Voting, Elections and the Selection of Members of Parliament
| Author | Craig Forcese/Aaron Freeman |
| Pages | 75-164 |
Voting,
Elections
and the
Selection
of
Members
of
Parliament
As
discussed
in
chapter
i,
at the
heart
of
democratic accountability
is the
principle that those with power
are
either themselves elected
or at
least
accountable
to
others
who
are.
For
this reason,
no
other issue
is as
central
to
a
functioning 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
voting
and
electoral rights,
as
enshrined
in the
Charter
and our
democratic tradi-
tions,
and
expressed
in
statutory law, most notably
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
administering
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.
1
Figueroa
v.
Canada
(Attorney
General),
[2003]
i
S.C.R.
912
at
para.
30.
2
Canada
Elections
Act,
R.S.C.
2000,
c. 9
(Elections
Act).
75
3
76 THE
LAWS
OF
GOVERNMENT
The
chapter concludes with
a
discussion
of
emerging issues
in
elec-
toral
regulation, including
the
leaders' debates,
fixed
election dates, propor-
tional representation,
and the
challenge
of
encouraging
a
more diverse
Commons.
Finally,
we
look
at two
related issues straddling elections
and
democratic governance: recall
and
referendums.
A.
VOTING
AND
ELECTORAL
RIGHTS
As
noted
by
Professor Tremblay,
the
right
to
vote
is a
manifestation
of two
values
—
freedom
and
equality: "Freedom,
because
not
only
must
each per-
son be
able
to
exercise
freely
the
right
to
vote
and
choose representatives,
but
choosing
them
through universal
suffrage
is a
guarantee that demo-
cratic
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.
i.
Constitutional Voting
Rights
In
1982,
a
citizen's right
to
vote
was
codified
as
constitutional
law in
sec-
tion
3 of the
Canadian
Charter
of
Rights
and
Freedoms.
Section
3
reads:
"Every
citizen
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
membership therein."
For the
Supreme Court
of
Canada, especially
because section
3 is not
subject
to the
section
33
"notwithstanding"
provi-
sion,
the
right
to
vote lies
"at the
heart
of our
constitutional
democracy."4
The
central
focus
of
section
3, the
Court
has
held,
"is the
right
of
each cit-
izen
to
participate
in the
electoral process."
This
right
"to
participate
in the
political
life
of the
country
is one
that
is of
fundamental importance
in a
free
and
democratic society." Thus,
interpretations
of
section
3
should
embrace
"a
content commensurate with
the
importance
of
individual par-
ticipation
in the
selection
of
elected representatives
in a
free
and
democrat-
ic
state."5
3
M.
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
Francophonie,
Bamako,
Mali,
Nov. 2000), cited
in
"The
Right
to
Vote:
The
Heart
of
Democracy,"
Electoral
Insight
(Jan.
2001).
4
Thomson
Newspapers
Co. v.
Canada
(Attorney
General),
[1998]
i
S.C.R.
877 at
para.
79.
5
Figueroa,
[2003]
i
S.C.R.
912
at
para.
26.
Voting, Elections
and the
Selection
of
Members
of
Parliament
77
To
date,
the
Supreme Court
of
Canada
has
discussed section
3 in the
context
of
pre-election blackouts
of
opinion
polls,6
electoral
boundaries,7
the
disqualification
of
inmates from
voting,8
voting
in
referendums,9
a
fifty-candidate
threshold
for
official
party standing under Canadian elec-
tion
law10
and
third-party advertising
restrictions.11
In
these
cases (dis-
cussed 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,
Madam Justice
L'Heureux-Dube
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)
Effective
Representation
and 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
observed
in
Harper
v.
Canada,
the
egalitarian model
is
premised
"on the
notion that individuals
should
have
an
equal opportunity
to
participate
in
the
electoral
process."15
In
keeping with this emphasis
on
political participation, voting
is not
merely
a
device
for
determining
the
identity
of
democratic representatives.
Section
3
guarantees more "than
the
bare right
to
place
a
ballot
in a
box."16
Rather,
it is
also
a
form
of
expression.
In the
words
of
Justice McLachlin
in
Reference
re
Provincial
Electoral
Boundaries
(Sask.):
"Ours
is a
representative
democracy.
Each
citizen
is
entitled
to be
represented
in
government. Rep-
resentation comprehends
the
idea
of
having
a
voice
in the
deliberations
of
6
Thomson,
[1998]
i
S.C.R.
877.
7
Reference
re
Provincial
Electoral
Boundaries
(Sask.),
158.
8
Sauvev.
Canada
(Chief
Electoral
Officer),
438;
Sauvev.
Canada
(Chief
Electoral
Officer),
519.
9
Haigv.
Canada,
995.
10
Figueroa,
[2003]
i
S.C.R.
912.
n
Harper
v.
Canada
(Attorney
General),
12
See
Haig,
995;
Harvey
v. New
Brunswick
(Attorney
General),
876; Thomson,
[1998]
i
S.C.R.
877;
and
Figueroa,
[2003]
i
S.C.R.
912.
13
Haig,
[1993]
2
S.C.R.
995 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
Democracy
under
the
Charter.
The
Emerging Egalitarian Model,"
(1999)
44
McGill
L.J.
5.
15
Harper,
para.
62.
16
Dixon
v.
British Columbia
(Attorney
General),
[1989]
4
W.W.R.
393 at
403, cited with
approval
by
Figueroa,
[2003]
i
S.C.R.
912
at
para.
19.
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