Democratic Rights

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 177-192

CHAP TER 11

DEMO CR ATIC R IGHT S

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

tion is that checks on the political process are needed to protect cert ain

fundamental values. There is often di sagreement about the specific rights

that should be entrenched or the degree to which legi slature s should be

restricted by the constitution and subject to judicial review. Yet one area

in which there is wides pread consensus on the need for some judicial

oversight is that of political activ ity. 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 healt hy functioning of Canadian parliamentar y

democracy. Section 3 provides that ever y citizen has t he 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 i-

mum 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 t wo-thirds vote of the members.

Finally, section 5 guarantees a sitting of Parliament and the legislatures

at least once in every year. The importance — and t he primacy — of

these sections is shown by the fact that they cannot be overridden by

the exercise of the notw ithstandi ng clause in section 33. The Supreme

Court of Canada has indicated that such a statu s for the democratic

rights places them “at the heart of our constitutional democracy.”1

1Thomson Newspap ers Co. v. Canada (Attorn ey General), [1998] 1 S.C.R. 877, 159

D.L.R. (4th) 385. In that case, the C ourt chose to decide the constit utionality of

the restr iction on the publication of polls se venty-two hours before an election

177

the

charter of r ights and fr eedoms

178

Section 4 of the Charter is designed to ensure that Ca nadians have

a regular opportunity to elect federal and provincia l representatives,

while section 5 is designed to ensure that those elected represent atives

have a regular opportun ity to examine and vote upon the actions of the

executive branch of government. Sections 4 a nd 5 are long-standing

parts of the Can adian constitution, which derive from our British t radi-

tion of parliamentar y democracy. Indeed, section 50 of the Constitution

Act, 1867, also st ates that the life of the House of Commons is five year s,

unless a n election i s 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 provi sion that has given

rise to a number of disputes. These include the legitimac y of residency

and other qualifications on the r ight to vote, the drawing of electoral

boundaries, and re strictions on thi rd party spend ing during election

campaigns. Se ction 3 has also often been raised in conjunction wit h 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 below.

A. VOTER QUALIFICATIONS

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

portunity to cast a b allot in every election. However, elect ion laws have

contained a number of qualifications, most commonly restrict ing the

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

mates and those in ps ychiatric inst itutions, to judges, and to citizens

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

Asians, Indi ans, and others. In addition, ma ny laws require citizens to

have been resident within a ter ritory for a specified per iod, often sev-

eral months, before they are eligible to vote.

Section 3 of the Charter only prov ides a right for citizens to vote in

federal and provincial elections. Lower courts h ave interpreted section

under s. 2(b) of the Charter, which was subject to the over ride, as opposed to

s. 3 of the Charter, which was immune f rom the override. Section 2(b) is often

the basis for ch allenges to direct or ind irect restrictions on vot ing or electoral

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