POLI 478 Lecture Notes - Lecture 5: Canada Elections Act, Official Party Status, Freedom Of Movement
12 Jun 2018
School
Department
Course
Professor
Democratic Rights
s.3 has been the most litigated in terms of democratic rights: eer itize has the right to ote i a
election for members of House of Commons or the proiial legislature.
• One of only 3 Charter sections where rights are restricted to citizens and/or landed immigrants,
rather tha eeroe
o Other two are s.6 (mobility rights) + s.23 (minority language education rights)
• Not letting non-citizens vote is not a Charter violation: but only citizens can claim right to vote
• In fact, s.3 is untrue in practice: citizens who are under 18, federal judges (previously), and some
other groups cannot vote
o Right written in absolute terms, even in context where limits already existed
• “CC has epaded defiitio of this right to ote – minimally, any citizen can walk into a voting
booth + fill out a ballot
s.3 not just about minimal right to vote: also used by SCC to deal with issues not directly about voting +
the wider democratic process (s.2, s.15).
• Saskatchewan Electoral Boundaries Reference (1991): how large could disparities be in
constituency population sizes?
o i.e. askig “CC to redefie s. as right to a equal ote
▪ Based on overrepresentation of rural ridings: tended to disfavour parties
w/urban support bases
▪ Context: litigation in US held that congressional districts must be identical in size
o SCC rejected American doctrine + upheld variations in constituency size (+/-25%)
▪ However, McLachlin stated in majority opinion that s.3 was about right to
effective representation, ot just act of voting: in this case, rural populations
would be less effectively represented w/equal constituencies
• This opened gates to new issues for s.3 litigation: is FPTP representative? How to represent
minorities? What to do about peripheral electoral laws?
o Haig v. Canada (CEO) (1993): Haig moved from ON to QC during the Charlottetown
Accords referendum (1992), but was ineligible to vote in both the QC + federal ballots
▪ Case not heard until referendum had passed: SCC held that s.3 was not violated
o Figueroa v. Canada (AG) (2003): challenged Elections Act provision that parties had to
field minimum number of candidates in elections to attain official party status
▪ In this case, SCC held that this was a s.3 violation
o Harper v. Canada (AG) (2004): challenged Elections Act spending limits on 3rd-party
interest group advertising during campaigns
▪ Previously challenged in 1980s, but struck down by AB appeal courts + would
have only applied in AB: rules relaed riefl for the free trade eletio
▪ SCC upheld limits, though McLachlin dissented: major parties already had
incentive to agree to rules among themselves, creating barriers to other parties
Also led to changes in voting rights:
• Non-resident citizens: still limited to those resident outside Canada for <5 years
o Frank et al. v. Canada (AG) will only be heard this March
• Prison inmates: blanket disenfranchisement narrowed to 2-year terms by Sauvé I (1993)
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