Democratic Rights

AuthorRobert J. Sharpe; Kent Roach
Pages219-235
219
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
220
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.

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