The Charter and Economic Integration in Canada

Here is an extract from the “Single Market Myth” paper I co-authored with Professor Mancini, speaking to the role (or not) of the Charter in advancing economic integration

Here, too, the judicial approach has been to eschew any economic rights, thereby defanging the Charter as a potential weapon against over-intrusive regulation. In this section, we explain how the provisions of the Canadian Charter of Rights and Freedoms have been interpreted as not including economic freedoms. Overall, the Supreme Court of Canada (and, until appeals were abolished in 1949, the Privy Council) has not functioned as a “driver” of economic integration and trade in the same way as, say, the United States Supreme Court or the Court of Justice of the European Union.

Section 6

The most obvious economic liberty provision in the Charter is s. 6(2)(b) which gives every citizen and permanent resident the right “to pursue the gaining of a livelihood in any province.” The Supreme Court circumscribed this provision in Law Society of Upper Canada v. Skapinker ([1984] 1 S.C.R. 357 (S.C.C. 1984)). Justice Estey explained that s. 6(2)(b) “was not intended to establish a free standing right to work”: rather, the right is to “earn a living in any province subject to the laws and practices of ‘general application’ in that province which do not discriminate primarily on the basis of provincial residency” (Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 28 (S.C.C. 1984)). It is no more than a right “to work without establishing residence” (Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 33 (S.C.C. 1984)); the worker may work in another province but in order to do so must satisfy the statutory and regulatory requirements for working there.

It is only where these requirements are discriminatory in their effect that s. 6(2)(b) will be breached (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 (S.C.C. 1998)). So in Black v. Law Society of Alberta ([1989] 1 S.C.R. 591 (S.C.C. 1989)), a provincial law preventing non-resident lawyers from entering a partnership with an Alberta lawyer had the effect of rendering the practice of law virtually impossible for outsiders and s. 6(2)(b) was breached.

But in Canadian Egg Marketing Agency v. Richardson ([1998] 3 S.C.R. 157 (S.C.C. 1998)), the federal-provincial supply management regime for eggs did not breach s. 6(2)(b) because any discrimination against provincial producers was not the primary purpose of the regime: for a breach of s. 6(2)(b) to be made out, the discriminatory effects of a regime would have to displace the valid legislative purposes (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 at 102 (S.C.C. 1998)). To date, there is little support in the case law for “a reading of section 6 that recognizes its place in promoting economic union” (Lavoie 2023 at 187) – it is certainly possible that a “renewed understanding” (Lavoie 2023 at 189) will emerge in the future, but for now the prospects of that are slim.

Section 7

Section 7 states that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” But “liberty” does not mean economic liberty.

Relatively early in the Charter’s existence, Canadian courts had to grapple with the proposition that regulatory offences might interfere with the liberty and security of the person. In Re B.C. Motor Vehicle Act ([1985] 2 S.C.R. 486 (S.C.C. 1985)), the Supreme Court had to consider a statute that would make it a criminal offence to drive a motor vehicle whilst one’s licence was suspended. The judges unanimously agreed that the statute was unconstitutional, but only because the law provided for a term of imprisonment as a sanction for driving with a suspended licence. But it was imprisonment that triggered s. 7 because it would deprive a guilty party of their liberty. This would not be true, Justice Wilson explained, of regulatory offences generally:

It is true that the section prevents citizens from driving their vehicles when their licences are suspended. Citizens are also prevented from driving on the wrong side of the road. Indeed, all regulatory offences impose some restriction on liberty broadly construed. But I think it would trivialize the Charter to sweep all those offences into s. 7 as violations of the right to life, liberty and security of the person even if they can be sustained under s. 1. (Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486 at 106 (S.C.C. 1985))

Rather, to use the words of the Ontario Court of Appeal in R. v. Videoflicks Ltd: “The concept of life, liberty and security of the person would appear to relate to one’s physical or mental integrity and one’s control over these, rather than some right to work whenever one wishes” (R. v. Videoflicks Ltd., (1984), 48 O.R. (2d) 395 at 433 (O.N.C.A. 1984)).

The high but short-lived water mark of deregulatory use of s. 7 was the decision of the British Columbia Court of Appeal in Wilson v. British Columbia (Medical Services Commission) ((1988), 53 D.L.R. (4th) 171 (B.C.C.A. 1988)). Provincial legislation required doctors to apply for practitioner numbers, which could be refused or granted subject to geographical restrictions. The Court of Appeal took a broad view of the scope of “liberty” in s. 7, seeing it as including “individual freedom of movement, including the right to choose one’s occupation and where to pursue it, subject to the right of the state to impose, in accordance with the principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals” (Wilson v. British Columbia (Medical Services Commission) (1988), 53 D.L.R. (4th) 171 at 46 (B.C.C.A. 1988)). Even there, though, the Court of Appeal was careful to emphasize the human dignity aspect of the ability to work, rather than the doctors’ raw economic interests in being able to receive payment for their services; in the Court of Appeal’s view the case was about “personal rights affecting the freedom and quality of life of individual doctors” (Wilson v. British Columbia (Medical Services Commission) (1988), 53 D.L.R. (4th) 171 at 51 (B.C.C.A. 1988)).

Subsequently, the courts have pulled back from this high water mark. The decision in Wilson has been said to have been “implicitly overruled” by the Supreme Court of Canada in a case involving the regulation of accountants in Prince Edward Island (Johnson v. British Columbia (Securities Commission) (1999), 67 B.C.L.R. (3d) 145 (S.C.) at 61 (B.C.S.C. 1999)): some areas of accountancy practice were reserved by provincial legislation to chartered accountants, much to the chagrin of the certified accountants who were the protagonists in the litigation. In Walker v. Prince Edward Island ([1995] 2 S.C.R. 407 (S.C.C. 1995)), the Supreme Court dismissed an appeal from the bench, giving brief oral reasons: “In light of our previous decisions as regards ss. 2(b), 6 and 7 of the Canadian Charter of Rights and Freedoms, we are all of the view that there has been no restriction to those rights in this case” (Walker v. Prince Edward Island, [1995] 2 S.C.R. 407 at 409 (S.C.C. 1995)). If this is so, then Wilson “must now be considered wrongly decided” (Stewart 2019, 108; Casey 1994).

Little serious argument can be advanced that the Charter is of much use in pursuing a project of economic integration (Drover v. Canada (Attorney General), 117 O.R. (3d) 561 (O.N.C.A. 2025)).

This content has been updated on March 10, 2026 at 16:27.