AN INTRODUCTION TO THE RIGHT TO VOTE AS IMPLEMENTED UNDER THE FEDERAL CANADA ELECTIONS ACT

by jlhsprague

1.1 Legal Sources Governing Canadian Elections

 

The source of direct political power in Canada is elections.[1]  Membership in the House of Commons, practically speaking the most powerful, if not legally the senior, house of Parliament, is based on the geographic division of the country into electoral districts.  Power in the House is exercised by the party or person who can muster the support of the most of his or her fellow members.  Membership in the House is determined by election with one member being chosen for each electoral district in the country by the eligible electors of that district. These elections are governed by a large number of inter-related legal authorities of which the most prominent are likely the constitution and the federal statute, the Canada Elections Act.  But there are a great many other legal authorities that impact on different aspects of a federal election such as, to name a few, the Parliament of Canada Act[2], the Electoral Boundaries Readjustment Act,[3] the Broadcasting Act,[4]  the Director of Public Prosecutions Act, [5]  the Official Languages Act,[6] the Access to Information Act,[7] the Privacy Act,[8] the Human Rights Act,[9] the Income Tax Act,[10] the Public Service Employment Act,[11] and the Financial Administration Act.[12] 

1.2 The Constitution

The Constitution[13] is the primary source of authority respecting federal elections.  The Constitution Act, 1867:

  • establishes a federal Parliament (s.17);
  • sets out the determination of the number of seats in the House of Commons (ss. 37, 51, 51, and 52);
  • establishes control over federal elections in the federal Parliament (s. 41);
  • prohibits senators from being elected or sitting in the House of Commons (s. 38),[14]
  • sets a maximum life of a House of Commons at 5 years subject to earlier dissolution by the Governor General (s. 50); and
  • prescribes the requirement that a person elected to the House of Common must take the Oath of Allegiance being assuming his or her seat (s. 128).

Those constitutional provisions are supplemented by the Canadian Charter of Rights and Freedoms, which is  Part I of the Constitution Act, 1982.  The Charter sets out:

  • the right to vote and to be qualified to stand for election (s. 3); repeats the maximum 5 year life of the House of Commons;
  • provides how a House can continue beyond 5 years in a time of real or apprehended war, invasion or insurrection (s. 4); and provides that Parliament must sit at least once every twelve months (s. 5).

It is important to note that the right to vote flows from the Constitution not the Canada Elections.  The Canada Elections Act does not grant the right to vote.  This is so notwithstanding that that the Canada Elections Act provides in section 3 that: “Every person who is a Canadian citizen and is 18 years of age or older on polling day is qualified as an elector.”  Technically, section 3 of the Canada Elections Act does not grant the right to vote but merely recognizes the constitutional right of citizens and restrict that constitutional right to those who are 18.  Similar to the restriction in section 3, section 4 also purports to limit the constitutional right to vote by providing that three other categories of people are not entitled to vote:  the Chief Electoral Officer, the Assistant Chief Electoral Officer;[15] and every person who is imprisoned in a correctional institution serving a sentence of two years or more.[16]  Either by judicial ruling (prisoners) or practice (the disappearance of the position of Assistance Chief Electoral Officer, the Chief Electoral Officer is the only person who continues to be disentitled to vote under section 4.   Technically, he or she is not the only person who has been disentitled to vote by the Canada Elections Act because that disadvantage is shared by every Canadian citizen who is under the age of 18.

It is important in understanding the right to vote that this right flows from the constitution, not the Canada Elections Act. That Act exists to implement, regulate, administer and restrict the right to vote.  The right to vote would exist if the Canada Elections Act (or its provincial equivalents) did not exist.  What would be missing would be the means of implementing that right.

Other aspects of the Constitution Act, 1982 are also relevant to federal elections, although not aimed directed at them, notably provisions such as section 2(b) (freedom of expression[17] – most relevant in the context of election expense limits, electoral advertising restrictions, and the release of election results), section 2(d) (freedom of association), and section 15 (equality before the law – for example the prohibition against minors voting).  In addition, electoral legislation is subject to general constitutional principles such as the requirement in section 7 that a limit imposed by law not be unduly vague.[18]

1.2(a) The Authority Of The Federal Parliament Over Federal Elections

 

As will be discussed in more detail later in the context of the constitutional right to vote, under section 41 of the Constitution Act, 1867 Parliament can legislate with respect to federal elections and in doing so it may intrude upon or infringe some constitutional rights.  Some constitutional rights (those found in section 2 and sections 7 to 15 of the Charter) are subject to direct express Parliamentary override under section 33 of The Constitution Act, 1982. As noted by the Supreme Court of Canada in Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.) the express override provision in the Charter cannot be used to override the constitutional right to vote in section 3 of the Charter.  However, while Parliament cannot override the constitutional right to vote under section 33, the constitutional right to vote in section 3 of the Charter, and other Charter rights including the section 2(b) right to freedom of expression can be restricted by reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Charter. Parliament has frequently imposed restrictions or limitations on Charter rights through the Canada Elections Act.  Some of these infringements have been held to be lawful, some have not.[19]  The test for the determination of whether an infringement of a Charter right is discussed in more detail below in the context of the right to vote but the same analysis is applicable in the context of the breach of any Charter right.  While the approach to the determination of whether an breach of a Charter right is the same for all Charter infringements, there is no blanket result that applies across the board to all aspects of infringements.  Each infringement must considered in light of its own particular circumstances and purposes.[20]

1.2(b)  The Constitutional Right Of Freedom of Expression

As this is not a text on constitutional law it will not outline in any detail the extent of the constitutional rights that may be applicable to elections other than for the constitutional right to vote found in section 3 of the Charter. Having said that, aside from the section 3 guarantee of the right to vote, of the various Charter values that interplay with the electoral process the section 2 guarantee of freedom of expression is likely the most interactive with the process.  There is a clear overlap between the constitutional right to vote (which includes the right to exercise one’s vote in an informed manner[21]) and the constitutional right to freedom of expression. As a core element of elections is communication – not only of ideas but of cajolery, flattery, fear mongering, blandishments and blarney the Charter guaranty of freedom of expression is clearly triggered by the electoral process. As noted by the Supreme Court of Canada in Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.) quoting from its earlier decision in Libman c. Québec (Procureur général), 1997 CarswellQue 851, 1997 CarswellQue 852, [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 3 B.H.R.C. 269, 46 C.R.R. (2d) 234 (S.C.C.): “Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter“.    Also in Thomson Newspapers the Supreme Court also acknowledged that political process is at the core of the Charter right of freedom of expression.  Again quoting from another of its earlier decisions, this time R. v. Keegstra, 1990 CarswellAlta 192, [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131, [1991] 2 W.W.R. 1, 114 A.R. 81, 117 N.R. 1, 11 W.C.B. (2d) 352, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 77 Alta. L.R. (2d) 193 (S.C.C.), the Court noted the centrality of the political process to the section 2(b) guarantee.

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.[22]

The Charter guarantee of freedom of expression “aims at permitting free expression” to promote “truth, political and social participation, and self-fulfillment”.  The right feeds and promotes the concept of an informed vote with its obvious beneficial electoral and democratic consequences.[23]  Thus, to the extent that the Constitution provides for elections and the right to vote therein the section 2(b) guarantee of freedom of expression operates to enhance the fullness and democratic value of those elections.

As noted earlier, the Charter guarantee in section 2(b) of freedom of expression is subject, under section 1 of the Charter, to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The process by which one determines whether an infringement is justified is discussed in below in the context of the section 3 right to vote.

Having said that, elections are a contest between opposing camps and there can sometimes be conflicts between the freedom of expression of those camps and the electorate’s right to vote in that the full exploitation of freedom of expression can operate to the disadvantage of the right to vote.  The provision of incomplete information or information capable of misconstruction, or the provision of information too late in the electoral process to permit effective consideration or refutation while constituting freedom of expression can result in the electorate being mislead and failing to exercise its right to vote in a way that the electorate would not have voted if it were in possession of the complete picture thereby undermining the concept of meaningful participation and effective representation. Where these possibilities arise the Supreme Court has indicated that the obligation is to find an appropriate balance between both sets of rights.[24]

1.2(c)  The Constitutional Right To Vote

 

1.2(c)(i) Who Has The Constitutional Right To Vote

 

Notwithstanding the centrality of the electoral process to the Charter guarantee of freedom of expression it is the Charter right to vote that lies at the heart of the electoral process.  As noted by the Supreme Court of Canada the very heart of a democratic society is a representative and responsible government[25] – when the government is responsible to a legislature which is elected by the citizenry. And the basis of an election is, obviously, the right to vote.  The Supreme Court of Canada has stated on a number of occasions that the right to vote (or to stand for office) is the embodiment of democracy.[26]

In its decision in Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.) the Court stated that the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote.  While in the past the right to vote in federal elections has been tied at different times to various different criteria such as gender, property and wealth, section 3 of the Canadian Charter of Rights and Freedoms[27] now constitutionally guarantees an unqualified right for every citizen of Canada to vote.[28]

  1. 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.

This constitutional right to vote is not a matter of privilege, status, merit, or wealth but is an aspect of what it is to be Canadian.[29]

The constitutional right to vote in section 3 of the Constitution Act, 1982 cannot be easily interfered with.  It cannot be overridden by a legislature under section 33(1) of the Charter.[30]  Nor is it to be construed to mean anything less than as it reads – a right in every citizen “to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”[31]  Having said that, as will be seen in the discussion below the right to vote or to be qualified to run has been construed as being more than as it reads.

While it is possible to impose limitations or restrictions on the constitutional right to vote (as will be discussed below), the right itself is universal and without restriction.[32]  It is unqualified[33] and not subject to any countervailing public interests.[34]  It is not limited by any concept of being limited to “decent and responsible people”[35] or any inherent or perceived difficulty in implementing or exercising it.[36]

Thus, in Fitzgerald (Next Friend of) v. Alberta[37] the Alberta Court of Queen’s Bench (subsequently approved by the Court of Appeal) stated:

14      Section 3 clearly contains no limitations on the right to vote, other than citizenship. While the content of the right to vote might be subject to interpretation (Dixon v. British Columbia (Attorney General) (1989), 59 D.L.R. (4th) 247 (B.C. S.C.); Reference re Provincial Electoral Boundaries, [1991] 2 S.C.R. 158 (S.C.C.)), the words “every citizen” are clear. Any limitation on those words constitutes a breach of s. 3, which must then be justified under s. 1. This was explicitly stated by Strayer J. in Belczowski v. R., [1991] 3 F.C. 151 (Fed. T.D.) at 159:

It is quite clear in section 3 who are the holders of the right (“every citizen of Canada”) and what they are thereby entitled to do (“to vote in an election of the members of the House of Commons … .”). I am not deterred in this finding by the argument of the defendant that the section cannot be applied literally because there are some, such as infants, who clearly should not have the right to vote. I do not need to define here who may properly be denied the vote; that issue must be determined in each case under section 1 of the Charter.[38]

1.2(c)(ii) Limits On The Constitutional Right To Vote

 

1.2(c)(ii)(a)  The Ability Of Parliament To Place Limitations On The Right To Vote

 

The constitutional right to vote includes the obligation on Parliament not to interfere with the right of each citizen to participate in a fair election.[39]  A limitation may be direct (for example, by expressly denying an elector the right to vote[40]) or indirect (for example, by providing greater rights of participation to some that can have the effect of diminishing the participation rights of others[41]).  It can also result from non-action (for example, by failing to provide any means for voters outside of the country to vote[42]) just as much as from action.

Nonetheless, as is evident to any person familiar with elections in Canada, and as suggested at the end of the above quotation, Parliament and the provincial legislatures still impose restrictions on the right of citizens to vote – the most common of which is age – one must have reached a specified age to vote.

The legislative authority to infringe upon or limit the constitutional right to vote is preserved by section 1 of the Charter.

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

If Parliament feels that there are difficulties with any aspect of the exercise of the right to vote it has the authority under section 41 of the Constitution Act to impose limitations, restrictions or requirements upon that exercise to address that difficulty. However, by virtue of section 3 and section 1 of the Charter any such limitation, restriction or requirement must be demonstrably justified in a free and democratic society.

1.2(c)(ii)(b) Constitutional Right To Vote Can Only Be Limited For A Good Reason

 

What that means is that under section 1 of the Charter the constitutional right to vote can be limited only for a good reason.  Any intrusion upon, or breach of, the constitutional right to vote is subject to non-deferential review[43] by the courts and must be justified according to the test stabled by the Supreme Court of Canada in R. v. Oakes, 1986 CarswellOnt 95, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 14 O.A.C. 335, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, 50 C.R. (3d) 1 (S.C.C.).[44]  Any infringement or limitation upon the constitutional right to voted which cannot be justified under section 1 of the Charter is unconstitutional.[45]

In order to be demonstrably justified in a free and democratic society under the Oakes test an infringement or limitation on the constitutional right to vote must be legitimate and proportionate.  That is to say that the infringement or limitation must be intended to serve some important purpose in a free and democratic society and the harm resulting from the infringement or limitation must be proportionate to the benefit secured by it.   In order to be found as such the infringement or limitation must meet the following criteria:

Legitimacy

 

  1. The infringement or limitation must be intended to secure some purpose that is pressing and substantial in a free and democratic society. This requires that one identify what is hoped to achieve through the infringement or limitation, and demonstrate that that objective is pressing and substantial in a free and democratic society (ie. there must be more than the simple fact that the majority of the electorate might favor the infringement or limitation).

Proportionality

 

  1. The means chosen must be reasonable and demonstrably justified, which means:
  1. i) the infringement or limitation must be rationally connected to the purpose or objective (i.e will it achieve the intended purpose);
  1. ii) the infringement must minimally impair the constitutional right to vote (i.e. impair the right as little as possible); and

iii) the harm resulting from the infringement must be proportionate to the benefit achieved.[46]

In the application of the above test context is all important.  The legislative provision in question must be considered in the context of the social problem which it is intended to address and close attention must be paid to the detail of the provision and the factual setting in which it is intended to operate.[47]

This is not a text on constitutional law and does not set out a detailed analysis or discussion of the application of the Oakes  test.  The practical operation of the test can be seen by reference to the table at the end of this chapter which outlines a number of infringements or limitations imposed on the constitutional right to vote by Parliament or a provincial legislature and the outcome of the resulting judicial challenge of that infringement or limitation.

1.2(c)(iii) The Rights Contained In The Constitutional Right To Vote

 

1.2(c)(iii)(a)  Basic Voting Rights

 

Section 3 of the Charter guarantees both:

(i) the right to vote for a member of Parliament or a legislative assembly; and

(ii) the right to be qualified to run for election thereto. It reflects Canada’s constitutional character as a parliamentary democracy.[48]  In an election for the federal House of Commons or a provincial legislative assembly[49] each Canadian is entitled to one vote in a particular electoral district[50] or to run as a candidate for one district.

The extent of the rights granted by section 3 flows from its express words and from its purpose.[51] But the right to vote extends to more than simply the right to put a ballot in a ballot box.[52]  It also carries with it a number of implicit rights dealing with aspects of voting that ensure that the right is meaningful[53] and fair.[54] In Dixon v. British Columbia (Attorney General)[55] the B.C. Supreme Court approved of the summary of the collected rights entailed in the concept of the right to vote:

55      The Attorney General, relying on Boyer, Political Rights: The Legal Framework of Elections in Canada (1981), at pp. 81 et seq., concedes that the following core values or rights form part of the s. 3 guarantee of the right to vote.

56      1. The right not to be denied the franchise on the grounds of race, sex, educational qualification or other unjustifiable criteria;

57      2. The right to be presented with a choice of candidates or parties;

58      3. The right to a secret ballot;

59      4. The right to have one’s vote counted;

60      5. The right to have one’s vote count for the same as other valid votes cast in a district;

61      6. The right to sufficient information about public policies to permit an informed decision;

62      7. The right to be represented by a candidate with at least a plurality of votes in a district;

63      8. The right to vote in periodic elections; and

64      9. The right to cast one’s vote in an electoral system which has not been “gerrymandered” — that is, deliberately engineered so as to favor one political party over another.

65      I would add to this list a tenth precept. It cannot be denied that equality of voting power is fundamental to the Canadian concept of democracy. The claim of our forefathers to representation by populations — “rep by pop” — preceded Confederation and was confirmed by it.

1.2(c)(iii)(b)  Right To Participate Meaningfully In An Election

 

The constitutional right to vote extends beyond this list to also include matters which can be said to be necessary in order for electors and electoral participants to be able to play a meaningful role in the electoral process.[56]  The Supreme Court of Canada has said that for electors meaningful participation means the ability to hear and weigh many points of view, while for those direct and indirect participants in an election (candidates, political parties and others seeking to promote  them or their electoral ideas) it means the ability to inform electors of their positions.[57]  Thus, the ability to play a “meaningful role” in an election extends beyond a free, effective and secret vote to include “fulsome” participation in the electoral process.  In Harper v. Canada (Attorney General)[58], drawing upon its earlier decision in Figueroa v. Canada (Attorney General)[59], the Supreme Court of Canada stated that participation in the electoral process in itself has an intrinsic value – independent of its impact upon the actual outcome of an election. Greater participation in the political discourse, the Court stated, leads to a wider expression of beliefs and opinions and results in an enriched political debate, thereby enhancing the quality of Canada’s democracy.  Thus, in Figueroa the value of the participation of political parties in elections extended to more than simply their ability to form a government.  The participation itself of the individual members and supporters of a party, that is to say their contribution to the flow of ideas and concepts, was also seen as an aspect of meaningful participation.[60]

The finite nature of elections and the practical aspects of human communication come into play in determining the extent of the right of meaningful participation.  There is only so much time an election,  and often only so much resources that can be drawn up (for example, there is only so much broadcast advertising time that can be employed in an election period).  In Figueroa the Supreme Court held that, because of these natural limitations, the right to meaningful participation includes the right not to be drowned out by the participation of others.  This includes not only controls on the ability to reserve or purchase finite resources for the use of a particular side or view point but also on the ability of those with more resources to use those resources to overwhelm the views of those with less.[61]  Thus, election expense limits or election advertising limits are not considered to be breaches of the section 3 right to vote but are rather valid manifestations of that right provided that they are suitably crafted to ensure that electoral participants are able to effective convey their messages and the electorate is able to be fully informed.[62] It also includes the idea that the state can attempt to equalize the participation of persons in an election by providing the means to do so (such as through the mandatory provision of free broadcasting time or the provision of tax credits for political contributions).[63] In other words, section 3 includes “the notion that individuals should have an equal opportunity to participate in the electoral process.”[64]

While the state can provide benefits to attempt to equalize the participation in the electoral process it cannot do so in a way that benefits some at the expense of others.  Legislation that gives electoral advantages to some electors which diminish the participation rights of others breaches the constitution right to vote in section 3 and to be constitutionally valid would have to be justifiable under section 1 of the Charter.

 

 In illustration, in Figueroa the Supreme Court held that the right to meaningful participation meant that a government could not extend greater participation rights to political parties that ran at least 50 candidates in a general election that it granted to smaller parties which ran only a lesser number of candidates.

At the time of Figueroa the Canada Elections Act gave greater rights to registered parties than non-registered parties.[65]  Notably, only registered parties could give tax receipts for donations, could retain surplus campaign funds at the end of a general election, and had the right to have their party affiliation noted on the ballot form for their candidates.  In order to become registered a party had to run at least 50 candidates in the last general election.

The Supreme Court of Canada found that giving greater rights to the larger, registered, parties breached section 3 in a number of ways.

First, it diminished the ability of citizens to assess the relative strengths and weaknesses of each party’s platform which was felt necessary in order for each citizen to vote in a manner than accurately reflects his or her preferences.

Second, it gave the individuals and supporters of larger parties better means than others to communicate their ideas and opinions.

Third, restricting the inclusion of a candidate’s political affiliation on the ballot form to candidates of registered parties was found to interfere with the capacity of non-registered parties to compete.  It reduced the ability of the less knowledgeable electors to vote for their preferred candidates and could create the impression that a candidate was not in fact affiliated with a political party or that the party with which the candidate was affiliated was not an legitimate political party.

The Supreme Court of Canada held that the 50 candidate rule could not be justified under section 1 as it failed the Oakes test in several ways.[66]

While the constitutional right to vote protects an elector’s meaningful participation in an election from unjustifiable interference it does not go further to impose an obligation upon Parliament to enhance that ability to participate beyond that standard.  In other words if Parliament has passed legislation that respects meaningful participation section 3 cannot be used to require that Parliament do more to maximize that ability.[67]

1.2(c)(iii)(c) The Right To Fairly Structured Electoral Districts

 

Under our constitution Canada is a representative democracy – that is to say that the citizens elect representatives to govern on their behalf.  Those representatives are said to the responsible to their electors as disapproval by the electoral can result in the member not being re-elected. The country is governed through a Parliament which has the authority to pass laws for the nation.  The members of the lower House of that Parliament are elected by the citizenry and the government of the day is selected by the Crown based on the party in the House of Commons which has sufficient support to control the proceedings of the House.  Under our constitutional system the right to vote does not extend to a right to vote for any candidate running anywhere.  The section 3 right to vote deals with the election of members to the House of Commons and in the Canadian system of government members of the House are not voted in at large but rather on the basis of geographic electoral districts.

Each member of the House of Commons represents one electoral district in Canada and is elected by the electors in that district to represent its in the House.  In Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 27 A.C.W.S. (3d) 602, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161 (S.C.C.) the Supreme Court of Canada held that the idea of representation:

comprehends not only the idea of having a voice in the selection of members of the House of Commons and the government of the country but also the right “to bring one’s grievances and concerns to the attention of one’s government representative; as noted in Dixon v. British Columbia (Attorney General), [1989] 4 W.W.R. 393 at 413, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (S.C.), elected representatives function in two roles — legislative and what has been termed the “ombudsman role.”

Each province is assigned a number of electoral districts as determined and revised every ten years by the Chief Electoral Officer according to numbers provided by the Chief Statistician following the decennial census according to the formula set out in sections 51 to 52 of the Constitution Act, 1867 (as recently amended by the Fair Representation Act, S.C. 2011, c. 26).[68] The number of seats allocated to each province is a basically a population based calculation with adjustments as set out in the Constitution.  These adjustments are designed to ensure certain provinces have a minimum number of seats.

In addition to the provincial seats, rule 51(2) creates  three seats for the three territories which are allocated one each to territory. Following the most recent readjustment following the 2011 decennial census the application of the above rules resulted in an increase from the 308 seats that existed in 2014 to 338 seats.  That is the number of seats which are up for grabs in the current 2015 general election to the federal House.

The constitutional right to vote grants each elector the right to cast one vote for one member in one electoral district. [69]  The electoral district in which an elector is empowered to cast his or her vote is, for the most part, determined by residence (not by property ownership).[70]  As Justice Cory, in his dissent in Haig v. R., 1993 CarswellNat 1384, 1993 CarswellNat 2353, [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (S.C.C.), noted, tying the vote to residence was aimed at preventing the “plural voting” that could have resulted in the case of persons who owned property in more than one riding.

  1. At the outset, it must be remembered that originally the right to vote was tied to ownership of property. A person owning property in several ridings could cast a vote in each of them. The provisions pertaining to residency were aimed at preventing “plural voting” by prohibiting property owners from voting in more than one riding. The residency requirement was designed to facilitate the attainment of the principle of one person one vote. It should not be used too readily as a means of depriving a person of any right to vote.

 

The concept of “residence” is nothing more than mechanism to enable the implementation of the right to vote within the constitutional construction of responsible government in Canada through a House of Commons constructed along the lines of individual members representing the interests of electors within electoral districts. It has no particular value outside of this purpose.  The right to vote is not tied to commitment to country, or knowledge of local affairs, or being subject to the laws which Parliament may make, or any other concept of “worthiness”. [71] In a system which is based, not on a vote at large, but a vote for a representative for a particular district residence is a mechanism designed to implement the right to vote within that system.

Insofar as the right to vote is based on voting in electoral districts the importance of the structure of those electoral districts within a province is evident. The establishment of the boundaries of the individual federal electoral districts within a province lies within the power of Parliament.  The geographic size of a district, the number of electors contained in a district, and the grouping of types or classes of electors into districts can materially affect the outcome of an election and the ability of an elected member to represent the interests of his or her district. Thus, the proper establishment of electoral boundaries is an essential aspect of the concept of electoral fairness.

The drawing of the boundaries of electoral districts can affect the democratic rights of Canadians in a number of different ways.

How those lines are draw can easily be seen to affect the ability of a member to represent the interests of the electors of that district if it results in a district which is too large, either geographically or in numbers of electors for that member to reasonably communicate with those electors.

Similarly, the outcome of an election in a district, or the ability of the electors therein to select a person can be affected by the undue grouping of individuals who are perceived to have particular interests within or among districts.

Unduly distributing seats among urban or rural populations so that the one or the other will elect a dominant number of members, or ensuring that a district is dominated by a perceived interest group can ensure that any member elected will represent the views of that group.  Or contrary wise distributing a perceived interest group throughout a number of districts can result in that group’s voting being overwhelmed by the larger interests groups which may be present in each district.

The number of electors within a district can also be seen to affect the importance, or weight, of an individual elector’s vote. It can take fewer electors to elect a member in districts with relatively small populations than it does in a district with a large population.  In a sense, then, the weight of each individual’s vote in a small population district might be perceived as being greater than the weight of a single elector’s vote in a large population district.  Thus, structuring districts unevenly in terms of population can be seen as reducing the voting power of those in the high population district compared to those in the lower population districts.  This issue is further compounded by the practical reality that each province has only so much population to be distributed among the number of seats constitutionally assigned to that province such that the population count of districts can vary considerably from one province to another. [72]

These issues have been addressed by the Supreme Court of Canada through the concept of “effective representation”.  The Court has held that while the right to vote grants an elector only one vote, to be cast in only one district in an election that does not mean that each vote must be of equal weight.  Rather, than ensuring that the value of each elector’s vote is equal to the constitutional right to vote is said to guarantee only the right to effective representation. [73]  This means that there must be relative (not absolute) parity among voting numbers within a particular province. However, effective representation is said to go beyond simply the issue of number to take into account, in the words of the Supreme Court of Canada factors “like geography, community history, community interests and minority representation” in order to ensure that Parliament effectively represents “the diversity of our social mosaic”[74] to ensure that individuals and communities of interests do not go without a voice.

Thus, in Reference re Provincial Electoral Boundaries, the Supreme Court of Canada, in endorsing the concept that the structure of boundaries not be used to advantage some electors or groups over others, held that the dilution of one citizen’s vote as compared to another cannot be countenanced unless it can be justified on the grounds of practical impossibility or the provision of more effective representation.  Nonetheless the Court  recognized the practical geographic realities of life in Canada,  the value of social diversity and the importance that all aspects of society be perceived as having a voice in government.  For that reason the Court endorsed the idea that electoral districts could be structured in a way that resulted in deviations in parity between the voting power of electors but only for the purposes of better governance.  The Court endorsed the earlier decision of the Saskatchewan Court of Queen’s Bench in Dixon v. British Columbia (Attorney General), 1989 CarswellBC 43, [1989] 4 W.W.R. 393, [1989] B.C.W.L.D. 1337, [1989] B.C.J. No. 583, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (B.C.S.C.) that “only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed.”

These principles are recognized and implemented in the design of electoral districts within a province by the provisions of the Electoral Boundaries Readjustment Act.

Under the Electoral Boundaries Readjustment Act in order to ensure the continuing effectiveness of electoral representation in light of ever changing populations and social makeup the boundaries of federal electoral districts are established or adjusted every 10 years after the determination of the provincial seat allocation by the Chief Electoral Officer following the decennial census.  These determinations are made by independent commissions – one for each province.[75] Each commission is tasked with structuring the boundaries of the resulting districts within each province according to the criteria set out in section 15 of the Electoral Boundary Readjustment Act which reflect the principles laid down by the Supreme Court in Reference re Provincial Electoral Boundaries.[76]

After a statutorily mandated series of consultations with the public and with Members of Parliament by the commissions their ultimate boundary determinations are collected by the Chief Electoral Officer in what is called a “draft representation order” which is submitted to the Minister who is designated as responsible for the Electoral Boundaries Readjustment Act. Within five days of the draft orders receipt by the Minister the Governor-in-Council is required to proclaim the order “to be in force, effective on the first dissolution of Parliament that occurs at least seven months after the day on which that proclamation was issued.”  There is no authority in either the Chief Electoral Officer, the Minister, or the Governor-in-Council to change the boundaries as structured in the various commission reports.[77]

Just as the Electoral Boundaries Readjustment Act reflects the principles of the right to vote in the determination of electoral boundaries the provisions of the Canada Elections Act are structured upon the democratic principles set out in the constitution.

1.3 The Canada Elections Act

 

The Canada Elections Act governs the election of members to the federal House of Commons.  The constitutional rights which have just been discussed are reflected in a number of overarching principles which can be seen as directing the selection and operation of the provisions of the Act.  These principles have been numbered and identified in various ways over the years but for the purposes of this work it can be said that the provisions of the Canada Elections Act reflect Canada’s democratic constitutional rights through the balancing of seven governing principles:

Transparency: The electorate should have (1) sufficient information about candidates and their actions to vote in an informed way; (2) sufficient knowledge of the conduct of the elections and the electoral authority to be confident in the propriety of the electoral process. [78]

Fairness: The electoral process be balanced, equal and fair and not unduly favour one over another. [79]

Participation: Participants must be able to participate in an election to enable electors to have a reasonable opportunity to know and consider in the selection of representatives the values and policies which those representatives will bring to their task if elected. [80]

Secrecy and privacy:  Electors must be able to cast their vote freely according to their conscience without fear or intimidation of retribution.  Equally, the privacy of participants is not to be unreasonably intruded upon. [81]

Efficiency and effectiveness of system:  The electoral system must operate in a manner that reflects practical realities and capabilities and efficiently and effectively allows the exercise of the right to vote and otherwise respects electoral principles. [82]

Impartiality:  The electoral system must operate impartially without favoritism.[83]

Accountability:  Participants must be accountable for their actions in an election and must be those who implement that system.[84]

The above principles are not separate and distinct but can often overlap in operation.  Thus, frequently, Parliament, has had to balance the various interests at stake in an attempt to provide an overall system which best contributes to the representative democracy of this country.  As evidenced by some of the cases set out in the table below Parliament has not always correctly set the balance.  Beyond this, as one proceeds through the text which follows it will often be seen that the Act frequently does not simply reflect the minimum standards which might be said to be required by its governing constitutional rights.  Rather, Parliament has often, in consideration of the seven governing principles, created processes that go beyond constitutional minimums to attempt to provide a system which maximizes representative democracy in this country.

 

OUTCOMES OF JUDICIAL CHALLENGES TO

LEGISLATIVE INFRINGEMENTS OR LIMITATIONS ON

CONSTITUTIONAL RIGHT TO VOTE

 

1. Limitation:  All prisoners denied right to vote (Fed)

Constitutional Right Asserted:  Charter section 3 (right to vote)

Reason Given To Justify: (a) to affirm and maintain the sanctity of the franchise in our democracy; (b) to preserve the integrity of the voting process; and, (c) to sanction offenders.

Limitation Struck Down: Sauvé v. Canada (Attorney General), 1992 CarswellOnt 1711, 55 O.A.C. 219, 7 O.R. (3d) 481, 89 D.L.R. (4th) 644  (Ont. C.A.), affirmed Sauvé v. Canada, 1993 CarswellOnt 1491, [1993] 2 S.C.R. 438, 153 N.R. 242, 15 C.R.R. (2d) 1, 40 A.C.W.S. (3d) 700, 40 A.C.W.S. (3d) 701, 64 O.A.C. 124 (S.C.C.) (Sometimes referred to as Sauvé No. 1.)

Reason For Decision:  Met neither legitimacy nor proportionality tests.

Legitimacy:

Highly symbolic and abstract nature of goal detracted from its ability to justify infringement. Also integrity of process unacceptable as a justification as incarceration is not incompatible with ability to intellectually participate in democracy nor is there any requirement to take advantage of expose to democratic marketplace of ideas in order to vote.

Proportionality:

Court summarily merged consideration of legitimacy and proportionality saying that all three objectives, even taken collectively were either insufficiently important or unacceptable objectives, or expressed in means which were not rationally connected with objectives or which impaired the right to vote far more than is necessary.

2.  Limitation:  Prisoners serving a sentence of two years or more were prohibited from voting while incarcerated (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify: (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment, or” enhance the general purposes of the criminal sanction”.

Limitation Struck Down: Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

Reason For Decision: The denial was neither legitimate nor proportionate.

Legitimacy:

Stated objectives were too vague and symbolic to be capable of constitutional analysis.  They did not adequately describe the problem that required the denial of the right to vote.

Proportionality:

No rational connection: Denying penitentiary inmates right to vote more likely to send messages that undermine respect for the law and democracy rather than messages that enhance those values.  The denial will not teach people to obey the law.  Also voting is not a privilege that can be suspended for the morally unfit or unworthy.  Lastly, cannot completely deny a person a constitutional right as a mechanism for punishment.  Furthermore, in this context, the punishment is arbitrary (not sufficiently tailored to a particular crime) and does not serve a legitimate penal purpose (denying participation in political process neither deters crime or rehabilitates criminals), nor can it be seen as a proper denunciation of unlawful conducts as, in being a blanket punishment for all crimes, it fails to recognize the particular moral culpability of offender.

Did not minimally impair:  Infringement too broach catching many crimes which are relatively minor and whose perpetrators cannot be said to have broken their ties to society.

Harm was not proportionate to benefit:  The infringement undermined the legitimacy and effectiveness of government and the rule of law, curtailed personal right to political expression and participation in political life of country, and countermands the message that everyone is equally worthy and entitled to respect under the law and has a particularly disproportionate effect on the disadvantaged Aboriginal community. These greatly outweigh the tenuous benefits argued by government.

3.  Limitation:  Denial of right to vote to every person who was restrained of his or her liberty of movement or deprived of the management of his or her property by reason of mental disease.  (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  Need for mental competence or judgmental capacity to vote.

Limitation Stuck Down:  Canadian Disability Rights Council v. Canada, 1988 CarswellNat 133, [1988] 3 F.C. 622, 12 A.C.W.S. (3d) 112, 21 F.T.R. 268, 38 C.R.R. 53 (Fed. T.D.)

Reason Given For Decision:  The provision was arbitrary.  It was at the same time both too narrow and too wide, catching people who should not be there, and not catching people who should be. It was too broadly drafted as it would catch individuals who might suffer from a personality disorder which impaired their judgment in one aspect of their life only which would not warrant depriving them of the right to vote.  Also provision did not deny all persons suffering from mental disease the right to vote but only those whose liberty of movement had been restrained or whose property was under the control of a committee of estate.

4.  Limitation:  Every person who was found guilty of an illegal or corrupt practice (terms defined in statute) was prohibited for five years from (1) being registered as an elector or voting as any election; (2) holding any office in the nomination of the Crown or of the Lt.-Governor in Council; or (3) being elected to or sitting in the Legislative Assembly, and if at that date he or she was elected, his or seat directed to be vacated from time of conviction. (New Brunswick)

Constitutional Value Asserted:  Charter section 3 (right to vote), Charter section 12 (cruel and unusual punishment)

Reason Given To Justify:   Need to preserve the integrity of the electoral process – the expectation of citizens to have a fair electoral process so that the right found in section 3 does not become a hollow and empty one, devoid of meaning or substance.

Limitation upheld:  Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C.).

Reason For Decision:   While the limitation infringed the constitutional right to vote it met the Oakes test.

Regulating the influence that an individual convicted of elections statute offence on electoral machinery was a pressing and substantial concern.

The effects were proportionate. Was a rational connection between infringement and objective.  Section not arbitrary as it applied only to people charged and convicted of specified offences.  Served as a strong general and specific deterrent.  Requiring elected person to vacate seat was an appropriate response and not overreaching in light of objective. Also, five year disqualification period ensured that a convicted person was ineligible to run in next election and provide for a time of cleansing which allowed the integrity of the process to be renewed.

Even if the limitation amounted to a punishment (which was not determined) could not be considered to be cruel or unusual and therefore could not infringe the prohibition against cruel and unusual punishment in section 12 of the Charter.

5.  Limitation:  Being absent from country at election effectively disenfranchised one as the electoral system failed to provide any means for absentee voting (B.C.)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  It was sufficient to provide a right for a citizen to vote in Canada.  There was no obligation to provide the means for a person who chose to be absent from Canada to exercise their vote from abroad.

Limitation Not Found To Be Reasonable:  Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.)

Reason for decision:  No reasonable ground was show upon which the failure to create the means to exercise the vote when abroad could be justified.  In fact means for absentee voting already existed federally and in 7 of the 10 provinces.

6.  Limitation:  In order to vote one either had to have specified documentary ID required, or, in the alternative, take an oath and be vouched for by another qualified elector in the same polling division who knew you, had proper ID, and who had not vouched for another in the election. (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  Reducing the potential for fraud or error that could impair the integrity of the voting system by allowing voting by individuals who are not entitled to vote.  Specifically:

1. To address the harm of fraud;

2. To address the potential for fraud;

3. To address the public perception of fraud and the potential for fraud;

4. To address mistakes and inaccuracies in the electoral system and the conduct of elections thereby ensuring that the electoral system and the conduct of elections is, and is perceived to be, fair, secure and effective; and,

5. To ensure that only eligible voters cast their votes.

Limitation Upheld: Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

Reason For Decision:  Preventing voting fraud and thereby maintain the integrity of elections constituted a pressing and substantial objective.  The parties conceded that the case turned on the minimal impairment aspect of the Oakes criteria.  The plaintiffs were unable to provide reasonable and effective alternative means to accomplish the rational objective of preventing electoral fraud which would impair rights less than the challenged restrictions.  Any small risk of partisan abuse was outweighed by the goals of the pressing and substantial objective.

7. Limitation:  Must be at least 18 to vote (Alta. Elections Act)

Constitutional Value Asserted:  Charter section 3 (right to vote); Charter section 15 (equality before the law)

Reason Given To Justify:  To ensure that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government.

Limitation Upheld: Fitzgerald (Next Friend of) v. Alberta, 2002 CarswellAlta 1594, 2002 ABQB 1086, [2003] 3 W.W.R. 752, [2003] A.W.L.D. 91, 104 C.R.R. (2d) 170, 10 Alta. L.R. (4th) 155, 331 A.R. 111 (Alta. Q.B.), aff’d 2004 CarswellAlta 660, 2004 ABCA 184, [2004] 6 W.W.R. 416, [2004] A.W.L.D. 346, 120 C.R.R. (2d) 82, 27 Alta. L.R. (4th) 205, 321 W.A.C. 113, 348 A.R. 113 (Alta. C.A.)

Reason For Decision: Limitation infringed constitutional right to vote and the guaranty in section 15 of the Charter for equal protection of the law without discrimination on an enumerated ground – in this case age.  But infringements were justified under section 1 of the Charter.

Age based restriction is rationally connected to object otherwise babies would be able to vote.  (Implicit in this statement is belief that at some point individuals do not have  rational ability or knowledge to vote.)  Children become more mature as they age and 18 year olds, with more years of experience, are more likely to serve as rational and informed voters than younger voters with less experience.  Setting the voting age at 18 does not go farther than necessary as, in general, 18 year olds as a group have finished high school and are starting to make their own life decisions.  It is rational that they take on responsibility of voting at the same time as they take on greater responsibility for direction of their own lives.  It can also be assumed that by age 18 most individuals will have completed high school social studies courses giving them important background information for rational and informed voting.

Note: In  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.)  the Supreme Court of Canada provided a similar, but more ambiguous, explanation of age based restrictions on the right to vote saying that in applying an age based restriction a legislature would not be making any comment on the worthiness of the under aged person to vote but was making a decision based on the experiential situation of all citizens when they are young (which is similar to the holding in Fitzgerald) and that it was only regulating a “modality” of the universal suffrage.

8. Limitation:  Federally appointed judges prohibited from voting (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  To preserve appearance of political neutrality.

Limitation Declared To Be Unconstitutional: Muldoon v. R., 1988 CarswellNat 134, [1988] 3 F.C. 628, 12 A.C.W.S. (3d) 260, 21 F.T.R. 154 (Fed. T.D.) (note:  claim did not extend to having right to qualification for membership in legislative assembly, or right to participate as public political partisans in any election)

Reason For Decision: Court made no real findings on the merits.  The parties did not contest the issuance of a declaration (bill was before Parliament removing the restriction in any event).  Court felt that there were arguments such that decision on matter could go either way.  The declaration was issued as the Court held that a requested declaration should issue where parties are in agreement unless court finds that the declaration was not justified by the facts or would amount to a miscarriage of justice, neither of which cases could be said to arise in the circumstances.

9.  Limitation:  Greater participation rights (right to issue income tax receipts, retaining unspent campaign funds, right to have party affiliation included on ballot) given to parties which run at least 50 candidates in a general election than to parties which run less than 50 candidates. (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  1.  Improve the electoral system through public financing in a cost efficient manner.  2.  Protect the integrity of the electoral system by ensuring that third parties that have no genuine interest in participating in electoral process do not abuse the electoral financing system. 3.  Ensuring a viable outcome for Canadian form of responsible government by increasing the likelihood of the formation of a majority government that has aggregated preferences on a national scale which would produce more effective governance than governments than consist of coalitions between or among various political parties.

Requirement To Run At Least 50 Candidates Struck Down:  Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

Reason For Decision:

Purpose: Improve the electoral system through public financing in a cost efficient manner.

 

1. Failed rational connection requirement.  No connection between right to retain surplus campaign funds ballot affiliation and objective of improving electoral system through public financing in a cost efficient manner.  The restrictions on tax receipts had no real impact on the burden of maintaining the public purse as nothing prohibited every citizen from donating maximum amount to a registered party.  Thus the connection between the legislation and the goal of cost efficiency was tenuous at best. Furthermore, government failed to provide any evidence to substantiate claim that the threshold requirement to issue tax receipts actually improved the cost efficiency of the tax credit system.

2.  Failed minimal impairment requirement.  If Parliament concerned that costs associated with tax credit scheme are prohibitively high a more appropriate was to address issue would be to reduce the amount that each citizen was entitled to claim in respect of donations.  This would be more effective and would not result in the violation of any citizen’s right to play a meaningful role in electoral process.

3. The benefits of restriction did not outweigh the deleterious effects.  The impact of the restriction on section 3 rights was substantial but government produced no evidence to shown any significant benefit to public purse.  Plus, given the smaller support base of the small parties one would expect that the savings to the public purse by restricting those contributions to be relatively insignificant.

Purpose: Protecting the integrity of the electoral system

1.  No rational connection between restricting right to have party name on ballot and integrity of electoral system. Similarly no connection between restrictions on tax receipts and integrity of system as there was no evidence that only parties that can field 50 candidates have a legitimate electoral interest. Also no evidence that the substantial record keeping and filing requirements imposed on registered parties are not sufficient to prevent third parties from seeking registered party status for the sole purpose of abusing the tax credit scheme.  Similarly, no rational connection respecting inability to retain campaign funds. Court rejected argument by government that non-registered parties could not retain surplus because not subject to reporting obligations.  Court held that that was a circular argument insofar as the 50 candidate rule was the requirement that kept smaller parties from being registered and subject to reporting obligations.

2.  Failed minimal impairment requirement.  No proof that  integrity of system could not be equally achieved through strict spending rules and the use of auditors to prevent misuse of funds which approach would have no impact on section 3 rights.

Purpose:  Ensuring a viable outcome for Canadian form of responsible government

1. No rational connection.  No evidence that 50 candidate rule has any impact on the formation of majority governments.  The more likely threat to majority governments is the proliferation of registered parties generally but the Elections Act imposes no limit on the number of political parties that can be registered.

2.  Benefits do not outweigh the deleterious effects.  The impact on section 3 rights is substantial given negative impact on the communication of ideas. Also, does great harm in that in order to achieve its objective, the legislation would have to result in the election of individual candidates and majority governments which would not otherwise have been elected.  Government failed to advance sufficient evidence to demonstrate that the election of a majority government would result in benefits that outweigh those deleterious effects.  Nor did government provide a reasoned basis on which to reach that conclusion.

10.  Limitation:  Restrictions on ability of third parties to do political advertising during an election (duty to register; financial management controls; attribution of donations to donors; reporting requirements; spending limits; and related anti-avoidance provision prohibiting acting in collusion with another third party to exceed third party spending limits), also ban on doing election advertising on polling day.

Constitutional Value Asserted:  Charter section 3 (right to vote),  Charter section 2(b) (freedom of expression), Charter section 2(d) (freedom of association)

Reason Given To Justify:  See below in context of particular limitation.

Limitation Upheld:  Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.).

Reason For Decision:

Third Party Spending Limits

 

Reason Given For Limit:  1.  To promote equality in the political discourse.  2.  To protect the integrity of the financing regime applicable to candidates and parties. 3.  To maintain confidence in the electoral system.

Third party spending limits were found to infringe section 2(b) freedom of expression but were found to be rationally connected to the stated purposes, constituted a minimal impairment, and were proportionate.

Third party spending limits were found not to infringe on the section 3 right to vote as they were sufficiently crafted to ensure that participants were able to convey their information without being able to drown out the voices of others.

Anti-avoidance

The anti-avoidance provisions, seen as being ancillary and supportive of the spending limits, were found not to infringe free expression or the right to vote.  Nor did they violate the section 2(d) Charter right of freedom of association as they operated only as a supportive mechanism for the spending limits and, rather than prohibiting people from joining an association to pursue a collective goal, only prohibited the association from undertaking a particular activity (i.e. the circumvention of the spending limits)

Ban On Election Advertising On Polling Day

Reason Given For Limitation:  1.  Provide commentators and others with an opportunity to respond to any potentially misleading election advertising.  2.  To ensure that electors in different parts of the country have access to the same information before they go to the polls.

The election advertising ban on polling day was found to be an infringement of  the right in section 2(b) to freedom of expression.  However, it was justifiable as it was rationally connected to its purposes; was of minimal impairment as it lasted only 20 hours in a 36 day campaign and applied only to advertising; and there was not evidence that the blackout period had any deleterious effects.

The election advertising ban on polling day was found not to breach the section 3 right to vote.  It was not found to have an adverse impact on the information available to voters as it was of only a short duration and, while extending to third parties, candidates and political parties, did not extend to the media.  Any vital information that an electors must have in the restricted time could be obtained through the media and it was difficult to envision that the ban could lead to a deprivation of information that an elector could not cast a rational and informer vote.

Attribution, Registration and Disclosure Requirements

Reason Given To Justify:  1.  Ensured the proper implementation and enforcement of the third party election advertising limits.  2.  Provided electors with relevant election information.

The attribution, registration and disclosure requirements were found to infringe the section 2(b) right of freedom of expression as have the effect of restricting the political expression of those who do not comply with them.   However, they were found to be justified.  The reasons given for the requirements were found to be pressing and substantial.  The requirements were found to be rationally connected to those purposes; were minimally impairing given the amount of tombstone information required, the requirements to appoint financial agents and auditors was not overly onerous and facilitated compliance with the reporting obligations; and the benefits of the measures were found to outweigh the deleterious effects which were found to be minimal as there was no evidence that a contributor had been discouraged from engaging in electoral advertising because of the reporting requirements.

The attribution, registration and disclosure requirements did not infringe the section 3 right to vote.  They provide transparency and thus advance the objective of an informed vote.  By these means electors are made aware of who contributes and who spends in the electoral process and, thus, who stands behind communications.

Insufficient evidence was provided to find that the attribution, registration and disclosure requirements infringed the section 2(d) right to freedom of association.

11. Prohibition Against Broadcasting Of Election Results In A District Until All Polls In District Closed. (Fed)

Constitutional Value Asserted:  Section 2(b) (freedom of expression)

Reason Given To Justify:  To ensure that all electors are equal in the electoral information available to them and to maintain the public perception of electoral fairness that all electors are equal in that way.

Limitation Upheld:  R. v. Bryan, 2007 CarswellBC 533, 2007 SCC 12, [2007] 1 S.C.R. 527, [2007] 5 W.W.R. 1, [2007] B.C.W.L.D. 1416, [153 C.R.R. (2d) 316, 217 C.C.C. (3d) 97, 237 B.C.A.C. 33, 276 D.L.R. (4th) 513, 359 N.R. 1, 45 C.R. (6th) 102, 72 B.C.L.R. (4th) 199 (S.C.C.)

Reason For Decision:  The purpose of the provision was pressing and substantial.  The limitation was rationally connected to that purpose.  Parliament had considered the issue and determined that the limitation in question was the most effective and least intrusive and there was evidence showing that the policy choice of Parliament was a rational and justifiable solution to the problem of information imbalance.  The benefits of the ban were clear while the deleterious effects were minor.  There was no evidence of any harm to the electoral process or to the general right of Canadians to be informed that was manifestly superior to the evidence of the beneficial effects in promoting electoral fairness.  The magnitude of the ban was extremely small.  It was effective for only a matter of two to three hours, only on election day, only the late voters would be affected.

Limitation:  Prohibition on publication or dissemination of election opinion survey for days prior to polling day.

Constitutional Values Asserted: Charter section 2(b) freedom of expression

Reason Given To Justify: 1.  To provide a period of rest and reflection for voters prior to going to the polls.  2. To provide a period during which the accuracy of a poll could be publicly questioned and debated, so that the scientific validity and accuracy of any particular poll would be more fully known to Canadian voters and thus reduce the possibility that the scientific accuracy of polls may be overestimated by Canadian voters in a particular election and that votes might based on this inaccurate perception.

Limitation Struck Down:  Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

Reason For Decision: The ban infringed on freedom of expression.  The publication of polling information conveys meaning and falls within the ambit of section 2(b) and the prohibition of the broadcasting, publication or dissemination of opinion survey results during the final 3 days of an election campaign clearly infringes the right.

The “day of rest” purpose was not a pressing and substantial objective.  It was predicated on the false assumption that electors would be overcome by the “flurry” of polls appearing in the media that they would forget the issues on which they should be concentrating.  That presumption was rejected as electors had to be presumed to have a certain degree of of maturity and intelligence and it could not be assumed that they would be so naïve as to forget the issues and interests which motivate them to vote for a particular candidate.   Furthermore, it could not be assumed that electors assume that polls are absolutely accurate in predicting outcomes of elections and that they would overvalue poll results.

The provision of a period during which the accuracy of a poll could be publicly questioned and debated was found to be a pressing and substantial objective as there was evidence that suggested that an uncertain number of electors could be influenced in their electoral choice by false polls whose pernicious aspect could not be discovered because of the lack of response time.

The limitation was rationally connected to its objective but failed the minimal impairment test.  The government failed to show why a significantly less intrusive but equally effective measure was not chosen.  Furthermore, the provision was both overbroad and underbroad.  It was overbroad because it banned all polls, including accurate ones, during the final three days.  It was underbroad because there was no legal obligation for a poll to disclose its methodology and in the absence of such disclosure it was difficult to see the logical of providing a period to respond and criticize a poll which, whose accuracy could not be determined regardless of the time provided, without knowledge of methodology.  Requiring the disclosure of methodology without a ban would obviously be less intrusive than a ban without the disclosure of methodology.

The beneficial effects of the legislation were also found not to outweigh its deleterious impact.

The deleterious effects were significant. The impact on the freedom of expression was found to be profound amounting to a complete ban on political information at a crucial time in the electoral process. It sent the message that the media can be constrained by government not to publish factual information.  It interfered with the reporting function of the media at a time when its participation was most crucial to self-governance. And it denied electors access to information which some would consider very useful in deciding their vote. This latter effect also could undermine the faith of the electorate in the electoral process if they felt that there votes were better informed as a result of having this information.

The benefits, however, were found to be minimal.  It operated to withhold information which could be rationally and properly assessed by the vast majority of the electorate out of a concern that a very few, the most unobservant and naïve, might be so confounded that they would cast their vote for a candidate whom they would not otherwise have preferred.

Limitation: Loss Of Ability To Exercise Right To Vote If Absent From Country For Five Consecutive Years

 

Constitutional Values Asserted:  Charter section 3 right to vote

 

Reasons Given To Justify:  Residency requirement fulfills the pressing and substantial objective of strengthening the social contract at the heart of Canada’s system of constitutional democracy.

Limitation Upheld: Frank v. Canada (Attorney General), 2015 CarswellOnt 10870, 2015 ONCA 536 (Ont. C.A.) (certain persons outside of the country for more than 5 years)  (Caveat: The Ontario Court of Appeal decision in Frank is a majority decision and is likely anomalous with previous right to vote decisions and, if appealed to the Supreme Court of Canada, will, in all probability be reversed. The notes below reflect only the reasons of the majority of the court.  The reasoning of the dissent, although in my opinion, logically superior, is not reflected.)

Reason For Decision:  Limitation was found to restrict section 3 right to vote but was found to be a reasonable limit.

Legitimacy

 

The goal of strengthening the social contract was a pressing and substantial concern.

The social contract is about reciprocity between civic rights and responsibilities and in the context of the case at hand is founded on a mutuality between the franchise and the citizen’s obligation to obey the law.   Laws command obedience because they are made by those whose conduct they govern.

Proportionality

There was a rational connection between the restriction and the objective.  The legislative objective is to maintain the connection between the voters, the lawmakers and the laws.  Most of Canada’s laws have little practical impact on non-resident citizens. As non-residents are not directly governed by Canadian laws it is reasonable for a government to place limits on a non-resident’s right to vote as that person’s non-residence becomes long-term rather than temporary because the longer-term non-resident has voluntarily withdrawn from the social contract and has submitted him/herself to another political and legal order.

The restriction minimally impaired the right to vote as reasonably possible. The test is whether the five years is a reasonable cut-off.  The duration of absence is a means by which to determine whether the citizen is temporarily away from Canada or not.  Any “cut-off” point will produce some arbitrariness at its boundaries, but if it is a principled rule it is capable of constituting a reasonable limit. “Because five years falls within the reasonable range of policy choices as the point at which to differentiate between temporary non-residents and longer-term non-residents who have voluntarily removed themselves from the social contract, the means chosen were minimally impairing.”  There was also a proper balance between the salutary effects of the restriction and the degree of impairment on the right.   The representative nature of government was a core democratic principle which was strengthened by the fact that members are elected by, and are answerable to, those who live in the jurisdiction.  Against this, the deleterious results of the restriction is measured.  There was no out-right ban on non-resident voting, only on long term non-residents.  Individuals assuming long term non-residency cease to be subject to most Canadian law and thereby relinquish their right to a voice in that law. Those rights are not permanently denied but are reinstated when they return to Canada which they can do at any time and remain without restriction.

 

[1] Influence is, of course, a significant indirect source of political power.  The Canada Elections Act imposes controls on two aspects of influence – influence gained from contributions to political entities and influence gained through political advertisement by “third parties” (i.e. entities which are not themselves political entities in elections).

[2] In which is found, for example, provisions respecting eligibility (can only be a candidate in one district (s. 21), member of provincial legislature cannot be to the federal House of Common (s. 22) and loss of federal seat if elected to provincial legislature (s. 23)),  resignations and vacancies in the House of Commons (ss. 28 to 31) including provisions respecting the issuance of writs for by-elections  and the effect of the calling of a general election on an existing by-election (s. 31).

[3] Which deals with the creation of electoral districts.

[4] The Broadcasting Act applies to election broadcasting and the Canadian Radio-television and Telecommunications Commission plays a role in regulating broadcasting during an election.  See, in illustration, section 347 of the Canada Elections Act.  See also the CRTC notice Elections and Political Advertising on TV and Radio (available on-line at http://www.crtc.gc.ca/eng/info_sht/b309.htm) which sets out a quick summary of the role of the CRTC during elections.

[5] Which, for example, deals with the responsibility of the Director of Public Prosecutions for the prosecution of offences under the Canada Elections Act (see s. 3(8)).

[6] Which, for example, prescribes communication requirements for Elections Canada. See Part IV of the Act: “Communications With And Services To The Public”.

[7] Elections Canada is subject to the access provisions of the Access to Information Act. The Office of the Chief Electoral Officer (the official statutory name for Elections Canada) is listed as a government institution in Schedule I to the Act.

 

[8] Elections Canada is subject to the privacy provisions of the Privacy Act. The Office of the Chief Electoral Officer (the official statutory name for Elections Canada) is listed as a government institution in schedule 3 of the Act.

 

[9] The anti-discrimination provisions of the Human Rights Act, including provisions respecting access to services, applies to Elections Canada and the services it provides.  See, in illustration, the decision of the Human Rights Tribunal in Hughes v. Elections Canada, 2010 CarswellNat 280, 2010 CHRT 4 (Canadian Human Rights Tribunal).

[10] Which, in illustration, deals with income tax deductions for contributions to, and the issuance of income tax receipts by, federal registered political parties, their registered electoral district associations and candidates.  See section 127(3) to (4.1) of the Act.  See also the Department’s Income Tax Circular IC75-2R8 Contributions to a Registered Party, a Registered Association or to a Candidate at a Federal Election (available on-line at http://www.cra-arc.gc.ca/E/pub/tp/ic75-2r8/ic75-2r8-11e.pdf.

[11] Which governs the employment of employees of Elections Canada.  See sections 19 and 20 of the Canada Elections Act.

[12] For example, the Office of the Chief Electoral Officer is listed as part of the Core Public Administration (Schedule IV) and is a division or branch of the public administration (Schedule I.1) and is governed by the resulting relevant provisions of the Act respecting the administration of the public service.

[13] The Constitution Act, 1867 and the Constitutional Act, 1982.

 

[14] Other restrictions on the membership in the House of Commons are found in the Parliament of Canada Act (members of provincial legislatures (ss. 22 and 23), and the Canada Elections Act (people convicted of “corrupt” or “illegal” practices (s. 502 – time specific ineligibility).

[15] A statutory office which has no statutory functions, and by practice does not exist any more.  In practical terms the position ceased to exist when the Governor-in-Council, at the request of the Chief Electoral Officer, stopped appointing individuals to the position.  Theoretically the office could be reinvigorated if the Governor-in-Council reinstated appointments.

[16] Held unconstitutional by the Supreme Court of Canada in Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.) but never formally repealed.  The Canada Elections Act does not contain any process by which these re-enfranchised prisoners can exercise their right to vote.  Following Sauvé the Chief Electoral Officer has used his/her statutory authority to adapt the Act to extent the statutory process for voting by prisoners who were not disenfranchised under section 4 to those newly prisoners who regained the right to vote by reason of Sauvé.

[17] As this is not a text on constitutional law, other than for the constitutional right to vote it will not outline in any detail the extent of the other constitutional rights that may be applicable to elections.

With respect to the Charter guaranty of freedom of expression in Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.) the Supreme Court of Canada quoted its holding in Libman c. Québec (Procureur général), 1997 CarswellQue 851, 1997 CarswellQue 852, [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 3 B.H.R.C. 269, 46 C.R.R. (2d) 234 (S.C.C.) that: “Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter“.  In Thomson Newspapers the Supreme Court also acknowledged that political process is at the core of the Charter right of freedom of expression.  The Court quoted the following from its earlier decision in R. v. Keegstra, 1990 CarswellAlta 192, [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131, [1991] 2 W.W.R. 1, 114 A.R. 81, 117 N.R. 1, 11 W.C.B. (2d) 352, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 77 Alta. L.R. (2d) 193 (S.C.C.):

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.

[18] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.):

90      A provision will be considered impermissibly vague where there is no adequate basis for legal debate or where it is impossible to delineate an area of risk; see Canada v. Pharmaceutical Society (Nova Scotia), [1992] 2 S.C.R. 606 (S.C.C.), at pp. 639-40. The interpretation of the terms at issue here must be contextual. It is clear that a regulatory regime cannot by necessity provide for a detailed description of all eventualities and must give rise to some discretionary powers — a margin of appreciation. What is essential is that the guiding principles be sufficiently clear to avoid arbitrariness. While no specific criteria exist, it is possible to determine whether an issue is associated with a candidate or political party and, therefore, to delineate an area of risk. For example, it is possible to discern whether an issue is associated with a candidate or political party from their platform. Where an issue arises in the course of the electoral campaign, the response taken by the candidate or political party may be found in media releases (Lortie Report, at p. 341). Whether the definition is impermissibly broad is a matter for legal debate and is more properly considered at the minimal impairment stage of the justification analysis.

[19] See the table at the end of this chapter for a summary of a number of instances of legislative infringements on Charter rights in the context of both federal and provincial electoral legislation.

[20] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[21] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201 (S.C.C.):

“The right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner. For a voter to be well-informed, the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party. The citizen must also be able to consider opposing aspects of issues associated with certain candidates and political parties where they exist. In short, the voter has a right to be “reasonably informed of all the possible choices”: Libman, at para. 47.”

[22] Similarly, see Canada (Attorney General) v. Somerville, 1996 CarswellAlta 503, [1996] 8 W.W.R. 199, [1996] A.J. No. 515, 122 W.A.C. 241, 136 D.L.R. (4th) 205, 184 A.R. 241, 37 C.R.R. (2d) 24, 39 Alta. L.R. (3d) 326 (Alta.C.A.) (There is no expression more deserving of protection than electoral free speech.)

[23] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[24] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[25] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[26] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.): (S.C.C);  Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.).

[27] Which is Part I of the Constitution Act, 1982.

[28] Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.)  (“10      The right of every citizen to vote, guaranteed by s. 3 of the Charter, lies at the heart of Canadian democracy. The franchise has gradually broadened in Canada over the course of history from male property owners 21 years of age and older to the present universal suffrage of citizens aged 18 and over. Universal suffrage is reflected in s. 3 of the Act, which provides that a person is “qualified” to vote if he or she is a Canadian citizen and is 18 years of age or older.”)

[29] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).  In that decision the Supreme Court stated that:

“43      The idea that certain classes of people are not morally fit or morally worthy to vote and to participate in the law-making process is ancient and obsolete.”

[30]  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.);  Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.);  Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.).

Section 33(1) provides that:

33(1)  Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision therefore shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

[31] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

[32] Universal as far as the wording of section 3 purports to go – which is elections to the federal and provincial legislatures.  Section 3 does not extend to voting in federal referenda (which are not of the same nature as elections, being merely consultative or advisory in nature rather than binding) or municipal elections (which are not elections to a federal or provincial legislature):  Haig v. R., 1993 CarswellNat 1384, 1993 CarswellNat 2353, [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (S.C.C.).

[33]  Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C)

[34] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[35] Sauvé v. Canada (Attorney General), 1992 CarswellOnt 1711, , 55 O.A.C. 219, 7 O.R. (3d) 481, 89 D.L.R. (4th) 644 (S.C.C.)

[36] Dixon v. British Columbia (Attorney General), 1989 CarswellBC 43, [1989] 4 W.W.R. 393, [1989] B.C.W.L.D. 1337, [1989] B.C.J. No. 583, 15 A.C.W.S. (3d) 121, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (B.C.S.C.)

[37] Fitzgerald (Next Friend of) v. Alberta, 2002 CarswellAlta 1594, 2002 ABQB 1086, [2003] 3 W.W.R. 752, [2003] A.W.L.D. 91, 104 C.R.R. (2d) 170, 10 Alta. L.R. (4th) 155, 331 A.R. 111 (Alta. Q.B.), aff’d 2004 CarswellAlta 660, 2004 ABCA 184, [2004] 6 W.W.R. 416, [2004] A.W.L.D. 346, 120 C.R.R. (2d) 82, 27 Alta. L.R. (4th) 205, 321 W.A.C. 113, 348 A.R. 113 (Alta. C.A.)

[38] Simlarly, see Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

57 … On the face of it, the rights given under s. 3 of the Charter are restricted only by citizenship and connection to an electoral district. This follows from the wording of s. 3 of the Charter which provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly”.

70      It follows from all of this that the s. 3 right to cast a ballot for a candidate in a federal or provincial election is limited only by the specific wording of the section, that is, by citizenship and residence. Any other impediment to the ability of an elector to cast a vote constitutes a facial breach of the section. Where legislation, such as the legislation in question in this case, has the double effect of breaching the rights of some citizens while enhancing the rights of others, the duty of the court is to first isolate the breach and then to determine whether it is justifiable under s. 1. If the impugned legislation also has the effect of enhancing an aspect of the right, it is a factor to take into consideration in the s. 1 analysis.

[39] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

 

[40] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.) (certain prisoners);  Frank v. Canada (Attorney General), 2014 CarswellOnt 5850, 2014 ONSC 907, 119 O.R. (3d) 662, 239 A.C.W.S. (3d) 909, 372 D.L.R. (4th) 681 (Ont. S.C.J.), reversed Frank v. Canada (Attorney General), 2015 CarswellOnt 10870, 2015 ONCA 536 (Ont. C.A.) (certain persons outside of the country for more than 5 years)

[41] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[42] Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.) (no absentee voting system) (B.C.)

[43]  The position of the courts is that in the context of constitutional validity a reviewing court owes no deference to Parliament (Sauvé v. Canada (Attorney General), 1992 CarswellOnt 1711, , 55 O.A.C. 219, 7 O.R. (3d) 481, 89 D.L.R. (4th) 644 (S.C.C.); Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.);  Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)).

However, in the context of Parliament’s choice between constitutionally valid processes the courts will extend deference to that choice such that the court’s electoral choices do not take precedence over those of Parliament.  Similarly, in the application of the Oakes test, some deference is owed to Parliament’s balancing of interests and to the nature and sufficiency of the evidence required for the government to demonstrate that the limits in question are reasonable and justifiable in a free and democratic society (R. v. Bryan, 2007 CarswellBC 533, 2007 SCC 12, [2007] 1 S.C.R. 527, [2007] 5 W.W.R. 1, [2007] B.C.W.L.D. 1416, [153 C.R.R. (2d) 316, 217 C.C.C. (3d) 97, 237 B.C.A.C. 33, 276 D.L.R. (4th) 513, 359 N.R. 1, 45 C.R. (6th) 102, 72 B.C.L.R. (4th) 199 (S.C.C);  (Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201 (S.C.C.)).

[44] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

Having said that, in the event that a limitation on the right to vote arise by reason of the Chief Electoral Officer’s use of his or her discretionary authority under the Canada Elections Act (as his or her power to adapt the Act to deal with emergencies or unforeseen circumstances (s. 16) or to give directions to Returning Officers (s. 17), it would be the test in set out in Doré c. Québec (Tribunal des professions), 2012 CarswellQue 2048, 2012 SCC 12, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 255 C.R.R. (2d) 289, 343 D.L.R. (4th) 193, 34 Admin. L.R. (5th) 1, 428 N.R. 146 (S.C.C.) that would be used to determine the constitutional validity of that exercise of discretion.  The test in Doré is essentially a reasonableness test which asks whether, in this case the CEO, has hit an appropriate balance between the constitutional right to vote and the statutory objectives sought to be accomplished by the exercise of discretion.

[45] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[46] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.)

[47] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.):

87      The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.), requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

[48]  In Canada the House and the provincial legislatures are comprised of individual members, a particular district.  The right to vote in section 3 is said to be the right to vote for members in a election for the House or a legislature.  Thus, the right to vote has to be construed according to the characteristics of the House and legislature.  In

Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.) the Supreme Court of Canada stated:

29      … Section 3 provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly“. The right to vote in the election of “members of the House of Commons” reflects Canada’s constitutional character as a parliamentary form of government. Citizens have the right to vote in a specific electoral district, choosing among various candidates who wish to be the Member of Parliament for that district: see Henry v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70 (B.C. S.C.), at para. 139.

See also Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.);

[49] The right to vote in section 3 of the Charter, as stated in its terms, does not extend to referenda or municipal elections. (Haig v. R., 1993 CarswellNat 1384, 1993 CarswellNat 2353, [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (S.C.C.))

[50]  Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.) (“30.  …The Charter right to vote is for the Member of Parliament for the electoral district in which the voter resides.);  Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A).

Parliament and the various provincial legislative assemblies have the right to set the boundaries of their own electoral districts; but the exercise of that authority is subject to the Charter right to vote and cannot be exercised in a way to breach that right. (Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161, J.E. 91-938, EYB 1991-67923 (S.C.C.))

[51] Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[52] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[53] Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

 

69      Three things follow from these cases. First, s. 3 contains a bundle of rights derived from its explicit words and from its purpose of guaranteeing the rights of citizens to play a meaningful role in the electoral process. The explicit rights are procedural and spelled out in the section. The implicit rights are substantive and may require resort to a broad range of factors to determine. To paraphrase Iacobucci J. in Figueroa, the implicit rights are the conditions under which the right to play a meaningful role in the electoral process are expressed. Infringement of any of the rights constitutes a breach of s. 3.

[54]  Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.).

Fairness as an essential aspect of the right to vote was also noted in R. v. Bryan, 2007 CarswellBC 533, 2007 SCC 12, [2007] 1 S.C.R. 527, [2007] 5 W.W.R. 1, [2007] B.C.W.L.D. 1416, [153 C.R.R. (2d) 316, 217 C.C.C. (3d) 97, 237 B.C.A.C. 33, 276 D.L.R. (4th) 513, 359 N.R. 1, 45 C.R. (6th) 102, 72 B.C.L.R. (4th) 199 (S.C.C.);   Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C.);  and Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[55] Dixon v. British Columbia (Attorney General), 1989 CarswellBC 43, [1989] 4 W.W.R. 393, [1989] B.C.W.L.D. 1337, [1989] B.C.J. No. 583, 15 A.C.W.S. (3d) 121, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (B.C.S.C.)

[56] Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.):

28      The fundamental purpose of s. 3 of the Charter was described in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912 (S.C.C.), by Iacobucci J., for the majority, at para. 30:

In the final analysis, I believe that the Court was correct in Haig [v. Canada, [1993] 2 S.C.R. 995], to define s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process. Democracy, of course, is a form of government in which sovereign power resides in the people as a whole. In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives. The fundamental purpose of s. 3, in my view, is to promote and protect the right of each citizen to play a meaningful role in the political life of the country. Absent such a right, ours would not be a true democracy.

Similarly, see Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[57] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[58] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[59] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[60] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.):

40      With respect to the ability of a political party to act as an effective vehicle for the meaningful participation of individual citizens in the electoral process, it is important to note that political parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of their members and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. Political parties ensure that the ideas and opinions of their members and supporters are effectively represented in the open debate occasioned by the electoral process and presented to the electorate as a viable option. If those ideas and opinions are not subsequently adopted by the government of the day, it is not because they have not been considered, but, rather, because they have received insufficient public support.

41      Importantly, it is not only large political parties that are able to fulfil this function. It likely is true that a large party will be able to play a larger role in the open discourse of the electoral process, but it does not thereby follow that the capacity of a political party to represent the ideas and opinions of its members and supporters in the electoral process is dependent upon its capacity to offer the electorate a “government option”. Large or small, all political parties are capable of introducing unique interests and concerns into the political discourse. Consequently, all political parties, whether large or small, are capable of acting as a vehicle for the participation of individual citizens in the public discourse that animates the determination of social policy.

[61] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.);  Libman c. Québec (Procureur général), 1997 CarswellQue 851, 1997 CarswellQue 852, [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 3 B.H.R.C. 269, 46 C.R.R. (2d) 234 (S.C.C.).

[62]  Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[63] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[64] This is viewed as the egalitarian model of elections as opposed to a libertarian model in which involves the imposition of as few restrictions as possible.  Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[65] It still does, but it is now far easier for a political party to become registered.

[66] See the table at the end of this chapter.

[67] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

48      I begin by noting that it is not my position that s. 3 imposes upon Parliament a freestanding obligation to extend to political parties the right to issue tax credits for donations received outside the election period or to extend to candidates the right to transfer unspent election funds to the party. Section 3 prevents Parliament from interfering with the right of each citizen to play a meaningful role in the electoral process; it does not impose upon Parliament an obligation to enact legislation that enhances the capacity of political parties to raise funds for the purpose of communicating the ideas and opinions of its members and supporters to the general public. …

[68] See section 14 of the Electoral Boundaries Readjustment Act:

 

  1. (1) On receipt of the estimates referred to in section 12.1, the Chief Electoral Officer shall calculate the number of members of the House of Commons to be assigned to each province, subject and according to the provisions of section 51 of the Constitution Act, 1867 and the rules in that section, and on the completion of that calculation shall cause a statement to be published in the Canada Gazette setting out the results.

Sections 51 to 52 of the Constitution Act, 1867, set out the formula for the calculation of the number of seats as follows.

Readjustment of representation in Commons

  1. (1) The number of members of the House of Commons and the representation of the provinces therein shall, on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada provides from time to time, subject and according to the following rules:

Rules

 

  1. There shall be assigned to each of the provinces a number of members equal to the number obtained by dividing the population of the province by the electoral quotient and rounding up any fractional remainder to one.

000

[Note:  The “electoral quotient” is determined according to Rule 6 below.]

  1. 
If the number of members assigned to a province by the application of rule 1 and section 51A is less than the total number assigned to that province on the date of the coming into force of the Constitution Act, 1985 (Representation), there shall be added to the number of members so assigned such number of members as will result in the province having the same number of members as were assigned on that date.
  1. 
After the application of rules 1 and 2 and section 51A, there shall, in respect of each province that meets the condition set out in rule 4, be added, if necessary, a number of members such that, on the completion of the readjustment, the number obtained by dividing the number of members assigned to that province by the total number of members assigned to all the provinces is as close as possible to, without being below, the number obtained by dividing the population of that province by the total population of all the provinces.
  1. 
Rule 3 applies to a province if, on the completion of the preceding readjustment, the number obtained by dividing the number of members assigned to that province by the total number of members assigned to all the provinces was equal to or greater than the number obtained by dividing the population of that province by the total population of all the provinces, the population of each province being its population as at July 1 of the year of the decennial census that preceded that readjustment according to the estimates prepared for the purpose of that readjustment.
  1. 
Unless the context indicates otherwise, in these rules, the population of a province is the estimate of its population as at July 1 of the year of the most recent decennial census.
  1. 
In these rules, “electoral quotient” means

(a)   
111,166, in relation to the readjustment following the completion of the 2011 decennial census, and

(b) 
 in relation to the readjustment following the completion of any subsequent decennial census, the number obtained by multiplying the electoral quotient that was applied in the preceding readjustment by the number that is the average of the numbers obtained by dividing the population of each province by the population of the province as at July 1 of the year of the preceding decennial census according to the estimates prepared for the purpose of the preceding readjustment, and rounding up any fractional remainder of that multiplication to one.

Population estimates

(1.1) For the purpose of the rules in subsection (1), there is required to be prepared an estimate of the population of Canada and of each province as at July 1, 2001 and July 1, 2011 — and, in each year following the 2011 decennial census in which a decennial census is taken, as at July 1 of that year — by such authority, in such manner, and from such time as the Parliament of Canada provides from time to time.

Yukon Territory, Northwest Territories and Nunavut

(2) The Yukon Territory as bounded and described in the schedule to chapter Y-2 of the Revised Statutes of Canada, 1985, shall be entitled to one member, the Northwest Territories as bounded and described in section 2 of chapter N-27 of the Revised Statutes of Canada, 1985, as amended by section 77 of chapter 28 of the Statutes of Canada, 1993, shall be entitled to one member, and Nunavut as bounded and described in section 3 of chapter 28 of the Statutes of Canada, 1993, shall be entitled to one member.

Constitution of House of Commons

51A.  Notwithstanding anything in this Act a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province.

Increase in Number of House of Commons

  1. The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.

[69] Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

[70] Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.):

30      Section 6 of the Act recognizes that all persons meeting the three requirements of age, citizenship and residence are “entitled” to vote. It reads:

 

  1. Subject to this Act, every person who is qualified as an elector is entitled to have his or her name included in the list of electors for the polling division in which he or she is ordinarily resident and to vote at the polling station for that polling division.

Section 6 uses the term “polling division”. Polling divisions exist within electoral districts for administrative simplicity and voter convenience on election day (J. P. Boyer, Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (1987), vol. I, at p. 101). The Charter right to vote is for the Member of Parliament for the electoral district in which the voter resides.

As will be seen later in this text, the concept of residence does not always refer to actual physical presence in a district.  In practice there are individuals whose circumstances would deny them the right to vote if their physical presence was required to be in a particular district in order to constitute residence (notably members of the armed forces serving abroad). Thus, in Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.) the B.C. Court of Appeal held that the right to vote required that the government create some system for voting by persons who were out of the country at the time of an election.  Similarly, treating physical presence with residence could create unfairness to other electors in the same district such as would result in the artificial gathering of prisoners from across the country in a prison in a district.  Thus, in respecting the concept of the right to vote, including the concept of effective representation, there are circumstances where a notional residence is sometimes used.  But even in those circumstances a person can have only one residence.

[71]  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

[72] For example, compare the electoral district of Charlottetown with a population of 32,174 with that of Vancouver Centre with a population of 123,701 (as per the 2003 Representation Order).

[73] Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 27 A.C.W.S. (3d) 602, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161 (S.C.C.)

[74] Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 27 A.C.W.S. (3d) 602, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161 (S.C.C.)

[75] No commission is established for the three seats in the House allocated to the three territories.  The Electoral Boundaries Readjustment Act expressly establishes and describes the boundaries of three electoral districts covering the three territories – the Yukon, the Western Arctic, and Nunavut (s. 30).

Each commission consists of three members.  The Chief Justice of a province appoints the Chair of the commission for that province and the other two members are appointed by the Speaker of the House of Commons.  A Commission is not subject to the direction of any other authority and makes it decision as to boundaries according to the directions in the Electoral Boundaries Readjustment Act.

[76] See section 15 of the Electoral Boundaries Readjustment Act:

 

  1. (1) In preparing its report, each commission for a province shall, subject to subsection (2), be governed by the following rules:

(a) the division of the province into electoral districts and the description of the boundaries thereof shall proceed on the basis that the population of each electoral district in the province as a result thereof shall, as close as reasonably possible, correspond to the electoral quota for the province, that is to say, the quotient obtained by dividing the population of the province as ascertained by the census by the number of members of the House of Commons to be assigned to the province as calculated by the Chief Electoral Officer under subsection 14(1); and

(b) the commission shall consider the following in determining reasonable electoral district boundaries:

(i) the community of interest or community of identity in or the historical pattern of an electoral district in the province, and

(ii) a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.

(2) The commission may depart from the application of the rule set out in paragraph (1)(a) in any case where the commission considers it necessary or desirable to depart therefrom

(a) in order to respect the community of interest or community of identity in or the historical pattern of an electoral district in the province, or

(b) in order to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of the province,

but, in departing from the application of the rule set out in paragraph (1)(a), the commission shall make every effort to ensure that, except in circumstances viewed by the commission as being extraordinary, the population of each electoral district in the province remains within twenty-five per cent more or twenty-five per cent less of the electoral quota for the province.

[77]  The delay in the coming into force of a proclamation order is to ensure that the Chief Electoral Officer has sufficient time to take the necessary steps and make the necessary adjustments to reflect the new boundaries. The statutorily mandated delay in the effectiveness of a representation order means that the new boundaries do not come into effect until the first general election (not by-election) that takes place at least seven months after the day the proclamation is issued.  If a by-election or general election is held within that seven month period the old boundaries remain in effect for that election.  Thus, if a general election is held within the first seven months the new boundaries of the representation order will not take effect until the House is again dissolved after that election (presuming that such second general election would fall outside of the seven month delay period following the issuance of the proclamation.

The electoral boundary process, along with suggestions for improvement thereto, is described in some detail in the Report of the 2005 Report of the Chief Electoral Officer entitled Enhancing the Values of Redistribution:  Recommendations of the Chief Electoral Officer of Canada Following the Representation Order of 2003 which available on-line through the Elections Canada website at http://elections.ca/res/rep/off/recom_redis/recom_redistribution_e.pdf.

The electoral boundary process that was followed in 2012 following the 2011 decennial census is described in the Elections Canada document entitled 2012 Redistribution of Federal Electoral Districts.  Process Assessment Report which is available on-line through the Elections Canada website at http://elections.ca/res/rep/oth/ebrar/ebrar_e.pdf.

[78] The principle of transparency can be seen in aspects of the Canada Elections Act such a the requirement for financial reports by participants in the electoral process and the right of public access thereto; the right of candidates to have representatives observe the voting process and the counting of the ballots in polling station; the requirements for participants in the electoral process to identify themselves in communications with the public; the direction in section 541 of the Act for public access to all reports and statements (other than election documents received from election officers) all instructions issued by the Chief Electoral Officer under the Act and all correspondence with election officers or others in relation to an election; and the reports which the Chief Electoral Officer is required to provide respecting the conduct of general and by-elections under section 534 of the Act.

[79] The principle of fairness can be seen in aspects of the Canada Elections Act such as those designed to ensure a level playing field for participants such as the spending limits prescribed for registered parties, candidates, and third parties, and for nomination contests, and the broadcasting provisions which, among other things require the provision of free broadcasting time to registered parties, the obligation on broadcasters to sell time to all registered parties that desire it, and the requirement that broadcasters sell time to political parties and candidates at the lowest rate that that time would otherwise be sold to anyone.

[80] Participation rights can be seen provisions of the Canada Elections that ensure the ability of volunteers to participate freely in the electoral process; spending limits which help ensure that broad participation in the electoral process and limit the ability of those with money to drown out the voices of smaller or less wealthy participants; the provision of public financing in the form of tax credits, and reimbursements for election expenses also enhances participation right; and the various process to permit persons to vote who will away from their electoral district on polling day.

[81] Secrecy and privacy is maintained in the electoral process through provisions of the Canada Elections Act that deal with the secrecy of the ballot; restrictions respecting access to the lists of electors.

[82] Provisions in the Canada Elections Act promoting the efficiency and effectiveness of the electoral process are illustrated by the requirements in the Act for access to polling stations, and provisions respecting the establishment and size of polling divisions.

[83] Provisions in the Canada Elections Act illustrating the principles respecting impartiality can be seen in those provisions respecting the neutral position of the Chief Electoral Officer, the appointment of Returning Officers, and the express statutory direction that all election officers conduct themselves with fairness and impartiality.

[84] The principle of accountability in the Canada Elections Act can be seen illustrated in provisions respecting the responsibility of electoral participants to make reports respecting their electoral activities; in the provisions respecting contested elections; and in the offence and enforcement provisions of the Act.