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Charter - s.6 Mobility Rights (3). 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 engages in an broad overview of Charter s.6 ['Mobility Rights'] regarding interpretation, history, comparative law, national unity and more:(3) Section 6 of the Charter
[103] The application judge concluded that s. 6(1) guarantees “the right of Canadian citizens to travel in Canada for lawful purposes across provincial and territorial boundaries”, but that s. 6(2) provides no right to move across provincial borders (paras. 339 and 369). The appellants argue that he correctly interpreted s. 6(1), but erred in interpreting s. 6(2). They note that the application judge’s conclusion means that unlike citizens, permanent residents have no right to travel within Canada. By contrast, Newfoundland and Labrador argues that s. 6 contains no right for citizens or permanent residents to travel across provincial borders, except to work or take up residence. Several provincial and territorial Attorneys General intervened with their own positions on whether s. 6 contains a right to travel, and if so, whether this right is guaranteed by s. 6(1) or (2).
[104] To date, this Court has considered the purposes behind discrete aspects of s. 6(1) and (2). But we have never considered whether s. 6 includes a broad right to free movement. In this appeal, we are asked for the first time to consider the scope of s. 6(1) and (2) in the same case.
[105] We conclude the broad right of movement is guaranteed by both s. 6(1) and (2). A broad right to mobility is ancient — much older than the Charter — and would have been presumed to be part of any specific mobility rights the Charter enshrined as supreme law. The right is an underlying assumption that infuses both provisions. A right to free movement is a feature of s. 6(1) because history, international law, other related Charter provisions, and legislative debates all suggest that a right to “remain in” Canada includes a right to free movement within it. And it is a condition of s. 6(2) because an entitlement to go where you please to work or take up residence makes little sense unless you can, in general, go where you please. We shall explain.
[106] We begin by identifying the foundational interests underlying s. 6 as a whole, instead of considering each constituent part of s. 6 in isolation. The structure of s. 6 drives this interpretive approach (Skapinker, at pp. 379-80). Section 6 does not protect several independent rights, like (for example) s. 2. Rather, s. 6(1), s. 6(2), s. 6(3), and s. 6(4) are specifications of, and limits on, a broad right to mobility. So, to properly interpret s. 6(1) and (2), it is important to first understand the interests that s. 6 as a whole is designed to protect, and why it protects them. After that initial step, we turn to interpreting the scope of the guarantees in the specific provisions of s. 6(1) and (2).
(a) Text and Structure
[107] As discussed, the broad objective of the Charter is to promote individual freedom from state restraint or coercion. Section 6, like the democratic rights in ss. 3 to 5 of the Charter, is not subject to legislative override under s. 33. Thus, s. 6’s mobility rights are foundational to our society, and “[a] broad and purposive interpretation of the right is particularly critical” (Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 11; see also Divito, at para. 28). Against this backdrop, we turn to the scope of the guarantees in s. 6.
[108] Section 6 of the Charter provides:Mobility Rights
Mobility of citizens
6 (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood
(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 livelihood in any province.
Limitation
(3) The rights specified in subsection (2) are subject to
(a) 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
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
Affirmative action programs
(4) 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.
Liberté de circulation et d’établissement
Liberté de circulation
6 (1) Tout citoyen canadien a le droit de demeurer au Canada, d’y entrer ou d’en sortir.
Liberté d’établissement
(2) Tout citoyen canadien et toute personne ayant le statut de résident permanent au Canada ont le droit:
a) de se déplacer dans tout le pays et d’établir leur résidence dans toute province;
b) de gagner leur vie dans toute province.
Restriction
(3) Les droits mentionnés au paragraphe (2) sont subordonnés :
a) aux lois et usages d’application générale en vigueur dans une province donnée, s’ils n’établissent entre les personnes aucune distinction fondée principalement sur la province de résidence antérieure ou actuelle;
b) aux lois prévoyant de justes conditions de résidence en vue de l’obtention des services sociaux publics.
Programmes de promotion sociale
(4) Les paragraphes (2) et (3) n’ont pas pour objet d’interdire les lois, programmes ou activités destinés à améliorer, dans une province, la situation d’individus défavorisés socialement ou économiquement, si le taux d’emploi dans la province est inférieur à la moyenne nationale. [109] The basic structure and scope of s. 6 is clear from the text. Section 6(1) guarantees certain mobility rights to citizens. Section 6(2) guarantees certain mobility and establishment rights to citizens and permanent residents. And section 6(3) and s. 6(4) further define the rights guaranteed in s. 6(2) by stating that they are subject to specified forms of regulation (Egg Marketing, at paras. 50-54). The text of s. 6, which describes rights against exile and banishment, and rights to move for travel, residence, or work, indicates a broad underlying interest in free mobility.
[110] In Skapinker, this Court held that s. 6’s heading — “Mobility Rights” or “Liberté de circulation et d’établissement” — denotes a right to “move about, within and outside the national boundaries” (pp. 377-78). This broad indication of purpose also informs the interpretation of the entirety of s. 6.
[111] Thus, the text and structure of s. 6 points to broad rights of mobility and establishment across provincial and national borders.
[112] We turn next to other indicators of purpose: the history of mobility rights in the Anglo-Canadian legal tradition, the status of mobility rights in international law and in other constitutional democracies, the connection between mobility rights and other Charter rights, the importance of mobility rights to the promotion and preservation of national unity, and legislative debate leading up to s. 6’s enactment. We examine these indicators, recognizing as we do that s. 6’s exemption from s. 33 of the Charter justifies a particularly broad interpretation (Sauvé, at para. 11; Divito, at para. 28).
(b) Historical Foundations of Mobility Rights
[113] Mobility rights have existed in the Anglo-Canadian legal tradition for at least eight centuries. In the Magna Carta of 1215, King John promised that “[i]n future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear”, and that “[a]ll merchants may enter or leave England . . . and may stay or travel within it, by land or water . . . in accordance with ancient and lawful customs” (arts. 41-42). Thus even in the 1200s, certain mobility rights were seen as “ancient” customs.[2] Centuries later, in his Commentaries on the Laws of England (1768), Book I, William Blackstone regarded as “a right strictly natural” that “personal liberty 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” (p. 134).
[114] The Constitution Act, 1867 contains no explicit mobility rights for persons, although its preamble expressed a desire for a “Constitution similar in Principle to that of the United Kingdom”. Canadians thus inherited the common law tradition of presumptive freedom of movement — to be where one wanted to be.
[115] The Judicial Committee of the Privy Council’s interpretation of the distribution of powers between Canada’s federal and provincial governments recognized significant limits on the ability of provincial governments to restrict freedom of movement. Specifically, the Privy Council held that provinces lacked jurisdiction to enact laws whose pith and substance was to restrict the ability of “aliens or naturalized subjects” to enter, work, or reside within their borders (Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580, at p. 587; see also Cunningham v. Homma, [1903] A.C. 151 (P.C.)). These laws fell within federal jurisdiction over “naturalization” (Union Colliery, at pp. 585-86; Cunningham, at pp. 155-56).
[116] In Winner v. S.M.T. (Eastern) Ltd., 1951 CanLII 2 (SCC), [1951] S.C.R. 887, at pp. 919-20, rev’d in part 1954 CanLII 289 (UK JCPC), [1954] A.C. 541 (P.C.), but not on this point, this Court considered whether one province could prevent a long-haul bus company from making stops within its borders on its way to another province. Rand J. reviewed the Privy Council jurisprudence and identified a “right” of mobility that provincial governments could not infringe without justification (at pp. 919-20):What [the Privy Council cases] impl[y] 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. . . .
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. . . .
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. [117] Rand J. wrote only for himself in Winner, but this Court has since adopted his statement of the law (Morgan v. A.G. (P.E.I.), 1975 CanLII 162 (SCC), [1976] 2 S.C.R. 349, at p. 356; Black, at pp. 610-12; Egg Marketing, at para. 59).
[118] While courts must approach division of powers jurisprudence cautiously as an aid in Charter interpretation, this Court held in Black that Winner is a helpful source for identifying the historical tradition of mobility rights underlying s. 6 (p. 621).
[119] Thus, courts have historically regarded Canadians’ interest in mobility across Canada as transcending provincial interests, with due sensitivity to the structure of federalism. Provinces could not limit mobility in a fashion that would create enclaves, but Rand J. was careful to qualify this guarantee with the possibility of temporary limits in situations of serious local concern, including threats to health.
[120] This historical background illuminates twin purposes of the fundamental right to be where one wants to be. First, the common law’s zealous protection of individual liberty saw the right of “loco-motion” as an integral aspect of personal autonomy and self-fulfillment (Blackstone, at p. 134). Second, the Privy Council jurisprudence, as synthesized by Rand J. in Winner, points to a more communal purpose of knitting together one unified Canada, as opposed to “a number of enclaves”, while respecting the jurisdiction of the provinces in a federal state (see also T. Lee and M. J. Trebilcock, “Economic Mobility and Constitutional Reform” (1987), 37 U.T.L.J. 268, at pp. 281-83). As we explain below, these twin individual and communal purposes are also reflected in other indicators of the interests s. 6 protects, and why it protects them.
[121] The historical background of mobility rights in Canada is not unblemished. Before the Charter, the federal government had broad powers to restrict free movement. Canada adopted race-based internment policies during both world wars (P. E. Roy, Internment in Canada, last updated October 4, 2024 (online)). In Reference to the Validity of Orders in Council in relation to Persons of Japanese Race, 1946 CanLII 46 (SCC), [1946] S.C.R. 248, aff’d 1946 CanLII 361 (UK JCPC), [1947] 1 D.L.R. 577 (P.C.), this Court upheld the federal government’s internment and deportation of Japanese Canadians (see also E. M. Adams and J. Stanger-Ross, Challenging Exile: Japanese Canadians and the Wartime Constitution (2025)). Another tragic part of our history was the “pass system”, in effect on the prairies in the late 19th and early 20th centuries, which prohibited Indigenous persons from leaving reserves without approval from an Indian Affairs agent (F. L. Barron, “The Indian Pass System in the Canadian West, 1882-1935” (1988), 13 Prairie Forum 25).
[122] While we must recognize unjust episodes in our history, they do not define the contents of the rights and freedoms protected by Charter. Quite the opposite: one reason to entrench constitutional rights is to prevent the abuse of human rights that history proves is possible. Historical episodes of rights abuses can inform the kind of state activity that the Charter is designed to prevent, but they cannot be used to limit the scope of a right or freedom to cover only those abuses. The Charter is designed “with an eye to the future”, and must be interpreted for the “unremitting protection of individual rights and liberties” (Hunter, at p. 155). Its protections are not frozen in response to the abuses of the past.
(c) Mobility Rights in International and Comparative Law
[123] Mobility rights have strong protections under international human rights law, reflecting an individual’s broad right to choose to move freely.
[124] In the aftermath of the Second World War, the new United Nations General Assembly adopted the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948). Article 13(1) of the Universal Declaration of Human Rights states that “[e]veryone has the right to freedom of movement and residence within the borders of each State.” Article 13(2) states that “[e]veryone has the right to leave any country, including his own, and to return to his country.” These sweeping statements are also reflected in the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 (ICCPR), a binding international human rights treaty Canada ratified in 1976 (see W. S. Tarnopolsky, “A Comparison Between the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights” (1982), 8 Queen’s L.J. 211). As a pre-Charter instrument which informed the drafting of the Charter, the ICCPR is entitled to extra weight in the interpretive analysis (9147-0732 Québec inc., at paras. 41-42).
[125] Article 12 of the ICCPR guarantees that1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country. Because Canada ratified this binding instrument, the Charter is presumed to guarantee mobility rights at least as generous as these (9147-0732 Québec inc., at paras. 31 and 41, citing Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 349).
[126] The United Nations Human Rights Committee has interpreted Article 12(1) of the ICCPR to guarantee a right to travel within one’s country as one deems fit, including across subnational borders, and without making the right contingent on an intent to change residence (Ackla v. Togo, Communication No. 505/1992, U.N. Doc. CCPR/C/56/D/505/1992 (1996)). The Committee has also stated in its General Comment on Article 12 that “[l]iberty of movement is an indispensable condition for the free development of a person” and that “[t]he right to move freely relates to the whole territory of a State, including all parts of federal States” (General Comment No. 27: Freedom of movement (Art. 12), U.N. Doc. CCPR/C/21/Rev.1/Add.9, November 1, 1999, at paras. 1 and 5).
[127] The 1950 European Convention on Human Rights, 213 U.N.T.S. 221, is also a relevant source for Charter interpretation. As a significant rights-protecting instrument that predates the Charter, it assists in understanding what interests Charter rights are intended to protect, regardless of whether Canada has ratified it (9147-0732 Québec inc., at para. 41; L. E. Weinrib, “A Primer on International Law and the Canadian Charter” (2006), 21 N.J.C.L. 313, at p. 324). The Convention itself does not refer to mobility rights. However, mobility rights are protected under the Convention’s subsequently enacted Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those included in the Convention and in the first Protocol thereto, Europ. T.S. No. 46. Protocol No. 4 came into force in May 1968 and has been widely ratified across Europe (W. A. Schabas, The European Convention on Human Rights: A Commentary (2015), at pp. 1087-88).
[128] Article 2 of Protocol No. 4 guarantees mobility rights, including freedom of movement within a country, using essentially the same language as Article 12 of the ICCPR. This again demonstrates the high importance attached to mobility rights in international human rights law.
[129] Mobility rights also feature prominently in the constitutional traditions of other democratic, common law countries.
[130] In Black, this Court looked to the interpretation of mobility rights in the United States “to illuminate some of the points that arise under s. 6” (p. 613). Citing to the decision in Toomer v. Witsell, 334 U.S. 385 (1948), this Court noted that the Supreme Court of the United States has stated that the aim of mobility rights is to fuse the states into one federal whole, and that this national aim “was achieved by according rights to the citizen” (p. 613). More recently, in Saenz v. Roe, 526 U.S. 489 (1999), the Supreme Court of the United States held that the constitutional “right to travel” included at least three elements: (1) the right to travel from one state to another; (2) the right to be “treated as a welcome visitor rather than an unfriendly alien”; and (3) “for those travelers who elect to become permanent residents”, the right to be treated equally as with other residents (p. 500).
[131] While the Australian Constitution guarantees few explicit human rights, the courts in that country have interpreted the constitutional guarantee of free trade among the states as also guaranteeing the free movement of people. In Cole v. Whitfield (1988), 165 C.L.R. 360, the High Court held that “personal movement across a [state] border cannot, generally speaking, be impeded” (p. 393).
[132] The New Zealand Bill of Rights Act 1990 was inspired by our Charter, and the two instruments share many similarities (G. Huscroft, “Protecting Rights and Parliamentary Sovereignty: New Zealand’s Experience with a Charter-Inspired, Statutory Bill of Rights” (2002), 21 Windsor Y.B. Access Just. 111). Section 18 of the New Zealand Bill of Rights Act 1990 guarantees, for everyone lawfully within New Zealand, “the right to freedom of movement and residence” within the country. The decision in Kerr v. A.-G., [1996] D.C.R. 951, noted that the freedom to move and to take up residence where one wishes can “among other things be seen to be a bulwark against the creation of a ghetto” (p. 955).
[133] Similarly, the Irish courts have recognized an unenumerated right to free movement, arising in part from Ireland’s democratic nature. This right has been described as “one of the hallmarks which is commonly accepted as dividing States which are categorised as authoritarian from those which are categorised as free and democratic” (The State (M) v. The Attorney General, [1978] I.R. 73 (H.C.), at p. 81).
[134] We do not suggest that these examples are an exhaustive review of mobility rights across the globe. But they represent a useful and consistent expression of international judicial wisdom. In rights-respecting democracies the world over, the fundamental human value of the freedom to choose where one wants to be — without state approval — is seen as essential and worthy of constitutional protection. The American and Australian examples also reinforce the interest in free movement and residence of people as an essential driver of national unity within a large, diverse and democratic federation.
(d) The Connection to Other Related Charter Rights
[135] In interpreting other Charter rights, this Court has discussed the importance of “freedom of movement” to a free society more generally.
[136] We have held that deprivations of freedom of movement can infringe the liberty interest under s. 7 of the Charter (R. v. Ndhlovu, 2022 SCC 38, [2022] 3 S.C.R. 52, at para. 7). More directly, this Court’s arbitrary detention jurisprudence under s. 9 has described “freedom of movement” as “one of the fundamental values of our democratic society” (R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 24). We have understood s. 9 as a bulwark against “the state’s ability to interfere with personal autonomy” (Grant, at para. 21). This Court has therefore stated that “[i]nterference with freedom of movement, just like invasion of privacy, must not be trivialized” (Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 139). And freedom of movement is self-evidently an integral part of the freedom of peaceful assembly and association guaranteed in s. 2(c) and (d) of the Charter.
[137] The pervasiveness of freedom of movement elsewhere in the Charter echoes the common law’s longstanding and zealous protection of mobility rights. Our cases interpreting those provisions reveal a concern not only with physical restraint, but with the interference with personal autonomy inherent in any deprivation of a person’s entitlement to decide where they want to be.
(e) Mobility Rights and National Unity
[138] The Charter was designed and intended to promote national unity in Canada. It is a distinctively “made in Canada” instrument (Prime Minister P. E. Trudeau, Federal‑Provincial Conference of First Ministers on the Constitution (morning session of November 2, 1981), at p. 10; Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at pp. 178-79). The Charter was central to the project of patriation, by which Canada took full ownership of its Constitution and “reaffirmed the principles upon which the Confederation of 1867 had been based: democracy, federalism, respect for minorities and accommodation” (B. McLachlin, Defining Moments: The Canadian Constitution, February 13, 2014 (online)).
[139] The political scientist Peter H. Russell wrote in 1983 that the first “political purpose” of the Charter was to “offset, if not reverse, the centrifugal forces which some believe threaten the survival of Canada as a unified country” (“The Political Purposes of the Canadian Charter of Rights and Freedoms” (1983), 61 Can. Bar Rev. 30, at p. 31). While he expressed some skepticism that the Charter could succeed in this goal, he predicted that through uniform judicial protection of rights, “the Charter may well turn out to be a nation-building instrument” (p. 41). Peter W. Hogg and Wade K. Wright echo this conclusion, concluding that in setting a standard for rights across Canada, the Charter “adds a dimension of allegiance to Canada as a whole that did not exist before 1982. The Charter is to that extent a unifying instrument” (Constitutional Law of Canada (5th ed. Supp.), at § 36:3).
[140] By its very nature, the Charter is an instrument of national unity and identity. But the Charter does not expand the legislative powers of any level of government (s. 31). The purpose of the Charter is not to give the state new powers in pursuit of a nation-building objective (Hunter, at p. 156). Rather, the Charter is premised on the bold prediction that protecting individual rights and freedoms promotes Canadian unity and sovereignty. The Charter pursues that national goal by protecting a common set of rights and freedoms for all Canadians.
[141] Set against that backdrop, the ability to move around within our vast country allows each Canadian to view themselves as members of a collective whole, and not merely as an individual within a local or regional community. We therefore agree with the growing academic consensus that s. 6 plays a unique role in service of the Charter’s overall nation-building objective (G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at §27.3; Hogg and Wright, at § 36:3; S. Choudhry and R. Stacey, “Independent or Dependent? Constitutional Courts in Divided Societies”, in C. Harvey and A. Schwartz, eds., Rights in Divided Societies (2012), 87, at pp. 107-8; Russell, at p. 38).
[142] This said, s. 6 exists within a federalist constitutional framework. Section 6(3) ensures that provinces can continue to enact laws of general application that affect those within their borders, even if they incidentally affect mobility. This caveat recognizes that s. 6 is designed to promote national unity while embracing a diversity of approaches and respecting provincial difference within a federal union.
[143] One purpose of the mobility rights interest protected by s. 6 is thus to promote national unity and a sense of national identity among Canadians, sensitive to the federal nature of Canada.
(f) The Legislative Debates Behind Section 6
[144] As a final indicator of the purposes of s. 6’s protection of Canadians’ interests in free movement, we consider the legislative debates leading to the adoption of the Charter.
[145] When discussing the proposed draft of s. 6, Parliamentarians spoke to the benefit of mobility rights for individual freedom and national unity. Indeed, they often tied these two ideas together.
[146] For instance, Jean Chrétien, then the Minister of Justice, stated that his government’s “conception of Canada is one where citizens as a matter of right should be free to take up residence and to pursue a livelihood anywhere in Canada without discrimination . . . . In other words, there will be one Canadian citizenship not ten provincial citizenships” (House of Commons Debates, vol. 3, 1st Sess., 32nd Parl., October 6, 1980, at p. 3286). In a similar vein, Gilbert Parent, Member of Parliament, gave a speech in the House of Commons in favour of the Charter as an instrument of Canadian nationalism. An excerpt shows the perceived connection between individual mobility rights and Canadian nation-building:To my mind, one of the most important aspects of this resolution is that it guarantees that all Canadians will be free to settle where they want in this country. How can we have a nation if its citizens are not free to move around as they wish? Only if we can look for work, put our children in schools where they will not feel out of place and become home owners and build in any area of the country will we consider ourselves citizens of a great nation. . . .
. . . Without mobility rights, there can be no question of the national commitment to which I referred earlier. For this principle to prevail, all Canadians must feel at home everywhere in Canada. This will promote an enlightened nationalism.
(House of Commons Debates, vol. 7, 1st Sess., 32nd Parl., February 26, 1981, at p. 7746) [147] These Hansard excerpts reinforce the purposes of s. 6 we have distilled from other sources.
(g) Conclusions: The Purposes of Section 6’s Mobility Interest
[148] In our view, s. 6 is designed to protect a broad interest in human mobility. It does so to facilitate individual autonomy and dignity, including growth and fulfillment, and to promote national unity and a common Canadian identity. Freedom of movement, without constraint or coercion, is quintessential to our Canadian concept of a constitutional democracy. Free movement and establishment within Canada are interests that are both an essential aspect of an individual’s personal freedom and foundational to the nature of our free and democratic federal structure. These twin purposes — one focused on the individual, the other on the nation — work in harmony, based on the view that mobility rights benefit both the individual and the community.
[149] Section 6’s purposes are themselves large, liberal, and generous. They reflect the heading and text of s. 6, as well as its historical tradition, analogous international and comparative law, the broader nation-building purpose of the Charter, the recognized importance of “freedom of movement” in related rights, and the legislative history of the provision.
[150] Another clear theme from the history and international law of mobility rights, and from the broader objectives of the Charter as a whole, is that mobility rights are not absolute. On the contrary, Winner allowed for temporary limits on interprovincial travel for health reasons. Article 12(3) of the ICCPR similarly allows for limits on freedom of movement for health, national security, and other legitimate state objectives. Even the Magna Carta authorized limits on freedom of movement “in time of war, for some short period, for the common benefit of the realm”, and exempted prisoners from the right entirely (art. 42). The Charter’s protections are similarly not aimed at any trivial or fleeting limit on movement, but rather those that strike at the purposes underlying s. 6, such as curfew laws, requirements to carry identity papers in public, or outright blockades on movement.
[151] We turn now to interpret the scope of the specific guarantees in s. 6(1) and (2).
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