Democratic Rights

AuthorRobert J. Sharpe; Kent Roach
A central argument favouring t he 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 consen sus 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 g uarantees de-
signed to ensure the healthy functioning of Canadian pa rliamentary
democracy. Section 3 provides that every citi zen has the right to vote
in elections for the House of Commons or a provincial legi slature and
to be qualif‌ied for membership in thos e 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-th irds 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 show n by the fact that they cannot be overr idden by
the exercise of the notwit hstanding 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
Section 4 of the Charter is de signed to ensure that Can adians have
a regular opportunit y to elect federal and provincial representative s,
while section 5 is designed to en sure 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-stand ing
parts of the Can adian constitution, which derive from our Briti sh trad-
ition of parliamentary democracy. Indeed, section 50 of the Constitu-
tion Act, 1867, also states that t he life of the House of Commons is f‌ive
years, un less an elect ion is calle d earlier.
Not surprisingly, since sections 4 and 5 of the Char ter ref‌lect con-
stitutional conventions that have been w idely 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 t he right to vote, the drawing of electoral
boundaries, and rest rictions on third part y spending during election
campaigns. Sect ion 3 has also often been raised in conjunction with
the guarantees of freedom of expression and association, di scussed in
the two previous chapters, as well a s equality rights, which are d is-
cussed in Chapter 15 below.
Read literally, the right to vote requires that ever y citizen have the op-
portunity to ca st a ballot in every elect ion. However, election laws have
contained a number of qualif‌icat ions, most commonly restricting the
right to vote to those over a certain age, denying the vote to prison in-
mates and those in ps ychiatric institutions, to judges, and to citizens
not resident in Canada. Histor ically, the vote was denied to women,
Asians, Indians, and others. In addition, many laws requi re 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 inter preted 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.

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