449 (F.C.A.) The fact that a Canadian citizen would face a more severe punishment on conviction in the state requesting extradition than would have been imposed had the alleged crime been committed in Canada, will not in itself result in an unjustifiable limit of his section 6 right to remain in Canada (Ross v. United States of America  (1994), 119 D.L.R. 335 (T.D.)). Section 6(1) does not impose any obligation on the Canadian government to guarantee entry to or exit from another country (Kamel (2009), supra at paragraph 17). 1469) through the constitutionalization of the right to enter and remain in Canada for citizens. The word "citizen" does not have a broader meaning than that given to it by citizenship legislation (Solis v. Canada (Minister of Citizenship and Immigration) (2000), 186 D.L.R. v. Attorney-General of Canada (1986), 33 D.L.R. C.A. Trips taken prior to fulfilling the requirement only postpone obtaining the allowance (Bregman et al. However, these conditions may not necessarily constitute an unacceptable obstacle to mobility where they are not designed to prevent persons from entering the province, and are conditions which anyone, with professional assistance, may meet (Devine v. Quebec (Attorney General), [1988] 2 S.C.R. Mobility Rights — Canadians can live and work anywhere they choose in Canada, enter and leave the country freely, and apply for a passport. 1013, at paragraph 96). C.A.)). For the purpose of 6(3)(a), a law of general application does not necessarily have to be applicable uniformly throughout a province; a law that is made to apply to a specific geographical area that does not correspond to provincial boundaries may still be considered a law of general application (Archibald, supra at paragraphs 63-65). For example, in CEMA, supra, the comparison groups were new producers from the NWT intending to market eggs in the destination province, and new producers resident in the destination province intending to market eggs in the destination province. It includes sections on social movements , foreign policy , and legal history . However, laws can set reasonable residency requirements for certain social and welfare benefits. A child’s right under section 6(2)(a) is subject to the reasonable limit of the legal guardian’s right to determine where the child should live. This basic right allows Canadians to move from place to place within the nation and to exit and enter the country at will. Under the current structure of the Extradition Act, the responsibility to consider section 6(1) rights resides with the Minister of Justice at the time of surrender of the fugitive, and not with the extradition judge at the committal hearing (United States of America v. Kwok, [2001] 1 S.C.R. 755 (C.A.)). 218). The mobility right does not extend to … Sections 32 and 33 of the Extradition Act do not limit section 6(1) of the Charter because these provisions apply only at the committal stage of the extradition process, and section 6(1) is not engaged at that stage. Ct.) (Ont. Mobility Rights relate to us because without it, we won't be able to travel or move out of the country freely It means that every Canadian citizen has a right to freely leave or stay in Canada. Section 6(2) does not apply to corporations, only physical persons (Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. The following factors (generally referred to as the “ Cotroni factors”) have been articulated by the Supreme Court as relevant to the exercise of the Minister’s discretion (Cotroni, supra, at paragraphs 55-56; Sriskandarajah, supra, paragraph 12): The relevance of each factor to the determination of the appropriate jurisdiction for prosecution may vary from case to case; nothing in the Cotroni decision suggests that the factors should be given equal weight or precludes a conclusion that a single factor is determinative in a particular case. b) to pursue the gaining of a livelihood in any province. Sections 6(2) and 6(3) generally define and circumscribe the right of a Canadian citizen or permanent resident to move, take up residence and work in all Canadian provinces. “[59] It may, with deference, be time for the Supreme Court of Canada to reconsider whether cases of this kind are to be determined with reference only to the children’s best interests or whether what I suggest is an unspoken factor in mobility cases ‒ the 'mobility rights' of custodial parents ‒ are also a proper consideration. The concept of pursuing or gaining one’s livelihood in another province likely does not encompass studying in a province. Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: section 2(a) of the Canadian Bill of Rights; article 12 of the International Covenant on Civil and Political Rights; article 6 of the International Covenant on Economic, Social and Cultural Rights; article 18 of the Convention on the Rights of Persons with Disabilities; article 10 of the Convention on the Rights of the Child; article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women; article 5(c)(i) of the Convention on the Elimination of All Forms of Racial Discrimination; article 26 of the Convention Relating to the Status of Refugees. (2d) 196 (F.C.A. A law allowing only members of the Institute of Chartered Accountants of P.E.I. The Minister’s decision to extradite a Canadian citizen under the Extradition Act prima facie limits the citizen's section 6(1) right to remain in Canada (Cotroni, supra, at paragraph 18). (CEMA, supra at paragraphs 68, 74-75, 89-98). It should be noted, though, that in Archibald, supra, the Federal Court of Appeal asserted that a simple difference in treatment between wheat and barley producers within and outside the designated area was enough to satisfy this branch of the test, without putting emphasis on where the producers wanted to pursue their livelihood. … The leading case on the best interests of the child test in the context of a parent’s mobility rights is Gordon v. There are also sections on several key events in the history of human rights in Canada, including the Gouzenko Affair (1945-46), the October Crisis (1970), and the Charter of Rights and Freedoms (1982). Relocation Rights in Ontario Our Family Lawyers Can Protect Your Parental Relocation Rights . A division of powers analysis of the "true character" of legislation provides a helpful methodology which can be applied in determining whether there is discrimination "primarily" on the basis of residence (CEMA, supra at paragraphs 89-90). The section is subject to the section 1 Oakes test, but cannot be nullified by the notwithstanding clause. It is the authorities of that other country who determine their own entry and exit conditions. No. The rights in section 6(2) relate to movement into another province, either for the taking up of residence, or to work without establishing residence (Skapinker, supra at paragraph 33). 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. Div. (1) The mobility right This right allows all citizens of Canada to enter, remain in, and leave Canada as they please. A: There is a charter rights issue at play. Section 6(1) is engaged only at the subsequent surrender stage, and the Minister is not required to base the surrender decision on evidence submitted at the committal hearing pursuant to sections 32 and 33 (United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. However a corporation may be granted standing to challenge the constitutionality of legislation under the Charter when proceedings are commenced against it by the government (CEMA, supra at paragraph 34). Charter – Section 6 – Mobility rights Provision. ), at paragraph 69; Kamel v. Canada (Attorney General), [2009] 1 F.C.R. The applicable principles in this respect have been reaffirmed by the Supreme Court (see, e.g., Sriskandarajah v. United States of America, [2012] 3 S.C.R. The phrase "to pursue the gaining of a livelihood" has been construed to mean "the right to practise on a viable economic basis" (Black, supra at paragraph 56). However, the results in what is called “mobility rights” cases are very different. 591 (Supreme Court of Canada) This case challenged rules of the Alberta Law Society limiting law firms from operating in more than one province. 363 (Ont. The mobility rights in s. 6(1) should be construed generously, not literally, and, absent a literal interpretation, I am unable to see how s. 6(1) is breached in the circumstances of this case. (4th) 321 (B.C. 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. 532 at paragraph 48). Canadian citizens undoubtedly have a right to enter Canada, but Canadian citizens who are lawfully incarcerated in a foreign jurisdiction cannot leave their prison, let alone leave to come to Canada. C.A.). ); Crothers v. Simpson Sears Ltd. (1988), 59 Alta. This requires a reviewing court to determine whether the Minister has proportionally balanced the relevant Charter values against the relevant statutory objectives. Section 6(3)(a) has been interpreted by the Supreme Court to be an integral part of the analytical framework used to determine whether there has been an infringement of the right to pursue a livelihood in any province under 6(2)(b) (CEMA, supra at paragraph 54). Canadian Charter of Rights and Freedoms videos and latest news articles; GlobalNews.ca your source for the latest news on Canadian Charter of Rights and Freedoms . 395). However, the exception under section 6(4) pertains to economically disadvantaged provinces (Irshad (Litigation Guardian of) v. Ontario (Ministry of Health) (1999), 60 C.R.R. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. Mobility rights – citizens have the right to live and work anywhere they choose in Canada, enter and leave Canada freely, and apply for a passport. Extradition with the possibility of facing the death penalty in the Requesting State is only marginally a mobility rights issue, and is mainly a justice issue that should be addressed under section 7 of the Charter (United States of America v. Burns, [2001] 1 S.C.R. In some respects, the language in section 6(4) resembles that of section 15(2) of the Charter. 479 (C.A. However, provisions giving preferential treatment to University of British Columbia graduates clearly differentiate between applicants on the basis of province of present or previous residence (Waldman v. British Columbia (Medical Services Commission)  (1999), 177 D.L.R. Governments will ensure that no new barriers to mobility are created.1 *) E-mail: maas@yorku.ca. What is the severity of the sentence the accused is likely to receive in each jurisdiction? The Canadian Charter of Rights and Freedoms defines mobility rights in two basic ways. As described in the second step of the test articulated below, the analysis of whether a law of general application discriminates primarily based on province of residence will be essential to determining whether there has been an unjustifiable limit of the above-described right (CEMA, supra at paragraphs 75, 78; Archibald v. Canada, [2000] 4 F.C. To facilitate this right, the courts have decided that citizens also have a right to a government-issued passport. The Canadian Charter of Rights and Freedoms states that every citizen has the right to enter, remain in and leave the country, and has the right to … The Charter contains seven sections that define our rights as Canadians: fundamental rights, democratic rights, mobility rights, legal rights, equality rights, official languages of Canada and minority language education rights. Mobility Rights 6. Since 1982, however, the Cana-dian Charter of Rights and Freedoms has enshrined a The Supreme Court has affirmed that sections 6(2)(b) and 6(3)(a) of the Charter must be read together as a single right that is engaged by any person’s attempt to create wealth in a province other than the province in one resides, whether by production, marketing or performance (CEMA, supra at paragraphs 72-75). [1] Though it is an infrequently discussed section of the Charter, the protections afforded by section 6 figure prominently in this era of government-mandated travel restrictions. Within countries, freedom of travel is often more limited for minors, and penal law can modify this (4th) 477 (Ont. The court went on to suggest that an unjustifiable limit of the Charter may arise if this requirement can only be met with great difficulty or expense (R v. Nikal, [1996] 1 S.C.R.
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