Section Six of The Canadian Charter of Rights and Freedoms - Background

Background

Before the adoption of the Charter in 1982, mobility rights had existed by virtue of section 91 of the Constitution Act, 1867, 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, where Rand J. observed:

What this implies is that a province cannot, by depriving a Canadian of the means of working, force him to leave it: it cannot divest him of his right or capacity to remain and to engage in work there: that capacity inhering as a con­stituent element of his citizenship status is beyond nulli­fication by provincial action. The contrary view would involve the anomaly that although British Columbia could not by mere prohibition deprive a naturalized foreigner of his means of livelihood, it could do so to a native-born Canadian. He may, of course, disable himself from exer­cising his capacity or he may be regulated in it by valid provincial law in other aspects. But that attribute of citizenship lies outside of those civil rights committed to the province, and is analogous to the capacity of a Dominion corporation which the province cannot sterilize.

It follows, a fortiori, that a province cannot prevent a Canadian from entering it except, conceivably, in tempor­ary circumstances, for some local reason as, for example, health. With such a prohibitory power, the country could be converted into a number of enclaves and the "union" which the original provinces sought and obtained disrupted. In a like position is a subject of a friendly foreign country; for practical purposes he enjoys all the rights of the citizen.

Such, then, is the national status embodying certain inherent or constitutive characteristics, of members of the Canadian public, and it can be modified, defeated or destroyed, as for instance by outlawry, only by Parliament.

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 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.