Section Six Of The Canadian Charter Of Rights And Freedoms

Section 6 of the Canadian Charter of Rights and Freedoms

Purpose and Scope

Section 6 of the Canadian Charter of Rights and Freedoms , which forms Part I of the Constitution Act, 1982 , fundamentally delineates the mobility rights of every Canadian citizen. It’s not merely a suggestion; it’s a constitutional guarantee, albeit one with carefully delineated boundaries. This section is designed to ensure that individuals are not unduly restricted in their ability to move within, enter, or leave the vast expanse of Canada. It’s a cornerstone of national unity, fostering a sense of shared citizenship and discouraging provincial isolationism. The Charter, in its entirety, is a powerful document, and Section 6 is a particularly potent expression of individual liberty within the Canadian legal framework.

Subsection 6(1): Right to Move and Pursue Livelihood

This initial subsection is the heart of the mobility rights guarantee. It asserts that every Canadian citizen has the right:

• (a) to move to and pursue a livelihood in any province; This is a profound statement. It means that simply because you were born or reside in Ontario, you are constitutionally protected in your right to relocate to British Columbia and seek employment there. Provincial governments cannot enact laws that create arbitrary barriers to entry for citizens of other provinces wishing to establish residency and work. The intent is to prevent economic protectionism at the provincial level, ensuring that the Canadian economy functions as a cohesive whole rather than a collection of fragmented markets. The phrase “pursue a livelihood” is broad, encompassing not just employment but also the ability to start businesses, practice professions, and generally engage in economic activity.

• (b) of every Canadian citizen to enter, stay in and leave Canada. This part addresses the fundamental right of every citizen to navigate their own nation and the international stage. It means the government cannot arbitrarily prevent a Canadian citizen from returning to their home country after being abroad, nor can it prevent them from leaving. While there are, of course, exceptions related to criminal proceedings or national security, the general principle stands: a Canadian citizen’s right to movement across international borders is constitutionally protected. This is crucial for maintaining connections with the global community and ensuring personal freedom.

Subsection 6(2): Provincial Limitations

While subsection 6(1) lays down the broad principles, subsection 6(2) introduces the necessary caveats, acknowledging that the rights are not absolute. It states that the rights referred to in subsection (1) are subject to:

• (a) any law of Canada or of each province, to the extent that the law prescribes or determines reasonable limits as can be demonstrably justified in a free and democratic society; This is the classic limitations clause , echoing Section 1 of the Charter. It means that while mobility rights are guaranteed, they can be reasonably restricted if a government can prove that such restrictions are necessary and proportionate. The justification must be “demonstrably justified in a free and democratic society,” a high bar that requires rigorous legal scrutiny. This ensures that the rights are not easily overridden and that any limitations serve a genuine public purpose.

• (b) any legal obligation of a person to provide for the support of dependants. This is a specific carve-out, recognizing the state’s interest in ensuring that individuals fulfill their familial obligations. For instance, a person may be legally prevented from leaving Canada if they owe significant child support or spousal support payments and are attempting to evade these responsibilities. The law can impose restrictions on mobility to enforce such legal duties.

Subsection 6(3): Residency and Employment Limitations

This subsection further refines the scope of mobility rights, particularly concerning provincial residency requirements and the pursuit of livelihood.

• (a) the right to move and pursue a livelihood in any province extends to every Canadian citizen, but the right to pursue a livelihood in any province may be exercised only subject to the laws of that province; This clarifies that while the right to move is universal among citizens, the pursuit of a livelihood is subject to the specific legal framework of the province one chooses to settle in. This means a province can have its own regulations regarding licensing for professions, business operations, or employment standards, and these apply to all individuals, regardless of their origin. The key is that these regulations must be non-discriminatory and apply equally to residents and newcomers alike, as per the limitations clause in 6(2)(a).

• (b) the right to pursue a livelihood in any province may be exercised only subject to the laws of that province. This reiterates the point made in 6(3)(a), emphasizing that provincial laws govern the practice of professions and the conduct of business within their borders. This allows provinces to maintain standards and regulate their economies effectively, provided these regulations do not unduly infringe upon the mobility rights of citizens from other provinces.

• (c) the right to move to and pursue a livelihood in any province is subject to any reasonable limits that are prescribed by law as being for the purpose of ensuring, in particular, a reasonable level of municipal or provincial services. This is a crucial exception. It acknowledges that provinces and municipalities have a legitimate interest in ensuring the provision of essential services to their existing populations. For example, a province might argue that rapid in-migration to a particular region could strain infrastructure like schools, hospitals, or public transit, and that limiting the rate of settlement in that specific area, through carefully crafted laws, could be justified to maintain service levels. The justification must, again, meet the high standard of being demonstrably justified in a free and democratic society.

Subsection 6(4): Affirmative Action Programs

This subsection introduces a specific allowance for affirmative action programs, recognizing that historical disadvantages may require targeted measures.

• (a) the rights referred to in subsection (1) do not abrogate the right of any province to provide for reasonable programs aimed at achieving equitable participation of its residents in the provincial labour market, provided that the primary purpose of the program is to achieve that objective and the program is subject to the provisions of Section 1. This is a complex but vital provision. It allows provinces to implement programs designed to address systemic barriers that may prevent certain groups of their residents from fully participating in the provincial labour market. These are not quotas or preferential treatment based solely on origin, but rather carefully designed initiatives to remedy past discrimination or disadvantage. The key is that the “primary purpose” must be to achieve equitable participation, and such programs must still be justifiable under Section 1 of the Charter. This acknowledges that true equality sometimes requires proactive measures to level the playing field.

Interpretations and Applications

The application of Section 6 has been a subject of considerable case law in Canada. Courts have consistently affirmed the fundamental nature of mobility rights, striking down provincial laws that attempted to create undue barriers to interprovincial migration or the pursuit of livelihoods. For instance, laws that required new residents to wait a certain period before accessing social assistance or employment benefits have often been challenged and, in some cases, struck down as violations of Section 6.

The interplay between Section 6 and Section 1 is critical. While mobility rights are robust, they are not absolute. The courts engage in a balancing act, weighing the individual’s right to move against the legitimate interests of governments in regulating society. The “demonstrably justified” standard under Section 1 ensures that any infringement on mobility rights is subject to strict scrutiny.

The concept of “pursuing a livelihood” has also been interpreted broadly, encompassing not only employment but also the right to engage in business, practice a trade, or participate in the economic life of a province. This prevents provinces from enacting protectionist measures that favour local businesses or professionals over those from other parts of Canada.

It is important to note that Section 6 applies to Canadian citizens and, in some limited respects, to permanent residents. However, the full scope of rights under Section 6, particularly the right to move freely within Canada and to pursue a livelihood in any province, is explicitly granted to citizens. This underscores the link between citizenship and the fundamental freedoms guaranteed by the Charter.

Redirects from Moves

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