ST. JOHN’S, N.L. 124; Kamel v. Canada (Attorney General) 2013 FCA 103 [“ Kamel, (2013)”] at paragraphs 26-31; Abdelrazik v. Canada (Minister of Foreign Affairs) 2009 FC 580, at paragraphs 151-152; Kamel v. Canada (Attorney General) [“ Kamel, (2011)”], 2011 FC 1061, at paragraph 72; F.C. However, in Sriskandarajah, supra, decided after Doré, the Supreme Court specifically upheld the detailed approach to determining the section 1 reasonableness of an extradition decision previously articulated by the Court and did not explicitly mention Doré (see the previous cases of Cotroni, Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. Whether the discrimination is unacceptable in the context of section 6 depends entirely on which basis of discrimination is characterized as dominant, as denoted by the term "primarily". The rights in section 6(2) relate to movement into another province, either for the taking up of residence, or to work without establishing residence (Skapinker, supra at paragraph 33). For the purpose of 6(3)(a), a law of general application does not necessarily have to be applicable uniformly throughout a province; a law that is made to apply to a specific geographical area that does not correspond to provincial boundaries may still be considered a law of general application (Archibald, supra at paragraphs 63-65). 150 (P.E.I. 2) If the answer to part 1) is yes, does this distinction discriminate primarily on the basis of province or territory of the rights-holder in purpose or effect? What is the severity of the sentence the accused is likely to receive in each jurisdiction? 335 (T.D.)). Legislation that places French language conditions on everyone who conducts business in a province may in effect create an additional burden for non-residents who hope to conduct business in that province. However, laws can set reasonable residency requirements for certain social and welfare benefits. Governments will ensure that no new barriers to mobility are created.1 *) E-mail: maas@yorku.ca. 2590 (C.A.)). (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a … 591). Charter of Rights and Freedoms videos and latest news articles; GlobalNews.ca your source for the latest news on Charter of Rights and Freedoms . The court went on to suggest that an unjustifiable limit of the Charter may arise if this requirement can only be met with great difficulty or expense (R v. Nikal, [1996] 1 S.C.R. Mobility Rights — Canadians can live and work anywhere they choose in Canada, enter and leave the country freely, and apply for a passport. As described in the second step of the test articulated below, the analysis of whether a law of general application discriminates primarily based on province of residence will be essential to determining whether there has been an unjustifiable limit of the above-described right (CEMA, supra at paragraphs 75, 78; Archibald v. Canada, [2000] 4 F.C. Section 6(4) has been characterized as a “saving provision” similar to section 6(3)(b) and section 1 of the Charter (CEMA, supra at paragraph 54, cited with approval in Lovelace v. Ontario, [2000] 1 S.C.R. 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However, aboriginal status can be relevant to section 7 Charter analysis of extradition (United States of America v. Leonard, 2012 ONCA 622, leave to appeal refused, [2012] S.C.C.A. The mobility right does not extend to … 363 (Ont. ), leave to appeal refused, [2000] S.C.C.A. To date, the jurisprudence has suggested that the rights under sections 6(2) and 6(3) of the Charter also protect inter-territorial mobility into Nunavut (see, e.g., Chwyl v. Law Society of Nunavut, 2014 NUCJ 9). Section 6 is one of the privileged rights that is not subject to section 33 of the Charter; section 6 cannot be overcome by enactment of a notwithstanding clause. Section 6(1) does not impose any obligation on the Canadian government to guarantee entry to or exit from another country (Kamel (2009), supra at paragraph 17). ), at paragraph 61, leave to appeal refused, [2000] S.C.C.A. 249). If the foreign jurisdiction consents to the transfer, however, the discretion of the Minister is engaged and must be exercised in compliance with the relevant Charter values (see Divito, supra, at paragraph 49; Carrera v. Canada (Minister of Public Safety), 2013 FCA 277 at paragraphs 6 and 9, and Carrera v. Canada (Minister of Public Safety), 2015 FC 69 at paragraph 72, referring to Doré v. Barreau du Québec, [2012] 1 S.C.R. Under the current structure of the Extradition Act, the responsibility to consider section 6(1) rights resides with the Minister of Justice at the time of surrender of the fugitive, and not with the extradition judge at the committal hearing (United States of America v. Kwok, [2001] 1 S.C.R. The section is subject to the section 1 Oakes test, but cannot be nullified by the notwithstanding clause. 283, at paragraph 48). — Lawyers contesting Newfoundland and Labrador’s travel ban say the policy is arbitrary and violates mobility rights guaranteed in the charter. [1] Though it is an infrequently discussed section of the Charter, the protections afforded by section 6 figure prominently in this era of government-mandated travel restrictions. It should be noted, though, that in Archibald, supra, the Federal Court of Appeal asserted that a simple difference in treatment between wheat and barley producers within and outside the designated area was enough to satisfy this branch of the test, without putting emphasis on where the producers wanted to pursue their livelihood. It is possible to waive one’s section 6(2) rights prior to becoming a citizen or permanent resident of Canada. ), at paragraphs 103, 109-113, aff’d on this point[2009] 4 F.C.R. 479 (C.A. In CEMA, the purpose of the legislation was to regulate egg production by the setting of quotas using historical production patterns. Which police force played the major role in the development of the case? Sections 6(2) and 6(3) generally define and circumscribe the right of a Canadian citizen or permanent resident to move, take up residence and work in all Canadian provinces. Section 6(1) does not confer a right of a Canadian citizen to serve a foreign prison sentence in Canada. The Supreme Court has articulated that the rights in sections 6(2)(a) and 6(2)(b) ought to be read disjunctively, as two distinct rights independent of one another (Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. Ct.); Irshad (Litigation Guardian of) v. Ontario (Ministry of Health) (1999), 60 C.R.R. In Canada mobility rights have been traditionally understood as a function of the law governing provincial legislative competence over business, professions, and services, and the interrelationship between these powers and federal jurisdiction. A majority of the Supreme Court stated in obiter that the requirement that citizens present a passport to enter Canada would not be an infringement of their mobility rights since the passport serves to identify those who can exercise the rights of Canadian citizens. Any law that discriminates (with regard to the pursuit of livelihood) primarily based on residency limits freedom of mobility, regardless of the magnitude of impact. Purpose and effects must be scrutinized. 118 (F.C.A. However, on efficiency grounds, extradition judges have the discretion to hear, without deciding, evidence on alleged section 6 Charter violations when the allegations hold an air of reality (Kwok, supra at paragraph 74). 490). To facilitate this right, the courts have decided that citizens also have a right to a government-issued passport. However a corporation may be granted standing to challenge the constitutionality of legislation under the Charter when proceedings are commenced against it by the government (CEMA, supra at paragraph 34). of Employment & Immigration) (1995), 97 F.T.R. Section 6(1) is engaged only at the subsequent surrender stage, and the Minister is not required to base the surrender decision on evidence submitted at the committal hearing pursuant to sections 32 and 33 (United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. The Canadian Charter of Rights and Freedoms, to move to and take up residence in any province; and. Whether the impact of the limit is so negligible that it does not warrant the protection of section 6 is a matter better left to the justificatory analysis under section 1 (CEMA, supra at 85). Section 6(2) is meant to give effect to the basic human right, closely related to equality, that individuals should be able to participate in the economy in pursuit of their livelihood without being subject to legislation which discriminates primarily on the basis of attributes related to mobility (CEMA, supra at paragraph 60). a) to move to and take up residence in any province; and. However, the results in what is called “mobility rights” cases are very different. 151, (Sask. Any attempt by residents of an origin province to create wealth, whether by production, marketing, or performance in a destination province constitutes "the gaining of a livelihood in any province" and satisfies the requirement of mobility implied by the title of the section. Div. The Canadian Charter of Rights and Freedoms defines mobility rights in two basic ways. 1013, at paragraph 96). b) to pursue the gaining of a livelihood in any province. 591 (Supreme Court of Canada) This case challenged rules of the Alberta Law Society limiting law firms from operating in more than one province. The rules of civil procedure that give a court the discretionary power to order that non-residents post security for costs do not limit either section 6(2)(a) or section 6(2)(b) (Lapierre (Tuteur d'instance) c. Barrette, [1988] R.J.Q. Section 6 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. 790, at paragraph 19). (1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2d) 231 (Ont. Section 6(3)(b) carves out an exception to the protection in section 6(2) for provincial residency requirements that establish a person’s link to a province as a condition of eligibility for public social services (Clarken v. Ontario Health Insurance Plan (1998), 109 O.A.C. The fact that a Canadian citizen would face a more severe punishment on conviction in the state requesting extradition than would have been imposed had the alleged crime been committed in Canada, will not in itself result in an unjustifiable limit of his section 6 right to remain in Canada (Ross v. United States of America  (1994), 119 D.L.R. Lawyers contesting Newfoundland and Labrador's travel ban say the policy is arbitrary and violates mobility rights guaranteed in the charter. The word "primarily" necessarily involves an evaluation of other possible purposes for, and effects of, the discrimination, and their weight relative to the discrimination based on residence. Div. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. There may be objective reasons for a law distinguishing between two regions, other than residential status, as is the case with the Wheat Board Act, applicable only to Manitoba, Alberta, Saskatchewan, and part of British Columbia. It is possible that those effects might, over time, acquire such significance as to become the dominant feature of the legislation, thereby displacing the original purpose (CEMA, supra at paragraph 97). A law allowing only members of the Institute of Chartered Accountants of P.E.I. 458). (2d) 1 (Ont. Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: section 2(a) of the Canadian Bill of Rights; article 12 of the International Covenant on Civil and Political Rights; article 6 of the International Covenant on Economic, Social and Cultural Rights; article 18 of the Convention on the Rights of Persons with Disabilities; article 10 of the Convention on the Rights of the Child; article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women; article 5(c)(i) of the Convention on the Elimination of All Forms of Racial Discrimination; article 26 of the Convention Relating to the Status of Refugees. The phrase "to pursue the gaining of a livelihood" has been construed to mean "the right to practise on a viable economic basis" (Black, supra at paragraph 56). 532 at paragraph 48). Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right, a) to move to and take up residence in any province; and. 609). Which jurisdiction is ready to proceed to trial? Improper conduct, arbitrary motives or bad faith on the part of authorities in extradition decision-making can be grounds for judicial review and lead to a finding that an extradition decision was not reasonable (Cotroni, supra at page 1498; Kwok, supra, at paragraph 96; Lake, supra at paragraphs 30 and 37). C.A. The Supreme Court has affirmed that sections 6(2)(b) and 6(3)(a) of the Charter must be read together as a single right that is engaged by any person’s attempt to create wealth in a province other than the province in one resides, whether by production, marketing or performance (CEMA, supra at paragraphs 72-75). Last reviewed: March 2021. 760, 23 DLR (4th) 609). Sections 6(2)(a) and 6(3)(b) do not immunize social service programs that are limited to residents and impose a reasonable residency requirement from scrutiny under section 15 of the Charter (Irshad, supra at paragraph 97). (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right: 1. With regard to the effects of the impugned law, both legal effect and practical effect must be examined to properly categorize the dominant feature of the legislative scheme (CEMA, supra at paragraph 98). The applicable principles in this respect have been reaffirmed by the Supreme Court (see, e.g., Sriskandarajah v. United States of America, [2012] 3 S.C.R. Currently, the Act is being used to prevent any Canadian citizen or permanent resident who shows COVID-19 symptoms from boarding a plane destined for Canada. ), at paragraph 8). Where residents of the NWT seek to market something of value — eggs — in other destination provinces, this is an attempt to “pursue the gaining of a livelihood” in another province and engages the mobility right guarantee (CEMA, supra at paragraph 72). 157 (CEMA)). (2d) 11 (Ont. To make a determination about whether the distinction made by a law or policy is one that primarily discriminates based on province or territory of residence, courts will look at a number of factors, including whether the designated geographical area of distinction coincides with provincial and/or territorial boundaries, as well as any other reasons that may exist that are not about residing in a particular province or territory. See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article IV and the Fourteenth Amendment of the Constitution of the United States of America; articles 2, 6, 13 and 23 of the Universal Declaration of Human Rights; the Fourth Protocol, articles 2, 3, and 4 of the European Convention on Human Rights. ); McGregor v. Holyrood Manor, 2014 BCSC 679). The fact that the designated area to which the law applies does not coincide precisely with provincial boundaries per se, and that the area is characterized by large grain crops which distinguishes it from other areas of Canada, is evidence that provincial boundaries are merely being used as a reasonably accurate marker for an economic reality (CEMA, supra at paragraph 87, commenting on Archibald v. Canada [1997] 3 F.C. 469; on the issue generally of when a violation of section 6(1) would be unjustified, see “Section 1 considerations specific to extradition cases”, below). Gordon v. Goertz (1996) Supreme Court of Canada As with all custody and access issues, the court’s paramount concern is to choose the parenting plan that is sincerely designed to serve the best interest of the child. S.C.), at paragraph 15, aff’d [1995] 2 S.C.R. No. Mobility Rights of Canadian Permanent Residents under Provincial Immigration Programs (Audio) Last Updated on December 11, 2016 The right to legislate in the field of immigration in Canada is shared equally between the Federal government and the provinces. 218 (T.D. Lower court and appellate jurisprudence indicates that the right of citizens to enter and leave Canada as guaranteed by section 6(1) includes the right to a passport: Khadr v. Canada (Attorney General),  [2007] 2 F.C.R. where in Canada is an essential element of Canadian citizenship. “[59] It may, with deference, be time for the Supreme Court of Canada to reconsider whether cases of this kind are to be determined with reference only to the children’s best interests or whether what I suggest is an unspoken factor in mobility cases ‒ the 'mobility rights' of custodial parents ‒ are also a proper consideration. In Canada, citizens’ rights and freedoms are protected by the Canadian Charter of Rights and Freedoms. The analytical framework to determine whether a government measure infringes the right to earn a livelihood in another province was articulated by the Supreme Court in CEMA, supra. Section 6(2) is concerned with movement within Canada to take up residence or to pursue the gaining of a livelihood. 1469) through the constitutionalization of the right to enter and remain in Canada for citizens. b) to pursue the gaining of a livelihood in any province. The Minister’s extradition order is a political decision that attracts a high degree of judicial deference (Cotroni, at page 1497; Kwok, at paragraphs 93-96; Lake, at paragraph 34; Sriskandarajah, at paragraphs 11 and 33). The following factors (generally referred to as the “ Cotroni factors”) have been articulated by the Supreme Court as relevant to the exercise of the Minister’s discretion (Cotroni, supra, at paragraphs 55-56; Sriskandarajah, supra, paragraph 12): The relevance of each factor to the determination of the appropriate jurisdiction for prosecution may vary from case to case; nothing in the Cotroni decision suggests that the factors should be given equal weight or precludes a conclusion that a single factor is determinative in a particular case. However, these conditions may not necessarily constitute an unacceptable obstacle to mobility where they are not designed to prevent persons from entering the province, and are conditions which anyone, with professional assistance, may meet (Devine v. Quebec (Attorney General), [1988] 2 S.C.R. As such, the ITOA provisions giving the Minister discretion whether to accept the transfer of a Canadian citizen to Canada do not limit the section 6(1) entry right (Divito, supra, paragraphs 3, 45). For example, in CEMA, supra, the comparison groups were new producers from the NWT intending to market eggs in the destination province, and new producers resident in the destination province intending to market eggs in the destination province. Ask the question: Why have I been pulled over? 1) From ‘Mobility Rights in Canada’, part 2 of the Social Union Framework Agreement (1999) available 950, at paragraph 106). There are three rights found in section 6(1): the right to enter, remain in, and leave Canada (Divito v. Canada (Public Safety and Emergency Preparedness), [2013] 3 SCR 157, 2013 SCC 47 at paragraph 18). Every citizen of Canada has the right to enter, remain in and leave Canada. 357 at 382). No. Section 6(1) of the Charter is concerned with international movement. 670, at paragraphs 38-41 and R. v. Kapp, [2008] 2 S.C.R. Everyone who lived in Canada for a period of time has to right to move to a different country and make a living there Why is it important? For the purpose of mediation, if the matter of mobility appears to be potentially negotiable, the relocating parent should consider extending some goodwill in return. Extradition with the possibility of facing the death penalty in the Requesting State is only marginally a mobility rights issue, and is mainly a justice issue that should be addressed under section 7 of the Charter (United States of America v. Burns, [2001] 1 S.C.R. (CEMA, supra at paragraphs 68, 74-75, 89-98). In relation to the right to leave Canada, courts have held that orders requiring an adult Canadian citizen to leave a foreign state to return to Canada infringe section 6(1) and must be justified under section 1 (Droit de la famille â 13328, supra, at paragraphs 38-40). (4th) 150 (N.B.C.A. C.A.)). (4th) 477 (Ont. Within countries, freedom of travel is often more limited for minors, and penal law can modify this ); Brampton (City) v. Mister Twister Inc., 2011 ONCJ 271). 218). Subsequent to the Supreme Court decision in Doré, supra, a Ministerial decision on extradition is, in principle, subject to the framework for section 1 analysis set out in that case. Section 6(2) thus far has been interpreted as applying to Canadians’ mobility rights as between provinces rather than to mobility within a province (McDermott v. Town of Nackawic (1998), 53 D.L.R. Although there is a section 6(1) right to a passport, denial of a passport can be justified under section 1 of the Charter where the circumstances so permit (Kamel, (2009), Kamel, (2013)). Ct.), at paragraph 80; see also: Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. Section 6(2)(a) protects the right of Canadian citizens and permanent residents to move to a different province or territory and become resident in any province or territory (Skapinker, supra; Charter section 30). What is the number of the accused involved and can they be gathered together in one place for trial? Ct.) (Ont. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right. Black et al., [1989] 1 S.C.R. (2d) 1 (Alta. (4th) 335 (Sask. 902). The responsibility for deciding which factors are determinative lies with the authorities themselves; the list serves simply to highlight relevant factors (Lake, supra, at paragraph 30; Sriskandarajah, supra at paragraphs 12 and 13). Where was the impact of the offence felt or likely to have been felt? (See Archibald, supra at paragraph 60.). The Minister’s decision to extradite a Canadian citizen under the Extradition Act prima facie limits the citizen's section 6(1) right to remain in Canada (Cotroni, supra, at paragraph 18). (4th) 321 (B.C. An appellate decision indicates that aboriginal status does not give a person facing extradition an enhanced section 6(1) right to remain in Canada. Language rights – freedom to use either official language, English and French, when communicating with the federal and provincial governments. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right: (3) The rights specified in section (2) are subject to: (4) Sections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada. As noted previously, section 6(1) is prima facie limited by the Minister’s decision to surrender a Canadian citizen, but the limit generally can be justified under section 1 of the Charter (Cotroni, supra; Sriskandarajah, supra; India v Badesha, 2017 SCC 44). Which jurisdiction has the greater interest in prosecuting the offence? Section 6(2)(b) does not create a free-standing right to work, divorced from the mobility provisions in which it is found. First, citizens of Canada have the right "to enter, remain in and leave Canada." (1) Every citizen of Canada has the right to enter, remain in and leave Canada. Regardless of the decision made by their parents, the children will retain their Canadian citizenship and will be subject to no constraints in the exercise of the rights and liberties associated with their citizenship other than the constraints the parents impose in the exercise of their parental authority (Langner v. Canada (Min.
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