B. Interprovincial Mobility

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Section 6 of the Charter also protects interprovincial mobility. The section was part of a more ambitious set of proposals by the federal government to strengthen the Canadian economic union. Concerned about barriers to the mobility of labour, capital, goods, and services, the federal government proposed to bolster the common market clause in section 121 of the Constitution Act, 1867. That section provides that the articles produced or grown in a province shall be "admitted free" into other provinces. It has been narrowly interpreted by the courts as prohibiting customs duties, but it has been ineffective in protecting against rules discriminating against out-of-province labour, property ownership, or access to government contracts.12For example, Quebec, for many years, discriminated against workers from out-of-province in the construction industry, while Prince Edward Island restricted land ownership by non-residents.

Despite federal pressure for more ambitious constitutional language in various efforts at constitutional reform, section 6(2) deals only with mobility for citizens and permanent residents. It has been interpreted by the Supreme Court of Canada as guaranteeing a right of interprovincial mobility that ensures a right to move to another province to take up work there, and the right of a non-resident to work in another province without relocating. It is not, however, a free-standing guarantee of the right to work, and for the right to be invoked, there must be some element of interprovincial mobility at issue.13While the British Columbia Court of Appeal in Wilson interpreted section 7 as including a right of mobility within a province,14this must be contrasted with the Supreme Court of Canada’s view that section 6(2) is designed to eliminate boundaries between the provinces.15Nor has the section been interpreted as protecting new residents and non-residents from compliance with the general rules applicable to existing provincial residents - for example, occupational qualifica-

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tions and licence requirements that affect everyone.16Section 6(3)(a) makes it clear that residents and non-residents are subject to laws of "general application" - that is, laws that do not discriminate primarily on the basis of province of residence.

The leading cases interpreting section 6(2) and section 6(3)(a) of the Charter are Black v Law Society of Alberta17and Canadian Egg Marketing Agency v Richardson.18In Black, the Law...

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