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McMaster University
Political Science
Greg Flynn

Law is all about finding a test and applying it. or changing the test if it is not good enough and justifying it. Section 3 – ON THE EXAM!! No test for section 3, there is meaningful participation and effective representation. Application of section 3- where does it apply. Where is the test. Section 33 doesn’t apply but section 1 applies. From the case of Hagen Canada, the right to vote in referendum is not protected in section 3. It is only protected during voting the members of house of Commons and Members of Parliament. Section 33 doesn’t apply to section 3, Supreme Court has taken that as an indication of how important section 3 is because it is not subjected to notwithstanding clause, so it deserves a higher degree of protection. You are likely to apply it in a more strict fashion when it comes to a section 1. Saskatchewan electoral vendors: Supreme Court gave a broader definition to this right to vote. It is said that section 3 is really about effective representation. What is effective representation? Supreme Court hasn’t done that though. The argument was that the disparity in vote (the number of votes in a riding) that if you got one riding with 70,000 population versus a riding with 130, 000 population that the people in the riding with 130,000 don’t have the same voting power than the ones in 70,000 votes. So they were not creating equal voting power in ridings. So in effective representation, voting parity (the relative weight of votes) is one factor to take in to consideration. There are other factors too: geography, communities of interest, history, etc. The big to take is that it defined the right to vote more than just the right to vote and the right to run for office, and it also included this idea of effective representation. In the Quebec case we saw them challenging first-past-the-post system. They were arguing that effective representation provides for more representation than first-past-the-post system. The Supreme court went back to the Saskatchewan case and said yes we do have voter disparity but it doesn’t stop people from voting to bring forward their interests. Hague and Canada: it went on to say that section 3 not just means effective representation but it also means the right to participate in election process. But they do not define what meaningful participation means here. They start to define it in Feguierowa – the elections act that provided benefits to constitutional parties is not constitutional since it doesn’t provide the same access to non-constitutional parties. The issue was that the Elections Act put in a 50 candidates threshold in order to be registered as a party. With the help of Lower Courts they brought it down to 12 candidates, but the Supreme Court brought it down to none. 1 person party is good enough. The right to donate, the right to participate in their provision activities, the ability to advertise, etc these are all covered by section 3. We see that this notion of meaningful participation is not restricted to voting but is broadened to other means too. Yet we do not know the real meaning because the Supreme Court has not defined it. You have to be 18 to be able to vote, this is a justified limit under section 3. This applies to both provincial and federal elections. Not referendums or municipals. There is no test, so you consider it on case by case basis. The level of deference afforded to the actions of the legislative and executive br
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