Section 3 of the Canadian Charter of Rights and Freedoms

Edit links
Source: Wikipedia, the free encyclopedia.
Canadian Charter
of Rights and Freedoms
Part of the Constitution Act, 1982
Preamble
Guarantee of Rights and Freedoms
1
Fundamental Freedoms
2
Democratic Rights
3, 4, 5
Mobility Rights
6
Legal Rights
7, 8, 9, 10, 11, 12, 13, 14
Equality Rights
15
Official Languages of Canada
16, 16.1, 17, 18, 19, 20, 21, 22
Minority Language Education Rights
23
Enforcement
24
General
25, 26, 27, 28, 29, 30, 31
Application
32, 33
Citation
34

Section 3 of the

Section 1 of the Charter
. Federal judges, prisoners and those in mental institutions have gained the franchise as a result of this provision, whereas the restriction on minors voting was found to be permissible due to section 1.

Section 3 is one of the provisions in the Charter that cannot be overridden by Parliament or a legislative assembly under

Section 33 of the Charter, the notwithstanding clause. Section 3's exemption from Section 33 provides extra legal protection to the right to vote and it may prevent Parliament
or the provincial governments from disenfranchising any Canadian citizen for ideological or political purposes, among others.

Text

Under the heading "Democratic Rights," the section reads:

3. Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

History

No formal right to vote existed in Canada before the adoption of the Charter. There was no such right, for example, in the

Chinese Canadians (although both groups would go on to achieve the franchise before section 3 came into force).[1]

Interpretation

Sauvé v Canada
.

Voting

The section has generated some case law expanding the franchise. In 1988, section 3 had been used to grant

Sauvé v. Canada (2002),[2] in which it was found that prisoners could vote. They did so in the 2004 federal election, despite public opposition from Conservative leader Stephen Harper.[3]

In the 2002 case Fitzgerald v. Alberta,

section 1 of the Charter. The decision was upheld upon appeal.[5]

Candidate Requirements

In

Court of Queen's Bench of Alberta found that the $1000 federal candidate deposit requirement violated Section 3 and could not be justified under Section 1. Justice Inglis noted in paragraph 59 "I agree that the potential to prevent a serious and impressive candidate from running in an election, due to the financial pressure a $1000 deposit could create, is a real risk of the requirement. In my opinion, the impugned Deposit Requirement Provision would infringe many individuals’ – including the Applicant's – ability to communicate their messages to the public, and participate meaningfully in the electoral process as a candidate."[7]

Electoral participation and political spending

Generally, the courts have interpreted section 3 as being more generous than simply providing a right to vote. As stated in the case

Harper v. Canada (Attorney General) (2004),[9]
upheld laws that limit the amount of money a single group can contribute in the election (to prevent a monopolization of the campaign).

Sizes of constituencies

Although one cannot see this on the face of the Charter, the Supreme Court has also ruled that section 3 guarantees a measure of equality in voting. In

minorities more representation. While Saskatchewan's constituencies were found to be valid in the 1991 decision, Prince Edward Island
's were later deemed unconstitutional by the courts and the province's electoral map had to be redrawn.

Referendums

While section 3's reach has been expanded to cover the sizes of constituencies, it has not been extended to guarantee the right to vote in a

Haig v. Canada (1993),[11]
it was ruled that since section 3 was designed in specific reference to electing representatives, the right could not include participation in a "device for the gathering of opinions". It was also noted that unlike elections, governments do not have to hold referendums, nor do governments have to commit themselves to the result of a referendum. Thus, how a referendum is administered is within governmental discretion.

References

  1. ^ Hogg, Peter W. Canada Act 1982 Annotated. Toronto: The Carswell Company Limited, 1982.
  2. ^ Sauvé v. Canada (Chief Electoral Officer) [2002] 3 S.C.R. 519.
  3. ^ CBC.ca, "Canada has restricted political rights to Canadians living abroad for more than 5 years. 12,500 prisoners get to vote on June 28," Thu, 03 Jun 2004 09:28:42 EDT.
  4. ^ Fitzgerald v. Alberta 2002 ABQB 1086 (CanLII), [2003] 3 WWR 752.
  5. ^ Fitzgerald v. Alberta 2004 ABCA 184 (CanLII), [2004] 6 WWR 416.
  6. ^ "Szuchewycz v Canada (Attorney General), 2017 ABQB 645 (CanLII)". CanLII. Retrieved 2020-03-20.
  7. ^ "Szuchewycz v Canada (Attorney General), 2017 ABQB 645 (CanLII)". CanLII. Retrieved 2020-03-22.
  8. ^ Figueroa v. Canada (Attorney General) 2003 SCC 37 (CanLII), [2003] 1 S.C.R. 912.
  9. ^ Harper v. Canada (Attorney General), 2004 SCC 33 (CanLII).
  10. ^ Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158.
  11. ^ Haig v. Canada, 1993 CanLII 58 (S.C.C.), [1993] 2 S.C.R. 995.

External links

Retrieved from "https://en.wikipedia.org/w/index.php?title=Section_3_of_the_Canadian_Charter_of_Rights_and_Freedoms&oldid=1122823127"