Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157
Canadian Egg Marketing Agency Appellant
v.
Pineview Poultry Products Ltd. and
Frank Richardson operating as Northern Poultry Respondents
and
The Commissioner of the Northwest Territories
as represented by the Attorney General of the Northwest Territories,
the Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of British Columbia,
the Attorney General for Alberta,
the Council of Canadians,
the Sierra Legal Defence Fund Society
and the Alberta Barley Commission Interveners
Indexed as: Canadian Egg Marketing Agency v. Richardson
File No.: 25192.
*1997: May 30.
*Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
** Rehearing: 1998: March 19; 1998: November 5.
** Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for the northwest territories
Practice ‑‑ Standing ‑‑ Corporations ‑‑ Charter challenge ‑‑ Egg marketing scheme permitting only producers in provinces belonging to scheme to engage in interprovincial or export trade of eggs ‑‑ Corporate egg producers in Northwest Territories sued by state organ regulating production and marketing of eggs for damages arising from illegal interprovincial marketing of eggs ‑‑ Injunction also requested against egg producers ‑‑ Egg producers alleging in defence that federal legislation regulating egg marketing scheme infringing Charter freedom of association and mobility rights ‑‑ Whether egg producers entitled to standing to challenge legislation’s constitutionality.
Constitutional law ‑‑ Charter of Rights ‑‑ Mobility rights ‑‑ Right to pursue gaining of livelihood in any province ‑‑ Egg marketing scheme ‑‑ Egg producers in Northwest Territories unable to market eggs in interprovincial trade because egg marketing scheme permitting only producers in provinces belonging to scheme to engage in interprovincial or export trade of eggs ‑‑ Whether scheme infringing right to pursue gaining of livelihood in any province ‑‑ Whether scheme discriminating primarily on basis of residence ‑‑ Canadian Charter of Rights and Freedoms, s. 6(2)(b), (3)(a) ‑‑ Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646 ‑‑ Canadian Egg Licensing Regulations, 1987, SOR/87‑242, ss. 3, 4(1), 7(1)(d), (e) ‑‑ Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86‑8, ss. 4(1)(a), 5(2), 6, 7(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of association ‑‑ Egg marketing scheme ‑‑ Egg producers in Northwest Territories unable to market eggs in interprovincial trade because egg marketing scheme permitting only producers in provinces belonging to scheme to engage in such trade ‑‑ Whether scheme violating freedom of association ‑‑ Canadian Charter of Rights and Freedoms, s. 2(d) ‑‑ Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646 ‑‑ Canadian Egg Licensing Regulations, 1987, SOR/87‑242, ss. 3, 4(1), 7(1)(d), (e) ‑‑ Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86‑8, ss. 4(1)(a), 5(2), 6, 7(1).
The respondents, Richardson, operating as Northern Poultry, and Pineview Poultry Products Ltd., are the NWT’s only egg producers. Richardson began producing eggs in 1987, followed by Pineview in 1990, and they have both marketed their eggs in intraprovincial and interprovincial trade. Since 1972, the Canadian egg market has been regulated through a federal‑provincial scheme of interlocking laws and regulations. The appellant CEMA is in charge of regulating the interprovincial trade in eggs and allocates federal egg quotas to each of the 10 provinces, but not to either territory. Under the federal part of the egg marketing scheme, a federal quota and licence are needed to produce and market eggs for interprovincial and export trade. The effect of the exclusion of the NWT from the various regulations is that no eggs produced in the NWT can lawfully be marketed interprovincially or exported. In 1992, CEMA sued the respondents for damages arising from illegal interprovincial marketing of eggs. It also sought an injunction preventing them from marketing their eggs in interprovincial trade. In defence, the respondents challenged the constitutional validity of the federal egg marketing legislation. The trial judge granted public interest standing to the respondents. On the constitutional issues, he held that the Canadian Egg Marketing Agency Proclamation, ss. 3, 4(1), 7(1)(d) and (e) of the Canadian Egg Licensing Regulations, 1987, and ss. 4(1)(a), 5(2), 6 and 7(1) of the Canadian Egg Marketing Agency Quota Regulations, 1986 infringed ss. 2(d), 6(2)(b) and 15(1) of the Canadian Charter of Rights and Freedoms, and could not be saved by s. 1. On the matter of remedy, the trial judge granted NWT egg producers a constitutional exemption from the regulatory system. The Court of Appeal agreed with the trial judge that the respondents should have public interest standing and affirmed his decision except with regard to s. 15(1) of the Charter. This appeal raised the following issues: (1) whether the respondents have standing to attack the constitutionality of the federal egg marketing scheme as a defence to the civil suit; and (2) whether this scheme violates ss. 2(d) and 6 of the Charter. The s. 15(1) issue was not raised before this Court.
Held (McLachlin and Major JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Bastarache and Binnie JJ.: The respondents could be granted standing in this Court under the residuary discretion. This Court is always free to hear Charter arguments from parties who would not normally have standing to invoke the Charter on the basis of the residuary discretion if the question involved is one of public importance. The constitutionality of the federal egg marketing scheme is clearly an issue of national importance, as are the more specific issues raised with regard to whether ss. 2(d) and 6 of the Charter apply to corporations. In any event, in this case, the respondents have standing to challenge the constitutionality of the federal egg marketing scheme through an extension of the Big M Drug Mart exception. They need not seek public interest standing. While, as a general rule, a provision of the Charter may be invoked only by those who enjoy its protection, the Big M Drug Mart exception, which grants standing as of right to an accused charged under legislation alleged to be unconstitutional, should be extended to allow corporations to invoke the Charter when they are defendants in civil proceedings instigated by the state or a state organ pursuant to a regulatory scheme. Just as no one should be convicted of an offence under an unconstitutional law, no one should be the subject of coercive proceedings and sanctions authorized by an unconstitutional law. Here, the respondents do not come before the court voluntarily. They have been put in jeopardy by a state organ bringing them before a court by an application for an injunction calling in aid a regulatory regime. Success of that application could result in enforcement by contempt proceedings. If the foundation for these remedies is an unconstitutional law, a defendant should not be barred from raising its unconstitutionality solely because the constitutional provision which renders it invalid does not apply to a corporation.
Section 6(2)(b) of the Charter guarantees the right to “pursue the gaining of a livelihood in any province” and s. 6(3)(a) narrows the ambit of that right, making it subject to laws of general application in the province, except those which discriminate against individuals “primarily on the basis of province of present or previous residence”. These sections should be read together as defining a single right, rather than one right which is externally “saved” by another. Section 6(3)(a) is not a “saving” provision in the way in which ss. 6(3)(b), 6(4), or 1 of the Charter are; none of these sections is essential to defining the purpose of the sections which they limit. The interdependence of s. 6(2)(b) and (3)(a) should be given full effect by determining the purpose and scope of the two provisions together without leaving any room for a second application of s. 6(3)(a).
Section 6 of the Charter guarantees the mobility of persons, not as a feature of the economic unity of the country, but in order to further a human rights purpose. It is centred on the individual. Section 6 relates to an essential attribute of personhood and guarantees that mobility in the pursuit of a livelihood will not be prevented through unequal treatment based on residence by the laws in force in the jurisdiction in which that livelihood is pursued. Given this purpose, the focus of the analysis in s. 6 is not the type of economic activity involved, but rather the purpose and effect of the particular legislation, and whether that purpose and effect infringe the right to be free from discrimination on the basis of residence in the pursuit of a livelihood.
The scope of s. 6 must reflect the fundamental purpose underlying the section. In the context of an economy characterized by modern communications and forms of goods and services which are easily transported across great distances, it must be recognized that the hallmark of mobility required by s. 6 is not physical movement to another province, but rather any attempt to create wealth, whether by production, marketing, or performance, in another province. Since in this case residents of an origin province (the NWT) seek to market something of value ‑‑ eggs ‑‑ in other destination provinces, this is clearly an attempt to “pursue the gaining of a livelihood” in another province and engages the mobility right guaranteed by s. 6.
Whether the impugned legislation “discriminate[s] among persons primarily on the basis of province of present . . . residence” under s. 6(3)(a) involves a comparison of residents of the origin province who attempt to make their livelihood in a destination province with residents of the destination province who also make their livelihood in the destination province. Since a livelihood may be pursued by means of production, marketing, or performance, in each case the appropriate comparison group will depend upon the nature of the livelihood which is restricted. Here, the respondents complain that their ability to pursue their livelihood by marketing their eggs in other destination provinces is being interfered with on the basis of their residence. In order to determine if there is discrimination, the terms according to which NWT egg producers can market their eggs in the destination province must thus be compared with the terms according to which egg producers resident in the destination province can market their eggs in the destination province. If those terms discriminate primarily on the basis of residence, then s. 6 is violated. The use of the word “primarily” in the mobility guarantee suggests that other purposes and effects must be weighed to determine whether the residential aspect of the discrimination is primary. In many cases, there may be valid reasons for the limitation of a legislative scheme to a single province or to parts of Canada; such reasons will displace the primacy of a discriminatory effect related to residency under s. 6. Whether the discrimination is unacceptable in the context of s. 6 depends entirely on which basis of discrimination is characterized as dominant, as denoted by the term “primarily”. When considering the need to determine the primary basis of discrimination set out in s. 6(3)(a), the division of powers analysis, focusing on the characterization of a dominant matter with which legislation is concerned, provides a helpful methodology which can be applied in determining whether there is discrimination “primarily” on the basis of residence.
The national egg marketing scheme does not discriminate primarily on the basis of residence. The original purpose of the scheme ‑‑ to ensure the orderly and fair marketing of eggs in Canada ‑‑ is valid, notwithstanding circumstances which have changed since 1972, and the use of historical production patterns as a means of allocating quotas furthers this purpose. The exclusion of the NWT producers is simply an application of the principle of quota allocation based on historical production patterns and shares the same unimpeached purpose.
The legal and practical effects of the legislative scheme must also be examined in order to determine constitutionality. It is possible that those effects might, over time, acquire such significance as to become the dominant feature of the legislation, thereby displacing the original purpose. The appropriate comparison group in measuring the discriminatory impact of the legislation is not established egg producers in the destination province who seek to market their eggs in the destination province, but rather new egg producers in the destination province who have no quota and who seek to market their eggs in the destination province. This is the only appropriate way to measure the significance of the producers’ residence on the operation of the egg marketing scheme. Unfortunately, little direct evidence on this issue was tendered before this Court or the courts below. The burden of proof in establishing a breach of a Charter right rests with the respondents in this case. Although they have shown that the legal effect of this scheme is to exclude them from the legal possibility of obtaining an egg quota, they have failed to demonstrate a practical prejudice relative to producers resident in the destination province or provinces who also do not have a quota that is great enough to have caused the primary purpose of the legislation to be defined as discriminating against NWT producers on the basis of their residence. The respondents therefore have failed to establish that the actual effects of the scheme as they relate to province of residence displace the valid legislative purpose as the dominant feature of the scheme.
The egg marketing scheme does not violate s. 2(d) of the Charter. Freedom of association protects only the associational aspect of activities, not the activity itself. Although there is no trade or profession that one can exercise entirely by oneself, to contend that if it is necessary to associate with others to do something, then the right in s. 2(d) reaches beyond protecting the act of associating to protect the very activity for which the association is formed, would have the effect of constitutionalizing all commercial relationships under the rubric of freedom of association. Section 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association. Moreover, s. 2(d) does not create a right to do in association what is unlawful for an individual to do. Thus, whether the activity is foundational to the association or the association is foundational to the activity, what is being attempted is to bring under constitutional protection activities that are not constitutionally protected when done by individuals, simply by virtue of the fact that individuals have associated for the purpose of carrying on this activity.
Per McLachlin and Major JJ. (dissenting): The respondents should be granted standing to argue the Charter issues in this appeal through an extension of the Big M Drug Mart exception.
Section 6 of the Charter is designed to promote economic union among the provinces and to ensure to all Canadians the right to travel throughout the country, to choose a place of residence anywhere within its borders, and to pursue a livelihood, all without regard to provincial boundaries. Under s. 6, the right to pursue the gaining of a livelihood in any province (s. 6(2)(b)) is not an absolute right. To seize the intent of the framers of the Charter, the broad statement of rights must be read together with its limitations and exceptions, including the s. 6(3)(a) limitation, which saves laws of general application that may incidentally discriminate on the basis of present or previous residence.
The heading “Mobility Rights” does not confine the rights protected by s. 6(2)(b) to any particular set of situations. At the first stage of a s. 6 analysis, the broad wording of s. 6(2)(b) catches all laws or government practices that in purpose or effect impede the pursuit of a livelihood in any part of Canada on the basis of province of residence. All that is required to constitute an interference with the s. 6(2)(b) right is that the person be placed at a disadvantage in the pursuit of his livelihood of choice. In this case, the first stage of the s. 6 analysis is satisfied. By excluding residents in the NWT from the interprovincial and export trade of eggs, a right enjoyed by residents in other provinces, the egg marketing scheme has the effect of impeding the pursuit of a livelihood anywhere in Canada on the basis of province of residence. Both respondents suffer disadvantage in the pursuit of their chosen livelihood because they live in one province or territory as opposed to another. The mobility rights of each are thereby affected.
The error in the argument that the egg marketing scheme does not make a distinction based on residence because the scheme targets eggs, not people, is that it stops consideration of the effects of the scheme artificially at the product exported. If a law has the effect of impinging on the ability of people to pursue a livelihood, it is not exempted from s. 6(2)(b) merely because the mechanism by which the impingement is effected concerns the passage of goods and services across provincial boundaries. While s. 6(2)(b) focuses on free passage of people, not goods or services, the section protects the right to transfer goods and services across boundaries where this is integral to the way an individual earns his livelihood. As well, the argument that the scheme targets the residence of hens, not of people, also ignores the real effect of the scheme on egg producers who are residents of the NWT. If they move their production to a province while continuing to reside in the NWT, they are put at a competitive and personal disadvantage in the earning of their livelihood. If they move their residence across the border to escape this disadvantage, they lose their right to reside in the place of their choice. Either way, they suffer discriminatory effects because of their current residence in the NWT. Lastly, the argument that the egg marketing scheme discriminates on the basis of historical production patterns, and not on the basis of residence, should also be rejected. In this case, unlike the other cases cited, all producers in a territory are prohibited from participating in a scheme regulated by the federal government.
Federal legislation or practices which create impediments to mobility will not be immunized from review under s. 6(2)(b) merely because they do not discriminate between residents and non‑residents of a particular province. It must also be demonstrated that they do not discriminate between residents of the province or territory in question and residents of other provinces and territories in Canada. The proper comparators therefore for determining whether the impugned federal legislation in this case discriminates on the basis of present or previous residence are people in the rest of Canada, not just people in the NWT. The egg marketing scheme, as federal legislation, does not treat all people within Canada the same.
At the second stage of the analysis, s. 6(3)(a) of the Charter is aimed at “saving” a law or practice initially caught by s. 6(2)(b), unless its primary purpose or effect is to discriminate on the basis of residence. Provinces and the federal government are permitted under that section to impose disadvantages on the basis of provincial boundaries so long as this effect is incidental to another purpose within their proper legislative sphere. Here, the exclusion of the NWT from the federal egg marketing scheme disproportionately affects residents of the NWT and is not incidental to a larger purpose. The exclusion exists by historical accident. Because the scheme discriminates against egg producers in the NWT primarily on the basis of residence, it cannot be saved under s. 6(3)(a).
The infringement of s. 6(2)(b) is not justified under s. 1 of the Charter. The objective of the infringing aspects of the legislative scheme does not constitute a pressing and substantial state objective. The limitation is the result of historical accident, not design. It controverts the very objective of the egg marketing scheme, which is to create a stable, national supply management system for eggs. It follows that the scheme fails the first branch of the Oakes test. The declaration of inconsistency with the Charter should be suspended for six months from the date of this judgment to permit negotiations to proceed for inclusion of the NWT and Yukon.
Cases Cited
By Iacobucci and Bastarache JJ.
Applied: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; distinguished: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Dywidag Systems International, Canada Ltd. v. Zutphen Brothers Construction Ltd., [1990] 1 S.C.R. 705; considered: Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490; Groupe des éleveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280; Archibald v. Canada, [1997] 3 F.C. 335; referred to: Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Jamieson v. Attorney‑General of British Columbia (1971), 21 D.L.R. (3d) 313; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512, [1982] C.S. 1146; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887; Prince Edward Island Potato Marketing Board v. H. B. Willis Inc., [1952] 2 S.C.R. 392; Gold Seal Ltd. v. Attorney‑General for Alberta (1921), 62 S.C.R. 424; Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Re Mia and Medical Services Commission of British Columbia (1985), 17 D.L.R. (4th) 385; Demaere v. The Queen in right of Canada, [1983] 2 F.C. 755; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Basile v. Attorney‑General of Nova Scotia (1984), 11 D.L.R. (4th) 219; Starr v. Houlden, [1990] 1 S.C.R. 1366; R. v. Morgentaler, [1993] 3 S.C.R. 463; Hodge v. The Queen (1883), 9 App. Cas. 117; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42; Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341; Milk Board v. Clearview Dairy Farm Inc. (1986), 69 B.C.L.R. 220, aff’d (1987), 12 B.C.L.R. (2d) 116; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Collymore v. Attorney‑General, [1970] A.C. 538; Re Retail, Wholesale & Department Store Union and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609; R. v. Skinner, [1990] 1 S.C.R. 1235.
By McLachlin J. (dissenting)
Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Archibald v. Canada, [1997] 3 F.C. 335; Groupe des éleveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280; MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490.
Statutes and Regulations Cited
Agricultural Products Marketing Act, S.N.W.T. 1991, c. 35 [not in force], s. 7(1), (2).
Broiler Hatching Eggs and Chicks ‑‑ Marketing, R.R.O. 1990, Reg. 396 [am. O. Reg. 744/91].
Canadian Charter of Rights and Freedoms, ss. 1, 2(d), 6, 7, 15, 30.
Canadian Egg Anti‑dumping Pricing Regulations, C.R.C., c. 654.
Canadian Egg Licensing Regulations, 1987, SOR/87‑242, ss. 3 [repl. SOR/88‑488, s. 1], 4, 7(1)(d), (e).
Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646, Schedule, Part I, s. 2 [am. SOR/81‑713; repl. SOR/96‑140], Part II, ss. 2(1), 4.
Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86‑8 [am. SOR/86‑411], ss. 3, 4, 5, 6, 7, schedule [repl. SOR/97‑4, s. 1].
Canadian Egg Marketing Levies Order, SOR/95‑280 [am. SOR/95‑482, s. 1].
Canadian Egg Pricing (Interprovincial and Export) Regulations, C.R.C., c. 657.
Constitution Act, 1867, ss. 91, 91(12), 92, 92(9), 92(13), 121.
Eggs ‑‑ Extension of Powers, O. Reg. 786/91.
Eggs ‑‑ Marketing, R.R.O. 1990, Reg. 407 [am. O. Reg. 154/94].
Farm Products Agencies Act, R.S.C., 1985, c. F‑4 [am. 1993, c. 3], ss. 2 “farm product”, “marketing plan”, 7(1)(d), 16, 17, 21, 22, 23, 37(1).
Farm Products Marketing Act, R.S.O. 1990, c. F.9, s. 21.
International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46, Art. 6(1).
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Arts. 2, 13(1), 23(1).
Authors Cited
Blache, Pierre. “Les libertés de circulation et d’établissement”. In Gérald‑A. Beaudoin and Errol Mendes, eds., The Canadian Charter of Rights and Freedoms, 3rd ed. Scarborough, Ont.: Carswell, 1996.
Brun, Henri, et Guy Tremblay. Droit constitutionnel, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Dickson, Brian. “The Canadian Charter of Rights and Freedoms: Context and Evolution”. In Gérald‑A. Beaudoin and Errol Mendes, eds., The Canadian Charter of Rights and Freedoms, 3rd ed. Scarborough, Ont.: Carswell, 1996.
Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1997.
Jackman, Martha. “Interprovincial Mobility Rights Under the Charter” (1985), 43(2) U.T. Fac. L. Rev. 16.
Laskin, John B. “Mobility Rights under the Charter” (1982), 4 Supreme Court L.R. 89.
Lee, Tanya, and Michael J. Trebilcock. “Economic Mobility and Constitutional Reform” (1987), 37 U.T.L.J. 268.
Schmeiser, Douglas A., and Katherine J. Young. “Mobility Rights in Canada” (1983), 13 Man. L.J. 615.
Shores, William. “Walking Onto an Unfamiliar Playing Field -- Expanding the Freedom of Association to Cover Trade” (1996), 6 Reid’s Administrative Law 1.
APPEAL from a judgment of the Northwest Territories Court of Appeal, [1996] N.W.T.R. 201, [1996] 3 W.W.R. 153, 132 D.L.R. (4th) 274, 38 Admin. L.R. (2d) 49 and 87, [1996] N.W.T.J. Nos. 6 and 38 (QL), dismissing the appellant’s appeal from a judgment of Weerdt J., [1995] N.W.T.R. 360, [1995] 8 W.W.R. 457, 129 D.L.R. (4th) 195, 33 Admin. L.R. (2d) 128, [1995] N.W.T.J. No. 71 (QL), declaring certain portions of the egg marketing scheme unconstitutional. Appeal allowed, McLachlin and Major JJ. dissenting.
François Lemieux and David K. Wilson, for the appellant.
Graham McLennan and Katharine L. Hurlburt, for the respondents.
James G. McConnell, for the intervener the Commissioner of the Northwest Territories.
Edward R. Sojonky, Q.C., and Ian McCowan, for the intervener the Attorney General of Canada.
Lori Sterling, for the intervener the Attorney General for Ontario.
Jean Bouchard, for the intervener the Attorney General of Quebec.
George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.
Margaret A. Unsworth, for the intervener the Attorney General for Alberta.
David R. Boyd, for the interveners the Council of Canadians and the Sierra Legal Defence Fund Society.
Dale Gibson and Ritu Khullar, for the intervener the Alberta Barley Commission.
The judgment of Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, Iacobucci, Bastarache and Binnie JJ. was delivered by
//Iacobucci and Bastarache JJ.//
1 Iacobucci and Bastarache JJ. -- This appeal raises fundamental issues regarding the right to mobility guaranteed by s. 6 and the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms. These Charter rights are claimed by egg producers in the Northwest Territories who wish to market their eggs throughout Canada, although the Northwest Territories is not a party to the federal-provincial egg marketing scheme according to which eggs are marketed in the country.
I. Facts
2 The respondents, Frank Richardson, operating as Northern Poultry, and Pineview Poultry Products Ltd., are the Northwest Territories’ only egg producers. Richardson began producing eggs in 1987, followed by Pineview in 1990.
3 The Canadian Egg Marketing Agency (“CEMA”) is charged with regulating interprovincial trade in eggs. It allocates federal egg quotas to each of the 10 provinces, but not to either territory. In September 1992, CEMA sued Richardson and Pineview for damages arising from illegal interprovincial marketing of eggs. It also sought an injunction enjoining the respondents from marketing eggs produced in the Northwest Territories in interprovincial trade.
II. The Canadian Egg Marketing System
4 The Canadian egg market is regulated by interlocking federal and provincial legislation and regulations that were passed pursuant to the 1972 Federal-Provincial Agreement in respect of the establishment of a Comprehensive Marketing Program for the purpose of regulating the marketing of Eggs in Canada and its 1976 amendments. On the federal side, there is the Farm Products Agencies Act, R.S.C., 1985, c. F-4, and a series of regulations pertaining to eggs made under this Act, notably the Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646 (“CEMA Proclamation”), the Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86-8 (“Quota Regulations”), the Canadian Egg Licensing Regulations, 1987, SOR/87-242 (“Licensing Regulations”), the Canadian Egg Marketing Levies Order, SOR/95-280, the Canadian Egg Pricing (Interprovincial and Export) Regulations, C.R.C., c. 657, and the Canadian Egg Anti‑dumping Pricing Regulations, C.R.C., c. 654. The constitutionality of the CEMA Proclamation and of parts of the Licensing Regulations and the Quota Regulations is at issue in this case.
5 The Farm Products Agencies Act is a general framework Act providing for the establishment of the National Farm Products Council (“NFPC”) and agencies (of which CEMA is an example) to regulate farm products. The NFPC is composed of between three and nine members appointed by the Governor in Council. It has the function of, among other things, reviewing marketing plans, orders and regulations proposed by agencies, and reporting its recommendations to the Minister of Agriculture.
6 Part II of the Act deals with farm products marketing agencies. Eggs are “farm products” for purposes of Part II by virtue of the definition in s. 2. The Governor in Council can establish by proclamation agencies to regulate farm products (ss. 16 and 17). The objects of such agencies are to promote “strong, efficient and competitive production and marketing” of the farm product and to have regard to the interests of producers and consumers (s. 21). Section 22(1) contains a catalogue of powers that can be given to an agency by proclamation. These include the power to purchase the regulated product, to designate bodies through which the product can be marketed in interprovincial or export trade, and to exact levies from persons involved in marketing the regulated product. Agencies can also be empowered to make such orders and regulations as are necessary to implement a marketing plan (s. 22(1)(f)). The NFPC can designate certain classes of these orders as requiring prior approval by the NFPC (s. 7(1)(d)). The agency may exercise powers relating to intraprovincial trade that are delegated to it by provincial governments (s. 22(2)), and it may delegate powers relating to interprovincial or export trade to provincial bodies with the approval of the Governor in Council (s. 22(3)).
7 A “marketing plan” is a plan “relating to the promotion, regulation and control of the marketing of any regulated product in interprovincial or export trade” (s. 2). It can completely control interprovincial and export trade in a product by, among other things, defining who is involved in producing the product for interprovincial or export trade and what acts constitute interprovincial or export marketing of the product; by allowing the agency to fix the quantities and grades of the product that can be marketed by marketers; and by providing for pooling of receipts, licensing of producers and marketers, and collection of levies from producers and marketers (s. 2). Quotas in marketing plans are based on the past five years’ production in the area for which the quota is assigned (s. 23(1)). There is, however, provision for “additional quotas” that can be assigned to meet growth in demand (s. 23(2)).
23. (1) A marketing plan, to the extent that it allocates any production or marketing quota to any area of Canada, shall allocate that quota on the basis of the production from that area in relation to the total production of Canada over a period of five years immediately preceding the effective date of the marketing plan.
(2) In allocating additional quotas for anticipated growth of market demand, an agency shall consider the principle of comparative advantage of production.
8 The CEMA Proclamation establishes CEMA to regulate the production and marketing of eggs through a quota system. The quota system is described in the Schedule to the Proclamation. Each provincial egg marketing board appoints one member of CEMA; the Canadian Hatchery Federation and the Consumers Association of Canada likewise appoint one member each; and the Canadian Poultry and Egg Processors Council appoints two (s. 2 of Part I of the Schedule). There are no members appointed by the federal government. Thus, although it is established under federal legislation and exercises federal powers, CEMA is controlled by provincial and egg industry interests. The federal government exercises a supervisory role through the NFPC.
9 The Proclamation contemplates in Part II of the Schedule that CEMA will assign quotas to all egg producers in a province that hold quotas from provincial boards (s. 2(1)). Quotas assigned by CEMA are termed “federal”, and those assigned by provincial boards, “provincial”. The two quotas, federal and provincial, when added up, must equal the provincial allocations.
10 The provincial allocations were based on the average annual domestic production in Canada from 1967-1971, which was 475 million dozen. The Proclamation prohibits any order or regulation that would increase these allocations, unless the agency has taken into account any variation in the demand for eggs, and several other factors set out in s. 4(1):
4. (1) No order or regulation shall be made where the effect thereof would be to increase the aggregate of
(a) the number of dozens of eggs produced in a province and authorized by quotas assigned by the Agency and by the appropriate Board or Commodity Board to be marketed in intraprovincial, interprovincial and export trade, and
(b) the number of dozens of eggs produced in a province and anticipated to be marketed in intraprovincial, interprovincial and export trade other than as authorized by quotas assigned by the Agency and by the appropriate Board or Commodity Board
to a number that exceeds, on a yearly basis, the number of dozens of eggs set out in section 3 of this Plan for the province unless the Agency has taken into account
(c) the principle of comparative advantage of production;
(d) any variation in the size of the market for eggs;
(e) any failures by egg producers in any province or provinces to market the number of dozens of eggs authorized to be marketed;
(f) the feasibility of increased production in each province to be marketed; and
(g) comparative transportation costs to market areas from alternative sources of production.
Any reduction in total egg production is shared on a pro rata basis amongst the provinces, except that the allocations to New Brunswick, Prince Edward Island and Newfoundland cannot be reduced (s. 4(2) and (3)).
11 The Quota Regulations apply only to the marketing of eggs in interprovincial and export trade (s. 3). They prohibit a producer from marketing eggs in interprovincial or export trade except under a federal quota (s. 4). Only producers that hold a provincial quota are entitled to be allocated a federal quota (s. 5). A producer’s federal quota for a given period is the same as its provincial quota for that same period, less the quantity of eggs marketed intraprovincially by that producer during that same period (s. 6). In other words, each producer is free to market its eggs intraprovincially or extraprovincially. Put another way, whether eggs are produced under federal quota or provincial quota depends on where they are sold. This has the effect of unifying the intra- and interprovincial egg markets.
12 The Quota Regulations also provide that the total of federal quota, provincial quota, and eggs marketed under quota exemptions, cannot exceed the allocation for each province in the schedule (s. 7). The schedule sets out the number of eggs that can be produced and marketed for that year and is amended annually: CEMA estimates the total quantity of eggs required to satisfy the table market in Canada and subtracts the quantity of eggs produced and marketed by exempt producers (roughly 5 percent of the market). If the result is less than the base of 475 million, each province’s allocation is reduced proportionately. If the demand for eggs is greater than the 1972 base, CEMA assigns “overbase” quota according to criteria in s. 4 of Part II of the Schedule of the CEMA Proclamation. According to CEMA’s 1996 annual report, egg production was above the 1972 base for the first time in 1996. Because of growth in demand for eggs, the NFPC approved a quota of 1.26 million dozens overbase for 1997.
13 The Licensing Regulations deal with licences for marketing eggs in interprovincial and export trade. The Licensing Regulations apply to all marketers engaged in interprovincial or export trade in eggs, including those so engaged in the Northwest Territories and the Yukon (s. 3), and forbid anyone from marketing eggs in interprovincial or export trade without a licence (s. 4(1)).
3. These Regulations apply to persons who are engaged in the marketing of eggs in interprovincial or export trade in any province, including the Northwest Territories and the Yukon Territory, except persons who are buyers of less than 300 dozen eggs per month.
4. (1) Subject to subsections (2) and (3), no person shall engage in the marketing of eggs in interprovincial or export trade unless the person holds an appropriate licence.
14 A few observations can be made about the federal part of the egg marketing scheme. Federal quota is needed to produce eggs for interprovincial and export trade, and a federal licence is needed to market eggs in interprovincial or export trade. Federal and provincial quotas are interdependent, and a producer cannot be given a federal quota unless it also holds a provincial quota. The effect of the exclusion of the Northwest Territories from the various regulations is that no eggs produced in the NWT can lawfully be marketed interprovincially or exported; nor can CEMA validly allocate federal quota to producers in the NWT (although the respondents say they did so), first, because there is no provincial board there to allocate provincial quota, and second, because the NWT does not have an allocation. So long as egg production remained at or below the 1972 base, CEMA could not lawfully allocate quota to the Territories. Whether overbase quota could be allocated to the Territories is disputed by the parties.
15 In the 1972 federal-provincial agreement, the provinces undertook not to restrict interprovincial trade in eggs and to implement the plan. Each province has thus established a commodity board to regulate eggs in the province. In Ontario, for example, the Farm Products Marketing Act, R.S.O. 1990, c. F.9, establishes the Ontario Farm Products Marketing Commission and provides for the creation of “local boards” having the authority to regulate trade in farm products. Powers of such local boards can include, among other things, licensing producers, marketers and processors of farm products; allotting quotas for production and marketing; setting minimum prices; and taking a monopoly position in the regulated farm product. The Act makes special provision for the creation of an Ontario Egg Producers’ Marketing Board (“Ontario Egg Board”) (s. 21). This “local board” can be empowered to, among other things, set up a quota system for the production of eggs. The Act also contemplates the delegation of functions relating to intraprovincial trade in farm products to federal marketing agencies, and the performance by “local boards” of federal functions relating to interprovincial and export trade. The Ontario government has in fact authorized CEMA to exercise certain powers over intraprovincial trade in eggs: see Eggs — Extension of Powers, O. Reg. 786/91.
16 The powers of the Ontario Egg Board are described in Eggs — Marketing, R.R.O. 1990, Reg. 407 (as amended by O. Reg. 154/94). Among other things, the Ontario Egg Board can require that eggs be produced and marketed on a quota basis; it can set prices for eggs; and it also has broad powers over licensing, registration, and supervision of egg producers, marketers and processors.
17 The Northwest Territories have passed some of the legislation that will be required if they are to join the national egg system. The Agricultural Products Marketing Act, S.N.W.T. 1991, c. 35, gives the Minister the power to make regulations imposing a marketing plan and creating a “producer board” to administer it (s. 7(1)). The Minister can also, upon consultation with the NWT Agricultural Products Marketing Council and the producer board, make regulations setting minimum prices, authorizing the producer board to assign quotas, prescribing fees and levies, and so on (s. 7(2)). The Act has not yet been proclaimed, nor have any regulations been made under it. Thus, at present, the intraterritorial egg market in the NWT appears to be unregulated.
III. Judicial History
18 This appeal arises out of an action by CEMA against the respondents seeking an injunction preventing them from marketing their eggs in interprovincial trade, and seeking an accounting for any such marketing that had already taken place. Among the defences raised by Richardson and Pineview were constitutional challenges to the validity of CEMA’s enabling legislation. De Weerdt J. found that the egg marketing scheme infringed ss. 2(d), 6(2)(b) and 15(1) of the Charter, and was not justified under s. 1. The Northwest Territories Court of Appeal dismissed the appeal, except with regard to s. 15.
A. Northwest Territories Supreme Court, [1995] N.W.T.R. 360
19 De Weerdt J. granted public interest standing to the respondents. He held that the CEMA Proclamation, the Licensing Regulations, ss. 3, 4(1), 7(1)(d) and 7(1)(e), and the Quota Regulations, ss. 4(1)(a), 5(2), 6 and 7(1), violated the rights and freedoms guaranteed by ss. 2(d), 6(2)(b) and 15(1) of the Charter and could not be saved by s. 1. De Weerdt J. also discussed the issue of whether the territories could be considered to be “provinces” for the purposes of the Constitution Act, 1867, s. 121 but left this issue unresolved.
20 De Weerdt J. observed that association is of the very essence of trade, for one cannot trade merely with oneself. Because the respondents were denied the opportunity to enter into the associations necessary for commercial egg production, the scheme violated the respondents’ association rights under s. 2(d) of the Charter.
21 De Weerdt J. also found that the respondents’ mobility right had been wrongfully denied by the national egg marketing scheme: no one who moved to the Northwest Territories could pursue a livelihood by marketing eggs interprovincially. The scheme was not saved by s. 6(3)(a) because it discriminated among persons engaged in egg production on the basis of residence.
22 For similar reasons, the scheme was also found to violate the respondents’ equality rights under s. 15(1) of the Charter.
23 None of these Charter violations were found to be justified under s. 1. Although the Territories may have been excluded from the scheme because it did not produce eggs commercially prior to 1972, the scheme now undermined the legitimate goal of creating a nation-wide marketing regime. The exclusion of the Territories was thus not rationally defensible, nor did it impair the Charter rights of NWT egg producers as little as possible.
24 On the matter of remedy, de Weerdt J. found that it was better to grant a constitutional exemption to NWT egg producers from the regulatory system than to strike down the legislation as a whole.
B. Northwest Territories Court of Appeal, [1996] N.W.T.R. 201
25 The Court of Appeal agreed with the trial judge that the respondents should have public interest standing. Hunt J.A., for the court, held that a serious issue had been raised about the validity of the legislation. The respondents were directly affected and could be subject to penalties under the legislation. There was no other reasonable and effective way for this matter to be raised because individuals would be unlikely to embark upon commercial egg production in the Territories without a quota. Thus to deny standing would be to immunize the legislation from review.
26 Hunt J.A. found it impossible to distinguish in this case between the association and the activity. One cannot market eggs by oneself. To speak of s. 2(d) as protecting only lawful activities was inappropriate in a case where it could never be lawful for the respondents to do something that could lawfully be done by persons who live elsewhere. If s. 2(d) only protects the ability to form an association, but not the goals or activities of that association, then the freedom to associate would be completely meaningless in this context. Alternatively, Hunt J.A. founded her decision on the grounds that the associational right asserted in this case was intrinsically connected to the exercise of constitutionally guaranteed mobility rights. Thus the scheme violated s. 2(d).
27 Turning to s. 6(2)(b), Hunt J.A. found that Territorial egg producers were disadvantaged in pursuing their livelihood: unlike egg producers in other provinces, they could never obtain quota to market eggs extraterritorially. Because the legislation had one effect on those who lived in the 10 provinces and an entirely different effect on those who lived in the Northwest Territories, it had the effect of discriminating on the basis of province of residence, and was thus not saved by s. 6(3)(a).
28 Hunt J.A. disagreed with the trial judge and held that there had been no breach of s. 15(1) of the Charter. There was no distinction based on an enumerated ground, and province of residence is not an analogous ground because it is not an “immutable characteristic” (p. 233). Egg producers who lived in the Northwest Territories were not a discrete and insular minority; nor had they suffered from stereotyping or social prejudice. This issue is not raised here and, therefore, is not before the Court.
29 Hunt J.A. then considered whether the exclusion of the Northwest Territories from the scheme could be justified under s. 1. This exclusion fulfilled no pressing and substantial objective. As well, because rights of the respondents had been completely denied, the proportionality test was not met. There was no evidence that the only way to achieve an orderly marketing of eggs in Canada was through the use of an “historical production” system that excluded the two territories.
30 Because of the long history of the problem and her lack of optimism that a delayed declaration would lead to a negotiated agreement, Hunt J.A. was of the opinion that the remedy granted by the trial judge was appropriate. The “tiny level” of egg production in the Northwest Territories would not wreak havoc on the Canadian egg market.
IV. Issues
31 The preliminary issue is whether the respondents have standing to attack the constitutionality of the egg marketing legislation as a defence to the civil suit launched by CEMA. If they do, then the constitutional questions stated by the Chief Justice on January 15, 1997 must be addressed:
1. Do the Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646, as amended, the Canadian Egg Licensing Regulations, 1987, SOR/87-242, as amended, ss. 3, 4(1), 7(1)(d), and 7(1)(e), and the Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86-8, as amended, ss. 4(1)(a), 5(2), 6 and 7(1), in whole or in part, infringe the rights and freedoms guaranteed by s. 2(d) and s. 6 of the Canadian Charter of Rights and Freedoms?
2. If so, can this infringement be justified under s. 1 of the Charter?
V. Analysis
A. Standing
32 The appellant attacks the standing of the respondents to challenge the legislative provisions in question. The appellant submits that as corporations and the only producers of eggs in the Northwest Territories, the respondents cannot claim to enforce the constitutional rights in s. 2(d) and s. 6 of the Charter, provisions which protect individuals only. While acknowledging that one of the respondents is an individual, the appellant asserts that Richardson conducts his business through a corporation, a fact found by the trial judge. It contends that an amendment which was sought to reflect the true state of affairs was wrongly refused below. Finally, the appellant argues that public interest standing is not available to defendants in a civil proceeding. In our view, as will be discussed below, it is open to the respondents to invoke the Charter by means of what has become known as the Big M Drug Mart exception.
33 By way of a preliminary comment, this Court is always free to hear Charter arguments from parties who would not normally have standing to invoke the Charter on the basis of the residuary discretion identified in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367. In that case, this Court adopted (at p. 400) the statement of Aikins J. in Jamieson v. Attorney-General of British Columbia (1971), 21 D.L.R. (3d) 313 (B.C.S.C.), at p. 323:
[W]here a case has been fully argued on the merits then, notwithstanding that in the general argument it may appear that the plaintiff has no status to maintain the action, if the question involved is one of public importance then the Court has a discretion to decide the case on the merits.
34 The constitutionality of the federal egg marketing scheme is clearly an issue of national importance, as are the more specific issues raised with regard to whether ss. 2(d) and 6 of the Charter apply to corporations. These issues were addressed in the courts below and could have been dealt with by this Court based on this residuary discretion. However, this case has provided this Court with an opportunity to revisit the rules governing the granting of standing to a corporation under the so-called Big M Drug Mart exception. Prior to this decision, the respondents could not obtain standing to invoke the Charter using the exception created by this Court in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, because they were not facing penal proceedings. In our opinion, it is now time to expand the exception to allow corporations to invoke the Charter when they are defendants in civil proceedings instigated by the state or a state organ pursuant to a regulatory scheme.
35 Generally speaking, a party seeking to invoke the Charter may be granted standing under four broad heads: as of right, the Big M Drug Mart exception, public interest standing, and under residuary discretion. As already noted, these respondents could have been granted standing in this Court under the residuary discretion.
36 As a general rule, a provision of the Charter may be invoked only by those who enjoy its protection. Section 7 of the Charter, for example, extends protection only to natural persons: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1004. Similarly, corporations cannot invoke those provisions of the Charter that provide protection following arrest and detention because corporations cannot be arrested and detained.
37 In Big M Drug Mart, however, this Court held that a corporation can invoke s. 2(a) of the Charter, which protects freedom of religion, even though a corporation cannot hold religious beliefs. Big M Drug Mart was charged with violating the terms of the Lord’s Day Act, R.S.C. 1970, c. L-13, which prohibited certain kinds of commercial activity on Sundays. In its defence, Big M Drug Mart sought to have the Act declared unconstitutional. This Court granted Big M Drug Mart standing. Dickson J. (as he then was) stated the following, at pp. 313-14:
Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law . . . .
Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid . . . .
. . . The respondent is arguing that the legislation is constitutionally invalid because it impairs freedom of religion — if the law impairs freedom of religion it does not matter whether the company can possess religious belief. An accused atheist would be equally entitled to resist a charge under the Act. The only way this question might be relevant would be if s. 2(a) were interpreted as limited to protecting only those persons who could prove a genuinely held religious belief. I can see no basis to so limit the breadth of s. 2(a) in this case.
The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. [Emphasis added.]
38 Big M Drug Mart did not foreclose the possibility that a party in the position of the respondents who did not come before the court voluntarily could be granted public interest standing notwithstanding that the party’s own rights were not being violated. The majority held that in such circumstances the party would have to satisfy the status requirements of the standing trilogy (Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, and Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575). In the view of the majority, the respondent Big M Drug Mart did not have to fulfill those requirements because as an accused it did not come before the court voluntarily and no one should be convicted under a statute that is constitutionally infirm. In these circumstances, an accused corporation or an individual was said to be “entitled to resist a charge under the Act” notwithstanding that the accused’s own rights were not violated.
39 What Big M Drug Mart created was an exception which granted standing as of right to an accused charged under legislation alleged to be unconstitutional. A person whose constitutional rights are violated has standing as of right to challenge the violative act of government in proceedings brought either by or against that person. Big M Drug Mart extended that right to an accused whose own rights are not in fact violated but who alleges that legislation under which the accused is being prosecuted is unconstitutional.
40 In our opinion, the logic of Big M Drug Mart extends to give standing as of right to the respondents. While they might seek public interest standing, we do not believe they need do so. They do not come before the court voluntarily. They have been put in jeopardy by a state organ bringing them before the court by an application for an injunction calling in aid a regulatory regime. Success of that application could result in enforcement by contempt proceedings. If the foundation for these remedies is an unconstitutional law, it appears extraordinary that a defendant cannot be heard to raise its unconstitutionality solely because the constitutional provision which renders it invalid does not apply to a corporation.
41 It seems wrong to us that someone in the position of the respondents should have to seek “public interest” standing. They do not seek to attack the legislation out of public interest. They seek to defend themselves against a law that is sought to be applied to them against their will which will directly affect their “private” interest.
42 We must acknowledge that there are several statements by this Court to the effect that the principle in Big M Drug Mart does not extend to a defendant in a civil proceeding. These statements, however, simply make the bald assertion without any attempt to explain the logic of that position. In Irwin Toy, supra, at p. 1004, the majority reasons of Dickson C.J., Lamer and Wilson JJ., simply stated:
In this regard, the case of Big M Drug Mart, supra, is of no application. There are no penal proceedings pending in the case at hand, so the principle articulated in Big M Drug Mart is not involved.
43 Irwin Toy was not a case in which the party seeking standing was brought involuntarily before the court. Rather the party seeking standing actively pursued standing. As well, in Dywidag Systems International, Canada Ltd. v. Zutphen Brothers Construction Ltd., [1990] 1 S.C.R. 705, Cory J., speaking on behalf of the Court stated, at p. 709:
. . . a corporation cannot . . . avail itself of the protection offered by s. 7 of the Charter. . . .
It is true that there is an exception to this general principle that was established in R. v. Big M Drug Mart, supra, where it was held that “[a]ny accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid”. . . . Here no penal proceedings are pending and the exception is obviously not applicable.
Dywidag was not a case in which a state agency brought the party seeking standing before the court seeking a remedy under legislation alleged to be unconstitutional. Rather, the party seeking standing sought to implead the Crown in civil proceedings in a provincial court. An obstacle to the application was the Federal Court Act whose provisions gave exclusive jurisdiction to the Federal Court over claims against the Crown. It could not be suggested that Zutphen (the party seeking standing) had been brought involuntarily before the court.
44 Our expanding the Big M Drug Mart exception to civil proceedings in these limited circumstances is not intended to provide corporations with a new weapon for litigation. The purpose of the expansion is to permit a corporation to attack what it regards as an unconstitutional law when it is involuntarily brought before the courts pursuant to a regulatory regime set up under an impugned law. Surely, just as no one should be convicted of an offence under an unconstitutional law, no one should be the subject of coercive proceedings and sanctions authorized by an unconstitutional law.
45 In this case, CEMA approached the court seeking an injunction and damages against the respondents. They were producing and marketing eggs outside the Northwest Territories outside the quota and licensing system. They were thus in violation of the federal egg marketing scheme, specifically s. 4 of the Licensing Regulations, which required them to hold a licence, and s. 4 of the Quota Regulations, which required them to hold a quota. These violations constituted an offence under s. 37(1) of the Farm Products Agencies Act. Rather than bring these violations to the attention of the Attorney General, CEMA, acting as a private party, initiated a civil action against the respondents, seeking an injunction, an accounting, and damages. The harm which CEMA alleged was being caused to it consisted of the steps it was forced to take to accommodate within the federal egg quota the unlicensed production and marketing of the respondents’ eggs.
46 Although the respondents were not prosecuted under the scheme, it was nevertheless the federal egg marketing scheme which provided the basis for CEMA’s civil claim. Were it not for this scheme, there would have been no harm to CEMA. Indeed, there would be no CEMA. A defendant in a civil proceeding brought pursuant to legislation is normally entitled to challenge the constitutionality of the legislation authorizing the proceeding. But it is argued that because the respondents were corporations and the proceedings against them were civil, they were barred from challenging the provisions of the scheme. In our opinion, ensuring the constitutionality of legislation under which the state initiates coercive proceedings is far more important to the rule of law and to the integrity of the justice system than whether the proceedings in question are penal or civil. If the penal proceedings requirement were allowed to stand, a corporation that was the subject of a civil injunction issued at the urging of a state agency would be barred from challenging the constitutionality of the law that authorized those proceedings. But if it violated the injunction, it could be cited for contempt. It would then face more severe penalties. Yet, at this latter stage, even though it faced possible penal sanctions, it would not be allowed to challenge the law under the Charter because the penal sanctions were authorized, not by that law, but by the contempt powers of the court.
47 Therefore, we have concluded that standing as of right should be accorded to the respondents and that they should not have to seek public interest standing as if they were strangers to the proceedings.
B. Charter Rights
48 The Court of Appeal found that respondents’ inability to obtain a quota under the national egg marketing scheme violated their rights of association and of mobility guaranteed by the Charter. As one of the grounds for finding a breach of the right of association was based upon a finding of a breach of the Charter right to mobility, it is convenient to examine first whether the respondents’ mobility rights have been infringed.
(1) Mobility Rights: Section 6 of the Charter
49 Section 6 of the Charter states:
Mobility Rights
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
The scope given to these words has significant implications for the exercise of the federal and provincial powers enumerated in ss. 91 and 92 of the Constitution Act, 1867, respectively. This context makes it necessary to consider carefully the purpose and role of the mobility section, and of the Charter itself in our constitutional order. The necessity of returning to first principles is heightened by the scarcity of both jurisprudence and academic commentary on s. 6.
(a) The Nature of the Right
50 The specific sections of the Charter raised in this case are s. 6(2)(b) and s. 6(3)(a). A preliminary problem is whether the two paragraphs should be read together as establishing a single right which is internally qualified, or whether, alternatively, the first paragraph establishes a self-contained right which is externally qualified by the second paragraph. Section 6(2)(b) guarantees the right to “pursue the gaining of a livelihood in any province”. Section 6(3)(a) then dramatically narrows the ambit of that right, making it subject to laws of general application in the province, except those which discriminate against individuals “primarily on the basis of province of present or previous residence”. In our view, it is impossible to ascertain the purpose of the extremely broad statement in s. 6(2)(b) without importing the limitation contained in s. 6(3)(a).
51 In Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512 (Que. Sup. Ct.), the relationship between the two paragraphs is explained according to the following dialectic, at p. 521:
[translation]
(a) The principle: The right to pursue the gaining of a livelihood in any province;
(b) The exception: This right is subject to any laws or practices of a general application in force in that province;
(c) The exception to the exception: Except if these laws discriminate among persons primarily on the basis of the province of residence.
On close examination, it will be observed that (b) almost entirely undermines the guarantee set out in (a); meaning, scope and purpose can only be attributed to (a) by reading it in conjunction with (c). The correctness of this general approach was recognized in both of the major Supreme Court decisions on s. 6, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, and Black v. Law Society of Alberta, [1989] 1 S.C.R. 591.
52 In Skapinker, supra, the Court’s unanimous judgment defined the ambit of s. 6(2)(b) with frequent references to the qualifications contained in s. 6(3)(a), and noted (at p. 380) that the significance of the heading “Mobility Rights” as it related to the s. 6(2)(b) could only be understood by considering s. 6(3)(a):
The concluding words of s. 6(3)(a), just cited, buttress the conclusion that s. 6(2)(b) is directed towards “mobility rights”, and was not intended to establish a free standing right to work. Reading s. 6(2)(b) in light of the exceptions set out in s. 6(3)(a) also explains why the words “in any province” are used: citizens and permanent residents have the right, under s. 6(2)(b), 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.
53 This excerpt and methodology were also adopted by the majority in Black, supra, at pp. 622 and 617-18. Moreover, this approach is consistent with the contextual approach to Charter interpretation described in Big M Drug Mart, supra, at p. 344:
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. . . . At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker [citation omitted] illustrates, be placed in its proper linguistic, philosophic and historical contexts.
54 These passages make clear that the two sections should be read together in order to establish one another’s purpose. We note, however, that in Black, supra, at p. 626, despite acknowledging the interdependence of the two sections, the three judges forming the majority went on to consider the impact of s. 6(3)(a) as an independent “saving” provision. In our view, using s. 6(3)(a) as an independent saving provision is redundant and potentially confusing. This Court has recognized that the mobility right articulated in s. 6(2)(b) must be read in light of the discrimination provision contained in s. 6(3)(a) or else be manifestly too broad, given the heading “Mobility Rights”. Once this interpretive interdependence is recognized, it is more coherent to read the two sections together as defining a single right, rather than one right which is externally “saved” by another. The two-step approach engenders a needlessly duplicative analysis in which s. 6(3)(a) is called upon to qualify s. 6(2)(b) internally (because it is manifestly too broad to be interpreted in isolation), and then also to operate as an autonomous “saving” provision. In our view, it is preferable to give full effect to the interdependence recognized in both Skapinker, supra, and Black, supra, by determining the purpose and scope of the two provisions together without leaving any room for a second application of s. 6(3)(a). The discrimination provision should be fully integrated into an understanding of the purpose and scope of the mobility right described in s. 6(2)(b). Section 6(3)(a) is not a “saving” provision in the way in which s. 6(3)(b), s. 6(4), or s. 1 of the Charter are, since none of these sections is essential to defining the purpose of the sections which they limit.
(b) The Purpose of the Mobility Guarantee
55 We turn now to the first principles of the Charter of which s. 6 forms a part. In Skapinker, supra, which also happens to be one of the earliest Charter cases, Estey J. articulated in passing what he perceived as the animating purpose of the Charter (at pp. 366-67):
With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court. [Emphasis added.]
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, Dickson J. saw a similar role:
The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. [Emphasis added.]
56 The analysis to be followed in determining the precise content of any particular Charter obligation is discussed in Big M Drug Mart, supra, at p. 344, in the course of which the function of the Charter as a whole is described:
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, [etc.]. . . . The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. [Emphasis added.]
57 In a recent article, former Chief Justice Dickson identifies the development of international human rights as an important influence leading to an entrenched guarantee of rights and freedoms in this country. He observes:
The Universal Declaration of Human Rights marked the worldwide abhorrence of human rights violations that had occurred in many countries during the Second World War. The Universal Declaration signalled, however, more than mere abhorrence. It also vividly underlined a commitment, forged through events leading up to and including the Second World War, to usher in a new period of human history, one characterized by a profound respect for human rights.
. . .
The Charter reflects an agreement by the federal and provincial governments to limit their legislative sovereignty so as not to infringe on certain rights and freedoms. [Emphasis added.]
(“The Canadian Charter of Rights and Freedoms: Context and Evolution”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), at pp. 1-5 and 1-15.)
These statements affirm what may appear obvious to some, that the primary purpose of the Charter is to constrain government action in conformity with certain individual rights and freedoms, the preservation of which are essential to the continuation of a democratic, functioning society in which the basic dignity of all is recognized.
58 Section 6 is a part of these essential human rights not only by virtue of its inclusion in the Charter, but also as evidenced by international human rights instruments which recognize mobility rights. Indeed, s. 6 closely mirrors the provisions of several human rights instruments to which Canada is a party:
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (affirmative vote, including Canada, December 10, 1948)
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46 (date of accession: May 19, 1976)
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
Article 2 of the Universal Declaration of Human Rights also provides that a person is entitled to the enjoyment of those rights “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. As the words of s. 6(3)(a) make clear, the Charter right to mobility is largely predicated on the right to equal treatment. In principle, then, s. 6 may be understood as giving effect to the fundamental human right of mobility, which is defined according to the obligation that individuals be treated without discrimination based on their residence.
59 Prior to the advent of the Charter, the right of Canadian citizens to move about, reside, and work in the province of their choice had been affirmed. This entitlement had been enunciated not out of a concern with fundamental human rights, however, but as a consequence of the exclusive federal jurisdiction over citizenship conferred by s. 91 of the Constitution Act, 1867 (see Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, at pp. 919-20). The right to move about the country and settle where one wished was considered an essential attribute of citizenship with which the provinces were not permitted to interfere. According to this reasoning, of course, the federal government could always regulate the attributes of citizenship; it could interfere with the right of mobility, even if the provinces could not. Thus, although the right described in Winner, supra, may appear similar to that contained in s. 6, they have fundamentally different origins. The mobility right, grounded in a concern with fundamental human rights, is conceptually distinct from a mobility right which is essentially concerned with interjurisdictional immunity. It may demand a different scope in order to satisfy a different purpose. Section 6 is rooted in a concern with human rights, not the conditions or operation of the federal structure of Canada.
60 Situated in the Charter, and closely mirroring the language of international human rights treaties, it seems clear then that s. 6 responds to a concern to ensure one of the conditions for the preservation of the basic dignity of the person. The specific guarantee described in s. 6(2)(b) and s. 6(3)(a) is mobility in the gaining of a livelihood subject to those laws which do not discriminate on the basis of residence. The mobility guarantee is defined and supported by the notion of equality of treatment, and absence of discrimination on the ground normally related to mobility in the pursuit of a livelihood (i.e. residence). La Forest J. articulated the correlative significance of these two concepts in Black, supra, at pp. 617-18 and 620-21:
Section 6(2)(b), in my view, guarantees not simply the right to pursue a livelihood, but more specifically, the right to pursue the livelihood of choice to the extent and subject to the same conditions as residents.
. . .
In truth, a purposive approach to the Charter dictates a more comprehensive approach to mobility. What section 6(2) was intended to do was to protect the right of a citizen (and by extension a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries. The provinces may, of course, regulate these rights (as Skapinker holds). But subject to the exceptions in ss. 1 and 6 of the Charter, they cannot do so in terms of provincial boundaries. That would derogate from the inherent rights of the citizen to be treated equally in his capacity as a citizen throughout Canada. [Emphasis added.]
The freedom guaranteed in s. 6 embodies a concern for the dignity of the individual. Sections 6(2)(b) and 6(3)(a) advance this purpose by guaranteeing a measure of autonomy in terms of personal mobility, and by forbidding the state from undermining this mobility and autonomy through discriminatory treatment based on place of residence, past or present. The freedom to pursue a livelihood is essential to self-fulfilment as well as survival. Section 6 is meant to give effect to the basic human right, closely related to equality, that individuals should be able to participate in the economy without being subject to legislation which discriminates primarily on the basis of attributes related to mobility in pursuit of their livelihood.
61 The terms of s. 6 suggest that this right is not violated by legislation regulating any particular type of economic activity, but rather by the effect of such legislation on the fundamental right to pursue a livelihood on an equal basis with others. Indeed, the provinces and federal government are authorized by virtue of ss. 91 and 92 of the Constitution Act, 1867 to regulate all manner of economic activity, as defined by type of activity. For example, s. 92(13) authorizes provincial legislation with respect to property and civil rights, s. 92(9) authorizes the imposition of retail licences, and s. 91(12) authorizes legislation over the sea coast and inland fisheries. As a result of the federal design of our Constitution, and the grant of property and civil rights to the jurisdiction of the provinces, a vast array of legislation in force in the provinces affecting the terms of commercial activity applies only within the province in which it is enacted. The federal structure of our Constitution authorizes the growth of distinct systems of commercial regulation whose application is inevitably defined “in terms of provincial boundaries”. Provincial legislation validly enacted under s. 92 of the Constitution is applicable only within a single province and may have an effect on the conditions according to which a livelihood may be pursued. Federal legislation, or cooperative federal-provincial legislative schemes, may also apply only in some provinces and, thus, create variable conditions for the pursuit of a livelihood in different provinces (Prince Edward Island Potato Marketing Board v. H. B. Willis Inc., [1952] 2 S.C.R. 392). This type of economic legislation, and the growth of divergent regulatory regimes in the provinces, is undoubtedly authorized by the Constitution.
62 There is, thus, a tension in the purposes and text of ss. 91 and 92 of the Constitution Act, 1867, and s. 6 of the Charter. The former sections authorize the development of distinct legal regimes in the provinces, and define the matters, including many integral to the functioning of the economy, under their exclusive jurisdiction; the latter section, however, says that the individual has a right to pursue a livelihood throughout Canada, without discrimination “primarily on the basis of province of present or previous residence”.
63 This tension is heightened when one takes into account the judicial interpretation and legislative history of s. 121 of the Constitution Act, 1867. That section reads:
121. All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
These words appear to place a limit on the competence of either the provinces or the federal government to pass legislation which interferes with the entry of goods into a province. In the early cases, s. 121 was found to prohibit only customs duties on the transit of goods across a provincial boundary (Gold Seal Ltd. v. Attorney-General for Alberta (1921), 62 S.C.R. 424, per Anglin J., at p. 466; and per Duff J., at p. 456). More recent cases, however, have defined the scope of s. 121 somewhat more broadly. Rand J., concurring in Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626, stated, at p. 642:
I take s. 121, apart from customs duties, to be aimed against trade regulation which is designed to place fetters upon or raise impediments to or otherwise restrict or limit the free flow of commerce across the Dominion as if provincial boundaries did not exist. That it does not create a level of trade activity divested of all regulation I have no doubt; what is preserved is a free flow of trade regulated in subsidiary features which are or have come to be looked upon as incidents of trade. What is forbidden is a trade regulation that in its essence and purpose is related to a provincial boundary. [Emphasis added.]
64 This approach was adopted by the four Justices of this Court who addressed the issue in Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198. In that case, the federal-provincial egg marketing scheme which is also the subject of this appeal was challenged by egg producers residing in Ontario, who participated in the scheme. The producers argued that the marketing scheme, by limiting the number and price of eggs in interprovincial trade, effectively prevented the establishment of the single economic market envisaged by s. 121. Laskin C.J. found no violation of s. 121, and suggested that whether market regulation may be perceived as having an impermissible purpose may vary depending on whether the legislation is federal or provincial in origin. After quoting the passage from Rand J. in Murphy, supra, the Chief Justice stated, at p. 1268:
Accepting this view of s. 121, I find nothing in the marketing scheme here that, as a trade regulation, is in its essence and purpose related to a provincial boundary. To hold otherwise would mean that a federal marketing statute, referable to interprovincial trade, could not validly take into account patterns of production in the various Provinces in attempting to establish an equitable basis for the flow of trade. I find here no design of punitive regulation directed against or in favour of any Province. [Underlining added.]
65 Dissatisfaction in the federal government with the scope of s. 121 and a perceived tendency in the provinces to erect interprovincial trade barriers led to a proposal for a more robust version of the section in the constitutional negotiations leading up to the 1982 amendments; see generally T. Lee and M. J. Trebilcock, “Economic Mobility and Constitutional Reform” (1987), 37 U.T.L.J. 268; and D. A. Schmeiser and K. J. Young, “Mobility Rights in Canada” (1983), 13 Man. L.J. 615, at p. 626. The revised s. 121 would have read:
121. (1) Neither Canada nor a province shall by law or practice discriminate in a manner that unduly impedes the operation of the Canadian economic union, directly or indirectly, on the basis of the province or territory of residence or former residence of a person, on the basis of the province or territory of origin or destination of goods, services or capital or on the basis of the province or territory into which or from which goods, services or capital are imported or exported.
(2) Nothing in subsection (1) renders invalid a law of Parliament or of a legislature enacted in the interests of public safety, order, health or morals.
(3) Nothing in subsection (1) renders invalid a law of Parliament enacted pursuant to the principles of equalization and regional development to which Parliament and the legislatures are committed or declared by Parliament to be in an overriding national interest or enacted pursuant to an international obligation undertaken by Canada.
(4) Nothing in subsection (2) or (3) renders valid a law of Parliament or a legislature that impedes the admission free into any province of goods, services or capital originating in or imported into any other province or territory. [Emphasis added.]
In addition to the free movement of persons, this new version of s. 121 would also have expressly protected the mobility of specified factors of economic production which are often integrally related to the gaining of a livelihood by a person: goods, services, and capital. This proposed s. 121 did not purport to confer rights on individuals or groups; rather, it sought to ensure mobility in the pursuit of a livelihood by dramatically limiting any government’s right to legislate with respect to the interprovincial mobility of certain factors of economic production. As it turned out, nine of ten provinces rejected this amendment, leaving s. 121 as it is worded today.
66 Although the parties were subsequently asked to consider the possible effect of s. 121 on the issues in this appeal, that section is not directly in issue in this case. The courts and parties below appear to have assumed that the territories are not captured by the word “Provinces” used in the section. However, the jurisprudence and history of s. 121 suggest what s. 6 was not intended to accomplish. The objective of s. 6 should not be interpreted in terms of a right to engage in any specific type of economic activity. Entrenching mobility with regard to specified factors of economic production was proposed and roundly rejected. By contrast, the inclusion of s. 6 in the Charter reflects a human rights objective: to ensure mobility of persons, and to that end, the pursuit of a livelihood on an equal footing with others regardless of residence. It guarantees the mobility of persons, not as a feature of the economic unity of the country, but in order to further a human rights purpose. It is centred on the individual. Section 6 neither categorically guarantees nor excludes the right of an individual to move goods, services, or capital into a province without regulation operating to interfere with that movement. Rather, s. 6 relates to an essential attribute of personhood, and guarantees that mobility in the pursuit of a livelihood will not be prevented by means of unequal treatment based on residence by the laws in force in the jurisdiction in which that livelihood is pursued.
67 Given these purposes, the focus of the analysis in s. 6 is not the type of economic activity involved, but rather the purpose and effect of the particular regulation, and whether that purpose and effect infringes the right to be free from discrimination on the basis of residence in the pursuit of a livelihood.
(c) Discrimination as Between Who and Whom?
68 The first step in this analysis is to determine who is being compared with whom for the purposes of establishing discrimination. This presents a difficult problem as there are many different ways in which a livelihood may be pursued in a particular province. In simpler cases, the pursuit of a livelihood in a province may be accompanied by residency in that province, as guaranteed by s. 6(2)(a). Whether legislation interferes with an individual’s right to be treated without discrimination on the basis of residence will then usually be readily apparent since the individual could only be distinguished from others based on their previous residence, or his or her relatively short period of residence (as was the case in Re Mia and Medical Services Commission of British Columbia (1985), 17 D.L.R. (4th) 385 (B.C.S.C.); see also H. Brun and G. Tremblay, Droit constitutionnel (3rd ed. 1997), at p. 180). Section 6(3)(a) specifically foresees discrimination under these circumstances, prohibiting laws “that discriminate among persons primarily on the basis of . . . previous residence” (emphasis added). In such cases, the new resident of a province will be compared with longer-term residents to determine if there is discrimination.
69 Greater difficulties arise, however, when an individual purports to pursue his or her livelihood in another province without also residing there. The right to pursue a livelihood in another province contained in s. 6(2)(b) is not in any way predicated on residence in that province. Indeed, the fact that s. 6(3)(a) also expressly prohibits “laws . . . that discriminate among persons primarily on the basis of province of present . . . residence” (emphasis added) suggests that individuals who seek to pursue their livelihood in a province in which they do not reside are included within the mobility guarantee. This interpretation was adopted by this Court in both of its previous decisions on s. 6. In Skapinker, supra, at p. 382, this Court stated that the rights articulated in s. 6(2)(a) and s. 6(2)(b) ought to be read disjunctively, as two distinct rights independent of one another (see P. Blache, “Les libertés de circulation et d’établissement”, in Beaudoin and Mendes, supra, at p. 8-12). On the facts of that case, Estey J. articulated those two distinct rights as follows, at p. 382: “The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence” (emphasis added). It is understandable that Estey J. would have used the word “work” to describe the right invoked under s. 6(2)(b) in that case, since the case involved a claim that a lawyer had a right to work in a province under the terms of s. 6. However, the wording of s. 6(2)(b) is considerably broader, referring not to a right to “work”, but a right to “pursue the gaining of a livelihood”.
70 In Black, supra, La Forest J. noted that s. 6(2)(b) does not restrict the pursuit of a livelihood in another province to physical presence in that province (at pp. 621-22):
There is, however, no doubt that a person can pursue a living in a province without being there personally.
. . .
The right of the citizen or permanent resident to pursue the gaining of a livelihood by offering his services anywhere in Canada has, in my view, a quite sufficient “taint of relevancy” to the heading “Mobility Rights” preceding s. 6. [Emphasis added.]
In that case, a group of lawyers who were all duly qualified to practise law in Alberta sought to establish an interprovincial law firm. The interprovincial nature of the firm arose from the fact that some of the lawyers were resident in Ontario, while some were resident in Alberta. This would allow the lawyers resident in Ontario to tender their services in Alberta while performing them in Ontario. The holding in Black, supra, affirms that the lawyers resident in Ontario were nevertheless “gaining a livelihood” in Alberta, despite the absence of any physical movement to the destination province.
71 Thus, the mobility right is engaged simply by virtue of an attempt, whether by physical presence or some other means, to pursue a livelihood in a province other than the province of residence. For simplicity, the province in which the livelihood is pursued shall be henceforth be described as the “destination province”, while the province of continuing residence shall be referred to as the “origin province”. What activities are included within the terms “pursue the gaining of a livelihood” has not been the subject of extensive commentary in previous jurisprudence. It seems undisputed, however, that a livelihood may be gained first, by producing something of value in the destination province (MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490 (T.D.)); or second, by marketing or performing something of value in the destination province by a person resident in the origin province (Black, supra). Moreover, as Black makes clear, the thing of value which is marketed in the destination province may be performed or created entirely within the origin province (at p. 617).
72 The reasoning adopted in Black, supra, regarding the scope of s. 6 reflects the fundamental purpose underlying the section, which is to guarantee the mobility of individuals to other provinces in the pursuit of their livelihood by prohibiting discrimination based on residence. In the context of an economy characterized by modern communications and forms of goods and services which are easily transported across great distances, it must be recognized that the hallmark of mobility required by s. 6 is not physical movement to another province, but rather any attempt to create wealth in another province. Restricting the scope of s. 6 to physical movement would undermine the purposes of the mobility guarantee by arbitrarily excluding from the protections of s. 6 those who attempt to pursue their livelihood in another province by means other than physical movement. In our view, taking into account the purposes of s. 6, any attempt by residents of an origin province to create wealth, whether by production, marketing, or performance in a destination province constitutes “the gaining of a livelihood in any province” (emphasis added) and satisfies the requirement of mobility implied by the title of the section. In this case, residents of an origin province (the Northwest Territories), seek to market something of value – eggs – in other destination provinces. This is clearly an attempt to “pursue the gaining of a livelihood” in another province and engages the mobility right guaranteed by s. 6.
73 The fact that this economic value is gained through the sale of physical goods as opposed to the tendering of services in the destination province is immaterial given the broader purposes and aims of the s. 6. Not only is it increasingly difficult to differentiate goods from services in a modern economy, but whether wealth is created in another province by virtue of the sale of goods or services is irrelevant to the clear purposes of s. 6 for the reasons mentioned in the previous paragraph. Moreover, the examination above of the relative purposes of s. 121 and s. 6 suggests that distinctions based on the specific factor of economic production involved in the creation of wealth have no place in the analysis of the mobility right guaranteed in the Charter. The focus of the s. 6 analysis is not the type of economic activity involved, but rather the effect of the legislation on the right to pursue a livelihood without discrimination based on residence.
74 Accordingly, whether laws “discriminate among persons primarily on the basis of province of present . . . residence” involves a comparison of residents of the origin province who attempt to make their livelihood in a destination province, with residents of the destination province who also make their livelihood in the destination province. As mentioned above, a livelihood may be pursued by means of production, marketing, or performance. In each case, the appropriate comparison group will depend upon the nature of the livelihood which is restricted. In MacKinnon, supra, for example, a fisherman resident in Nova Scotia was prohibited from fishing in the waters off the Newfoundland coast (which were considered to be a part of the province of Newfoundland). In determining whether he was being discriminated against on the basis of residence, the Nova Scotia fisherman had to be compared to Newfoundland fisherman or fishermen of other provinces who also wished to fish in that destination province (i.e. Newfoundland). In this case, by contrast, the respondents complain that their ability to pursue their livelihood by marketing their eggs in other destination provinces is being interfered with on the basis of their residence. The proper group of comparison, therefore, is producers of the destination province who wish to market their eggs there. The gist of the respondents’ complaint is that they are unable to market their eggs in destination provinces (that is, provinces other than the Northwest Territories), not that they are restricted in their ability to produce eggs within the Northwest Territories because they are residents of some other province. This issue simply does not arise in this case. However, if this issue were to arise, then the origin province would be the province of residence of the producers, and the destination province would be the province in which they hope to establish their production. In short, the destination province is the province within which the discriminatory classification is made which interferes with the pursuit of a livelihood; the origin province is the province of residence of the claimant.
75 This comparison is entirely intraprovincial in the sense that what is guaranteed by s. 6(2)(b) and s. 6(3)(a) is not uniformity of legislative treatment as between different provinces, but rather freedom from discrimination based on residence in the pursuit of a livelihood within the destination province. The examination is intraprovincial because the analysis requires comparison of residents and non-residents of the destination province in the pursuit of their livelihood in the destination province. Section 6(3)(a) applies to “laws or practices of general application in force in a province”, which comprehends either federal or provincial laws in force in that province (Mia, supra, at p. 406; Demaere v. The Queen in right of Canada, [1983] 2 F.C. 755 (C.A.), at p. 765). Whether s. 6 also applies to laws in force in the province of origin is a point which need not be decided in this appeal.
(d) Nature of the Discrimination Prohibited by Section 6
76 When a livelihood is pursued in the destination province by an individual who is not a resident there, it may be difficult in certain cases to establish whether the law in force in the destination province applies to that individual without discrimination. In the precise words of s. 6(3)(a), the test is whether the laws of general application in the destination province discriminate “primarily on the basis of . . . present . . . residence” (emphasis added). For example, in Black, supra, two regulations were alleged to violate s. 6. One regulation purported to prevent qualified lawyers resident in Alberta from entering into partnerships with qualified non-resident lawyers. Non-residents could still practise law in Alberta, but their ability to do so as a matter of practical reality was significantly impaired. Referring to previous authority in lower courts, La Forest J. (at p. 618) citing Mia, supra, affirmed the principle that: “The right to pursue this livelihood of choice must remain a viable right and cannot be rendered practically ineffective and essentially illusory by the provinces”. Even a provision which does not appear to expressly discriminate against someone resident in another province may violate s. 6.
77 The other regulation under scrutiny in Black, supra, prohibited lawyers from entering into more than one partnership, ostensibly in order to respond to concerns about conflicts of interest in the practice of law. Though neutral in its terms, this regulation served the same ends as the first, and there was evidence that the Law Society had intended to disadvantage non-resident lawyers. The majority of this Court found that this provision fell within the terms of s. 6(3)(a) not only because of the taint of a discriminatory purpose, but also because of the differential effect of the facially neutral provision on the non-resident lawyers, at p. 626:
It is also apparent that the effect of Rule 75B would be to discriminate on the basis of residence. . . . It is not the members of local firms but rather those that want to develop and maintain interprovincial connections who will be most severely affected by Rule 75B. Rule 75B is therefore not saved by s. 6(3)(a) of the Charter. Whether the appellant was justified in discriminating on the basis of residence because of its concerns regarding conflicts of interest will be assessed under s. 1. [Emphasis added.]
These two principles -- that only impairment of the right is required, and that a provision may violate the right to equal treatment because of an unequal impact on non-residents -- parallel the jurisprudence which this Court has developed with respect to the right to equality contained in s. 15(1) of the Charter. As this Court stated unanimously in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 62:
A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s. 15(1). It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law. As McIntyre J. stated in Andrews, at p. 165, “(t)o approach the ideal of full equality before and under the law . . . the main consideration must be the impact of the law on the individual or the group concerned.” [Emphasis in original.]
This approach is equally relevant to an analysis of the discrimination based on residence prohibited by ss. 6(2)(b) and 6(3)(a).
78 The true ground of distinction of a law regulating the economy may sometimes be difficult to identify. Many laws of economic regulation only apply within a single province, for the reasons explained above. Thus, non-residents purporting to pursue their livelihood in a destination province may find that the laws in force in that province place a greater burden on them, in practical effect, than on residents. This may simply be because the laws in force in the destination province are different from the laws in force in the origin province. Such divergence may deter mobility in the pursuit of a livelihood on the basis of residence. Thus, the ability of a lawyer resident in Ontario to pursue a livelihood in Manitoba may be impaired because regulations require him or her to be called before the Bar of Manitoba in order to practise in that province. Since lawyers generally qualify only in the province in which they reside, the separate qualification requirements for the Bar of Manitoba unequally affect, as a practical matter, residents of Ontario relative to residents of Manitoba. However, the obstacle for the Ontario lawyer is in equal measures the result of the particularity of the Ontario legislation and the Manitoba legislation, each of which is entitled to set its own qualifications for the exercise of a profession under s. 92(13) of the Constitution Act, 1867. More importantly, the primary purpose of the regulation is to set out the standard qualifications for the competent exercise of the profession in Manitoba. This primary concern or objective would serve to displace the argument that the regulations discriminate “primarily on the basis of province of present . . . residence”, as required by s. 6(3)(a).
79 In Malartic Hygrade Gold Mines, supra, just such qualifications for the practice of law in the province of Quebec were challenged. The provision involved in that case allowed for the appearance before courts of Quebec of non-Quebec lawyers, but only in matters of federal jurisdiction and only under certain conditions. Although it appears that the Quebec Superior Court could have relied on the fact that the provincial act regulating the practice of law in Quebec did not expressly discriminate on the basis of residence, the Superior Court seemed to accept that the practical effect of the law was to disadvantage non-resident lawyers. The court was able to disentangle the true purposes of the legislation from its provincially-based effects, on the following basis (at p. 527):
[translation] . . . if s. 59 presents an obstacle in the path of [the client] and of [the lawyer], it does not do so “primarily on the basis of the province of residence” of the latter but only with respect to considerations relating to the good administration of justice the relevance of which no one would deny and which the Charter does not prohibit.
80 A similar approach was followed in Groupe des éleveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.), where the federal-provincial marketing scheme regulating the supply of chicken was challenged by a group of Ontario producers. Initially, the right to obtain a quota for the interprovincial marketing of chickens depended on having held an intraprovincial quota prior to the imposition of the federal-provincial scheme. The scheme was amended, however, to take into account certain producers who had been engaged in the interprovincial marketing of chickens without having obtained a provincial quota prior to the coming into force of the scheme. In particular, the amendments specified that provincial marketing boards were required to authorize an interprovincial quota for any producer who had been engaged in the interprovincial marketing of chickens during the “qualifying period”, i.e., the year prior to the coming into force of the federal-provincial scheme. The entitlement to an interprovincial quota, therefore, was based on traditional production patterns, either in the form of a pre-existing quota, or on actual production during the qualifying year. The applicants in the case were Ontario producers who were not producers of chickens at the relevant time; they also happened to be Ontario residents who were barred by the operation of this scheme from making their livelihood by selling their chickens in Quebec.
81 Strayer J. disentangled these two threads and correctly identified the true nature of the classification (at p. 322):
Nor can it be said that the applicants are barred from selling in Quebec simply because they are residents of Ontario. Rather, it is because they do not have any interprovincial quota and those quotas have been issued without any particular reference to the residence of the producer. I therefore conclude that there is no conflict with section 6 of the Charter. [Emphasis added.]
In that case, the quotas were established with “particular reference” to traditional production. Obviously, application of the law was based on residence because provincial laws were necessarily applied only within the province, and because production and residence are often interrelated. But the rationale of the distinction was not residence; rather, the operative criterion was traditional production, a criterion which applied in Ontario and in all the other provinces participating in the federal-provincial chicken marketing scheme. Thus, although these Ontario producers were prevented by the scheme from making their living in Quebec by selling chickens there, the primary basis of the prohibition was found not to be residence, but traditional patterns of production.
82 This same reasoning was applied and enriched in MacKinnon, supra. In that case, a fisherman resident in Nova Scotia invoked both s. 15(1) and s. 6(2)(b) to challenge federal regulations known as the Sector Management Plan that restricted licences in a certain area off the Newfoundland coast to those with an established practice of fishing in the area. We note that the economic activity involved in this case was the production of goods in the destination province, for return to the origin province. There was no suggestion that a livelihood gained through the production and transportation of goods is a priori excluded from s. 6. Martin J. explored the legislative purpose behind the Plan, at p. 501:
It is but a single portion of the overall federal policy for the Atlantic Coast Commercial Fisheries Licensing System which is directed to the management and control of that section of Canada’s fisheries in such a manner so as to provide, not only for the conservation, preservation and rehabilitation of the fish stocks, but for the effective, profitable and continued prosecution of the fishery by the owners and operators of the various types of vessels engaged in it.
. . . It is not only desirable but, in my view, essential that the federal authorities consider in their regulatory schemes or licensing systems for the fisheries, the fishermen and the social and economic impact on their livelihood of an orderly system for allocating the available fish stocks to the several groups, categories or classes of operators. [Emphasis added.]
Martin J. confirmed that the purpose underlying the criterion of traditional patterns of production was valid, and that the criterion was not being used without reason, or as a proxy for province of residence. Quite the contrary: province of residence was being used as a basis for restricting fishing to traditional areas of fish production, which furthered the effective management of fishery. With this valid purpose in place, the fact that the same criterion was applied to all fishermen regardless of residence assumes greater significance (at p. 504):
The geographical restrictions imposed upon the inshore fishing fleet are of general application to all fishermen of the fleet. The restrictions are imposed, not on the basis of the fishermen’s province of present or previous residence but on the basis of the areas where, historically, the fishermen of that fleet had previously pursued the fishery. The plaintiff is not prevented from prosecuting the ground-fish fishery in Sector I because he is a resident of the province of Nova Scotia but because he is the owner of an under 65-foot longliner who had never fished in Sector I previously. [Emphasis added.]
Thus, effective management of the fishery was the dominant purpose of the regulation. The fact that the same rule applied in all the provinces, though not determinative, was suggestive of a non-discriminatory purpose and effect. The non-discriminatory purpose and effect was confirmed by an evaluation of the wider purposes of the scheme. The operation of the Sector Management Plan barred the applicant from making his living in Newfoundland not because he was resident in Nova Scotia, but primarily because it was in the best interests of the fishery as a whole and the livelihood of its participants that fishermen be confined to fishing on their traditional grounds. Provincial boundaries happened to provide a convenient marker for fulfilling that purpose. Merely because the Plan incidentally affects the applicant in relation to his province of residence does not mean that it does so “primarily” on that basis.
83 In many cases, there are valid reasons for the limitation of a legislative scheme to a single province or to parts of Canada; such reasons will displace the primacy of a discriminatory effect related to residency under s. 6 of the Charter. For instance, it is unsurprising that in MacKinnon, supra, the Sector Management Plan applied only to the Atlantic provinces; it was never suggested that this militated in favour of a finding of discrimination based primarily on residence.
84 In Archibald v. Canada, [1997] 3 F.C. 335 (T.D.), the Canadian Wheat Board Act, R.S.C., 1985, c. C-24, which applies only to Manitoba, Alberta, Saskatchewan, and a part of British Columbia, was challenged as a violation of s. 6(2)(b), s. 15(1), and s. 2(d) of the Charter. The Canada Wheat Board exercises a monopoly over the interprovincial and international trade in wheat, acting as the sole purchaser from farmers, setting production quotas, and ensuring a fixed return for grain throughout the year, regardless of the price of wheat at the time of delivery, which may fluctuate significantly. To be clear, the mobility factor in pursuit of a livelihood was engaged in Archibald because producers in the designated area would be treated differently from producers in the non-designated area in attempting to tender the fruit of their labour in any province in Canada. The discriminatory “laws . . . in force in a province” were the federal laws in force in the prairie provinces which, by their specific terms, distinguished between producers of origin provinces in setting the terms upon which they could make their goods available in destination provinces.
85 Muldoon J. found no violation of s. 6(2)(b) on the grounds that first, the degree of economic disadvantage was not sufficient to trigger s. 6(2)(b), and second, that even if s. 6(2)(b) had been triggered because of some economic disadvantage, it was not sufficient to affect the mobility right which is the essence of s. 6. With respect, this reasoning reflects the danger of examining the right contained in s. 6(2)(b) in isolation from s. 6(3)(a). Together, those sections make clear that legislation which discriminates primarily on the basis of residence in the pursuit of a livelihood is a violation of the mobility right, regardless of the magnitude of that impact. Whether the impact is so negligible that it does not warrant the protection of s. 6 is a matter better left to the justificatory analysis under s. 1 (see M. Jackman, “Interprovincial Mobility Rights Under the Charter” (1985), 43(2) U.T. Fac. L. Rev. 16, at p. 34).
86 However, an assessment of the impact of the impugned legislative distinction does have an important role to play in determining whether the ostensible purposes of the legislation are valid. There was conflicting testimony before the court regarding the benefits and costs arising from the scheme for particular farmers within the designated area (at para. 54). The fact that the scheme did not uniformly disadvantage farmers in the designated area, and that there were objective economic reasons for regulating only in that area, were relevant considerations in characterizing the dominant purpose and effect of the scheme. As Muldoon J. stated (at para. 106):
The individual plaintiffs all produce grain in the designated area because, although some wheat and barley can be, and are, grown in Quebec, and perhaps also the Atlantic provinces and perhaps also on the western slopes of the Rockies and (west) coastal ranges, it is the designated area in which it is most natural, efficient and economic to grow that grain. All producers of grain in the designated area are treated alike -- nay, the same -- under the impugned law. To market their grain extraprovincially, they must simply do so through the Board, which markets the grain on behalf of all producers in the designated area. The designated area is no “great wall” and does not impede any mobility.
87 When the impact of the laws applicable to a producer in the designated area is compared with its impact on a producer outside the designated area, it appears that the absence of a “great wall” arises from the fact that there are objective reasons for distinguishing the two areas, other than residential status. The vast majority of grain is produced within the designated area, and that volume of production is precisely what creates the fluctuations in price which the Wheat Board scheme was intended to mitigate. To the extent that producers outside of the designated area may be favoured in some circumstances by having more control over the marketing of their grain, they are also disfavoured because they tend to grow less than their western counterparts and have little or no influence on the determination of the price of their grain. Western producers tend to have more at stake in the marketing of their grain, which means that the reasons for the mitigating effect of the Wheat Board scheme are greater in their case. In that sense, it is quite appropriate to observe that there is no “great wall” between individuals within and outside the designated areas. The fact that the designated area does not coincide precisely with provincial boundaries per se, and that the area is characterized by large grain crops which distinguishes it from other areas of Canada, is further evidence that provincial boundaries are merely being used as a reasonably accurate marker for an economic reality which generally exists in those provinces.
88 By contrast, Basile v. Attorney-General of Nova Scotia (1984), 11 D.L.R. (4th) 219 (N.S.S.C.A.D.), involved legislation which was based directly upon residence. The plaintiff sought to obtain a licence as a salesperson in Nova Scotia, but was barred by a provision requiring the licensee to be a resident of the province of Nova Scotia. The Court of Appeal struck down the regulation as a violation of s. 6(2). In considering whether the residence requirement could be upheld under s. 1 of the Charter, the court rejected the argument that the requirement was necessary in order to prevent fraudulent transactions (at p. 226). In considering whether there has been a violation of the mobility right contained in s. 6(2)(b) and s. 6(3)(a), it is imperative to determine whether there is a purpose or effect which displaces that which appears obvious from the provision itself. Since the court determined that the distinction was based primarily on the basis of province of residence, it appropriately found the provision to violate the right to mobility.
89 Black, supra, also considered the possibility that there might be a valid purpose unrelated to residence which would serve to justify the discrimination based on residence. Viewed as a justification, the majority of the Court examined these alternative purposes under s. 1 of the Charter. In our view, however, many of the features of that case analysed under the rubric of s. 1 are crucial to determining whether the discrimination was made “primarily on the basis” of residence. The word “primarily” necessarily involves an evaluation of other possible purposes for, and effects of, the discrimination, and their weight relative to the discrimination based on residence. In this respect, the right to pursue the gaining of a livelihood free from discrimination based on residence is structured differently from the Charter right to equality. The equality guarantee in s. 15(1) is violated where there is any discrimination, by effect or by express language, based on one of the enumerated or analogous grounds. Any justification provided by other valid purposes or objectives served by the discrimination, apart from the operation of s. 15(2), must be evaluated according to the saving provision of the Charter, s. 1. By contrast, the use of the word “primarily” in the mobility guarantee suggests that other purposes and effects must be weighed to determine whether the residential aspect of the discrimination is primary. Whether the discrimination is unacceptable in the context of s. 6 depends entirely on which basis of discrimination is characterized as dominant, as denoted by the term “primarily”.
90 The search for the primary effect or purpose of a legislative classification is a familiar task for Canadian courts in enforcing the federal division of powers. Whether legislation is characterized as falling within s. 91 or s. 92 of the Constitution Act, 1867 is determined according to the “matter” with which it is concerned, which “is done by looking for the dominant feature of the law, or to use the term of art, its ‘pith and substance’” as opposed to its merely incidental effect (Starr v. Houlden, [1990] 1 S.C.R. 1366, at p. 1389 (emphasis added); R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 481-88). It has long been recognized that the categories of power contained in ss. 91 and 92 are not “watertight compartments”, and that legislation on a single subject may nevertheless touch on different categories of power (Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at p. 130; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at p. 180). In evaluating which subject or feature of the legislation is dominant for division of powers purposes, courts examine both purpose and effect (Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42, at pp. 75-76 (for characterization determined primarily by effect of legislation); see generally P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at pp. 388-92).
91 This kind of analysis is quite appropriate when considering the need to determine the primary basis of discrimination set out in s. 6(3)(a). It should be recalled that the constitutional context of s. 6 requires an analysis as to whether the primary basis of the discrimination is residence or, alternatively, whether the discrimination results from the appropriate exercise of the legitimate heads of power contained in ss. 91 and 92 which authorize the regulation of the economy. Thus, the jurisprudence which has traditionally been applied in fitting legislation into this catalogue of powers has direct relevance in assessing the primary basis of the legislative distinctions. The division of powers analysis, focusing on the characterization of a dominant matter with which legislation is concerned, provides a helpful methodology which can be applied in determining whether there is discrimination “primarily” on the basis of residence. Nor is this analysis foreign to the determination of the possible grounds of discrimination in the Charter rights context. In Big M Drug Mart, supra, at p. 331, Dickson J. described the need to scrutinize both purpose and effect in Charter cases:
In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respective by, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation’s object and thus, its validity.
92 The nuanced discussion in Black, supra, at pp. 628-34, on the possible significance to be accorded to such objects as ensuring expertise and competence of the legal profession, liability insurance, discipline, and the maintenance of ethical standards was indispensable to determining whether the discrimination was primarily based on residence. The majority found that none of these considerations displaced what appeared to be the clear purpose of the impugned provisions, namely, to exclude non-residents from the practice of law in Alberta. Only once this analysis had taken place could it properly be said that the discrimination was “primarily on the basis of province of present . . . residence”.
(e) Application to the Case at Bar
93 The key issue in this appeal is determining whether the residence of the producer is the primary basis upon which interprovincially marketed eggs whose origin is the Northwest Territories are differentiated from eggs produced in other provinces.
94 The restriction on the pursuit of a livelihood in this case is the inability of Northwest Territories’ residents to market eggs produced there in other provinces. The relevant law is the law in force in a destination province (which happens to be largely the same in all 10 provinces as a result of the federal-provincial scheme). The destination province is any province to which the respondents seek to market their eggs, and thereby make their livelihood; the origin province is the Northwest Territories. Thus, in order to determine if there is discrimination in this case, the terms according to which Northwest Territories egg producers can market their eggs in the destination province must be compared with the terms according to which egg producers resident in the destination province can market their eggs in the destination province. If those terms discriminate primarily on the basis of residence, then s. 6 is violated.
95 The appellant contends that the true basis of the distinction is the historical pattern of production, which is a valid means of apportioning marketing quotas among the various provinces, and which is indispensable to the orderly and fair management of the egg market in Canada. Producers in the Northwest Territories are distinguished in their ability to market their eggs in destination provinces not on the basis of their residence, but because they happen to reside in an area which did not historically produce eggs at the time that the quotas were being allotted according to historical production patterns. In any event, the appellant also argues, the scheme regulates only on the basis of place of production, not on the basis of place of residence. The respondents do not dispute the validity of the general purposes of the egg marketing scheme, but contend that the effect of the scheme is to completely exclude them from interprovincial marketing, simply because they produce eggs in the Northwest Territories. They further claim that production and residence are inextricably intertwined, and that a discrimination based on place of production is, in effect, discrimination based on residence. This was the case notwithstanding the fact that one of the respondents, Richardson, is a resident of Alberta who produces eggs in the Northwest Territories. This reasoning was adopted by Hunt J.A. in the Northwest Territories’ Court of Appeal, who found that “unlike an egg producer in one of the provinces, [the Northwest Territories’] producer can never, under the current scheme, obtain a quota to market eggs extra-territorially” ([1996] N.W.T.R. 201, at p. 231). On that basis, Hunt J.A. held that “the regime clearly discriminates on the basis of residence”.
96 With respect, the judgment in the Court of Appeal and the position of the respondents fail to address the determinative question in this appeal: what is the primary basis of the discriminatory treatment? In our view, the primary basis of the differential treatment is not residence in this case. There is no doubt that the general purposes of the egg marketing scheme are valid. The 1972 Federal-Provincial Agreement in respect of the establishment of a Comprehensive Marketing Program for the purpose of regulating the marketing of Eggs in Canada, which is the foundation of the interlocking legislative instruments which comprise the scheme, states in its preamble:
Whereas it is deemed proper that a Comprehensive Egg Marketing Program be established to ensure the orderly marketing of eggs in Canada, a fair return to the producer, a dependable supply of high quality products to the consumer, the co-operation and coordination between the various provincial Egg Commodity Boards and an Agency;
In Reference re Agricultural Products Marketing Act, supra, at p. 1268, Laskin C.J. described the purposes -- not the effects -- of the egg marketing scheme:
. . . I find nothing in the marketing scheme here that, as a trade regulation, is in its essence and purpose related to a provincial boundary. To hold otherwise would mean that a federal marketing statute, referable to interprovincial trade, could not validly take into account patterns of production in the various Provinces in attempting to establish an equitable basis for the flow of trade. [Underlining added.]
We would also recall the words quoted above of Martin J. in MacKinnon, supra, at p. 501. Neither the respondents nor the decisions below have challenged the use of historical production patterns as an equitable means of distributing quotas for the orderly and fair marketing of commodities, or that this purpose has changed as a result of legislative amendments to the Act as originally passed (as was the case in Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341 (C.A.)). The original purposes of the scheme must, therefore, be considered valid, notwithstanding circumstances which have changed in the intervening period. The exclusion of the Northwest Territories producers is simply an application of the principle of quota allocation based on historical production patterns, and shares the same unimpeached purpose.
97 The gist of the respondents’ attack under ss. 6(2)(b) and 6(3)(a) is that the effects of the legislative scheme are so significant as to have displaced the primacy of this valid objective, and that residence has become the dominant basis of the differentiation. As mentioned above, both purpose and effect must be examined in order to determine constitutionality. It is possible that those effects might, over time, acquire such significance as to become the dominant feature of the legislation, thereby displacing the original purpose. This is precisely the development alleged by the respondents, since the egg marketing scheme could not have had a discriminatory impact while there was no production in the Northwest Territories, which was the case at the time the scheme was enacted. Moreover, we accept the assumption of the Court of Appeal that the effect of a legislative scheme, which on its face distinguishes based upon place of production, will typically have a profound effect on residents. Even though Richardson is a resident of Alberta, the other respondent is incorporated under the laws of, established in, and owned by individuals residing in, the Northwest Territories. In most cases, it is realistic to consider that place of residence will often determine where a person can engage in production. In our view, it would be an egregious formalism to accept the appellant’s argument that the basis of the distinction drawn in this legislation could not be residence simply because it is phrased in terms of place of production. In the absence of significant submissions on this issue, and given that one of the parties before us is a resident producer, we are prepared to accept that production and residence should be treated as closely interrelated in this case.
98 There are two types of effect which must be examined in order to properly categorize the dominant feature of the legislative scheme: legal effect, and practical effect (Morgentaler, supra, at pp. 482-88). The legal effect has been described as “how the legislation as a whole affects the rights and liabilities of those subject to its terms, and is determined from the terms of the legislation itself” (Morgentaler, at p. 482). The finding quoted above from the Court of Appeal falls into this category: it describes a legal incapacity resulting from the legislation which requires no further analysis of factual context. Legal effect would alone be sufficient to support a finding of discrimination as that word is used in s. 15(1) of the Charter (although, of course, other requirements are imposed within s. 15(1) which might not be satisfied in this case). In a s. 6 analysis, however, the issue is the determination of the primary basis of the discrimination. As mentioned above, determining the primary basis of a distinction is closely analogous to the pith and substance approach to legislative classification used in considering division of powers questions, and which involves evaluating all of the effects which may serve to displace or confirm the dominant purpose of the legislation being scrutinized. This requires a consideration of the second type of effect mentioned in Morgentaler, supra, at p. 483, which is the “actual or predicted practical effect of the legislation in operation”. The appropriate comparison group in measuring the discriminatory impact of the legislation is not established egg producers in the destination province who seek to market their eggs in the destination province, but rather new egg producers in the destination province who have no quota and who seek to market their eggs in the destination province. This is the only appropriate way to measure the significance of the producers’ residence on the operation of the egg marketing scheme.
99 Unfortunately, little direct evidence on this issue was tendered before this Court or the courts below. This may be contrasted with the evidence before the court in Milk Board v. Clearview Dairy Farm Inc. (1986), 69 B.C.L.R. 220 (S.C.), affirmed (1987), 12 B.C.L.R. (2d) 116 (C.A.), where the practical difficulties in obtaining a quota, either by purchasing one from another producer or directly from the Milk Board, were fully canvassed. This factual issue may be one of considerable complexity since each province’s egg board is responsible for determining how to allot quotas within that province. An examination of one provincial egg marketing scheme, the Ontario Farm Products Marketing Act and the Broiler Hatching Eggs and Chicks — Marketing regulations, R.R.O. 1990, Reg. 396, as amended by O. Reg. 744/91, indicates that the allocation of egg marketing quotas is controlled by existing egg producers. In the absence of argument on this point, however, we are reluctant to draw what appear to be even the most obvious inferences from such a structure.
100 The burden of proof in establishing a breach of a Charter right rests with the respondents in this case. Although they have shown that the legal effect of this scheme is to exclude them from the legal possibility of obtaining an egg quota, they have failed to demonstrate a practical prejudice relative to producers resident in the destination province or provinces who also do not have a quota which is great enough to have caused the primary purpose of the legislation to be defined as discriminating against Northwest Territories producers on the basis of their residence. It is quite possible that the egg plans in effect in the destination provinces to which the respondents wish to export their eggs operate to exclude any new producers from obtaining a quota. Under those circumstances, the practical discriminatory effect of the national egg marketing scheme against the respondents would be nil. Indeed, a finding of discrimination under s. 6 based on legal effect on Northwest Territories producers might place them, practically speaking, in a privileged position relative to new producers in the destination provinces, rather than a disadvantaged position. While new producers in the destination provinces would be practically -- though not legally -- excluded from obtaining an egg quota, the respondents allege that the Northwest Territories producers in this case would be entitled to such a quota, based purely on a finding that the legal effect of the current plan disadvantages them. Rather than disadvantage based on province of residence, this would amount to a practical advantage based purely on residence. Indeed, such a situation also amounts to a legal advantage to the extent that new producers in the destination provinces have no legal entitlement to such a quota, only a legal entitlement to apply on an equal basis with other new producers; by contrast, these Northwest Territories producers, by virtue of their position as the sole producers in the jurisdiction, are claiming a legal entitlement to a quota under s. 6 of the Charter. These are possibilities, not ascertained facts; but the failure of the respondents to establish that there is a practical disadvantage relative to new producers in any single destination province, or in the destination provinces as a whole, dramatically weakens their argument that the deleterious effects based on residence of this legislative scheme have come to outweigh its valid purpose.
101 This lacuna in the evidence seriously undermines the significance of the finding in the Court of Appeal, supra, at p. 231, that “the present regime, vis-à-vis the person who produces in the Northwest Territories, does not regulate, it prohibits”. The relevance of a finding of prohibition is simply that the effects of a legislative scheme may be so grossly disproportionate as to displace the valid objectives of the legislation as its primary matter. However, if new producers in other provinces are also practically prohibited from marketing eggs interprovincially, then a finding of prohibition loses its sting.
102 In conclusion, we have found that the general purposes of the national egg marketing scheme are valid, and that the use of historical production patterns as a means of allocating quotas furthers those purposes. The exclusion of the Northwest Territories from a national interprovincial marketing quota is simply an application of that valid principle. The respondents have failed to establish that the actual effects of the scheme as they relate to province of residence displace the valid legislative purposes discussed as the dominant feature of the scheme. Under these circumstances, we find no violation of the right of mobility contained in ss. 6(2)(b) and 6(3)(a). In particular, the discrimination in this case cannot be said to be “primarily on the basis of . . . present . . . residence”.
103 In view of the above conclusions, we find it unnecessary to consider the subsidiary issue of whether Northwest Territories producers could be given an overbase quota under s. 4(1) of Part II of the Schedule of the CEMA Proclamation.
(2) Freedom of Association
104 Hunt J.A. in the Court of Appeal found that there had been a violation of the freedom of association contained in s. 2(d) of the Charter on two distinct grounds. By one train of reasoning, she found that since the respondents’ mobility rights protected their interprovincial marketing of eggs; their freedom of association in this case was simply ancillary to that constitutionally protected activity. Given the findings above, this reasoning is no longer valid. The other basis for finding a breach of s. 2(d) was that the activity of trading in eggs is intrinsic to the very act of association. Hunt J.A. rejected the applicability of previous jurisprudence which had distinguished between the goals of an association, and the associational activity itself. Such an approach would render the freedom to associate meaningless in this case “because . . . it is the association itself that is the activity” (p. 225). Since it is impossible to “market eggs by oneself” (p. 224), considering the legality of the activity if performed alone is an inappropriate litmus test for determining whether this associational activity is comprehended by s. 2(d). If it is necessary to associate with others to do something, then the right in s. 2(d) reaches beyond protecting the act of associating to protect the very activity for which the association is formed, an activity which is described as “foundational” to the association. The problem with this argument is that in this case it is not so much the activity that is foundational to the association as it is the association that is foundational to the activity. It is the activity that the respondents seek to cloak with the protection of s. 2(d); any association with others is merely a means to an end.
105 The fact that the association is but a means to an end is not immediately fatal to the respondents’ case, because associations normally are a means to an end. As McIntyre J. noted in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (“Alberta Reference”), the right protected by s. 2(d) derives from the fact that “the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others” (p. 395). However, underlying the cases on s. 2(d) is the proposition that freedom of association protects only the associational aspect of activities, not the activity itself. If the activity is to be protected by the Constitution, that protection must be found elsewhere than in s. 2(d).
106 When considering the scope of freedom of association, McIntyre J. examined six possible approaches. The first comes from Collymore v. Attorney-General, [1970] A.C. 538 (P.C.). Under this approach, freedom of association is freedom to associate with others for common-interest objects which can range from religious to economic. But these objects are themselves not protected: “freedom to associate confers neither right nor licence for a course of conduct or for the commission of acts which in the view of Parliament are inimical to the peace, order and good government of the country” (p. 399). The second approach to freedom of association guarantees the freedom to exercise constitutional rights collectively. Thus where the objects of the association are themselves constitutionally protected, freedom of association protects the right to pursue the objects of association which have constitutional protection. Under the third approach, individuals have the freedom to associate to do what they may lawfully do alone, but, conversely, the act of associating does not create a right to do what is unlawful if done alone. The fourth approach goes still further to protect “collective activities which may be said to be fundamental to our culture and traditions and which by common assent are deserving of protection” (p. 401). The fifth approach holds that s. 2(d) extends constitutional protection to all activities that are essential to the lawful goals of an association. The sixth approach goes even further: it holds that s. 2(d) protects all acts done in association, subject only to limitation under s. 1. This was the approach of Bayda C.J.S. in Re Retail, Wholesale & Department Store Union and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609 (Sask. C.A.): “Where an act by definition is incapable of individual performance, he is free to perform the act in association provided the mental component of the act is not to inflict harm” (p. 620). The resemblance of this passage to the ratio expressed by Hunt J.A. is striking. McIntyre J. rejected the fourth, fifth and sixth approaches.
107 In rejecting the fourth approach, McIntyre J. noted at p. 406 that
[t]he purpose of freedom of association is to ensure that various goals may be pursued in common as well as individually. Freedom of association is not concerned with the particular activities or goals themselves; it is concerned with how activities or goals may be pursued.
108 McIntyre J. found that the fifth approach rejected the individual nature of the right (p. 404). Earlier, he had found that the right belonged to individuals, not the associations they form. The fifth approach, however, would
accord an independent constitutional status to the aims, purposes, and activities of the association, and thereby confer greater constitutional rights upon members of the association than upon non-members. It would extend Charter protection to all the activities of an association which are essential to its lawful objects or goals, but, it would not extend an equivalent right to individuals. The Charter does not give, nor was it ever intended to give, constitutional protection to all the acts of an individual which are essential to his or her personal goals or objectives.
He then cites an example from an article: suppose Parliament decided to ban guns. This would not infringe any individual right. But if a group of citizens formed a gun club, their freedom of association would be violated by the ban on guns. McIntyre J. rejected the sixth approach for the same reasons. His words are apposite (at p. 405):
For obvious reasons, the Charter does not give constitutional protection to all activities performed by individuals. There is, for instance, no Charter protection for the ownership of property, for general commercial activity, or for a host of other lawful activities. And yet, if the sixth approach were adopted, these same activities would receive protection if they were performed by a group rather than by an individual. In my view, such a proposition cannot be accepted. There is simply no justification for according Charter protection to an activity merely because it is performed by more than one person.
109 Le Dain J., writing also for Beetz and La Forest JJ., explicitly rejected the very proposition enunciated by Hunt J.A. in the present case, namely, that unless freedom of association also protected the activities and objects of associations it would be empty and meaningless (at p. 391). He commented further that the question was
whether [the] particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection sought — the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer — are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring specialized expertise.
It cannot be said that freedom of contract and trade is a modern notion. Nevertheless, the regulation of trade, and in particular, trade in agricultural commodities, is an exercise that involves a balance of competing interests that requires specialized expertise. Yet the effect of the respondents’ submissions would be to constitutionalize all commercial relationships under the rubric of freedom of association. There is no trade or profession that can be exercised entirely by oneself. Following the reasoning of the Court of Appeal, all forms of government regulation of the economy that affect the ability of individuals to trade would, at least prima facie, infringe s. 2(d) and require justification under s. 1. As William Shores noted in a comment on the Court of Appeal’s decision in the case at bar:
An interpretation of the freedom of association that protects trade expands the role of the Charter in protecting commercial activity far beyond anything recognized by the courts to date. Such an interpretation will provide a sharp weapon for attack on a wide range of regulatory systems.
(“Walking Onto an Unfamiliar Playing Field -- Expanding the Freedom of Association to Cover Trade” (1996), 6 Reid’s Administrative Law 1.)
110 In the Alberta Reference, Dickson C.J., with the concurrence of Wilson J., would have adopted a broader interpretation of freedom of association. But he stopped short of extending the right to cover all activities done in association. At p. 366, he noted that the freedom is
not an unlimited constitutional licence for all group activity. The mere fact that an activity is capable of being carried out by several people together, as well as individually, does not mean that the activity acquires constitutional protection from legislative prohibition or regulation.
Dickson C.J. also discussed certain indicia of when the freedom to associate has been restricted. For instance, if the legislature permits individuals to engage in a certain activity but forbids it to associations, the legislation attacks the collective or associational aspect of the activity. By the same token, if the legislature forbids both individuals and associations alike from engaging in a certain activity, the likely conclusion is that this is a bona fide prohibition that does not target the associational aspect of the activity.
111 Although the various judgments in the Alberta Reference are not at one on the precise scope of freedom of association, they all agree that it remains essential to distinguish between the associational aspect of the activity and the activity itself. This essential distinction has been the basis for subsequent cases. Thus, for instance, in R. v. Skinner, [1990] 1 S.C.R. 1235, the Court found that the Criminal Code provision prohibiting communications in a public place for the purposes of prostitution did not offend s. 2(d) of the Charter because, although such an exchange contemplates an association of the parties, the target of the legislation was not the association per se, but the expressive conduct of communicating for the purposes of prostitution.
112 In Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, Sopinka J. drew (at p. 402) four propositions from the Alberta Reference. They are:
. . . first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.
L’Heureux-Dubé J. agreed that s. 2(d) was not meant to accord constitutional protection to any object of an association whose fulfilment is fundamental to the existence of the association. As she noted at p. 392, “It is always the case, or at least generally so, that the objects of an association are pivotal to its existence.” We find that this case falls squarely within the second proposition defined by Sopinka J.
113 Moreover, the converse of the fourth proposition, which is that s. 2(d) does not create a right to do in association what is unlawful for an individual to do, also applies. Thus, whether it is said that the activity is foundational to the association or that the association is foundational to the activity, it comes to the same thing: what is being attempted is to bring under constitutional protection activities that are not constitutionally protected when done by individuals, simply by virtue of the fact that individuals have associated for the purpose of carrying on these activities.
VI. Conclusion
114 We would allow the appeal with costs, set aside the judgment of the Northwest Territories Court of Appeal, and answer the constitutional questions as follows:
1. Do the Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646, as amended, the Canadian Egg Licensing Regulations, 1987, SOR/87-242, as amended, ss. 3, 4(1), 7(1)(d), and 7(1)(e), and the Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86-8, as amended, ss. 4(1)(a), 5(2), 6 and 7(1), in whole or in part, infringe the rights and freedoms guaranteed by s. 2(d) and s. 6 of the Canadian Charter of Rights and Freedoms?
Answer: No.
2. If so, can this infringement be justified under s. 1 of the Charter?
Answer: It is not necessary to answer this question.
The reasons of McLachlin and Major JJ. were delivered by
//McLachlin J.//
McLachlin J. (dissenting) --
1. Introduction
115 I have had the benefit of reading the reasons for judgment prepared by my colleagues Iacobucci and Bastarache JJ. in this appeal. I agree that the respondents should be granted standing to argue the Charter issues in this appeal through an extension of the “Big M Drug Mart exception”. However, I respectfully do not agree with my colleagues’ disposition of the substantive issues of the appeal. In particular, I believe that there is a violation of s. 6(2)(b) of the Canadian Charter of Rights and Freedoms and that this violation cannot be saved under either s. 6(3)(a) or s. 1. Given that I find the impugned legislation is invalid under s. 6, I do not propose to deal with the s. 2(d) arguments.
116 This appeal requires the Court to define the ambit of the mobility rights guaranteed to Canadians by s. 6 of the Charter. At issue is whether the federal egg marketing scheme violates s. 6 of the Charter by prohibiting people who produce eggs in the Northwest Territories from engaging in the interprovincial and export trade of eggs: Canadian Egg Marketing Agency Proclamation, C.R.C., c. 646; Canadian Egg Licensing Regulations, 1987, SOR/87-242, ss. 3, 4(1), 7(1)(d) and 7(1)(e); Canadian Egg Marketing Agency Quota Regulations, 1986, SOR/86-8, ss. 4(1)(a), 5(2), 6 and 7(1). In my view, the egg marketing scheme violates s. 6 by excluding residents in the Yukon and the Northwest Territories from the interprovincial and export trade of eggs, a right enjoyed by residents in other provinces.
117 In broad compass, s. 6 of the Charter is designed to prevent provinces or the federal government from passing laws or adopting practices that impinge on the right of Canadian citizens and landed residents to pursue their living anywhere in Canada. Its aim, broadly put, is to prevent the provinces and the federal government from setting up barriers to earning a living based primarily upon provincial boundaries. Governments may impinge incidentally on the right to cross provincial borders in pursuit of some broader goal. But if regulation on the basis of provincial boundaries is the only or prime object or effect of a government law or practice, the law will fall under s. 6, subject to the equalization provision of s. 6(4). The egg marketing scheme at issue on this appeal sets up a barrier to pursuing a living producing eggs, on the basis of the boundary of the Northwest Territories. That barrier is not incidental to some larger purpose nor saved under any of the exceptions to the s. 6 right. It therefore violates s. 6. The violation is not justified under s. 1 of the Charter. It follows that the scheme must fall.
2. The Legislative Scheme and the Facts
118 In light of the detailed description by Iacobucci and Bastarache JJ., I need not set out the facts and history of the marketing scheme. Suffice it to note that the scheme, while set up by the Parliament of Canada in the exercise of its federal power, was designed and is controlled by provincial and egg marketing interests. When it was set up, no one was in the egg production business in the Northwest Territories or the Yukon; hence they were not included. That is no longer the case. For 16 years, the Northwest Territories have been negotiating for inclusion. Evidently it is not in the interests of the provincial producers and exporters who control the scheme to admit new competitors. While a Memorandum of Agreement has been reached that may result in the inclusion of the Northwest Territories in the scheme in the near future, as of yet the Northwest Territories have been unable to obtain entry into the scheme. Absent entry, no eggs can be exported from the Northwest Territories for interprovincial or international trade.
119 The legislative scheme thus creates an impasse which makes it effectively impossible for the respondents to carry on the business of egg production for interprovincial and export trade in the Northwest Territories, where they choose to live. The respondent Richardson’s story illustrates the problem. He formerly carried on the egg production business in Alberta. He decided to move across the border to Hay River in the Northwest Territories and carry on his business there. Having established his operations, he found that he could not engage in interprovincial or export trade of eggs because the egg marketing scheme permits only producers in provinces belonging to the scheme to engage in interprovincial and export trade. The only way Richardson can carry on his livelihood, without disadvantage, under the scheme is to move his production facilities back to Alberta or another province.
120 The respondent Pineview Products Ltd. has a different but similar story. It is co-owned by the aboriginal people of the Dene nation. Through egg production for interprovincial trade, they seek to provide a living for themselves. The legislative scheme, however, effectively forbids their effort. To pursue their business, they would be obliged to move their production facilities away from their ancestral lands to one of the provinces.
121 The effect of the legislative scheme is to exclude the Northwest Territories and the Yukon from a business carried out in every other part of Canada -- the production of eggs for interprovincial and export trade. The issue is whether this violates the guarantee of s. 6(2)(a) and (b) of the Charter that every citizen or permanent resident of Canada has the right to “take up residence in any province” and to “pursue the gaining of a livelihood in any province”, a term which by virtue of s. 30 of the Charter includes the Northwest Territories.
3. The Purpose of Section 6 of the Charter
122 Section 6 enshrines the right of Canadian citizens and permanent residents to pursue a living wherever in the country they choose without undue government interference. It has two purposes, one collective, one individual: (1) to promote economic union among the provinces; and (2) to ensure to all Canadians one of the fundamental incidents of citizenship: the right to travel throughout the country, to choose a place of residence anywhere within its borders, and to pursue a livelihood, all without regard to provincial boundaries. These purposes are related. The individual right of citizens and permanent residents of Canada to reside and pursue the gaining of a living in any province is the private correlative of the collective interest in a unified economy.
123 The goal of promoting economic union between the provinces is not a
new one. From the time of Confederation, Canada’s constitutional framers have sought to ensure that, despite its federal structure, Canada would have a national economy: Black v. Law Society of Alberta, [1989] 1 S.C.R. 591, at pp. 608-9. The current constitutional structure represents a historical compromise between regional interests and the vision of economic union. In broad outline, s. 121 of the Constitution Act, 1867 permits legislation which incidentally impinges on the flow of goods and services across provincial boundaries, but prohibits legislation that in “essence and purpose is related to a provincial boundary”: Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626, at p. 642, per Rand J.; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198, at p. 1268, per Laskin C.J. interpreting s. 121. Section 6 of the Charter further pursues the aim of economic unity. As John B. Laskin wrote in “Mobility Rights under the Charter” (1982), 4 Supreme Court L.R. 89, at p. 93, “it was concern about the economic balkanization of Canada that was largely responsible for the inclusion in the Charter of provisions relating to interprovincial mobility”.
124 The second purpose of s. 6 is the obverse of the first, collective purpose: to accord to citizens and permanent residents the right to travel throughout the country, to choose a place of residence anywhere within its borders, and to pursue a livelihood, all without regard to provincial boundaries. “Inhering in citizenship is the right to reside wherever one wishes in the country and to pursue the gaining of a livelihood without regard for provincial boundaries”: Black, supra, at p. 612, per La Forest J. Personal mobility is not just a function of citizenship, but a basic human right:
A human being possesses these rights simply because he is a human being. If the government were to dictate to individuals where they must live, we would regard that as a serious intrusion into personal freedom. It would prevent those individuals from living in their communities of preference, which could isolate them from the habits, customs, and cultural ties which are essential to their identity.
(T. Lee and M. J. Trebilcock, “Economic Mobility and Constitutional Reform” (1987), 37 U.T.L.J. 268, at p. 301.)
125 The goal of protecting individual rights recasts the goal of economic union in the legal language of discrimination. It focuses on the individual’s right not to be discriminated against in the pursuit of a livelihood. Like the other anti-discrimination guarantee in the Charter, s. 15, its purpose can be achieved only if it is interpreted generously and in a substantive rather than formal fashion. The essence of s. 6 is the right not to be discriminated against, i.e., the right to be treated equally to, or not be disadvantaged in relation to, others. As in any discrimination analysis, the key is determining who the appropriate comparators are -- who are the “others” with whom the individual is entitled to be equal, in relation to whom the individual is entitled not to be disadvantaged? Artificial differences which place the individual in a class of her own must be avoided: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. The reality or “substance” of the individual’s situation, as compared with others in relation to the purpose and goal of the anti-discrimination provision, must be seized.
126 These observations underline the central importance of s. 6 of the Charter in the Canadian constitutional scheme. A federation must of necessity maintain a balance between the right of all citizens to live and work in any part of the country, which in a very real sense belongs to all of them, and the right of governments to regulate trade, employment, business and professions within their boundaries. Legislation, provincial as well as federal, may impinge on the pursuit of a livelihood in any part of the country in a myriad of ways. Section 6 sets the constitutional boundaries within which it may do so.
127 Prior to the Charter, legislation that imposed trade restrictions primarily on the basis of provincial boundaries was suspect: Murphy v. Canadian Pacific Railway, supra; Reference re Agricultural Products Marketing Act, supra. Section 6, broadly put, adopts a similar criterion for the new right to pursue a living in any part of the country. Legislation or practices may impinge on the right to work in any part of the country where this is a necessary incident of some larger legislative objective. They may not, however, have this as their sole or primary purpose or effect.
4. The Structure of Section 6 of the Charter: How it Works
128 The structure of s. 6 reflects the tension between the goals of enhancing economic union and mobility across the country, and the constitutional reality that governments, legislating within their heads of power, may adopt measures that have an incidental balkanizing effect. This tension is expressed and accommodated through the common drafting device of setting out the right in broad, general terms in the first part of the section, and following it by a series of limitations and exceptions. It would be wrong to focus exclusively on either aspect of the section. The broad statement of rights must be read together with the limitations to seize the intent of the framers of the Charter: Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 379.
129 Section 6(2)(b) proclaims the right to pursue a living in any part of the country in broad, untrammelled terms: “Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right . . . to pursue the gaining of a livelihood in any province”. These words sweep into the net of s. 6 any law or practice which in purpose or effect creates a distinction based on province of residence which impairs a person’s pursuit of a particular livelihood.
130 This, however, is only the first stage of the analysis. The right to pursue the gaining of a livelihood is not an absolute right, but a limited one. It must accommodate the right of governments to legislate under their proper heads of power even where this has the incidental effect of impeding the pursuit of a livelihood on the basis of residence -- the right, for example of provincial governments to legislate standards for the entry to and practice of professions and occupations. To this end, s. 6(3)(a) provides that s. 6(2)(b) rights “are subject to . . . any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence”. This saves laws of general application which may incidentally discriminate on the basis of past or present residence, but do not have this discrimination as their “primary” purpose or effect. Most provincial certification, licensing and health-benefit laws caught by the broad scope of s. 6(2)(b) are readily saved at the second stage of s. 6(3)(a): P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 1053. Federal regulatory schemes also will be saved under s. 6(3)(a) in most cases.
131 Even this may not be the end of the story. Laws which fall within s. 6(2)(b) and are not saved by s. 6(3)(a) may still be saved by s. 6(4). This section protects any law that “has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada”. In other words, laws may primarily discriminate on the basis of residence if the discrimination is aimed at improving employment in a low-employment province.
132 Finally, a law which is not saved under the limitations of s. 6 may be upheld under s. 1 of the Charter if the government shows that the infringement of rights is demonstrably justified in a free and democratic society.
5. The Requirements of Section 6(2)(b)
133 The broad wording of s. 6(2)(b) catches all laws or government practices that in purpose or effect impede the pursuit of a livelihood in any part of Canada on the basis of province of residence. A host of provincial laws governing standards for employment, professions and businesses as well as federal laws regulating trade and commerce, fall within its preliminary ambit.
134 Judicial interpretation has confirmed the broad ambit of s. 6(2). First, as with all Charter rights, the court decides whether a law or government practice impinges on the right not only by the words used, but by its effect: Black, supra. It follows that any law or government practice that has either the object or the effect of creating a distinction based on residence which impairs the right to pursue a living in any part of the country is caught by s. 6(2)(b).
135 Second, the courts have taken a broad view of what constitutes interference with “the right to pursue the gaining of a livelihood in any province”. They have held that it is not necessary that a person be precluded from pursuing the gaining of a livelihood to attract s. 6. All that is required is that the person be placed at a disadvantage in the pursuit of his or her livelihood: Black, supra, at p. 618.
136 Third, the courts have broadly defined “livelihood” as livelihood of choice: Black, at p. 618. This encompasses every sort of profession, employment and business. It includes “the right to be self-employed as well as to be employed by others, the right to be an entrepreneur as well as to be an employee”, and it may protect the right to invest and do business in any part of Canada: D. A. Schmeiser and K. J. Young, “Mobility Rights in Canada” (1983), 13 Man. L.J. 616, at pp. 635-36. The term “pursue the gaining of a livelihood” suggests the right to earn a living in the part of the country that one chooses free from government discrimination on the basis of province of residence and more; it is broad enough to include the right to contribute to one’s community through work, a contribution which in turn may enhance the individual’s self-respect and respect in the eyes of others in the community.
137 The one limit which the courts have suggested is that s. 6(2)(b) does not mean that the state must provide a free-standing right to pursue the livelihood he or she may desire in every province and territory of Canada. No one has a right to claim that the government must provide him or her with a means to pursue his or her living in the province of choice. Section 6 is aimed not at the positive provision of a living, but at the removal of unwarranted barriers to pursuing a living on the basis of provincial boundaries. This Court rejected the claim of a non-citizen lawyer to practise law in Ontario in Skapinker, supra, at pp. 382-83, because the claim was presented as a claim for a free-standing right to practise law in Ontario, not a claim that it is harder to pursue a living in one province or territory than another. It is in this broad sense that this Court in Black, per La Forest J., conceived the heading “Mobility Rights”: “The heading seems to me to be a good general description of the provisions of s. 6, and an interpretation that permits a person to pursue his living throughout Canada does not seem to me to be a meaning that is out of sympathy with mobility” (p. 621).
138 In summary, the wording of s. 6(2)(b) and the cases indicate that the first step of the s. 6 analysis is satisfied if the law or government practice at issue has the object or effect of impeding the pursuit of a livelihood anywhere in Canada on the basis of province of residence. The exclusion of the Northwest Territories from the egg marketing scheme has this effect. It would therefore seem that the first stage of the s. 6 analysis is satisfied. First, however, it is necessary to consider factors that might augur against this conclusion.
(a) The Mobility Argument
139 The first is the suggestion that the mobility right protected by s. 6(2)(b) is confined to two situations: (1) where the law or practice at issue disadvantages a person because he or she has moved into the province from another province; or (2) where it disadvantages a person because he or she has not moved but wishes to engage in an activity in another province. I note initially that this limitation would not necessarily exclude the claims in the case at bar. A case might be made that the respondent Richardson falls into the first category because he moved to the Northwest Territories in order to pursue his livelihood as an egg producer and he thus meets the suggested mobility criteria. A case might also be made that the respondents fall into the second category because the egg marketing scheme prevents them from carrying on an aspect of their business, the marketing of eggs, in provinces or territories in which they do not reside.
140 More fundamentally, however, it is not apparent why s. 6(2)(b) must be confined to the two situations outlined by Estey J. in Skapinker or what is gained by forcing the analysis over this judge-made hurdle. The broad words of s. 6(2)(b) target any disadvantage in pursuing a living in any part of the country based on province of residence. If the framers of the Charter had wanted s. 6(2)(b) to apply only to two categories of cases, it seems to me they would have said so. They did not. This leads me to conclude that we should not artificially narrow s. 6(2)(b). I see no reason why s. 6(2)(b) should not catch, as its words suggest, any law or practice that has the object or effect of making it more difficult to pursue a living in one province or territory than another.
141 Nor does the jurisprudence require that s. 6(2)(b) be confined to the two categories suggested by Estey J. in Skapinker. While Skapinker speaks of these as illustrating when s. 6 may apply, it does not rule out other applications. La Forest J., speaking for the majority in Black, supra, at p. 620, rejected such an exclusionary approach, stating that “a purposive approach to the Charter dictates a more comprehensive approach to mobility” than the narrow view of Skapinker some argued for. The better interpretation, one not “out of sympathy with mobility”, is one “that permits a person to pursue his living throughout Canada” (p. 621).
142 In my view, the “mobility element” is fulfilled if the law in question is found to restrict the ability of citizens and permanent residents of Canada to gain a particular livelihood in one province or territory as compared to another. The necessary mobility element was not found in Skapinker, as noted, because the plaintiff simply argued that his right to pursue his livelihood was being infringed per se. By contrast, the necessary mobility element was present in Black, not just because the individual Ontario lawyers might travel to Alberta once a year, but also because they were disadvantaged in comparison to lawyers in Alberta.
143 To state that disadvantage in pursuing a living based on provincial boundaries affects mobility is to state the obvious. Any law or government practice that makes it more difficult to gain a particular livelihood in a particular province has the potential to negatively affect mobility. If people suffer a disadvantage in gaining a livelihood in a particular province, they are less likely to move there or travel there for work. Laws or government practices that have this effect necessarily hamper interprovincial mobility. Mobility is impaired, even if the disadvantage is not triggered until the person attempts to move to or work in the “other” province. Knowledge of the potential disadvantage may restrict mobility by precluding the decision to move to or attempt to find work in that province. In the case at bar, Richardson suffers a disadvantage in the pursuit of his livelihood because he moved his residence and his production facilities to the Northwest Territories. This disadvantage is likely to deter others from moving their residence or their production facilities to the Territories.
144 Mobility is also impaired if a person is required to move residence or work to another province or territory in order to escape a disadvantage in the pursuit of their livelihood. In the case at bar, members of the Dene nation suffer the disadvantage of not being able to engage in interprovincial or export trade of their eggs because they choose to reside where they have since time immemorial, in the Northwest Territories. In order to escape the disadvantage, they must move their residence or their production facilities to one of the provinces. They are thereby deprived of their right to pursue their livelihood in any province.
145 To put it in the context of the cases, the discrimination suffered by Mr. Richardson and members of the Dene nation is akin to that suffered by Mr. Black before them. Each suffers disadvantage in the pursuit of their chosen livelihood because they live in one province or territory as opposed to another. The mobility rights of each are thereby affected.
146 This broad reading of mobility in s. 6(2)(b) accords with the purposes of s. 6 -- to promote economic union and the right to live and work in whatever part of the country one chooses, free from governmental impediments based on provincial boundaries. It also reflects the drafting structure of s. 6 -- a broad preliminary definition of the right followed by limitations and exceptions. And it poses no danger of inappropriately curtailing legitimate regulatory legislation or practices; these are saved by the limiting provisions like s. 6(3)(a), which protects all laws or practices that set up barriers to pursuing a living on the basis of provincial boundaries except those that have this as their primary object or effect.
147 I conclude that the heading “Mobility Rights” does not constrain the language of s. 6(2)(b) to any particular set of situations. The broad language of s. 6(2)(b), read purposively, applies to any law or government practice that disadvantages a person in the pursuit of a living in any province of Canada on the basis of his or her province of residence.
(b) The Argument that the Distinction Is not Based on Residence
148 This brings me to the main argument advanced by the appellant under s. 6(2)(b), the argument that the egg marketing scheme does not make a distinction based on residence.
149 Legislation or government practices which are neutral on their face may be caught by s. 6(2)(b) because their effect is to impose a disadvantage on the basis of residence in a particular province or territory. Such laws or practices are said to be “surrogates” for express distinctions based on residence. The appellant argues that the scheme does not expressly make a distinction based on residence and that forbidding the export of eggs from the Northwest Territories is not a “surrogate” for a distinction based on residence. While the prohibition imposes a disadvantage, it does not do so on the basis of a person’s province of residence.
150 This argument possesses several variants. The first is that the egg marketing scheme does not disadvantage residents of the Northwest Territories in the pursuit of the livelihood of egg production on the basis of residence because the scheme targets eggs, not people. The scheme permits producers to produce eggs for domestic consumption. It forbids only the export of eggs. The Charter protects people, not goods. Therefore, the appellant argues, s. 6(2)(b) is not engaged. I respectfully disagree.
151 If a law has the effect of impinging on the ability of people to pursue a livelihood, it is not exempted from s. 6(2)(b) merely because the mechanism by which the impingement is effected concerns the passage of goods and services across provincial boundaries. While s. 6(2)(b) focuses on free passage of people, not goods or services, interfering with the passage of goods or services may have the effect of interfering with the pursuit of a livelihood, where the movement of goods or services is integral to the livelihood in question: see Lee and Trebilcock, supra, at p. 290. If s. 6(2)(b) did not protect the right to transfer goods and services across boundaries where this is integral to the way an individual earns his or her livelihood, all livelihoods that involve cross-border transactions would fall outside its scope. There is nothing in s. 6(2)(b) to suggest such a limited construction. To impose it runs counter not only to the broad general wording of the section, but to the purposes that underlie s. 6(2)(b) of promoting the economic unity of Canada and the right of the individual to gain a livelihood anywhere in the country.
152 The error in the argument that the scheme targets eggs, not people, is that it stops consideration of the effects of the scheme artificially at the product exported. It consequently begs the real question: what effect does the exclusion of the passage of eggs have on the ability of egg producers to pursue a livelihood in the Northwest Territories? For example, there can be little doubt after Black that a law forbidding an Ontario lawyer to charge a fee in Alberta for work done in Ontario would be caught by s. 6(2)(b). Such a law would have the effect of disadvantaging the Ontario lawyer as compared with the Alberta lawyer on the basis of province of residence. Similarly, an egg producer in the Northwest Territories who is prohibited from engaging in the interprovincial or export trade of his or her eggs will be disadvantaged as compared to the egg producer in Alberta who is not so prohibited. If restrictions on non-residents selling legal services in Alberta imposed a disadvantage under s. 6(2)(b), as this Court held in Black, so must restrictions on non-residents selling eggs in Alberta impose a disadvantage. In the case at bar, anyone wishing to pursue a livelihood by producing eggs in the Northwest Territories is disadvantaged by not being able to sell the eggs outside the Territories. The “eggs not people” argument ignores the reality of this disadvantage.
153 The second variant of the argument that the scheme does not discriminate against people in the Northwest Territories on the basis of residence, is that the scheme targets the residence of hens, not of people. Its effect is not to prevent people from living and working where they wish; it simply requires them to relocate their hens. Therefore, the appellant argues, s. 6(2)(b) is not engaged. The respondents should move their chickens across the border to Alberta. Then they would suffer no discrimination. With respect, I cannot agree.
154 Like the first variant, the second ignores the real effect of the scheme on egg producers who are residents of the Northwest Territories. The respondents, like many agricultural producers, choose to have their production facilities near their residence. This allows them to participate personally in production. Moving production to Alberta, as the appellant suggests they should do, would prevent them from personally participating in production. This would put them at a competitive disadvantage with egg producers in Alberta and the other provinces, who can place their production facilities near their place of residence. It would also deprive them of collateral benefits of earning a livelihood in one’s place of residence -- the benefits of contributing to one’s economic community and the self-respect and respect of others this promotes.
155 Whatever choice they make, the respondents would find themselves penalized by the scheme because of where they currently reside. If they move their production to a province while continuing to reside in the Northwest Territories, they are put at a competitive and personal disadvantage in the earning of their livelihood. If they move their residence across the border to escape this disadvantage, they lose their right to reside in the place of their choice. Either way, they suffer discriminatory effects because of their current residence in the Territories.
156 The reality of the respondents’ situation reveals the formal vacuity of the “let them move their chickens” argument. To view the problem in terms of the mobility of chickens and eggs is to overlook the practical effect of the law on the individuals whose livelihood is at stake and to adopt a formalistic rather than substantive approach to the discrimination that s. 6 seeks to target. This Court should reject a formalistic approach to the mobility rights guaranteed by s. 6, just as it has for the equality right guaranteed by s. 15 of the Charter. The admonition that they should move their chickens to Alberta is apt to offer as much comfort to the people of the Dene nation as Marie-Antoinette’s advice to eat cake afforded the peasants of 18th century France.
157 The third variant of the argument is that the egg marketing scheme discriminates on the basis of historical production patterns and not on the basis of residence. Iacobucci and Bastarache JJ. adopt this argument, relying on Archibald v. Canada, [1997] 3 F.C. 335 (T.D.); Groupe des éleveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.), and MacKinnon v. Canada (Fisheries and Oceans), [1987] 1 F.C. 490 (T.D.). The decision in Archibald was based on reasoning that has been rejected by this Court and hence provides little help in determining the case at bar. The Groupe des éleveurs case and the MacKinnon case, with respect, are distinguishable on the ground that the legislation at issue did not prohibit all producers from participating in the regulated industry. In Groupe des éleveurs, supra, some chicken producers in Ontario were allocated quotas while others were not. In MacKinnon, supra, the Fisheries’ Sector Management Plan made allowance for fishers who had historically fished across sector lines. In contrast to the case at bar, neither of these cases prohibited all producers in a province from participation in a scheme regulated by the federal government. Since not all of the producers of a particular province were excluded, it could not be said that the federal government discriminated against the residents of a particular province on the basis of their province of present or previous residence. By contrast, in the case at bar, all producers of eggs in the Northwest Territories are prohibited from marketing their eggs outside of the Territories.
158 For these reasons, I cannot accept the argument that the disadvantage imposed on egg producers in the Northwest Territories does not discriminate on the basis of residence.
(c) The Argument of Equal Treatment
159 The appellant also argues that a given law or practice does not discriminate if it treats all people within a province equally. I cannot agree. The key to any discrimination analysis, as I noted earlier, is determining who the appropriate comparators are -- the “others” with whom the individual is entitled to be equal, in relation to whom the individual is entitled not to be disadvantaged. Given the different scope of provincial and federal legislation, different comparator groups must be used when assessing whether discrimination may result.
160 Since each province can legislate only within its own territory, it follows that discrimination by a province on the basis of province of present or previous residence will treat residents of different provinces differently within the province. Discrimination by provinces must necessarily always be concerned with intra-province discrimination, since the province or territory’s legislation is of no effect beyond its borders. The comparators for determining whether a province or territory has discriminated under s. 6(2)(b) are necessarily people residing in or pursuing a livelihood within the province. It follows that provincial laws or government practices that treat all people within a province the same do not violate s. 6. Black, supra, was concerned with provincial legislation that discriminated within a province on the basis of residence outside the province. The issue was whether the Alberta legislation discriminated against Mr. Black on the basis of residence as compared to other people practising law within the province. Had the legislation treated all lawyers practising in the province the same, no violation of s. 6 could have been found.
161 By contrast, where federal legislation or practices are at stake, the appropriate comparators are people throughout Canada. Like the provinces, the federal government can discriminate by treating people within a given province or territory differently. But unlike the provinces, it can also discriminate by treating people in one province or territory differently than people in another province. It is no answer to either type of federal discrimination to say that the law or practice treats all people within a given province equally. Provided a province treats all people within the province equally, it does not discriminate. Provided the federal government treats all people within the country equally, it does not discriminate.
162 This means that the legislation or practices of one province are not invalid by reason of the fact that they are more restrictive than those of other provinces or territories. While caught by s. 6(2)(b), such laws may be saved by s. 6(3)(a) so long as they do not discriminate between residents and non-residents of the province. The resultant differences between standards in different provinces are the proper consequences of our constitutional division of powers.
163 The same principles play out differently where federal legislation or practices are at issue, however. Federal laws which create impediments to mobility will not be immunized from review under s. 6(2)(b) merely because they do not discriminate between residents and non-residents of a particular province. It must also be demonstrated that they do not discriminate between residents of the province or territory in question and residents of other provinces and territories in Canada.
164 It follows that the proper comparators for determining whether the impugned federal legislation in the case at bar discriminates on the basis of present or previous residence are people in the rest of Canada, not just people in the Northwest Territories. The fact that both residents and non-residents of the Northwest Territories are equally discriminated against in the Territories is immaterial, once it is determined that the federal government has created a scheme that has the purpose or effect of discriminating against egg producers who are residents of the Northwest Territories compared to egg producers who are residents in the 10 provinces.
165 For these reasons, I cannot agree that it is an answer to the respondents’ claim that the egg marketing scheme treats all people within the Northwest Territories the same. To avoid discrimination, the egg marketing scheme, as federal legislation, must treat all people within Canada the same. It does not.
(d) Conclusion on Section 6(2)(b)
166 I conclude that the respondents’ case falls within the preliminary ambit of s. 6(2)(b) of the Charter. The federal Proclamation at issue and the egg marketing scheme it sanctions confer on producers in the provinces fortunate enough to be members the right to market eggs outside their province of production. The same scheme denies that right to producers in two territories, the Yukon and the Northwest Territories. This constitutes a distinction based on residence that disadvantages egg producers in these territories in comparison to egg producers in the 10 provinces. This is sufficient to attract s. 6(2)(b) and move the analysis to its second stage.
6. The Second-stage Saving Provision: Section 6(3)(a)
167 Many laws, including a host of provincial laws governing standards for employment, professions and businesses as well as federal laws regulating interprovincial trade and commerce, are initially caught by s. 6(2)(b). This alone does not establish violation of the mobility rights guaranteed by s. 6. Sections 6(3) and 6(4) cut down the broad prima facie right conferred by s. 6(2)(b).
168 Section 6(3)(a) states that a law which infringes s. 6(2) is saved if it is a “law of general application” “in force in a province”, provided that it does not “discriminate” “primarily” on the “basis of province of present or previous residence”. In my opinion, s. 6(3)(a) cannot save the legislation at issue in this case.
169 As indicated earlier, s. 6(3)(a) is aimed at “saving” all laws initially caught by s. 6(2)(b), unless they discriminate “primarily” on the basis of residence. A law will not be saved by s. 6(3)(a) in two instances. First, a law cannot be saved by s. 6(3)(a) if its primary purpose is to discriminate on the basis of residence: Black. In other words, s. 6(3)(a) cannot save any provision that discriminates on its face on the basis of province of residence. This type of direct discrimination clearly discriminates primarily on the basis of residence. In Black, the majority of this Court found that the first impugned rule of the Law Society of Alberta, rule 154, which prohibited members from entering partnerships with non-residents, was not saved by s. 6(3)(a) because it made direct reference to province of residence. As was the case in Black, any reasons the government may have for this type of direct discrimination may be used to attempt to justify the violation of mobility rights under s. 1.
170 Second, a law cannot be saved if its primary effect is to discriminate on the province of residence. In Black, La Forest J. found that, despite the fact that it did not discriminate on its face, the second impugned rule of the Law Society of Alberta could not be justified under s. 6(3)(a) because “[i]t is not the members of local firms but rather those that want to develop and maintain interprovincial connections who will be most severely affected by Rule 75B” (p. 626). In other words, the rule could not be saved because it disproportionately (or primarily) affected non-residents.
171 In my view, it is not sufficient to demonstrate simply that provincial legislation disproportionately affects non-residents of a province as compared to residents or that federal legislation disproportionately affects residents of one province as compared to residents of other provinces in order to preclude that law from being saved under s. 6(3)(a). In addition, it must be demonstrated that the adverse effects are not incidental to some higher purpose. This ensures that the analysis under s. 6(3)(a) provides a sufficient recognition of the legitimate exercise of the regulatory authority of provincial and federal governments. Provinces and the federal government are permitted to impose disadvantages on the basis of provincial boundaries so long as this effect is incidental to another purpose within their proper legislative sphere. They are not permitted, however, to create interprovincial barriers which are not incidental to such a higher purpose. The primary/incidental distinction in s. 6(3)(a) mirrors the jurisprudence under s. 121 of the Constitution Act, 1867, which bars trade laws aimed primarily at impeding the flow of goods on the basis of provincial boundaries: Murphy v. Canadian Pacific Railway, supra; Reference re Agricultural Products Marketing Act, supra.
172 In Black, the Law Society of Alberta argued that the discrimination imposed by the second rule was necessary in order to protect against potential conflicts of interest among lawyers. La Forest J. rejected this argument, finding that, like the first rule considered, “Rule 75B was aimed at prohibiting residents and non-resident members from associating for the practice of law” (p. 626 (emphasis added)). La Forest J. thus implicitly found that the discrimination on the basis of residence was not incidental to the attempt to prevent conflicts of interest. He went on to find that the second rule could not be saved by s. 6(3)(a) because of its disproportionate effects on non-resident lawyers.
173 Section 6(3)(a) does not save laws or government practices which discriminate “primarily” on the basis of residence. For this reason, it cannot save the exclusion at issue. As noted above, the exclusion of the Northwest Territories from the federal egg marketing scheme disproportionately affects residents of the Northwest Territories and is not incidental to a larger purpose. The exclusion exists by historical accident. There is no higher purpose to which it serves as a necessary adjunct. Indeed, it undercuts the purpose of the scheme, to create a stable national supply scheme for eggs. It is a senseless and counter-productive impediment to the right of the respondents to pursue their chosen livelihood, egg production, in the province or territory of their choice, the Northwest Territories.
174 Iacobucci and Bastarache JJ. argue that the respondents’ claim must fail because they failed to demonstrate that they are practically disadvantaged in comparison with “new” producers in other provinces. I cannot agree. The federal Proclamation and Regulations at issue in the case at bar absolutely prohibit new producers in the Northwest Territories from participating in the interprovincial or export trade of eggs by prohibiting the allocation of federal quota to the Territories. By contrast, the federal Proclamation and Regulations provide for the allocation of quota to the provinces and thus in no way prohibit new producers in the provinces from participating in the interprovincial or export trade of eggs.
175 Arguably, new producers in the provinces may be practically restricted from obtaining quota due to the allocation of quota within the province by the provincial regulatory board. However, this practical restriction is not the result of the Proclamation itself or of the specific federal Regulations at issue in the case at bar, rather it is the result of specific determinations made by the provincial regulatory boards. While these provincial regulatory boards have a limited amount of quota to allocate, they are free to allocate that quota to new producers should they so choose, particularly in years of high egg consumption where there is an allocation of overbase quota by the Canadian Egg Marketing Agency. Such an overbase quota allocation was made in 1997. I would also add that there appears to be nothing stopping new producers in provinces such as Alberta from buying quota on the open market -- a fact alluded to by counsel for the appellant in oral argument. In either case, the important fact is that these practical avenues for obtaining quota which are available to new producers in the provinces are denied to new producers in the Northwest Territories because the Territories are prohibited from holding federal quota. The inescapable conclusion is that, in comparison to new producers in the provinces, producers in the Northwest Territories are discriminated against primarily on the basis of their province of residence.
176 I conclude that the discrimination established under s. 6(2)(b) is not saved under s. 6(3)(a) because the egg marketing scheme discriminates against egg producers in the Northwest Territories primarily on the basis of residence. I therefore find it unnecessary to consider whether the law is a law of “general application in force in a province” and whether s. 6(3)(a) applies to federal legislation. It is not suggested that it falls under s. 6(4). The analysis thus moves to s. 1 of the Charter.
177 The question is whether the violation of s. 6 of the Charter represented by the exclusion of the Northwest Territories from the egg marketing scheme is saved under s. 1 of the Charter as a reasonable measure demonstrably justified in a free and democratic society.
178 The first issue is whether the objective of the infringing aspects of the legislative scheme constitutes a pressing and substantial state objective: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199. It does not. The limitation, as noted, is the result of historical accident, not design. It controverts the very objective of the scheme -- to create a stable, national supply management system for eggs. It follows that the legislation fails the first branch of the Oakes test. Section 1 of the Charter cannot save the egg marketing scheme.
8. Conclusion
179 I conclude that the exclusion of producers in the Northwest Territories from the interprovincial and export trade of eggs under the Proclamation and Regulations violates the rights guaranteed to the respondents by s. 6(2)(b) of the Charter. This violation is not saved under s. 6(3)(a) or under s. 1 of the Charter.
180 I would answer the first constitutional question “yes” and the second “no”. I would dismiss the appeal but suspend the declaration of inconsistency with the Charter for six months from the date of these reasons to permit negotiations to proceed for inclusion of the Northwest Territories and the Yukon.
Appeal allowed with costs, McLachlin and Major JJ. dissenting.
Solicitors for the appellant: Osler, Hoskin & Harcourt, Ottawa.
Solicitors for the respondents: McLennan Ross, Edmonton.
Solicitor for the intervener the Commissioner of the Northwest Territories: The Attorney General of the Northwest Territories, Yellowknife.
Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Sainte‑Foy.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Attorney General for Alberta: The Department of Justice, Edmonton.
Solicitors for the interveners the Council of Canadians and the Sierra Legal Defence Fund Society: Gregory J. McDade and David R. Boyd, Vancouver.
Solicitors for the intervener the Alberta Barley Commission: Dale Gibson Associates, Edmonton.