Democratic rights

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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A central argument favouring the entrenchment of rights in a constitution is that checks on the political process are needed to protect certain fundamental values. There is often disagreement about the specific rights that should be entrenched or the degree to which legislatures should be restricted by the constitution and subject to judicial review. Yet one area in which there is widespread consensus on the need for some judicial oversight is that of political activity. Participation in fair elections and vigorous public debate are the cornerstones of democracy.

The Charter of Rights and Freedoms contains three guarantees designed to ensure the healthy functioning of Canadian parliamentary democracy. Section 3 provides that every citizen has the right to vote in elections for the House of Commons or a provincial legislature and to be qualified for membership in those houses. Section 4 sets a maximum duration of five years for the life of the House of Commons or a provincial legislature, although that period can be extended in time of war or similar national crisis by a two-thirds vote of the members. Finally, section 5 guarantees a sitting of Parliament and the legislatures at least once in every year. The importance - and the primacy - of these sections is shown by the fact that they cannot be overridden by the exercise of the notwithstanding clause in section 33. The Supreme Court of Canada has indicated that such a status for the democratic rights places them "at the heart of our constitutional democracy."1

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Section 4 of the Charter is designed to ensure that Canadians have a regular opportunity to elect federal and provincial representatives, while section 5 is designed to ensure that those elected representatives have a regular opportunity to examine and vote upon the actions of the executive branch of government. Sections 4 and 5 are long-standing parts of the Canadian constitution, which derive from our British tradition of parliamentary democracy. Indeed, section 50 of the Constitution Act, 1867, also states that the life of the House of Commons is five years, unless an...

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