Section 6(1) of the Charter, the right of citizens to enter and leave Canada, has its origins in the International Covenant on Civil and Political Rights. Article 12(2) of that document provides that "[e]veryone shall be free to leave any country, including his own," while Article 12(4) states that "[n]o one shall be arbitrarily deprived of the right to enter his own country." However, the language of section 6(1) of the Charter is broader in that it includes a right to "remain in" Canada.
The most obvious uses for this section would be to challenge the denial of a passport, compelled expulsion from the country, or denial of re-entry. Although these scenarios are unlikely in a country with Canada’s democratic traditions, national security concerns have given rise to litigation over exclusion of citizens.1Section 6(1) has been invoked most often when Canadian citizens try to resist extradition to another country for trial. Canada has numerous extradition treaties with other countries, which allow a foreign country to seek the surrender of a Canadian citizen who is alleged to have committed an offence according to that country’s law. If the individual is found guilty, he or she would ordinarily be required to serve any sentence in the foreign country, although Canada has arrangements with some countries that allow the convicted person to serve the sentence in a Canadian prison.
In United States v Cotroni,2the Supreme Court of Canada concluded that surrender of a citizen pursuant to the Extradition Act was a violation of section 6(1) of the Charter. Even though the surrender did not amount to an expulsion or banishment, since the individual could return after an acquittal at trial or after serving a sentence, the Court held that the rights in section 6(1) were infringed because the individual was denied the right to remain in Canada.
Although section 6(1) was violated, La Forest J, writing for the majority, concluded that the infringement caused by extradition lay far from the core values of section 6(1). In his view, the central thrust of section 6(1) was protection against exile and banishment, "the purpose of which is the exclusion of membership in the national community."3
This opinion led the majority to take a more flexible approach to the application of section 1 of the Charter in the case of extradition. The Court had no difficulty in finding that there was a pressing and substantial objective underlying the...