Section 3 – Democratic rights

Provision

3. 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.

Similar provisions

There is no similar provision in the Canadian Bill of Rights. Similar provisions may be found in the following international instruments binding on Canada: article 25 of the International Covenant on Civil and Political Rights; article 7 of the Convention on the Elimination of All Forms of Discrimination Against Women; article 29 of the Convention on the Rights of Persons with Disabilities; and articles 20, 32 and 34 of the American Declaration of the Rights and Duties of Man.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article 23 of the American Convention on Human Rights; and article 3 of the First Protocol to the European Convention on Human Rights. The American Constitution does not contain a separate guarantee of the right to vote, but some sections, and some Amendments (section 1, subsection 2, and the 15th, 19th, 24th and 26th Amendments) include various guarantees relating to the right to vote.

Purpose

The purpose of section 3 is to protect the right of each citizen to play a meaningful role in the electoral process (Opitz v. Wrzesnewskyj, 2012 SCC 55, at paragraph 28; Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, at paragraphs 25-26 and 30; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, at paragraphs 69-70). Supreme Court jurisprudence also indicates that section 3 protects the right to “effective representation” (Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 (“ Saskatchewan Reference”) at 183; Harper, supra at paragraph 68). Participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections (Figueroa, supra at paragraph 29); Daoust v. Québec (Directeur général des élections), 2011 QCCA 1634 at paragraph 46, leave to appeal to SCC refused [2012] S.C.C.A. No. 490). As for the right to effective representation, it includes the idea of having a voice in the deliberations of government as well as the right to bring one’s grievances and concerns to the attention of one’s government representative (Saskatchewan Reference, supra, at 183).

Section 3 must be interpreted having regard to the philosophical principles that have guided the historic development of the right to vote in our constitutional tradition (Saskatchewan Reference, supra; Dixon v. British Columbia (Attorney General) (1989), 59 D.L.R. (4th) 247 (B.C.S.C.)). It must also be interpreted in a way that advances the values and principles that embody a free and democratic society, which include respect for a diversity of opinions and beliefs (Figueroa, supra, paragraph 27; Saskatchewan Reference, supra, pages 188-189).

In interpreting section 3, its broad ambit should not be limited by countervailing collective concerns (such as the public interest in aggregating political preferences); these are more appropriately considered under section 1 (Figueroa, supra at paragraphs 31-37; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, at paragraph 11 (“ Sauvé No. 2”); Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at paragraphs 29-31; Henry v. Canada (Attorney General), 2014 BCCA 30, at paragraphs 69-70, leave to appeal to SCC refused [2014] S.C.C.A. No. 134; Frank v. Canada (Attorney General), 2015 ONCA 536, at paragraphs 76-81, leave to appeal to SCC granted [2015] S.C.C.A. No. 396). That said, to make out a breach of section 3, a claimant must demonstrate an actual interference with their section 3 right (see Turmel v. Canada, 2016 FC 532 [unreported], appeal dismissed for delay May 1, 2017 (A-202-16), leave to appeal to SCC dismissed [2017] S.C.C.A. No. 262) at paragraph 12, where the court stated that section 3 guarantees the right to play a meaningful role in the electoral process, not “a publicly funded or unlimited role”; see also Figueroa, supra, at paragraph 36).

The importance of section 3, and the need to give it a large and liberal interpretation, are underlined by the fact that section 3 is not subject to constitutional override under section 33 of the Charter (Sauvé No. 2, supra at paragraph 11; Optiz, supra at paragraph 29).

Analysis

1. Application

Section 3 is one of the few rights in the Charter that is reserved to Canadian citizens.

Section 3 applies to elections of the House of Commons and provincial and territorial legislative bodies (on this point, see section 30 of the Charter). It does not apply to a referendum (Haig v. Canada, [1993] 2 S.C.R. 995), municipal elections (Haig, supra; Rheaume v. Ontario (Attorney General) (1992), 7 O.R. (3d) 22 (C.A.), leave to appeal to SCC refused [1992] S.C.C.A. No. 146; Nunziata v. Toronto (City) Clerk (2000), 50 O.R. (3d) 295 (Ont.C.A.)) or elections to an Indian band council (Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203).

The courts have recognized the interrelationship between section 3 and other Charter rights, particularly the rights to freedom of expression and equality (Figueroa, supra). Even when section 3 does not apply, the values of democratic participation embodied in that section may still be argued as the basis of an application under freedom of expression in paragraph 2(b) and freedom of association under paragraph 2(d) of the Charter (see e.g., Haig, supra; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 and Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, involving referenda; Baier v. Alberta, 2007 SCC 31, involving school board elections; B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), [2017] 1 SCR 93, involving sponsorship of election advertising) or the right to equality in section 15 of the Charter (e.g., Corbiere, supra; Baier, supra).

2. Direct interference with the right to vote or to be a candidate

(i) The vote

It is a restriction of section 3 to expressly deprive certain citizens of the right to vote, including:

The imposition of administrative requirements on qualified electors in order to be entitled to vote, such as the requirement to produce proof of one’s identity and residence at the polling station before casting a ballot, may also prima facie restrict the right to vote (Henry v. Canada (Attorney General), supra — although this particular requirement was justified under section 1).

A failure on the part of governments to take positive action to put in place appropriate mechanisms to enable citizens to exercise their right to vote (for example, absentee ballots) may also restrict section 3 (Re Hoogbruin and Attorney General of British Columbia (1985), 24 D.L.R. (4th) 718 (B.C.C.A.); Henry v. Canada (Attorney General), 2010 BCSC 610, at paragraphs 140-141 and 189).

(ii) Eligibility to be a candidate

The words “to be qualified for membership” in section 3 should be interpreted broadly to mean that every citizen is eligible to be a candidate and sit in the House of Commons or a legislative assembly (Harvey, supra at paragraphs 27-29).

A statutory restriction on eligibility to be a candidate is generally a limit of section 3 (Harvey, supra). This includes:

However, some restrictions have been found not to offend s. 3, e.g.:

3. Interference with the conditions under which section 3 rights are exercised

Even where the right to vote or eligibility to be a candidate is not directly denied, there may be a restriction of section 3 where the impugned law or government action interferes with the conditions under which these rights are exercised. In such cases, notably those involving the distribution of electoral boundaries, it may be necessary to consider the broader social and political context in order to determine whether the challenged measure infringes the right to play a meaningful role in the electoral process or the right to effective representation (Figueroa, supra, at paragraph 33).

(i) The distribution of electoral boundaries

The right to effective representation may be infringed where the effect of how the electoral map is drawn is to assign considerably more weight to one vote than to another (Saskatchewan Reference, supra; Raîche v. Canada (Attorney General), 2004 FC 679 (T.D.); Reference re Electoral Divisions Statutes Amendment Act, 1993, [1994] A.J. No. 768 (Alta.C.A.) (QL); Reference re Electoral Boundaries Commission Act (Alberta) (1991), 86 D.L.R. (4th) 447 (Alta.C.A.); Charlottetown (City) v. Prince Edward Island (1998), 168 D.L.R. (4th) 79 (P.E.I.S.C.A.D.), leave to appeal to SCC refused [1999] S.C.C.A. No. 64; MacKinnon v. Prince Edward Island (1993), 101 D.L.R. (4th) 362 (P.E.I.S.C.T.D.); Friends of Democracy v. Northwest Territories (Attorney General), [1999] N.W.T.J. No. 28 (N.W.T.S.C.) (QL), leave to appeal by interveners to NWTCA refused [1999] N.W.T.J. No. 81 (QL); Dixon (B.C.S.C.), supra).

Section 3 does not guarantee absolute equality of voting power as between citizens. However, relative equality of voting power is of prime importance under section 3 and a first condition of effective representation (Saskatchewan Reference, supra, at 183; Raîche, supra, at paragraph 30; Reference re Electoral Divisions Statutes Amendment Act, 1993 (Alta.C.A.), supra, at paragraphs 43-45 and 56; Charlottetown (P.E.I.S.C.A.D.), supra, at paragraphs 18-20; MacKinnon (P.E.I.S.C.T.D.), supra, at pages 367-368). Other factors may also be considered in drawing electoral boundaries to ensure legislatures effectively represent the diversity of Canadian society, including geography, community history, community interests and minority representation (Saskatchewan Reference, supra, at 184-185; Reference re House of Assembly Act (N.S.), 2017 NSCA 10 at paragraphs 66-68).

For example, in the Saskatchewan Reference, supra, the Supreme Court found that the variances in voter population between urban and rural ridings in that case were justified based on such considerations as the special challenges of representing sparsely populated rural ridings, geographic boundaries such as rivers and municipal boundaries that form natural community dividing lines, and growth projections.

Most jurisdictions in Canada establish independent commissions that are involved in reviewing and determining how electoral boundaries should be distributed. Section 3 does not require that independent boundaries commissions be involved (Saskatchewan Reference, supra; Reference re Electoral Divisions Statutes Amendment Act, 1993, supra, at paragraph 79; Charlottetown (PEISCAD), supra, at paragraph 32). But the process for drawing boundaries should be fair (Saskatchewan Reference, supra, at paragraph 76). In addition, whichever body is tasked with drawing boundaries must be permitted to balance voter parity against the other applicable factors to ensure the boundaries reflect effective representation (Reference re House of Assembly Act (N.S.), supra, at paragraphs 90, 108 and 134).

(ii) The differential treatment of electoral competitors

Section 3 does not require governments to treat all citizens and all electoral competitors in exactly the same way (Figueroa, supra, at paragraphs 51 and 91). However, section 3 does oblige governments not to enhance the capacity of one citizen to participate in the electoral process in a way that compromises another citizen’s parallel right to do the same (Figueroa, supra, at paragraph 50). The differential treatment of electoral competitors may limit section 3 where it is found to exacerbate a pre-existing disparity in their capacity to communicate their ideas and position to voters (Figueroa, supra, at paragraph 54; see also Longley v. Canada (Attorney General), 2007 ONCA 852, leave to SCC refused [2008] S.C.C.A. No. 41, with respect to political parties; R. v. Nunziata (2005), 78 O.R. (3d) 285 (Ont.Ct.Jus.) and De Jong v. Ontario (Attorney General), supra; and Mitchell v. Jackman, [2017] N.J. No. 324 (Nfdl.S.C.), with respect to candidates).

For example, a legislative requirement for political parties to endorse at least 50 candidates in an election in order to obtain access to financial and other benefits (the ability to issue tax receipts, transfer unspent election funds to one’s party and include one’s party affiliation on the ballot) was found to interfere with section 3, as it exacerbated the pre-existing disparity in the capacity of small, emerging and fringe parties to compete for votes with larger, established parties (Figueroa, supra).

The leader of the governing party’s decision to call an election before the fixed election date set out in legislation does not limit section 3 rights, as there was no evidence that it led to an unfair election, or that it had an adverse effect on other political parties (Conacher v. Canada (Prime Minister), 2009 FC 920 at paragraph 76, 2010 FCA 131 at paragraph 11, leave to appeal to SCC refused [2010] S.C.C.A. 315) or on voters (Engel v. Alberta, 2015 ABQB 226 at paragraphs 17-27).

(iii) Electoral System

The Constitution does not require a particular kind of electoral system (Daoust, supra at paragraph 36; see also Figueroa, supra at paragraphs 81 and 161). In Daoust, it was argued that the “first-past-the-post” or single member plurality system of voting, currently used throughout Canada, interferes with section 3 because it produces results that distort the vote, and favours the election of majority governments over smaller parties. The Quebec Court of Appeal accepted that every electoral system, including systems based on proportional representation, have shortcomings and lead to some deviation or distortion in the results that they produce. The first-past-the post system was found to respect the principle of relative voter parity, and not to limit the principle of effective representation in section 3.

(iv) Electoral information

Section 3 includes a citizen’s right to exercise his or her vote in an informed manner (Harper, supra at paragraph 71; Barette v. Canada (1994), 113 D.L.R. (4th) 623 (C.A.Q.), at 625-627; Dixon (B.C.S.C.), supra at 259). A measure that denies electors sufficient information to enable them to make an informed choice in voting may compromise the right to vote guaranteed by section 3 (Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at paragraphs 82-84; Reform Party of Canada v. Canada (Attorney General) (1995), 123 D.L.R. (4th) 366 (Alta.C.A.), at 424-426; and Mitchell v. Jackman, supra, at paragraphs 105-109).

However, section 3 does not include a right to unlimited information. Otherwise, groups with more resources could monopolize the political discourse, and, this unequal dissemination of points of view during election campaigns may undermine a voter’s ability to be adequately informed of all views. Carefully tailored spending limits on election advertising have been found to promote equality in political discourse, and do not interfere with section 3 (Harper, supra, at paragraphs 72-74 — although such limits may well restrict freedom of expression under paragraph 2(b) of the Charter).

4. Conflict with the exercise of a Parliamentary privilege

Where the infringement of the right to vote or eligibility to be a candidate results from the exercise of a Parliamentary privilege, the infringement may fall outside the jurisdiction of the courts to review (Harvey, supra).

5. Interpreting elections legislation

Legislation regulating elections, such as the Canada Elections Act, should be interpreted wherever possible in a way that is enfranchising (Opitz, supra at paragraph 37; Haig, supra at 1049-50).

Enfranchisement and protecting the integrity of the democratic process are central purposes of the Canada Elections Act (Opitz, supra at paragraph 38; see also paragraph 145 per the dissent, which states the Act’s overarching purpose is “to ensure the democratic legitimacy of federal elections in Canada”).

The interrelated and sometimes conflicting values which Canada’s electoral system must balance include “certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost”, with the central value being the Charter right to vote (Opitz, supra at paragraph 44).

6. Interlocutory injunctions and stays

There is a growing body of cases in which the courts have considered whether to issue an interlocutory injunction in a Charter challenge to elections legislation. Most have invoked section 3 of the Charter, but some have also involved section 2. These are motions brought by claimants to suspend the effect of an elections law pending the court’s disposition of the case, in circumstances where the merits cannot be determined in time before an upcoming election. The courts have generally found for the claimant on the first two parts of the test for an injunction (that there is a serious issue to be tried, and that there will be irreparable harm to democratic rights if the injunction is not granted). However, these motions have largely been unsuccessful on the third part of the test (the balance of convenience). Governments benefit at this stage of the test from a presumption that a validly enacted law will produce a public good. In addition, the courts have adopted a rule against granting the equivalent of final relief in interlocutory challenges to elections legislation. See Harper v. Canada (Attorney General), 2000 SCC 57; Council of Canadians v. Canada (Attorney General), 2015 ONSC 4601 at paragraphs 84-92, leave to appeal dismissed at [2015] ONSC 4940, which includes a discussion of the key cases.

A related line of cases deals with motions brought by governments to stay the effect of a court judgment striking down elections legislation as contrary to the Charter, pending the disposition of an appeal. The results in these cases have been mixed, with the government’s request for a stay being granted in some cases (Longley v. Canada (Attorney General), 2007 ONCA 149), while not being granted in others (Frank v. Canada (Attorney General), 2014 ONCA 485; Sauvé v. Canada (Chief Electoral Officer), [1997] 3 F.C. 628 (T.D.), [1997] 3 F.C. 643 (C.A.), leave to appeal to SCC refused [1997] S.C.C.A. No. 264).

Section 1 considerations specific to this section

In the case of a direct interference with the right to vote or stand as a candidate, the Charter analysis will in most cases focus on section 1. Where the complaint alleges interference with the conditions under which section 3 rights are exercised, the section 3 analysis may be more extensive, especially in the case of electoral boundaries, and may involve consideration of the broader social context (Saskatchewan Reference, supra; Figueroa, supra).

The importance of the right to vote, which is reflected, for instance, by the fact that section 3 is not subject to override under section 33, calls for rigorous application of section 1 requirements, not judicial deference (Figueroa, supra at paragraph 60; Sauvé No. 2, supra at paragraphs 9, 11 and 14; Sauvé No. 1 (Ont.C.A.), supra; Henry (BCCA), supra at paragraphs 84-85; see also Opitz, supra at paragraph 35).

Note that in other cases, however, the legislature has been accorded deference under section 1 in choosing or designing Canada’s electoral model — e.g., in cases involving paragraph 2(b) freedom of expression rather than section 3, as in Harper, supra, Bryan, supra, and B.C. Freedom of Association and Privacy Association, supra. In these latter cases, logic and common sense were largely relied upon at the justification stage, without the need for rigorous social science evidence.

Vague, symbolic and abstract objectives for restricting section 3 rights will be more difficult to justify under section 1 (Sauvé No. 2, supra, at paragraphs 22-24). The objective of maintaining and enhancing the integrity of the electoral process has been recognized as a pressing and substantial objective for limiting section 3 rights (Harvey, supra, at paragraph 38; Figueroa, supra at paragraph 72).

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