Voting and Elections
| Author | Craig Forcese - Aaron Freeman |
| Pages | 69-151 |
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Voting and Elections
As discussed in Chapter 1, the principle that those with power are either
elected or at least accountable to others who are lies at the heart of demo-
cratic accountability. For this reason, no other issue is as central to a func-
tioning democracy as the question of how citizens choose their elected
representatives. As the Supreme Court has held, “each citizen must have a
genuine opportunity to take part in the governance of the country through
participation in the selection of elected representatives . . . . Absent such a
right, ours would not be a true democracy.”1
This chapter will outline some of the key elements of how elections to
the House of Commons are regulated. It begins with a discussion of vot-
ing and electoral rights, as enshrined in the Charter and our democratic
traditions, and expressed in statutory law, in particular, the Canada Elections
Act.2 The chapter then describes how elections are triggered and who may
seek office as a candidate or party. This section is followed by a nuts-and-
bolts analysis of how elections are run and of the major players in adminis-
tering elections. We focus in particular on the question of how elections are
financed, examining public subsidies provided to parties and candidates,
and limits on election expenses, contributions, and third-party spending.
We conclude with a discussion of emerging issues in electoral regula-
tion, including the leaders’ debates, proportional representation, the chal-
lenge of encouraging a more diverse Commons, and referendums.
1 Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 at para. 30 [Figueroa].
2 Canada Elections Act, R.S.C. 2000, c. 9 [Elections Act].
LAWS OF GOVERNMENT70
A. VOTING AND ELECTORAL RIGHTS
As noted by Tremblay, the right to vote is a manifestation of two val-
ues — freedom and equality: “Freedom, because not only must each person
be able to exercise freely the right to vote and choose representatives, but
choosing them through universal suffrage is a guarantee that democratic
freedoms will be protected. Equality, because everyone has the right to vote
for representatives and everyone has intrinsically equal value in this process
that leads to democratic legitimacy.”3 Canadian law recognizes both of these
principles in the Constitution and in Acts of Parliament.
1. Constitutional Voting Rights
In 1982, a citizen’s right to vote was codified as constitutional law in section
3 of the Canadian Charter of Rights and Freedoms. Section 3 reads: “Every cit-
izen of Canada has the right to vote in an election of members of the House
of Commons or of a legislative assembly and to be qualified for member-
ship therein.”
The section 3 right to vote is of such elevated importance that it is not
subject to the section 33 “notwithstanding” provision. As noted by the Su-
preme Court, “The right to vote is fundamental to our democracy and the
rule of law and cannot be lightly set aside. Limits on it require not deference,
but careful examination.”4 The central focus of section 3, the Court has held,
“is the right of each citizen to participate in the electoral process.” This right
“to participate in the political life of the country is one that is of fundamen-
tal importance in a free and democratic society.” Thus, interpretations of
section 3 should embrace “a content commensurate with the importance of
individual participation in the selection of elected representatives in a free
and democratic state.”5
To date, the Supreme Court of Canada has discussed section 3 in
many contexts, including pre-election blackouts of opinion polls,6 elec-
toral boundaries,7 the disqualification of inmates from voting,8 voting in
3 Manon Tremblay (introductory report for the third preparatory meeting on electoral
issues, April 2000, leading up to the Symposium on Democratic Practices, Rights and
Freedoms in La Francophone, Bamako, Mali, November 2000), cited in “The Right to
Vote: The Heart of Democracy” Electoral Insight (January 2001) at 2.
5 Figueroa, above note 1 at para. 26.
6 Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 [Thomson].
Voting and Elections 71
referendums,9 a fifty-candidate threshold for official party standing under
Canadian election law,10 and third-party advertising restrictions.11 In these
cases (discussed later in this chapter), the Court has repeatedly urged that the
purpose of section 3 incorporates the “right to ‘effective representation.’”12
Summarizing the Court’s approach to section 3 in 1993, L’Heureux-Dubé J.
suggested that “[t]he purpose of s. 3 of the Charter is, then, to grant every
citizen of this country the right to play a meaningful role in the selection of
elected representatives.”13
a) The Right to Participate in Elections
Logically, this right to play a meaningful role in candidate selection extends
to ensuring a fair process for both voters and those running for office, and
it reflects an egalitarian model of democracy.14 As the Supreme Court ob-
served in Harper v. Canada, the egalitarian model is premised “on the no-
tion that individuals should have an equal opportunity to participate in the
electoral process.”15
At the time of Confederation, the right to vote was mostly limited to
male property owners, twenty-one years or older. We say “mostly” because
there are documented cases of property-owning women exercising the fran-
chise. According to Courtney, while British common law excluded women
from the right to vote, “Colonial electoral legislation, such as the 1791 Con-
stitution Act creating Upper and Lower Canada, was silent on the issue of
women voting.” Women voted in several pre-Confederation elections, most
frequently in Lower Canada, where the common law system was not in
place. “The 1834 election was actually contested on the grounds that it was
invalid because women voted. A deliberate process was then begun of pass-
ing laws to exclude women from voting, with the result that the implemen-
tation of section 41 of the BNA Act in 1867 effectively denied the federal vote
to women in Canada.”16
In response to the suffrage movement, women gained the right to vote
first in Manitoba in 1916, then Saskatchewan and Alberta in that same year,
and Ontario and British Columbia in 1917. Other provinces followed suit in
9 Haig v. Canada, [1993] 2 S.C.R. 995 [Haig].
10 Figueroa, above note 1.
11 Harper v. Canada (Attorney General), 2004 SCC 33 [Harper].
12 See Haig, above note 9; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R.
13 Haig, above note 9 at para. 63 [emphasis added]; see also see Figueroa, ibid.
14 Colin Feasby, “Libman v. A.G. Quebec and the Administration of the Process of Democ-
racy under the Charter: The Emerging Egalitarian Model” (1999) 44 McGill L.J. 5.
15 Harper, above note 11 at para. 62.
16 John C. Courtney, Elections (Vancouver: UBC Press, 2004) at 29–30 [Courtney, Elections].
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