Democratic Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 231-248

231

CHAPTER 11

DEMOCRATIC RIGHTS

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

tution 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

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 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 a 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 Cour t chose to decide the constitut ionality of

THE CHARTER OF R IGHTS AND FREEDOMS232

Section 4 of the Charter is designed to ensure that Canadians have

a regular opportunity to elect federal and provincial representatives,

whereas section 5 is designed to ensure that those elected representa-

tives have a regular opport unity to examine and vote upon the actions of

the executive branch of government. Sections 4 and 5 a re long-standing

parts of the Canadian constitution, which derive from our British trad-

ition of parliamentary democr acy. Indeed, section 50 of the Constitution

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 consti-

tutional 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 legitim acy of residency and other

qualif‌ications on the right to vote, the drawing of electoral boundaries,

and restrictions on t hird-party spending during e lection campaigns. Sec-

tion 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 discussed in Chapter 15.

A.VOTER QUALIFICATIONS

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

opportunity to cast a ballot in every election. However, election laws

have contained a number of qualif‌ications, most commonly restricting

the right to vote to those over a certain age and denying the vote to

prison inmates, those in psychiatric institutions, judges, and citizens

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

Asians, Indigenous people, and others. In addition, many laws require

citizens to have resided within a territory for a specif‌ied period, often

several 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

not to apply to the vote at the municipal or school board level.2 The

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.

2 The Ontario cour ts have held that s 3 did not give a ri ght to vote in municipal

elections or to ru n for municipal oce in Jones v Ontario (AG) (1988), 53 DLR