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Charter - s.6 Mobility Rights (2). Taylor v. Newfoundland and Labrador [mobility]
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court summarized this Charter s.6 ['Mobility Rights'] case:[1] Mobility rights sit at the heart of what it means to be a free person. The ability to move freely throughout one’s country, without restriction or need for government authorization, often differentiates a liberal democracy from an authoritarian dictatorship. This appeal asks whether an interprovincial travel restriction, adopted during the early days of the COVID-19 pandemic, unjustifiably infringed Canadians’ constitutionally protected freedom of movement. We answer that it did not. The travel restriction limited the constitutional right to free movement, but Newfoundland and Labrador has shown it was demonstrably justified.
[2] Broad mobility rights have existed at common law for almost a thousand years. At Confederation, these common law rights were embedded into Canada’s legal and cultural framework. Since then, and with a few bleak exceptions, Canadians have enjoyed the freedom to move throughout this country for travel, work, or to take up residence. Similar mobility rights are protected under international law, and feature in the constitutional jurisprudence of other rights-respecting democracies. And in 1982, they were constitutionally entrenched in our own constitution, under s. 6 of the Canadian Charter of Rights and Freedoms.
[3] This Court’s jurisprudence on s. 6 has emphasized the importance of free mobility to personal autonomy, identity, and dignity. We have also recognized that protecting the right of all Canadians to move freely within this country promotes national unity and national identity.
[4] Before the pandemic, no Canadian court had been asked to recognize a Charter right to travel across provincial borders. The freedom to travel throughout the country as one desired, without government-imposed barriers, was seen as a given — an entitlement so central to our way of life that most Canadians likely assumed that it was already judicially recognized. Yet basic principles are often tested by exceptional circumstances, and that assumption came into sharp focus during the COVID-19 pandemic in Canada.
[5] The COVID-19 pandemic that hit the world in 2020 was an indisputable public health emergency. The virus was infectious and deadly. Canada confirmed its first case of the virus in January 2020. In the pandemic’s early stages, governments grappled with the difficult yet urgent task of developing lifesaving measures in the face of limited and changing information. By September 2024, when Health Canada discontinued statistical reporting, millions of Canadians had been infected with the virus, and 60,871 Canadians had died of it.
[6] Canadians expected their governments to respect their rights and freedoms. Canadians also expected their governments to protect them from harm and save lives during an emergency. The pandemic placed those two imperatives in tension. Governments across Canada restricted personal rights and freedoms to limit person-to-person contact and combat the spread of the deadly virus.
[7] This appeal relates to one such restriction — a partial travel ban imposed in Newfoundland and Labrador.
[8] In May 2020, the Chief Medical Officer of Health (CMOH) of Newfoundland and Labrador ordered that non-residents of the province — including Canadians living in other provinces and territories — be prohibited from entering the province, subject to narrow exceptions. Only the CMOH retained the discretion to authorize non-residents to enter in extenuating circumstances. Thus, the freedom of Canadians to travel across provincial borders became subject to government authorization.
[9] In May 2020, the appellant, Kimberley Taylor, attempted to enter Newfoundland and Labrador, where her mother had died unexpectedly. She wanted to attend the burial, grieve with her family, and help her elderly father. But as a non-resident of the province, she was denied permission to enter. She requested an exemption from the relevant authorities, who took 10 days before authorizing her entry into the province. Ms. Taylor, joined by the Canadian Civil Liberties Association (CCLA), seeks a declaration that this travel restriction unjustifiably violated s. 6 of the Charter. The province resists. First, the province denies that s. 6 — the “Mobility Rights” or “Liberté de circulation et d’établissement” section of our Charter — guarantees a right to move across provincial borders for temporary travel. In the alternative, it submits that their travel restriction was a justified infringement under s. 1 of the Charter.
[10] We conclude that the s. 6 “mobility rights” of the Charter guarantee Canadian citizens and permanent residents the right to travel freely throughout Canada, including across provincial borders. Laws that prevent free movement, or which make movement contingent on government approval, infringe s. 6. Newfoundland and Labrador’s travel restrictions did just that.
[11] As with all laws that limit rights, the government can seek to justify the limit under s. 1. While travel bans and other significant infringements on mobility will generally not be justifiable in a free and democratic society, this was a grave emergency. That said, a public health emergency does not give the government free rein to suspend fundamental rights and freedoms. Courts must still rigorously review emergency measures for Charter compliance under the proportionality analysis outlined in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.
[12] We conclude that Newfoundland and Labrador’s travel restrictions pass scrutiny under Oakes. Travel restrictions were a reasonable component of a comprehensive government response to the extraordinary crisis of the pandemic — especially its early stages. The record shows that Newfoundland and Labrador had a population that was uniquely vulnerable to COVID-19, and a low capacity to provide medical treatment in case of widespread illness. Other Attorneys General intervened to emphasize the limited options open to smaller, more isolated provinces and territories. In these circumstances, the province justifiably chose to enact significant restrictions on movement to minimize the spread of the virus into its borders in the first place. It has demonstrated that no less-infringing alternative measure would have achieved its aim. In these circumstances, the benefits of saving lives and protecting health outweighed the temporary limits on free movement.
[13] The public health restrictions enacted during the COVID-19 pandemic exist now only in memory. This case is therefore moot. But unlike the Court of Appeal, we exercise our jurisdiction to hear this important case on its merits. We agree with the application judge’s conclusion that the challenged travel restrictions were constitutional, although we would recognize that the laws in question limited s. 6(2), in addition to s. 6(1) of the Charter. Accordingly, we would allow the appeal in part. . Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court broadly considers Charter s.6 ['Mobility Rights'], as a matter of 'first instance':B. The Travel Restrictions Infringed the Right of Mobility Under Section 6(1) and (2) of the Charter
[64] This is a question of first instance for our Court. While we have interpreted other aspects of the mobility rights section of the Charter, such as the right to interprovincial mobility for the purpose of pursuing a livelihood, we have never been asked to interpret whether s. 6 includes a right of movement simpliciter — that is, a right to travel freely within Canada for any purpose, including within and across provincial borders. As the respondents conceded at oral argument, most Canadians would naturally assume that this right exists (transcript, at pp. 62-63).
[65] The parties and interveners divided on whether the right exists at all, and on its constitutional source if it does. Some suggested it is protected by s. 6(1), which applies only to citizens. Others invoked s. 6(2), which applies to citizens and permanent residents, but can be limited by provincial laws as described in s. 6(3). In our view, a broad right to mobility simpliciter is foundational to s. 6 as a whole. Subsections (1) and (2) focus on different aspects of the right of free movement; s. 6 as a whole is most coherent if a broad right to move freely is understood as underlying the more specific rights in both subsections.
[66] As we explain, s. 6 guarantees broad rights of mobility and establishment. Like all Charter rights, we must interpret s. 6 in light of the interests it protects. Freedom of movement has always played a key role in the Canadian constitutional tradition. It also features prominently in international human rights and comparative constitutional law, the jurisprudence on related Charter rights, and in the clear text of s. 6.
[67] Section 6 protects the foundational interest of a person’s freedom to choose where to be at any given time. Freedom of movement, without constraint or coercion, is essential to individual autonomy, dignity, and self-realization. It lies at the heart of the Canadian understanding of a free and democratic society — a political tradition that does not curtail movement, impose curfews, or require people to carry identity papers in public. Freedom of movement also supports national unity within the diverse Canadian federation. Section 6 recognizes that the freedom of Canadians to move freely within Canada, subject to the distinct laws of different provinces, promotes a sense of national unity and kinship, furthering the nation-building objective of the Charter itself. All of these interests unite s. 6’s guarantees of rights to move, whether for travel, residence, or work.
[68] Applying a purposive methodology, we conclude that s. 6 guarantees a right to move freely within Canada, including across provincial borders, to both citizens and permanent residents. Generally, any law that limits, in a non-fleeting or non-trivial fashion, these persons’ ability to move within Canada, or which makes such movement contingent on state authorization, will infringe s. 6.
[69] Recognizing this right does not mean recognizing an absolute or unlimited guarantee of free movement. Section 6 contains its own requirements and, like all Charter rights and freedoms, it is subject to reasonable limits, including those necessary to protect public safety, health, or the rights of others. But given the fundamental importance of free movement within Canada, the onus is firmly on the state under s. 1 of the Charter to justify them. . Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court consider Charter s.6(1) ['Mobility of citizens' (from and return to Canada)]:(4) Section 6(1) Guarantees Citizens a Right to Move Throughout Canada Without Restriction
[152] As a preliminary point, some submissions made to this Court seemed to presume that any right to move freely throughout Canada could only be contained in one of s. 6(1) or (2), but not both. We reject this suggestion. This Court has previously recognized overlapping protections of the same right in multiple sections of the Charter (see, e.g., Re B.C. Motor Vehicle Act, at pp. 502-3; John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, at paras. 78 and 80). Indeed, there are other instances of overlapping protections within a single section of the Charter, such as the guarantees for freedom of religion and freedom of expression under s. 2(a) and (b) (see, e.g., R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 66). The two subsections of s. 6 protect both overlapping and different classes of people, and there is no principled reason they cannot protect overlapping but also different aspects of mobility rights.
[153] As we explain, the overlapping protection of free movement within both subsections recognizes the right’s fundamental character. Each subsection addresses additional, related entitlements that build on the central right of mobility. Section 6(1) also addresses the rights of citizens against exile and banishment, and s. 6(2) addresses the entitlement of citizens and permanent residents to establish residency and pursue a livelihood, and the provincial capacity to regulate these matters. Thus, s. 6’s mobility protections can be read harmoniously, addressing different aspects of the broad right that is foundational to the entire section.
[154] Section 6(1) guarantees all citizens of Canada the right “to enter, remain in and leave Canada”. The parties focus on whether the right to “remain in . . . Canada” guarantees a right to travel across provincial borders.
[155] The respondents say it does not. To support that conclusion, they invoke this Court’s statements on the purpose of s. 6(1) in Cotroni. They argue that because Cotroni describes the “central thrust of s. 6(1)” as a right “against exile and banishment, the purpose of which is the exclusion of membership in the national community” (pp. 1481-82), interprovincial travel is outside the scope of the right. Cotroni held that “the infringement to s. 6(1) that results from extradition lies at the outer edges of the core values sought to be protected by that provision” (p. 1481). So, the respondents argue, a right of interprovincial travel “falls off the edge” (R. F., at para. 49, quoting Divito, at para. 47).
[156] But Cotroni did not interpret s. 6(1) so narrowly. It did not purport to exhaustively determine s. 6’s underlying interests and purposes. Still less did it purport to restrict them exclusively to protections against removal of some kind: La Forest J. was explicit that the right to “remain in . . . Canada” must mean something more than a simple right against exile (p. 1481). Cotroni involved a challenge to an extradition order, so the fact that the Court did not stray beyond that factual matrix to pronounce on other possible contexts in which s. 6(1) might apply does not mean there are no entitlements naturally associated with “remain[ing] in” Canada.
[157] Citing to a dictionary, the respondents argue that “[o]n a purely textual level” the right to “remain in . . . Canada” means only a right “to stay in the same place or condition” (R.F., at para. 46, citing the English definition of “remain” in the Cambridge Dictionary (online)). On this argument, Ms. Taylor had a right to remain within Nova Scotia, but not to travel to Newfoundland and Labrador.
[158] The respondents’ rigidly textualist argument cannot succeed. First, it is an error to interpret the Charter by simply turning to a dictionary. It does not give due effect to the broad human rights-oriented interest in respecting the freedom of persons to choose where they want to be.
[159] Even the neighbouring text of s. 6(1) does not support this narrow approach. The right “to remain” attaches to “Canada”, not to one’s province of residence. The right to remain within Canada naturally connotes a right to move freely within the country as a whole — not just within whatever province one happens to occupy. And sometimes, a right to remain somewhere also entails a right to freely move about that place. The application judge noted that in ordinary speech, a reasonable person would understand a right “to remain” in one’s house to include a right “to wander freely from room to room” (para. 353). That analogy aptly applies to the meaning of a right to “remain in” Canada: like a right to remain in one’s house, a right to remain in Canada comes with an entitlement to move freely around the country.
[160] Indeed, the language of s. 6(1) is broad: the right to enter, remain in, and leave Canada. “Canada”, as it appears in s. 6(1), has the features that our legal tradition has always attributed to the land over which sovereignty extends. In Blackstonian terms, it is a place where the “personal liberty [which] consists in the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment, or restraint, unless by due course of law”, is “a right strictly natural” (p. 134). Or, as Rand J. put it, it is a place where — at least as a general matter — “a province cannot prevent a Canadian from entering it” (Winner, at p. 920). Because Canada is such a place, it follows that a right to “remain in” it includes a right to move freely around it.
[161] The interprovincial dimension of s. 6(1) is further grounded in the words “enter” and “leave”, as in the right “to enter, remain in and leave Canada”. These international elements of the right necessarily imply movement within Canada. For instance, one might need to cross provincial borders to leave the country or, after entering Canada, to return home. This shows that s. 6(1) provides more than a mere right to enter and exit. Rather, it clearly contemplates and requires an element of free travel within Canada, including across provincial borders.
[162] This understanding of s. 6(1) also accords with the heading of the provision. The heading is “Mobility of citizens” in English or “Liberté de circulation” in French. Such broad headings, which refer to movement in general, do not imply that s. 6(1) is limited in scope to international travel and the prevention of exile. Rather, they denote wider rights to move anywhere, inside or outside the country.
[163] Section 6(1) mirrors the language of Article 12 of the ICCPR, which this Court has called the “international law inspiration” for s. 6(1) (Divito, at paras. 24-27). Article 12 of the ICCPR protects, in different subsections, a citizen’s right to enter their own country (art. 12(4)); to liberty of movement and to choose residence within any country in which they are lawfully present (art. 12(1)); and to leave any country (art. 12(2)). This mirrors a citizen’s right under s. 6(1) to “enter, remain in and leave” Canada. The words “remain in” within s. 6(1) must be given separate meaning, as they are in the ICCPR. Because Canada has ratified the ICCPR, the Charter’s mobility protections are presumed to conform with those in Article 12 (9147-0732 Québec inc., at para. 31). It follows that the ICCPR’s protection of free movement provides another reason to conclude that a right to “remain in” Canada includes a right to move freely within Canada, including across provincial borders.
[164] The Attorney General of Saskatchewan urges that if this Court finds that there is a right to interprovincial travel within s. 6 of the Charter, this right should be found in s. 6(2), but not in s. 6(1). Saskatchewan says this is important, since s. 6(3) does not apply to s. 6(1), and without the protection of s. 6(3)(b), provinces will have to provide social services to temporary travelers within their borders.
[165] This concern is unfounded. A right to travel is just that — a right to travel. In holding that governments cannot restrain citizens from travelling within the country, we do not hold that provinces are positively obligated to provide specific social services to travelers. As we will explain in our discussion of s. 6(2), there is good reason to doubt that s. 6(3) would permit a government to limit interprovincial travel that is unrelated to establishing residency or pursuing a livelihood. And even if s. 6(3) could operate in that manner, governments could potentially limit this right under s. 1, where justifiable in a free and democratic society.
[166] In light of these considerations, an interpretation of the right to “remain in . . . Canada” that most effectively promotes the purposes of s. 6’s mobility rights interest includes a right to move within Canada, including within and across provincial borders, without state restraint or a requirement for state authorization. The text of s. 6(1) naturally bears this broad, generous interpretation. So too do the history of the concept the provision enshrines, the emphasis the Charter otherwise places on free movement, and the presumption of conformity with international human rights instruments.
[167] A narrow interpretation of s. 6(1) is not available, even on textualist grounds. Applying the purposive methodology of Charter interpretation, we have no hesitation in concluding that s. 6(1) of the Charter guarantees Canadian citizens a right to move freely within Canada, including across provincial borders. Government actions that limit the ability of Canadians to move freely within Canada, except in a fleeting or trivial fashion, or make such movement contingent on state authorization infringe s. 6(1) of the Charter. . Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court consider Charter s.6(2) ['Rights to move and gain livelihood' (amongst provinces)]:(5) Section 6(2) Guarantees a Right for Citizens and Permanent Residents to Move Throughout Canada Without Restrictions
[168] The appellants argue that s. 6(2)(a) also guarantees a right to travel across provincial borders. They focus on the French version of the clause “de se déplacer dans tout le pays”, which corresponds in the English text “to move to . . . any province.” The appellants say this provision guarantees a right to travel throughout Canada, while Newfoundland and Labrador argues that it only protects a right to move for purposes of taking up residence.
(a) The Text of Section 6(2) Supports a Right to Move Throughout Canada
[169] A bilingual interpretation of s. 6(2) shows it has a wide purpose and a broad scope, and guarantees the right to both move about the country and to establish a residence in any province. Recall that the French version of s. 6(2)(a) guarantees citizens and permanent residents a right “de se déplacer dans tout le pays et d’établir leur résidence dans toute province”. The ordinary meaning of the French “de se déplacer dans tout le pays” connotes a right to travel freely throughout Canada, and does not necessarily require any intent to settle in a location (H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. III.114). This language is broader than a term like “déménager”, whose ordinary meaning is to move to a place for the purposes of establishing residence. The text of s. 6(2)(a) thus speaks to two distinct rights: (1) the right to travel throughout the country; and (2) the right to establish residence in any province.
[170] Nothing in the French text suggests that the second right qualifies or limits the first. The word “et” naturally functions as a coordinating conjunction that expands the list of rights protected. It does not limit the scope of the right that comes before it. Each right separated by “et” refers to a different place: the first gives a right “de se déplacer dans tout le pays” (to travel throughout Canada), whereas the second guarantees a right “d’établir leur résidence dans toute province” (to establish residence in any province). If section 6(2)(a) merely provided a right to establish residence in any province, then it would be unnecessary, and indeed quite illogical, to simultaneously provide a right to travel throughout the whole country.
[171] The Charter is also replete with provisions that contain several distinct rights within a single sentence, which are separated only by the word “and” and “et”. For example, s. 7 affords the right to “life, liberty and security of the person” (“à la vie, à la liberté et à la sécurité de sa personne”). Similarly, s. 3 guarantees the right to “vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein” (“de vote et [d’être] éligible aux élections législatives fédérales ou provinciales”). This Court has never understood the mere use of the word “and” or “et” to internally qualify these rights in relation to one another (see, in the context of s. 7, Re B.C. Motor Vehicle Act, at p. 500; and, in the context of s. 3, Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, at para. 23).
[172] Newfoundland and Labrador argues that the English text “to move to and take up residence in any province” is more ambiguous, and refers only to a right to move to a different province to take up residence. But the English text of s. 6(2)(a) can support the dual rights approach that is clear in the French text. And as we have explained, bilingual Charter interpretation does not look to the narrowest, shared meaning of the texts. Adopting a narrow interpretation would ignore the clear breadth of the French text, and render the English “to move to and take up residence in any province” repetitive and redundant, since the right “to move to” would add nothing to the right to “take up residence in”. The text of s. 6(2)(a), in both authoritative language versions, indicates that this clause protects distinct but related rights of travel and establishment.
[173] Section 6(2)’s subheadings also diverge between the French and English texts. In French s. 6(2) is found under the sub-heading “Liberté d’établissement”, while in English it is described as “Rights to move and gain livelihood”. Both the English and French subheadings of s. 6(2) are equally authoritative interpretive aids. They are both entitled to weight in interpreting s. 6(2), although this Court has held that subheadings are generally of less value than headings in Charter interpretation (R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at p. 558).
[174] While the French subheading may suggest a focus on establishment rather than travel, this subheading cannot narrow the scope of the guarantee, given the clear breadth of the French text. As well, the English subheading recognizes an unqualified “right to move”. Collectively, when read together, they point towards rights to move, gain livelihood, and to establish oneself in a new province. This is consistent with our understanding of the bilingual text. An establishment-only interpretation would also not offer the most generous available protection of s. 6(2)’s purposes, as is required by the methodology for bilingual constitutional interpretation set out above.
(b) The Jurisprudence on the Purpose of Section 6(2) Supports a Right to Move Throughout Canada
[175] This Court’s limited precedents on s. 6(2) relate to the employment context, and have discussed its purposes in terms of personal dignity and fulfillment. These precedents echo the twin purposes of the mobility interest underlying s. 6 as a whole that we have identified and articulated above.
[176] Skapinker was the first Charter case to be adjudicated by this Court. The applicant, a permanent resident, challenged a provision of the Law Society Act, R.S.O. 1980, c. 233, that limited membership to the bar to Canadian citizens. He argued that it violated permanent citizens’ right “to pursue the gaining of a livelihood in any province” under s. 6(2)(b). The Court rejected this interpretation. It held that finding a freestanding “right to work” in s. 6(2)(b) would bear no relation to the “mobility rights” interest of s. 6.
[177] The fact that Skapinker does not refer to a right to travel does not mean that one does not exist. This Court was not asked to interpret s. 6(2)(a) and therefore did not comment on it. The Court in Skapinker adopted a cautious approach to interpreting the new Charter, and expressly stated that it did not intend to make any binding statements of law on issues that were not strictly necessary to decide the case before it (p. 383). Whether or not s. 6(2)(a) guaranteed a right to interprovincial travel had no bearing on the dispute before the Court in Skapinker. It follows that the Court’s silence on the matter does not imply a rejection of the right.
[178] That said, Skapinker referred to the decision of the Quebec Superior Court in Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 1982 CanLII 2870 (QC CS), 142 D.L.R. (3d) 512, as “instructive” on s. 6(2) (p. 381). In Malartic, the court identified the purpose of s. 6(2) as being “undoubtedly to give Canadian citizenship its true meaning and to prevent artificial barriers from being erected between the provinces” while still allowing for regional diversity within the federation (p. 520). “In principle the Charter thus intends to ensure interprovincial mobility” (p. 521). These “instructive” statements are consistent with s. 6(2) guaranteeing more than the just the right to move residence and work across provincial borders.
[179] In Black, the Court did suggest that s. 6(2) included a right to travel. There, the applicants challenged certain rules of the Law Society of Alberta that prevented the establishment of interprovincial law firms in Alberta. Justice La Forest, at pp. 608-14, traced the history of s. 6(2) through Winner and Union Colliery. He concluded that a desire for economic unity in Canada “undoubtedly played a part” in entrenching mobility rights in the Charter (p. 612; see also J. B. Laskin, “Mobility Rights under the Charter” (1982), 4 S.C.L.R. 89, at pp. 93-94; P. Bernhardt, “Mobility Rights: Section 6 of the Charter and the Canadian Economic Union” (1987), 12 Queen’s L.J. 199; and E. S. Binavince, “The Impact of the Mobility Rights: The Canadian Economic Union — A Boom or A Bust?” (1982), 14 Ottawa L. Rev. 340). However, he emphasized that s. 6(2) protects an individual human right, and also “defines the relationship of citizens to their country and the rights that accrue to the citizens in that regard” (Black, at p. 612). This right, according to La Forest J., included the right “to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries” (p. 620).
[180] Finally, in Egg Marketing, the applicants challenged laws impeding their ability to earn a livelihood by marketing eggs in other provinces and territories. Without rigorously reviewing the indicators of s. 6’s purposes, the Court considered that s. 6 at least “embodies a concern for the dignity of the individual” (para. 60). Section 6(2) specifically promotes this interest “by guaranteeing a measure of autonomy in terms of personal mobility” (para. 60). The Court also held that s. 6(2) protects economic interests and should not be “restricted” to protecting physical movement (see para. 72). Thus, while Egg Marketing saw s. 6(2) as extending to protect a broader economic interest, it is also consistent with an understanding of s. 6(2) as protecting free movement as a means of personal autonomy, dignity, and self-fulfillment.
[181] These statements from Skapinker, Malartic, Black, and Egg Marketing are consistent with the twin purposes we have identified for s. 6’s mobility interest. While those cases focused on the economic aspects of s. 6(2), that was a result of the specific factual disputes in those cases. The more general guarantee of s. 6(2)(a), interpreted consistently with its purposes and broad underlying mobility interest, clearly supports a right to move within Canada, like s. 6(1).
(c) International Law Supports a Right to Move Throughout the Country
[182] Concluding that s. 6(2)(a) protects a right to free movement throughout Canada is also consistent with the presumption of compliance with Article 12 of the ICCPR. Notably, Article 12(1) guarantees a mobility right for “[e]veryone lawfully within the territory of a State.” It makes sense that this right would inform the content of s. 6(2) in addition to s. 6(1), because s. 6(2) also guarantees rights for permanent residents, who alongside citizens form a broader subset of those “lawfully within the territory” of Canada.
(d) The Context Surrounding Section 6(2) Does Not Derogate From its Protection of a Right to Move Throughout Canada
[183] Section 6(3) and (4) function to define the scope of the right in s. 6(2), by permitting certain laws that would otherwise limit the rights in s. 6(2). Section 6(3) recognizes that the provinces retain jurisdiction to pass laws of general application, especially as they affect residence and working environments. Consistent with a broad mobility right, however, those laws cannot distinguish based on province of residence. Section 6(4) also allows for laws that would otherwise infringe s. 6(2) for provinces with an employment rate below the national average.
[184] Given the historical record of s. 6(3)[3] and the broader context of s. 6, we would be reluctant to accept that s. 6(3)(a) permits provinces to impose general limitations (such as curfews) on the broad right of free movement, unrelated to residency or employment. Section 6(3)(b) provides further support: laws which condition social services on reasonable residency requirements have nothing to do with free movement — but they are related to where one lives. We do not accept, as our colleagues suggest, that s. 6(3) is necessarily so wide that it creates an inconsistency with our interpretation of s. 6(1) (see para. 58). The respondents do not, however, rely on s. 6(3) or (4) in defending the constitutionality of the Travel Restrictions. We need not determine the full scope and applicability of s. 6(3) and (4) to the right to travel in this case.
(e) Conclusion: Section 6(2) Protects a Right to Move Throughout Canada
[185] Accordingly, we hold that s. 6(2)(a) guarantees Canadian citizens and permanent residents a right to travel within Canada as they choose, within and across provincial borders. Subject to s. 6(3) and (4), government actions that limit the ability of Canadians to move freely within Canada, except in a fleeting or trivial fashion, or make such movement contingent on state authorization infringe s. 6(2) of the Charter.
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