Democratic Rights

• Author: Robert J. Sharpe, Kent Roach
• Pages: 194-210

194

CHA PTER 11

DEMOCR ATIC RIGHTS

A central argument favouring the ent renchment of rights in a constitu-

tion is that check s on the political process are needed to protect certain

fu nd a me nt al va lu e s. T he re i s of t en di sa gr e em ent ab ou t t he s pe ci f‌ic ri gh t s

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 w idespread consensus on the need for some judici al

oversight is th at of political activity. Participation in fair elections and

vigorous public debate are the cornerstones of democracy.

The Charter of Rights and Freedoms contains th ree g uarantees 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 provincia l legislature and to

be qualif‌ied for membership in those houses. Section 4 sets a maximum

duration of f‌ive ye ars for the life of the House of Commons or a prov-

incial legislature, although that period can be extended in t ime of war

or similar n ational crisis by a two-th irds vote of the member s. Finally,

section 5 guarantees a sitting of Parliament and the legislatures at least

once in every year. The importance — and the primacy — of these sec-

tions is show n by the fact that t hey cannot b e overridden by the exer-

cise 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 democrac y.”1

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

D.L.R. (4th) 385. In that case, the Cour t chose to decide the constitut ionality of

Democratic R ights 195

Section 4 of the Charter i s designed to ensure t hat Canadians have

a regular opportunity to elect federal and provi ncial representatives,

while section 5 is designed to ensure t hat those elected representatives

have a regular opportunity to examine and vote upon the actions of the

executive branch of government. Sections 4 and 5 are long-standi ng

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

ition of parliamentar y democracy. 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 ca lled earlier.

Not surprisingly, since sections 4 and 5 of the Charter ref‌lect consti-

tutional 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 r ise 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 ricti ons on th ird pa rty spe nding d uring e lection campai gns. Se ction 3

has also often b een raised in conjunction with the gua rantees of freedom

of expression and association, discussed in the two previous chapters, as

well as equality r ights, which are discu ssed in chapter 15 below.

A. VOTER QUALIFICATIONS

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

portunity 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, deny ing the vote to pri son in-

mates and those in psychiatric institutions, to judges, and to citizen s

not re sident 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 only provides a right for citizen s to vote in

federal and provincial elections. Lower courts have interpreted section

3 not to apply to the vote at the mun icipal 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 ofte n

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.

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

pal elections or to r un for municipal off‌ice in Jones v. Ontari o (A.G.) (1988), 53