The Supreme Court of Canada ruled on Friday that interprovincial mobility is a constitutional right under Section 6 of the Canadian Charter of Rights and Freedoms.

The court held that Section 6 of the Charter protects the right to move freely within Canada. It follows that when the government imposes an interprovincial travel restriction, it must justify that the restriction is reasonable and necessary. The ruling reasoned that the purpose of the section is not only to protect individual autonomy, but also to promote national unity, and is foundational to the overall nation-building objective. This purpose is best achieved by including the right to move freely within Canada.

The court also considered the country’s obligations under the International Covenant on Civil and Political Rights, which provides for the fundamental human right to move freely in the whole territory of a state, including all parts of federal states.

Notably, the five-judge majority held that interprovincial travel restrictions violated both the right to remain in Canada under Section 6(1) and the right to move to and take up residence in any province under Section 6(2)(a). The dissenting judges would have held that the right to interprovincial mobility falls into one of the two categories. The difference can be significant for two reasons. First, Section 6(1) rights are exclusive to Canadian citizens, but Section 6(2) rights extend to permanent residents as well. Second, the government can impose any non-discriminatory limits on Section 6(2) rights but not on Section 6(1) rights.

Chief Justice Richard Wagner, Justices Nicholas Kasirer, and Mahmud Jamal would have held that the right to interprovincial mobility is a Section 6(2) right. They reasoned that the text of Section 6(1) merely protects the right to cross Canada’s international border freely, forbidding state-imposed removals.

On the other hand, Justice Malcolm Rowe would have held that the right to travel within Canada is implicit in the right to remain in Canada under Section 6(1). According to him, there is an additional economic emphasis on Section 6(2) rights, in relation to the right to work and take up residence in a province. If moving freely within Canada is a fundamental human right, allowing the government to impose any non-discriminatory limits to the right defeats its nature.

The Canadian Civil Liberties Association welcomed the decision, stating that the ruling affirms that interprovincial mobility is a fundamental human right that facilitates individual autonomy and national unity.

During the COVID-19 pandemic, Newfoundland and Labrador prohibited non-residents and essential workers from entering the province. The travel restriction barred the applicant from attending her mother’s funeral. Subsequently, she challenged the legality of the restriction. While the ruling affirms the right to interprovincial mobility, it unanimously upheld the restriction, holding that the seriousness and the scientific uncertainty of the pandemic justified the infringement on the right. 

Previous jurisprudence on interprovincial mobility rights focuses on residency and economic activities. This ruling marks the first time the court deliberates on the right to travel within the country alone.