils....
than newcomers. This limit allowing for disparity in opportunity applies anywhere else where unemployment
Unemployment
Unemployment , as defined by the International Labour Organization, occurs when people are without jobs and they have actively sought work within the past four weeks...
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 rightsInternational bill of rights
The International Bill of Human Rights is an informal name given to one General Assembly resolution and two international treaties established by the United Nations...
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
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
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
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, 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."