Democratic Rights

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

231

C H A P T E R 11

DEMOCR ATIC R IGHTS

A central argument favouring the entrenchment of rights in a const i-

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 wh ich 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 Canad ian parliamentary

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 those houses. Section 4 sets a ma x-

imum duration of f‌ive years for the life of the House of Commons or a

provincial legislature, although that period can b e extended in a time

of war or similar national crisis by a two-t hirds 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 overridden 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 Cour t chose to decide the constitut ionality of

THE CHARTER OF R IGHTS AND FR EEDOMS232

Section 4 of the Charter is de signed to ensure th at Canadians h ave

a regular opportunit y to elect federal and provincial repres entatives,

whereas section 5 is designed to ensure that those elected repre senta-

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 Can adian 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 yea rs

unless a n election i s called earlier.

Not surprisingly, since sections 4 and 5 of the Char ter 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 ha s given rise to a

number of disputes. These include the legitim acy of residency and other

qualif‌ications on the r ight to vote, the drawing of electoral boundar ies,

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

tion 3 has also often been r aised in conjunction with the g uarantees of

freedom of expression and association, discus sed in the two previous

chapters, as well as equality rights, which are discussed in Ch apter 15.

A. VOT ER QUA LIFIC ATIONS

Read literally, the right to vote requires that ever y citizen have the

opportunity to cast a ba llot 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 deny ing the vote to

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

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

Asians, Indigenous people, and others. In addit ion, many laws require

citizens to have resided within a terr itory 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