Democratic Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 219-235

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CHAPTER 11

DEMOCRATIC RIGHTS

A central argument favouring the entrenchment of rights in a constitu-

tion is that checks on the political process are needed to protect cer-

tain funda mental 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 de-

signed 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 max-

imum 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 sitt ing 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

1 Thomson Newspape rs Co v Canada (Attorney Gene ral), [1998] 1 SCR 877, 159

DLR (4th) 385. In that case, the Cou rt chose to decide the constitut ionality of

THE

CHARTER OF R IGHTS AND FR EEDOMS

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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 opportun ity to exam ine 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 trad-

ition of parliamentary democracy. Indeed, section 50 of the Constitu-

tion Act, 1867, also states that the life of the House of Commons is f‌ive

years, unless an election is called earlier.

Not surprisingly, since sections 4 and 5 of the Charter ref‌lect con-

stitutional conventions that have been widely accepted for a long time,

they have not generated any litigation. However, section 3, the right to

vote, is a much richer and more controversial provision that has given

rise to a number of disputes. These include the legitimacy of residency

and other qualif‌ications on the right to vote, the drawing of electoral

boundaries, and restrictions on third party spending during election

campaigns. Section 3 has also often been raised in conjunction with

the guarantees of freedom of expression and association, discussed in

the two previous chapters, as well as equality rights, which are dis-

cussed in Chapter 15 below.

A.VOTER QUALIFICATIONS

Read literally, the right to vote requires that every citizen have the op-

portunity to ca st a ballot in every elect ion. However, election laws have

contained a number of qualif‌ications, most commonly restricting the

right to vote to those over a certain age, denying the vote to prison in-

mates and those in psychiatric institutions, to judges, and to citizens

not resident in Canada. Historically, the vote was denied to women,

Asians, Indians, and others. In addition, many laws require citizens to

have been resident within a territory for a specif‌ied period, often sev-

eral months, before they are eligible to vote.

Section 3 of the Charter provide s a right for citizens to vote in federal

and provincial elections only. Lower courts have interpreted section 3

the restr iction on the publication of polls sevent y-two hours before an election

under s 2(b) of the Charter, which was subject to t he override, as opposed to

s 3 of the Charter, which was immu ne from the override. Section 2(b) is often

the basis for ch allenges to direct or indi rect restrictions on voting or e lectoral

participat ion. These cases are di scussed in Chapter 9.