Section 6 – Mobility rights

Provision

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

  1. to move to an take up residence in any province; and
  2. to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to:

  1. 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
  2. any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(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.

Similar provisions

Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: paragraph 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.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article IV and the Fourteenth Amendment of the Constitution of the United States of America; articles 2, 6, 13 and 23 of the Universal Declaration of Human Rights; the Fourth Protocol, articles 2, 3, and 4 of the European Convention on Human Rights.

Purpose

Subsection 6(1) of the Charter is concerned with international movement. There are three rights found in subsection 6(1): the right to enter, remain in, and leave Canada (Divito v. Canada (Public Safety and Emergency Preparedness), [2013] 3 SCR 157, 2013 SCC 47 at paragraph 18). Its central purpose is to prevent exile and banishment (United States of America v. Cotroni, [1989] 1 S.C.R. 1469) through the constitutionalization of the right to enter and remain in Canada for citizens. The right to leave Canada is also constitutionalized in subsection 6(1) (see, e.g., Droit de la famille – 13328, 2013 QCCA 277 at paragraphs 38-40).

Subsection 6(2) is concerned with movement within Canada to take up residence or to pursue the gaining of a livelihood. The right of Canadian citizens and permanent residents to move about, reside, and work in the province of their choice was constitutionalized out of a concern with fundamental human rights, and supports the notion of equality of treatment and non-discrimination on the basis of residence (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 (CEMA)).

Section 6 is one of the privileged rights that is not subject to section 33 of the Charter; section 6 cannot be overcome by enactment of a notwithstanding clause.

Analysis

1. Subsection 6(1) – The right to enter, remain in, and leave Canada

Subsection 6(1) only applies to Canadian citizens (Cotroni, supra; Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711, at paragraphs 26 and 32). 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. (4th) 512 (F.C.A.), leave to appeal refused, [2000] S.C.C.A. No. 249).

(i) Mobility rights in relation to extradition

The Minister’s decision to extradite a Canadian citizen under the Extradition Act prima facie limits the citizen's subsection 6(1) right to remain in Canada (Cotroni, supra, at paragraph 18). However, extradition in general constitutes a reasonable limit on this right under section 1 (Cotroni, supra at paragraph 45; see the further discussion below under “Section 1 considerations specific to extradition cases”). 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. 609).

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. (4th) 333 (B.C.C.A.), aff’d, [1996] 1 S.C.R. 469; on the issue generally of when a violation of subsection 6(1) would be unjustified, see “Section 1 considerations specific to extradition cases”, below). Under the current structure of the Extradition Act, the responsibility to consider subsection 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. 532 at paragraph 48). However, on efficiency grounds, extradition judges have the discretion to hear, without deciding, evidence on alleged section 6 Charter violations when the allegations hold an air of reality (Kwok, supra at paragraph 74).

Sections 32 and 33 of the Extradition Act do not limit subsection 6(1) of the Charter because these provisions apply only at the committal stage of the extradition process, and subsection 6(1) is not engaged at that stage. Subsection 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 subsections 32 and 33 (United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77 at paragraphs 82-83).

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. 283, at paragraph 48).

An appellate decision indicates that aboriginal status does not give a person facing extradition an enhanced subsection 6(1) right to remain in Canada. However, aboriginal status can be relevant to section 7 Charter analysis of extradition (United States of America v. Leonard, 2012 ONCA 622, leave to appeal refused, [2012] S.C.C.A. No. 490).

(ii) Subsection 6(1) and the right to a passport

A majority of the Supreme Court stated in obiter that the requirement that citizens present a passport to enter Canada would not be an infringement of their mobility rights since the passport serves to identify those who can exercise the rights of Canadian citizens. 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. 1013, at paragraph 96).

Lower court and appellate jurisprudence indicates that the right of citizens to enter and leave Canada as guaranteed by subsection 6(1) includes the right to a passport: Khadr v. Canada (Attorney General),  [2007] 2 F.C.R. 218 (T.D.), at paragraph 69; Kamel v. Canada (Attorney General), [2009] 1 F.C.R. (T.D.), at paragraphs 103, 109-113, aff’d on this point[2009] 4 F.C.R. 449 (F.C.A.) [“Kamel, (2009)] at paragraphs 15-18, leave to appeal to the SCC refused [2009] S.C.C.A. No. 124; Kamel v. Canada (Attorney General) 2013 FCA 103 [“ Kamel, (2013)”] at paragraphs 26-31; Abdelrazik v. Canada (Minister of Foreign Affairs) 2009 FC 580, at paragraphs 151-152; Kamel v. Canada (Attorney General) [“ Kamel, (2011)”], 2011 FC 1061, at paragraph 72; F.C. v. Canada (Attorney General) 2010 QCCS 622 at paragraph 31. Where a citizen is outside Canada, the Government has a “positive obligation” to issue an emergency passport to that citizen to permit him or her to enter Canada: Abdelrazik v. Canada, supra, at paragraph 152, app’l dismissed, 2009 FCA 77. Although there is a subsection 6(1) right to a passport, denial of a passport can be justified under section 1 of the Charter where the circumstances so permit (Kamel, (2009), Kamel, (2013)).

Subsection 6(1) does not grant the right to enter another country or the right to leave another country. It is the authorities of that other country who determine their own entry and exit conditions. Subsection 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). However, applied at an individual level, it is no answer to say that it is not the Canadian government which prevents one from leaving Canada when a passport is denied, and that the responsibility is solely that of the foreign country which requires it. To accept this interpretation is to give a narrow and technical meaning to a Charter right (Khadr, supra at paragraph 65).

In relation to the right to leave Canada, courts have held that orders requiring an adult Canadian citizen to leave a foreign state to return to Canada infringe subsection 6(1) and must be justified under section 1 (Droit de la famille – 13328, supra, at paragraphs 38-40).

(iii) Subsection 6(1) and the International Transfer of Offenders Act (ITOA)

Subsection 6(1) does not confer a right of a Canadian citizen to serve a foreign prison sentence in Canada. As such, the ITOA provisions giving the Minister discretion whether to accept the transfer of a Canadian citizen to Canada do not limit the subsection 6(1) entry right (Divito, supra, paragraphs 3, 45). If the foreign jurisdiction consents to the transfer, however, the discretion of the Minister is engaged and must be exercised in compliance with the relevant Charter values (see Divito, supra, at paragraph 49; Carrera v. Canada (Minister of Public Safety), 2013 FCA 277 at paragraphs 6 and 9, and Carrera v. Canada (Minister of Public Safety), 2015 FC 69 at paragraph 72, referring to Doré v. Barreau du Québec, [2012] 1 S.C.R. 395).

(iv) Other cases

A deportation order against the parents of two Canadian children who would accompany their parents back to Poland does not engage the children’s subsection 6(1) Charter rights. Regardless of the decision made by their parents, the children will retain their Canadian citizenship and will be subject to no constraints in the exercise of the rights and liberties associated with their citizenship other than the constraints the parents impose in the exercise of their parental authority (Langner v. Canada (Min. of Employment & Immigration) (1995), 97 F.T.R. 118 (F.C.A.), at paragraph 8).

A child who is a Canadian citizen does not have the right to remain in Canada in contravention of The Hague Convention on the Civil Aspects of International Child Abduction (Parsons v. Styger (1989), 67 O.R. (2d) 1 (Ont. H.C.J.), aff’d: (1989) 67 O.R. (2d) 11 (Ont. C.A.)).

The ten-year residency requirement needed in order to receive an allowance under the War Veterans Allowance Act does not take away a citizen’s right to travel and does not infringe the right to leave Canada. Trips taken prior to fulfilling the requirement only postpone obtaining the allowance (Bregman et al. v. Attorney-General of Canada (1986), 33 D.L.R. (4th) 477 (Ont. C.A.)).

Although being ineligible to receive employment insurance benefits provides a disincentive to exercise a person’s right to leave Canada, the effect is not sufficient to constitute a breach of section 6 (Smith v. Canada (Attorney General) (2000), 73 C.R.R. (2d) 196 (F.C.A.), aff’d: [2001] 3 S.C.R. 902).

2. Subsection 6(2) and subsection 6(3) – the right to inter-provincial mobility

(i) General

Subsections 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. Section 30 of the Charter deems this inter-provincial mobility right to apply to the Northwest Territories and the Yukon. To date, the jurisprudence has suggested that the rights under subsections 6(2) and 6(3) of the Charter also protect inter-territorial mobility into Nunavut (see, e.g., Chwyl v. Law Society of Nunavut, 2014 NUCJ 9).

Subsection 6(2) is meant to give effect to the basic human right, closely related to equality, that individuals should be able to participate in the economy in pursuit of their livelihood without being subject to legislation which discriminates primarily on the basis of attributes related to mobility (CEMA, supra at paragraph 60). The Supreme Court has articulated that the rights in paragraphs 6(2)(a) and 6(2)(b) ought to be read disjunctively, as two distinct rights independent of one another (Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 382). The right to pursue a livelihood in “any province” based on 6(2)(b) is not in any way predicated on residence in that province (Black v Law Society of Alberta, [1989] 1 S.C.R. 591).

It is possible to waive one’s subsection 6(2) rights prior to becoming a citizen or permanent resident of Canada. A foreign national who agrees to practice medicine in a specific province in Canada for 5 years in order to obtain a work permit cannot subsequently claim rights under section 6 once he becomes a permanent resident since his section 6 rights have already been waived (Kirsten v. College of Physicians and Surgeons of Saskatchewan (1996), 138 D.L.R. (4th) 335 (Sask. Q.B.)).

Subsection 6(2) does not apply to corporations, only physical persons (Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. 514 (T.D.); Brampton (City) v. Mister Twister Inc., 2011 ONCJ 271). 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).

Subsection 6(2) thus far has been interpreted as applying to Canadians’ mobility rights as between provinces rather than to mobility within a province (McDermott v. Town of Nackawic (1998), 53 D.L.R. (4th) 150 (N.B.C.A.); McGregor v. Holyrood Manor, 2014 BCSC 679).

(ii) Paragraph 6(2)(a) – The right to move to and take up residence in any province

Paragraph 6(2)(a) protects the right of Canadian citizens and permanent residents to move to a different province or territory and become resident in any province or territory (Skapinker, supra; Charter section 30).

A child’s right under paragraph 6(2)(a) is subject to the reasonable limit of the legal guardian’s right to determine where the child should live. The decision of the Minister of Social Services to return a child to her home, from which she had run away and where her legal guardian had decided she should live, does not limit 6(2)(a) (Kingsbury v. Saskatchewan (Minister of Social Services) (1983), 4 C.R.R. 151, (Sask. Q.B.)).

Paragraph 6(2)(a) does not grant an individual the right to move to another province to pursue a divorce. Subsection 3(1) of the federal Divorce Act, which grants a provincial court the jurisdiction to hear a petition for divorce once either spouse has been ordinarily resident in that province for a year prior to the proceeding, does not infringe subsection 6(2) of the Charter (Thurber v. Thurber, 2002 ABQB 727; Koch v. Koch, [1985] S.J. No. 760, 23 DLR (4th) 609).

The rules of civil procedure that give a court the discretionary power to order that non-residents post security for costs do not limit either paragraph 6(2)(a) or paragraph 6(2)(b) (Lapierre (Tuteur d'instance) c. Barrette,  [1988] R.J.Q. 2374 (C.A.Q.); Crothers v. Simpson Sears Ltd. (1988), 59 Alta. L.R. (2d) 1 (Alta. C.A.)).

(iii) Paragraphs 6(2)(b) and 6(3)(a) – The right to pursue the gaining of a livelihood in any province

(a) General

The Supreme Court has affirmed that paragraphs 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). Paragraph 6(2)(b) does not create a free-standing right to work, divorced from the mobility provisions in which it is found. The rights in subsection 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).

Paragraph 6(2)(b) guarantees not simply the right to pursue a livelihood, but “the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents” (Black, supra at paragraph 55). 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).

The 6(2)(b) right to pursue a livelihood in another province is not in any way predicated on residence in that province (CEMA, supra at paragraph 69). Any attempt by residents of an origin province to create wealth, whether by production, marketing, or performance in a destination province constitutes "the gaining of a livelihood in any province" and satisfies the requirement of mobility implied by the title of the section. Where residents of the NWT seek to market something of value — eggs — in other destination provinces, this is an attempt to “pursue the gaining of a livelihood” in another province and engages the mobility right guarantee (CEMA, supra at paragraph 72).

The concept of pursuing or gaining one’s livelihood in another province likely does not encompass studying in a province. Quebec’s imposition of a budgetary regulation requiring government-subsidized universities in the province to charge supplementary fees to out-of-province students is not a limit of paragraph 6(2)(b) (R c. Québec, [2001] R.J.Q. 2590 (C.A.)).

The jurisprudence indicates that, contrary to the express wording of section 6, paragraph 6(3)(a) should not be read as an exception to the rights in subsection 6(2), nor as a saving provision. Paragraph 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). 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. 479 (C.A.), at paragraph 61, leave to appeal refused, [2000] S.C.C.A. No. 458). 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). Laws of general application may include federal and provincial laws and regulations in effect in the destination province being analyzed (CEMA, supra at paragraph 75; Black, supra; Donald Demaere v. The Queen, [1983] 2 F.C. 755 (C.A.)).

(b) Analytical framework

The analytical framework to determine whether a government measure infringes the right to earn a livelihood in another province was articulated by the Supreme Court in CEMA, supra. The test involves two questions:

1) Is there differential treatment between residents and non-residents of a designated area in the pursuit of their livelihood in the designated area? (See Archibald, supra at paragraph 60.)

Whether laws discriminate among persons primarily on the basis of province of residence involves a comparison of residents of the origin province (the claimants) who attempt to make their livelihood in a destination province, with residents of the destination province who also make their livelihood in the destination province. In short, the destination province is the province within which the discriminatory classification is made (CEMA, supra at paragraph 74). The comparison is entirely intra-provincial, with the focus being on the differential treatment of residents compared to non-residents in the destination province (CEMA, supra at paragraphs 74-75). 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 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.

2) If the answer to part 1) is yes, does this distinction discriminate primarily on the basis of province or territory of the rights-holder in purpose or effect? (CEMA, supra at paragraphs 68, 74-75, 89-98).

Any law that discriminates (with regard to the pursuit of livelihood) primarily based on residency limits freedom of mobility, regardless of the magnitude of impact. Whether the limit is so negligible that it does not warrant the protection of section 6 is a matter better left to the justificatory analysis under section 1 (CEMA, supra at paragraph 85).

If the law is a provincial or federal law of general application that does not discriminate primarily based on province or territory of residence, then the law will not limit paragraph 6(2)(b) (see e.g., Archibald, supra at paragraphs 72-74). To make a determination about whether the distinction made by a law or policy is one that primarily discriminates based on province or territory of residence, courts will look at a number of factors, including whether the designated geographical area of distinction coincides with provincial and/or territorial boundaries, as well as any other reasons that may exist that are not about residing in a particular province or territory. The word "primarily" necessarily involves an evaluation of other possible purposes for, and effects of, the discrimination, and their weight relative to the discrimination based on residence. Whether the discrimination is unacceptable in the context of section 6 depends entirely on which basis of discrimination is characterized as dominant, as denoted by the term "primarily". 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).

Purpose and effects must be scrutinized. With regard to the effects of the impugned law, both legal effect and practical effect must be examined to properly categorize the dominant feature of the legislative scheme (CEMA, supra at paragraph 98). It is possible that those effects might, over time, acquire such significance as to become the dominant feature of the legislation, thereby displacing the original purpose (CEMA, supra at paragraph 97).

In CEMA, the purpose of the legislation was to regulate egg production by the setting of quotas using historical production patterns. The discriminatory effect of the scheme did not displace this valid primary purpose; thus, the discrimination was not primarily on the basis of residence (CEMA, supra at paragraph 102). There may be objective reasons for a law distinguishing between two regions, other than residential status, as is the case with the Wheat Board Act, applicable only to Manitoba, Alberta, Saskatchewan, and part of British Columbia. The fact that the designated area to which the law applies does not coincide precisely with provincial boundaries per se, and that the area is characterized by large grain crops which distinguishes it from other areas of Canada, is evidence that provincial boundaries are merely being used as a reasonably accurate marker for an economic reality (CEMA, supra at paragraph 87, commenting on Archibald v. Canada [1997] 3 F.C. 335 (T.D.)).

(c) Examples of the application of the right defined in 6(2)(b) and 6(3)(c)

Section 6 of the Charter does not prevent a province from regulating a profession so long as it does so without discriminating on the basis of place of residence. A law allowing only members of the Institute of Chartered Accountants of P.E.I. to practice public accountancy in Prince Edward Island subjects everyone to the same restrictions not related to residency (Walker v. Prince Edward Island (1993), 111 Nfld. & P.E.I.R. 150 (P.E.I. S.C.), at paragraph 15, aff’d [1995] 2 S.C.R. 407).

Regulations to control the supply of physicians in a province by limiting the billing ability of new physicians compared to established physicians do not draw a distinction primarily on the basis of province of present or previous residence, but rather apply across the board to all applicants for new billing numbers. 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. (4th) 321 (B.C. C.A.).

Legislation that places French language conditions on everyone who conducts business in a province may in effect create an additional burden for non-residents who hope to conduct business in that province. 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. 790, at paragraph 19).

3. Paragraph 6(3)(b): First exception to inter-provincial mobility right – Reasonable residency requirement for receipt of social services

Paragraph 6(3)(b) carves out an exception to the protection in subsection 6(2) for provincial residency requirements that establish a person’s link to a province as a condition of eligibility for public social services (Clarken v. Ontario Health Insurance Plan (1998), 109 O.A.C. 363 (Ont. Div. Ct.); Irshad (Litigation Guardian of) v. Ontario (Ministry of Health) (1999), 60 C.R.R. (2d) 231 (Ont. Div. Ct.) (Ont. C.A.), leave to appeal refused, [2001] S.C.C.A. No. 218). Paragraphs 6(2)(a) and 6(3)(b) do not immunize social service programs that are limited to residents and impose a reasonable residency requirement from scrutiny under section 15 of the Charter (Irshad, supra at paragraph 97).

4. Subsection 6(4) – Second exception to inter-provincial mobility right – Laws with ameliorative purposes for economically disadvantaged provinces

In some respects, the language in subsection 6(4) resembles that of subsection 15(2) of the Charter. Subsection 15(2) and, by analogy, subsection 6(4) both indicate that the use of ameliorative programs with the object of improving conditions of disadvantaged individuals or groups is constitutional. However, the exception under subsection 6(4) pertains to economically disadvantaged provinces (Irshad (Litigation Guardian of) v. Ontario (Ministry of Health) (1999), 60 C.R.R. (2d) 231 (Ont. Div. Ct.), at paragraph 80; see also: Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, at paragraphs 38-41 and R. v. Kapp, [2008] 2 S.C.R. 483, at paragraphs 27-55).

Subsection 6(4) has been characterized as a “saving provision” similar to paragraph 6(3)(b) and section 1 of the Charter (CEMA, supra at paragraph 54, cited with approval in Lovelace v. Ontario, [2000] 1 S.C.R. 950, at paragraph 106).

Section 1 considerations specific to this section

(i) Section 1 considerations specific to extradition cases

As noted previously, subsection 6(1) is prima facie limited by the Minister’s decision to surrender a Canadian citizen, but the limit generally can be justified under section 1 of the Charter (Cotroni, supra; Sriskandarajah, supra).

Subsequent to the Supreme Court decision in Doré, supra, a Ministerial decision on extradition is, in principle, subject to the framework for section 1 analysis set out in that case. This requires a reviewing court to determine whether the Minister has proportionally balanced the relevant Charter values against the relevant statutory objectives. However, in Sriskandarajah, supra, decided after Doré, the Supreme Court specifically upheld the detailed approach to determining the section 1 reasonableness of an extradition decision previously articulated by the Court and did not explicitly mention Doré (see the previous cases of Cotroni, Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, and Kwok, supra).

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):

  • Where was the impact of the offence felt or likely to have been felt?
  • Which jurisdiction has the greater interest in prosecuting the offence?
  • Which police force played the major role in the development of the case?
  • Which jurisdiction has laid charges?
  • Which jurisdiction has the most comprehensive case?
  • Which jurisdiction is ready to proceed to trial?
  • Where is the evidence located?
  • Is the evidence mobile?
  • What is the number of the accused involved and can they be gathered together in one place for trial?
  • In what jurisdiction were most of the acts in furtherance of the crime committed?
  • What is the severity of the sentence the accused is likely to receive in each jurisdiction?
  • What is the nationality and residence of the accused?

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. The responsibility for deciding which factors are determinative lies with the authorities themselves; the list serves simply to highlight relevant factors (Lake, supra, at paragraph 30; Sriskandarajah, supra at paragraphs 12 and 13).

The Minister’s extradition order is a political decision that attracts a high degree of judicial deference (Cotroni, at page 1497; Kwok, at paragraphs 93-96; Lake, at paragraph 34; Sriskandarajah, at paragraphs 11 and 33).

Improper conduct, arbitrary motives or bad faith on the part of authorities in extradition decision-making can be grounds for judicial review and lead to a finding that an extradition decision was not reasonable (Cotroni, supra at page 1498; Kwok, supra, at paragraph 96; Lake, supra at paragraphs 30 and 37).

(ii) Other Section 1 considerations in respect of subsections 6(2) and (3)

The restrictions on the rights guaranteed in subsection 6(2), which are set out in subsections 6(3) and (4), are not exhaustive, as subsection 6(2) is also subject to section 1 (Black, supra at paragraph 68).

As noted above, paragraphs 6(2)(b) and 6(3)(a) make clear that legislation which discriminates primarily on the basis of residence and thereby interferes with an individual’s pursuit of a livelihood in any province limits the mobility right, regardless of the magnitude of that impact. Whether the impact of the limit is so negligible that it does not warrant the protection of section 6 is a matter better left to the justificatory analysis under section 1 (CEMA, supra at 85).

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