The Canadian Charter of Rights and Freedoms, section 6, sets out fundamental rights in relation to free movement. Section 6(1) provides that citizens of Canada have the right to “enter, remain in, and leave Canada”. As the protection under section 6(1) is limited to persons who are citizens of Canada, it would therefore exclude irregular migrants, and those with temporary or permanent resident status.

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The Canadian Charter of Rights and Freedoms, section 6, sets out fundamental rights in relation to free movement. Section 6(1) provides that citizens of Canada have the right to “enter, remain in, and leave Canada”. As the protection under section 6(1) is limited to persons who are citizens of Canada, it would therefore exclude irregular migrants, and those with temporary or permanent resident status. Therefore migrants without citizenship have no constitutional right to enter, stay in or leave Canada even if they are permanent residents, although the possession of permanent resident status would confer certain rights to movement that are not protected by the Constitution. Migrants would only become entitled to the rights under section 6(1) of the Constitution on becoming citizens of Canada. The second paragraph of section 6 provides that citizens of Canada and persons with permanent resident status have the right to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province in the country. Unlike paragraph 1 this provision extends to migrants with permanent resident status.

The Canadian Charter of Fundamental Freedoms protects all persons within Canada against discrimination. Section 15, paragraph 1, provides that each persons is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Paragraph 2 of section 15 excludes from the equality provision, laws, programmes or activities aimed at eradicating discrimination on the grounds described in paragraph 1. The Canadian Human Rights Act, of 1985, under section 3, prohibits discrimination and discriminatory practices on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction in the areas of provision of goods, services, facilities or accommodation; the denial of commercial premises or residential accommodation; and employment.

The Immigration and Refugee Protection Act (2001), (IRPA), replaced the former 25 year old Immigration Act, and is the main piece of legislation on immigration in Canada. It came into force in June 2002 and covers immigration, asylum and security. Section 11 of the IRPA states that citizens wishing to enter Canada must possess either a visa or the necessary documents to do so, their entry must also not be inadmissible under the Act. Section 12 sets out the persons who may come to Canada they are: persons who are family members of Canadian citizens; persons coming for the purpose of employment who are selected on the basis of their ability to become economically established in Canada; and foreign nationals inside or outside the country who are recognised as refugees or otherwise requiring protection. In December 2002 the Canadian government introduced permanent resident cards (PR cards) for all permanent residents, including minors, who have not yet become Canadian citizens. The PR card must be shown, along with the person’s passport, to carrier personnel on airplanes, boats, buses and trains in order for permanent residents to re-enter Canada from December 2003.

Individuals may be inadmissible under the Immigration and Refugee Protection Act (2001), (IRPA), to obtain, or retain, statuses on the grounds of security. Provisions under the Act excludes a number of persons including those who have engaged in or, in the opinion of the Minister, engages in or has engaged, in terrorism, crimes against humanity, war crimes and gross human rights violations. Persons who have committed serious crimes or been involved in organised criminality are also inadmissible. Section 55 sets out the circumstances in which permanent resident or a foreign nationals may be detained or arrested, these include: where there are reasonable grounds to believe their claim is inadmissible under the IRPA and that they are a danger to the public or, unlikely to appear for examination, an admissibility hearing or removal from Canada. The Anti-Terrorism Act, of 2001, was introduced to amend a number of pieces of legislation in Canada, including the Criminal Code and Official Secrets Act to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada's relations with its allies.

Nationals from over 140 countries are required to obtain visas prior to entering the country in order to visit or transit through Canada. Through the Canada-US Partnership (CUSP), Shared Border Accord and Border Vision, Canada and the US work to manage and streamline the border and make it more efficient. Canada and the US also signed a "Smart Border Declaration" in December 2001, which includes a 30-point Action Plan on border management.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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