MOBILITY RIGHTS AND THE
CHARTER OF RIGHTS AND FREEDOMS
Mollie Dunsmuir, Kristen Douglas
Law and Government Division
Reviewed 19 August 1998
A. Limitations on Mobility Rights
Restrictions on Professional Activity
Right to Work
Self regulated Professions
D. Marketing and Trade
AND THE CHARTER
OF RIGHTS AND FREEDOMS*
Canada is a vast country with various economic opportunities distributed
throughout its length and breadth, it is important that the right to move,
both inside and outside Canada, be reflected in the Canadian Charter
of Rights and Freedoms. Section 6, giving every citizen the right
to enter, remain in, and leave Canada, recognizes this. It also gives
both citizens and permanent residents the right to move into any province
and pursue an economic livelihood. However, these latter rights can be
reduced by certain types of provincial laws and programs
1 of the Charter allows legislatures to impose reasonable limits upon
rights and freedoms guaranteed by the Charter, including mobility rights.
However, the legislative override, provided in section 33 of the Charter,
which allows Parliament or a provincial legislative to expressly declare
that legislation shall operate "notwithstanding" much of the
Charter, does not apply to section 6.
Every citizen of Canada has the right to enter, remain in and leave
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
livelihood in any province.
variety of Canadian laws which would tend to limit mobility rights have
been examined, including laws regarding extradition, quarantine, bail,
probation, parole, imprisonment, and custody of children. For the most
part, such limits have been upheld as being reasonably justified under
section 1 of the Charter. Although unreasonable limits to interprovincial
mobility are unlikely to survive Charter scrutiny, the courts have held
that section 6 mobility rights do not include the right to establish oneself
professionally anywhere in Canada regardless of qualifications. Specifically,
it is clear that the right to interprovincial mobility does not create
a right to work.
6(2) seems to create prima facie rights to receive social services
in different provinces, as well as a prima facie prohibition against
employment restrictions based on province of previous or present residence.
These rights are limited both by the provisions of section 6(3) and (4),
and section 1 of the Charter.
A. Limitations on Mobility
The rights specified in subsection (2) are subject to
any laws or practices of general application in force in a province
other than those that discriminate among persons primarily on the
basis of province of present or previous residence; and
any laws providing for reasonable residency requirements as a qualification
for the receipt of publicly provided social services.
Subsections (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.
paragraphs create several limits to mobility rights. Laws requiring reasonable
residence periods in order to qualify for social service programs, laws
that do not discriminate on the basis of province of previous or present
residence, and laws designed to improve conditions in areas of Canada
with lower than average employment rates, are all exempted from the mobility
rights guarantee in section 6. In other words, these types of provisions
can infringe mobility rights, without being unconstitutional. Additionally,
a law that is not saved by section 6(3) or (4) may be saved by analysis
under section 1 of the Charter as being demonstrably justified in a free
and democratic society.
section 6(4) the courts will be required to look at the object of the
law, program or activity, as well as at how the law is specifically tailored
to benefit those individuals in the province who are socially or economically
disadvantaged. Interestingly, to date no province has used section 6(4)
in a legal action to justify programs that discriminate in favour of disadvantaged
United States of America v. Cotroni, the Supreme Court of
Canada held that, while extradition infringes the mobility rights guarantee
in section 6, it constitutes a reasonable limit within the meaning of
section 1 of the Charter. The objectives sought by the Extradition
Act, R.S.C. 1985, c. E-23, relate to concerns that are pressing and
substantial. Suppression of crime is an important goal which cannot reasonably
be confined within national borders. The accused, Canadian citizens, were
charged in connection with acts committed in Canada, and even though they
might have been tried in Canada, there were sufficient links to the U.S.
to warrant that countrys conducting the prosecution. It was felt
that it is better that a crime be prosecuted where its harmful impact
is felt, and where the witnesses and the persons interested in bringing
the case to justice reside. The Court also held that it would not be appropriate
to consider the propriety of extradition on a case-by-case basis. The
administrative discretion of the Attorney General to determine whether
or not a Canadian citizen should be deported was found to be of little
relevance, because Canada is under an international obligation to surrender
a person accused of having committed a crime listed in an extradition
treaty if there are no proceedings against the person in Canada.
C. Restrictions on
imposed by provincial legislation on the ability to work in a province
have been tested in a number of cases.
Basile v. Attorney General of Nova Scotia, the Nova Scotia
Court of Appeal used the mobility section of the Charter to strike down
a provincial regulation under which door-to-door salesmen who were not
residents of Nova Scotia would be refused licences to carry on their trade.
The Court held that this regulation was a "direct affront" to
section 6(2) of the Charter and overruled the lower court decision. Similarly
a New Brunswick court struck down provincial legislation prohibiting the
Atlantic Lotteries Corporation from licensing gaming devices whose owner
resides outside the province.
the Skapinker case, the Ontario Court of Appeal determined that
the section of the Ontario Law Society Act which requires that
members of that Society be Canadian citizens or British subjects is inconsistent
with section 6(2)(b) to the extent that it denies permanent residents
of Canada the right to practise law in Ontario. The Court also held that
this was not a law of general application since, when its effect is examined,
it applies only to permanent residents of Canada, and laws are not of
general application if they impair the status or capacity of a particular
group. The Court also felt that it could not be justified as a limitation
under section 1 as citizenship requirements for the practice of law have
been abolished in England and Scotland, declared unconstitutional in the
United States, and serve no useful purpose.
decision was appealed to the Supreme Court of Canada, which, on 3 May
1984, rendered a unanimous decision in which it allowed the appeal of
the Law Society and found that the mobility section of the Charter had
no effect on the Law Societys requirement that its members be Canadian
citizens or British subjects. Mr. Justice Estey, who rendered the decision,
pointed out that the issue before the court was not whether it is or is
not in the interest of this community to require Canadian citizenship
as a precondition to membership in the provincial bar.
of the nature of the case, the court also had the opportunity to comment
on the weight that should be given to the section headings found in the
Charter. It was noted that "these headings were systematically and
deliberately included as an integral part of the Charter for whatever
purpose" and should be taken into consideration when discerning the
meaning of the Charter. In this case it was felt that an attempt must
be made to reconcile the heading "mobility rights" with the
content of the section.
1. Right to Work
basic issue in the eyes of the court in Skapinker was a narrow
one. Section 6(2)(a) was termed to be "pure mobility" as it
speaks of moving to and residing in a province. If (b), "the gaining
of a livelihood," is joined with (a), it is also a mobility provision.
However, if (b) is separate from (a), it may give a "right to work"
without reference to mobility as a prerequisite. The court concluded that
section 6(2)(b) could not be separated from the nature and character of
the rights granted in section 6 and therefore the rights relate to movement
into another province, either for the taking up of residence, or to work
without establishing residence. Several other courts have similarly found
that section 6 does not guarantee a "right to work."
1985, however, the British Columbia Supreme Court struck down a regulatory
scheme that prevented a physician from outside British Columbia from obtaining
a billing number to practise at the clinic of her choice in British Columbia.
The scheme was designed to control provincial expenditures for medical
services, and to ensure that new billing numbers were granted only to
doctors who would provide needed services or work in underserviced rural
areas. However, it also permitted differential treatment for physicians
resident in the province at the time the scheme was implemented, as well
as for certain other classes of physicians. Dr. Mia had received her medical
degree in British Columbia, and was qualified to practise there, but was
residing in Ontario at the time the scheme came into effect.
decision is somewhat ambiguous because the court dealt with both section
6 mobility rights, and the section 7 right to "life, liberty and
security of the person." In declaring that the limitation on billing
numbers was not reasonable under section 1, the court referred to the
section 7 right of "liberty" to move within the province in
order to practise a profession when qualified, and came close to advocating
a "right to work." In its analysis of section 6 and interprovincial
mobility rights, however, the court relied primarily on the fact that
Dr. Mia was subjected to differential treatment because of her province
of previous residence. Granting a preference to some physicians on the
basis of their residence in British Columbia, or similar criteria such
as length of residency in British Columbia or post-doctoral experience
in British Columbia, impaired Dr. Mias mobility rights. The fact
that she remained entitled to practise without pay or with direct payment
by patients was not relevant, since section 6(b) protects the right to
pursue the gaining of a livelihood or to practise on a viable economic
1991, the Prince Edward Island Court of Appeal considered a reference
on the constitutionality of regulations made under the provincial Veterinary
Assistance Act. Certain designated clinics received a subsidy for
veterinary services to livestock; this created what the court referred
to as a "preferred class" of veterinarians. A veterinarian who
moved to PEI from Ontario to establish an equine practice was duly licensed
and sought to have his clinic designated. Because there was no procedure
for designating additional clinics, he was unsuccessful. Citing Mia,
among other cases, the court found that the right to pursue a livelihood,
free of laws that discriminate on the basis of residence, "must not
be rendered illusory and ineffective by provincial regulations which erect
barriers or create preferences." Although the court found that the
regulations violated section 6(2), it did not address the issue of whether
they could be justified under section 1, since that was beyond the scope
of the reference.
the other hand, in 1993, the same Court of Appeal held to be valid those
provisions in the Public Accounting and Auditing Act that restrict
the practice of that profession to members of the Institute of Chartered
Accountants of Prince Edward Island. The trial judge had struck down the
limitations as violating sections 2(b) (freedom of expression), 6(2),
and 7 (life, liberty and security of the person) of the Charter. The Appeal
Division referred to both Skapinker and Black in finding
that a province may regulate a profession, as long as it does not discriminate
on the basis of residence. Their decision was approved by the Supreme
Court of Canada in 1995 (Walker).
1997, the British Columbia Supreme Court returned to the issue of medical
billing restrictions. In Waldman, the court dealt with a system
that restricted the chargeable fees of new physicians unless they were
practising in an underserviced area. New practitioners trained in the
province were exempt under a "grandfathering" provision. The
court held that the proposed system categorized physicians on the basis
of province of training, and therefore discriminated on the basis of province
of residency. However, the court also held that there was no "liberty"
under section 7 protecting the right of a person to practise a profession;
any such arguments, it reasoned, had been overruled by the Supreme Court
of Canada when it adopted the reasoning of the Prince Edward Island Court
of Appeal in Walker.
2. Self regulated Professions
Black v. The Law Society of Alberta, the Supreme Court of
Canada again considered section 6 and provincial law society requirements.
Deciding that a purposive approach to the Charter dictated a comprehensive
approach to mobility rights, the court held that section 6 was designed
to protect the right of a citizen, or a permanent resident, to move about
the country, to reside where he or she wishes, and to pursue his or her
livelihood without regard to provincial boundaries. The court also held
that a person can pursue a livelihood in a province without being there
Black was the pre-eminent partner in the firm Black & Co., of which
all the partners were members of the Law Society of Alberta. Only some
of the partners, however, lived in Calgary, while the others were residents
of Toronto. In anticipation of such an inter-provincial or national law
firm, the Law Society of Alberta had passed two Rules: Rule
which prohibited any Alberta resident from entering into any arrangement
to practise law with anyone not ordinarily resident in Alberta; and Rule
75B, which stated that no member could be associated with more than one
Alberta Court of Appeal had ruled that Rule 154 violated both sections
6(2)(b) and 2(d) of the Charter, and was not saved by section 1. Rule
75B did not violate section 6(2)(b), but did violate section 2(d), freedom
of association, and was likewise not saved by section 1 since it interfered
more than was essential with the Charter right.
Supreme Court of Canada agreed that both rules were invalid, but based
its decision only on section 6. In so doing, it took a broad approach
to mobility rights that included both a historical review of interprovincial
mobility and a summary of the existing cases. The court stated that a
dominant intention of the drafters of the British North America Act
(now the Constitution Act, 1867) was the creation of a national
economy through economic union. Through the creation of a central government,
the trade and commerce power, section 121 (prohibiting interprovincial
tariff barriers) and the building of a transcontinental railway, internal
barriers to mobility were to be pulled down and economic integration achieved.
provinces, or provincial bodies, are free to regulate professions, but
(subject to sections 1, 6(3) and 6(4) of the Charter) cannot do so in
terms of provincial boundaries. Additionally, the effect of the legislation
must be considered as well as the object. Thus, although the object of
Rule 75B might be to prevent conflict-of-interest situations, the effect
would be to discourage interprovincial law firms with non-resident lawyers.
the decision in Black strongly upholds a broad interpretation of
mobility rights. Although it is limited on the facts to the regulation
of professions, the historical review suggests that section 6 might extend
to a wide range of interprovincial economic barriers.
society requirements have featured in a number of other section 6 cases.
In the Malartic Hygrade Gold Mines case, a lawyer from outside
Quebec wished to receive a permit to allow him to defend a client within
the province of Quebec. This would have offended Quebec provincial legislation.
The court held that the legislation preventing a lawyer from occasional
practice in Quebec was constitutional as being a law of general application
which did not discriminate primarily on the basis of province of residence.
Rather, any barrier thrown up by the legislation was based on the sound
administration of justice; in matters other than federal matters, Quebec
has the civil law system and not the common law system in force elsewhere
in Canada. It was not unreasonable to prohibit lawyers who are not members
of the Bar of Quebec from occasionally arguing cases before the Quebec
in 1992, a Quebec court struck down a requirement that precluded members
of any other bar in Canada from sitting the special admission examination
set by the Barreau du Québec, unless they had previously practised for
at least three consecutive years. The court could find no rational link
between the requirement and the objective of protecting the public by
assuring professional competence. A year later, a New Brunswick court
approved a more liberal scheme whereby lawyers from another jurisdiction
who had practised for less than three of the last five years were required
to spend six months as a student-at-law and, subject to the approval of
council, either successfully complete the Bar Admission Course or pass
the Bar Exams.
1989, the Saskatchewan Court of Appeal confirmed in Taylor that
section 6 does not prevent a province from regulating professions, as
long as there is no discrimination based on province of residence. An
accountant who had been admitted to the Institute of Chartered Accountants
of Ontario on the basis of having passed the examinations of the American
Institute of Certified Public Accountants also applied for membership
in the Institute of Chartered Accountants of Saskatchewan. He was turned
down on the grounds that the American examinations did not meet the Saskatchewan
criteria for professional qualifications. He was required instead to pass
the Uniform Final Examination, a national Canadian examination. The court
held that the issue was one of professional qualifications alone, and
had nothing to do with either present or past place of residence.
the Saskatchewan Court of Queens Bench invalidated a by-law of the
Saskatchewan Land Surveyors Association requiring all surveyors who practised
in the province to maintain an office there. The by-law was found to violate
section 6(2) of the Charter because it had an unjustifiably discriminatory
effect on out-of-province surveyors.
D. Marketing and
respect to marketing and trade more generally, in early 1996 the Northwest
Territories Court of Appeal handed down a decision against the Canadian
Egg Marketing Agency, largely based on section 6 of the Charter. The regulatory
scheme governing the interprovincial sale and export of eggs did not provide
a quota for eggs produced in the Northwest Territories because there had
been no egg production there when the scheme was established in 1972.
Negotiations for the admission of the Northwest Territories into the egg
marketing scheme date back to 1984, but never reached a satisfactory conclusion.
In 1992, the Canadian Egg Marketing Agency (CEMA) sought an injunction
preventing two territorial producers from marketing their eggs in interprovincial
or export trade.
court found that both the mobility rights and the freedom of association
of the two egg producers were violated by the marketing scheme, although
the breach of freedom of association was strongly linked to the fact that
economic associations were necessary to implement the producers
right, under section 6, to sell in interprovincial markets.
court did not question the right of government to regulate the ability
of producers to sell eggs interprovincially, but found that the absence
of a quota amounted to a prohibition rather than regulation. Thus a person
producing eggs in the Northwest Territories is prevented from earning
a living in other provinces because he or she can never obtain a quota
to sell eggs outside the Northwest Territories. This violates the right
to earn a living in any province, and the right for a citizen to be treated
equally in his or her capacity as a citizen throughout Canada.
for whether the breach could be justified under section 1, the court specifically
rejected two arguments made by CEMA: that the scheme is designed to ensure
fairness, and was indeed fair to all except two producers in the Northwest
Territories; and that orderly marketing of eggs in Canada is best achieved
through the use of a "historical production" system. In response
to the first argument, the court pointed out that the Charter exists to
protect those whose rights might be infringed, many of whom belong to
minorities. The fact that the size of the group protected by the provision
is larger than the size of the groups whose rights are infringed in no
way changes this situation. As for the "historical production"
argument, the court found it difficult to see how a scheme that was essentially
exclusionary in nature could be justified on the grounds that the exclusion
remedy chosen by the court was to exempt all egg producers in the Northwest
Territories from the interprovincial and export aspects of CEMAs
egg marketing scheme. Although CEMA argued that such an exemption would
wreak havoc with the present orderly market, the court could not accept
this argument, in view of the tiny level of production existing in the
New Brunswick Court of Appeal ruled in McDermott v. Nackawic
that a bylaw which requires full-time and permanent employees to live
within town limits does not violate the mobility rights sections of the
Charter, on the basis that the Charter protects only interprovincial mobility
rights, and not intraprovincial mobility rights.
Saskatchewan Unified Family Court, in Kingsbury, held that the
order of the Minister of Social Services ordering that a child be returned
to the home of her guardian in another province did not violate the childs
right to move and take up residence in any province. That right, provided
by section 6(2)(a), was subject to the reasonable limit of the legal guardians
right, prescribed by law, to determine where the child shall live. In
Ontario, the Court of Appeal decided in Parsons v. Styger
that a child who is a citizen of Canada, and who has been wrongfully removed
from another country within the meaning of the Hague Convention on
the Civil Aspects of International Child Abduction, is not granted
by section 6 the right to remain in Canada in defiance of the Convention.
cases have ruled that residency requirements under the electoral laws
of a province or territory do not violate section 6 of the Charter, and
that any such cases should be dealt with under section 3 (voting rights)
from Alberta, Ontario and Quebec have upheld civil procedure rules which
allow courts to order that non-resident parties give security for costs
in civil proceedings.
early 1994, a decision of the Prince Edward Island Supreme Court ruled
that legislation setting a different real property tax for resident and
non-resident owners of noncommercial property did not violate section
6(2). Under the legislation, taxpayers who resided in the province for
at least six consecutive months were entitled to a rebate. The court held
that, although this benefit might constitute an incentive to stay in the
province, it did not affect the right of persons to move to, or work in,
Gerald-A. and Ed Ratushny (eds). Canadian Charter of Rights and Freedoms.
2nd ed. Carswell, Toronto, 1989.
Dale. The Law of the Charter: General Principles. Carswell, Toronto,
Peter W. Constitutional Law of Canada. Carswell, Toronto, 1982.
v. Attorney-General of Nova Scotia (1984), 11 D.L.R. (4th) 219
v. Law Society of Alberta,  1 S.C.R. 591
Egg Marketing Agency v. Richardson
(1996), 132 D.L.R. (4th) 274 (N.W.T.C.A.)
v. Simpson Sears Ltd.,  4 W.W.R. 673 (A.C.A)
v. Saskatchewan Land Surveyors Association (1992), 91 D.L.R. (4th)
Amusement (N.B.) Ltd. v. Atlantic
Lottery Corp. (1991), 115 N.B.R. (2d) 429, (Q.B.)
Shapiro Holdings v. Nathan
Tessis and Associates (1986), 27 C.R.R. 161 (O.S.C.)
Equine Clinic Ltd. v. Prince
Edward Island (1991), 81 D.L.R. (4th) 350 (P.E.I.C.A.)
v. Minister of Social Services for the Province of Saskatchewan
(1982), 4 C.R.R. 151 (S.U.F.C.)
v. Barrette (1988), 59 D.L.R. (4th) 200 (Q.C.A.)
Society of Upper Canada v. Skapinker,
[l984] 1 S.C.R.357
v. Prince Edward Island (1994), 112 D.L.R. (4th) 711 (P.E.I.S.C.)
v. Town of Nackawic (1988), 53 D.L.R. (4th) 150 (N.B.C.A.)
v. Malartic Hygrade Gold Mines Ltd. (1982), 142 D.L.R. (3rd) 512
Mia and Medical Service Commission of British Columbia
(1985), 17 D.L.R. (4th) 385 (B.C.S.C.)
v. Barreau du Québec,  R.J.Q. 2847 (S.C.)
v. Institute of Chartered Accountants of Saskatchewan (1989), 59
D.L.R. (4th) 656 (S.C.A.)
States of America v. Cotroni,
 1 S.C.R. 1469
v. British Columbia (Medical Services Commission) (1997), 150 D.L.R.
(4th) 405 (B.C.S.C.)
v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (P.E.I.C.A.),
affd  2 S.C.R. 407
* The original version of this Current Issue Review
was published in September 1990; the paper has been regularly updated
since that time.