The Canadian Charter of Rights and Freedoms, contained in Schedule B of the Constitution Act 1982, protects a number of fundamental human rights. 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”.

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The Canadian Charter of Rights and Freedoms, contained in Schedule B of the Constitution Act 1982, protects a number of fundamental human rights. 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”. The only limit on this right is in relation to extradition laws which state that persons in Canada who face criminal charges or punishment in another country may be ordered to return to that country. In the case of United States v Burns before the Supreme Court in 2001, section 6 did not prevent the extradition of two individuals to face murder trial in the US, despite the fact that the Court did state that extradition is a prima facie infringement of the s. 6(1) right of every Canadian citizen to "remain in" Canada. The protection under section 6(1) is limited to persons who are citizens of Canada, and 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 (see 8.4-Rights and Entitlements). 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 is not only limited to citizens of Canada and extends to migrants with permanent resident status. This right is however subject to certain limitations (see 8.13-Freedom of movement).

In the case of Langner et al. v. M.E.I. in 1995, the Federal Appeal Court of Canada confirmed an earlier decision that migrants without legal rights to remain in Canada but who have children who are Canadian citizens do not themselves have any Charter rights to remain in Canada. As removal orders issued against the parents do not include the children, and the children have no connection to those removal orders the Court found that the removal of the children from the country would result from a decision of the parents. Such a decision would therefore not give rise to a claim by the children of a violation of their rights under section 6 of the Charter against the State. Leave to appeal against this decision was refused by the Supreme Court of Canada.

In the case before the Supreme Court of Canada, of Suresh v. Canada (Minister of Citizenship and Immigration) in January 2002, the Court found in favour of the applicant. They ruled that Canada's interest in combating terrorism must be balanced against the refugee's interest in not being deported to face torture and that the Minister should generally not deport refugees where on the evidence there is a substantial risk of torture in their country of origin. The applicant was also found to be entitled to a new deportation hearing as he was denied the necessary procedural safeguards that should be afforded where there was a prima facie case of a risk of torture on deportation. The Court found that in such cases the applicant should be informed of the case to be met and provided with an opportunity to respond in writing and present evidence and submissions on whether their continued presence in Canada would be detrimental to national security.

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

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