Law Society of Upper Canada v. Skapinker
Encyclopedia
Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 is a leading Supreme Court of Canada
decision on mobility rights protected under section 6
of the Canadian Charter of Rights and Freedoms
. It is also the first Charter decision to reach the Supreme Court since its enactment in 1982.
residing in Canada who applied to the Ontario
bar to practice law. The bar refused his application as the Law Society Act required that he be a Canadian citizen. Skapinker brought an application to have the provision of the Act requiring Canadian citizenship be held inoperative on the basis that it violated section 6(2)(b) of the Charter.
At trial, the application was denied. However, on appeal the Court held that his mobility rights were in fact violated.
In the end Estey finds that section 6 "does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. 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." Consequently, the appeal was overturned. Estey, however, added that his interpretation has been intentionally cautious due to the newness of the Charter and that there may warrant further expansion of the right in the future.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on mobility rights protected under section 6
Section Six of the Canadian Charter of Rights and Freedoms
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. It is also the first Charter decision to reach the Supreme Court since its enactment in 1982.
Background
Joel Skapinker was a citizen of South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
residing in Canada who applied to the Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
bar to practice law. The bar refused his application as the Law Society Act required that he be a Canadian citizen. Skapinker brought an application to have the provision of the Act requiring Canadian citizenship be held inoperative on the basis that it violated section 6(2)(b) of the Charter.
At trial, the application was denied. However, on appeal the Court held that his mobility rights were in fact violated.
Opinion of the Court
The unanimous Court held that Skapinker's rights were not violated by the Law Society Act. Estey J., writing for the Court, acknowledged the difficulty in interpreting the Charter as it was not to be treated like a statute. He examined the headings of each section and tried to reconcile them with the wording of the sections. He noted several factors that must be considered:- the degree of difficulty because of ambiguity or obscurity in construing the section;
- the length and complexity of the provision;
- the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading;
- the presence or absence of a system of headings which appear to segregate the component elements of the Charter;
- and the relationship of the terminology employed in the heading to the substance of the headlined provision.
In the end Estey finds that section 6 "does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. 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." Consequently, the appeal was overturned. Estey, however, added that his interpretation has been intentionally cautious due to the newness of the Charter and that there may warrant further expansion of the right in the future.
See also
- List of Supreme Court of Canada cases (Dickson Court)
- Andrews v. Law Society of British ColumbiaAndrews v. Law Society of British ColumbiaAndrews v. Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with section 15 of the Canadian Charter of Rights and Freedoms...
− a case in which a similar citizenship requirement was struck down as a violation of the appellant's Section 15 Charter rights.