Democratic Rights

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 205-221

205

CH AP TER 11

DEMOCR ATIC R IGHTS

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 disag reement 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 de-

signed to ensure the healt hy 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 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 i n 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 show n by the fact that they cannot be overr idden 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 hear t 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 FREEDOM S

206

Section 4 of the Charter is de signed to ensure that Canadians have

a regular opportunit y to elect federal and provincial representatives,

while section 5 is designed to en sure that those elected representative s

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

executive branch of government. Sections 4 and 5 are long-stand ing

parts of the Can adian 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 i s f‌ive

years, un less an elect ion is calle d earlier.

Not surprisingly, since sections 4 and 5 of the Charter 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 g iven

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 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.

A. VOTER QUAL IFICATIONS

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

portunity to ca st a ballot in every election. However, election laws have

contained a number of qualif‌icat ions, most commonly restricting the

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

mates and those in ps ychiatric institutions, to judges, and to citizens

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

Asians, Indi ans, 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 provides a right for citizens to vote in fed-

eral and provincial elect ions only. Lower courts have interpreted sec-

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 votin g or electoral

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