Supreme Court case challenges Newfoundland’s narrow take on mobility rights

Newfoundland’s interpretation is contrary to the plain text of the Charter, goes against case law dating back to the 1950s as well as much older principles of English law, and would undermine the very structure of Canada’s constitution. It is indefensible and an unprecedented attempt to undermine the fundamental rights of Canadians and impose expansive powers of state control onto citizens.

First, the text of s. 6 of the Charter is unambiguous. Section 6(2) guarantees the right to “move to and take up residence in any province.” This disjunctive guarantee includes the right to “move to” and “take up residence” in other provinces. If the intention of the drafters of the Charter had just been to protect relocation, only that one word would be required. “Moving” to a place has a broader meaning, which could include simply moving about for travel, while “take up residence” means relocating. This is clarified further when you consider the French text of the Charter, which is unambiguous. The French text of subs. 6(2) protects the right “de se déplacer,” which means “to move” in the sense of “to get around” or “to travel.” There is a separate French work for relocating or changing residence: déménager. If the intention had been merely to protect relocating, the drafter of the Charter would have selected different words.

Existing case law also indicates that the right guaranteed in subs. 6(2) of the Charter protects the right to travel between provinces. In Black v Law Society of Alberta, the Supreme Court held that a purposive interpretation of subs. 6(2), which considers the intention of the right, is to protect a citizen’s right to “move about the country.” In Canadian Egg Marketing Agency v Richardson, the Supreme Court held that the subs. 6(2) protects the right to “move about, reside, and work” in any province and these rights were also acknowledged in the pre-Charter case of Winner v SMT (Eastern) Ltd. in 1951.

But beyond this, their right to travel between provinces is a fundamental assumption underlying Canada’s constitutional structure. Other constitutionally protected rights will be diminished or violated without a right to interprovincial travel. 

For example, s. 24 of the Charter allows anyone whose rights or freedoms have been infringed or denied to apply to a court of competent jurisdiction. Claimants may need to travel to Ottawa to be heard before the Supreme Court to exercise those rights. Without a right to mobility simpliciter to go to Ottawa, these rights would be diminished.