CANADIAN CHARTER OF RIGHTS AND FREEDOMS: DEMOCRATIC

RIGHTSBy: Noah Fry

TABLE OF CONTENTS

Section 3 + Interpretation

Section 4(1) + Interpretation

Section 4(2) + Interpretation

Section 5 + Interpretation

Sauvé v. Canada

Figueroa v. Canada

Wrzesnewskyj v. Opitz

Harper v. Canada

Timeline

SECTION 3

As is written

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.

Interpretation

Every citizen could be misleading, for the right to vote is restricted to those of 18 years of age or older.

“or of a legislative assembly:” this part qualifies other elections, namely for provincial legislatures.

“the right… to be qualified for membership therein:” this final point is paramount for a democracy as it enables the ability to participate in shaping a country (political, social movements). In addition, it is strong in preventing dictatorships of some form.

SECTION 4(1)

As is written

No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.

Interpretation

This part is important in keeping democracy alive as it limits any siting government in governing on an obsolete assembly.

This can be broken in dire times where civil strife and stygian adversity overwhelm Canadians (see section 4(2)/next slide). The War Measures Act is a prime example. In 1970, Pierre Trudeau used this act to postpone any election while the October crisis was still dominant and causing moderately severe turmoil in Quebec.

SECTION 4(2)

As is written

In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

Interpretation

As stated prior, this section is an escape route from the primary statement of renewing government.

This course of action is only used in situations where Canadians are experiencing difficult times and cannot afford an election while in such a lethal enigmatic period. An example would be when Robert Borden and his Unionists postponed an election due to the first world war.

Requiring two thirds of the members is a precaution from infringing upon democratic rights.

SECTION 5

As is written

There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Interpretation

This section was included to make sure that the questions of Canadians were answered at least once a year.

This connects to democratic rights as it solidifies the reasoning that a government functioning under the principles of democracy would answer to its people.

SPECIFIC CASESIncludes: Sauvé v. Canada, Figueroa v. Canada, Wrzesnewskyj v. Opitz, and

Harper v. Canada

SAUVÉ V. CANADA (ATTORNEY GENERAL)

Background Brought to the Supreme Court in 2002.The old Canadian Elections Act

prohibited prisoners with sentences of 2 years or above from voting .

Case Richard Sauvé brought case to the court because he found it unconstitutional, for it infringed on ss. 1, 3, and 15(1)

Ruling and Impact

As a result, all adult citizens in Canada are know afforded the opportunity to vote.

FIGUEROA V. CANADA (ATTORNEY GENERAL)

Background In the early years of 2000, a new provision was passed that required a political party to field 50 candidates to receive party identification on any ballot of a federal election. These provisions belonged to the Elections Act.

At that time, if a political party failed to field 50 candidate, it would lose several benefits including net assets and automatic de-registration

Case Miguel Figueroa, leader of the communist party of Canada, brought case to the Ontario Superior Court, where they ruled that seizing party net assets and many other of the challenged provisions (including 50 candidate threshold).

Attorney-General appealed to the Ontario Court of Appeal the provision of the 50 candidate threshold where there was a split decision. The court asked that the threshold be lowered instead of completely trashed.

Figueroa then appealed that decision to the Supreme Court of Canada, citing the third section of the Charter.

Ruling and Impact

The 50 candidate rule was struck down along with many of the other sections belonging to limiting party benefits.

WRZESNEWSKYJ V. OPITZ

Background In the 2011 federal election, Opitz beat the incumbent Wrzesnewskyj by a margin of 26 votes in Etobicoke Centre.

There were voting irregularities and atypical illegal and fraudulent activities reported.

Case Wrzesnewskyj brought the case to the Ontario Court of Justice claiming that 79 thrown out votes should have been counted, which may have altered the result of the tight contest. He noted that throwing these votes away infringed on the third section of the Charter.

The Ontario Court of Justice ruled in favour of Wrzesnewskyj and nullified the results of Etobicoke Centre.

Opitz decided to challenge the ruling at the highest court in Canada, the Supreme Court of Canada.

Ruling and Impact

In the Supreme Court of Canada, Ted Opitz won in a 4-3 decision and remained in his seat.

The majority’s justification for standing by the cross-appeal was that administrative mistakes are inevitable and that there was no evidence proving that those Canadian votes dismissed were legally allowed to vote.

HARPER V. CANADA (ATTORNEY GENERAL)

Background In 2002, the Canadian government made a new Elections Act that put limitations on third party spending. It limited third party interest groups to $150,000 across Canada with a $3000 cap per riding.

In 2002, the Alberta Court of Appeal rules that nearly all provisions of the Elections Act (excluding provision 358) were unconstitutional.

Third party interest group: any group or individual not a candidate or a registered political party.

Case The Attorney General appealed the decision of the Alberta Court of Appeal, leading the case involving the Charter to the Supreme Court.

The respondents’ case expressed that the new Elections Act involving third party spending violated several parts of the Charter, namely section three. The respondents felt that limiting spending would hurt the ability to be an informed voter and infringed upon their right to vote.

Ruling and Impact

The Supreme Court of Canada ruled that the provisions involving third parties worked in tandem with the constitution rather than against it. In other words, the court found the provisions constitutional and struck down the Alberta Court of Appeal’s decision.

TIMELINE PERTAINING TO DEMOCRATIC RIGHTS REFORMS FROM 2000 TO PRESENT

2000- First election homeless people could vote.

2002- Controversial new Elections Act came into play

2004- Sponsorship program ended

2007- R. V. Bryan: upheld non-publication of results on election nights

2011- Robocalls infringe on Canadians’ democratic rights.