Section Three of the Canadian Charter of Rights and Freedoms is a section of the Charter

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

 that constitutionally guarantees all Canadian

Canada

Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

 citizens

Citizenship

Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...

 the democratic

Democracy

Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...

 right to vote in a general federal or provincial election and the right to be eligible for membership in the House of Commons or of a provincial legislative assembly.

Section 3 is one of the provisions in the Charter that cannot be overridden by Parliament or a legislative assembly under Section 33 of the Charter

Section Thirty-three of the Canadian Charter of Rights and Freedoms

Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...

, the notwithstanding clause. Section 3's exemption from Section 33 provides extra legal protection to the right to vote and it may prevent Parliament

Parliament of Canada

The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...

 or the provincial governments from disenfranchising any Canadian citizen for ideological or political purposes, among others. Nevertheless, the right to vote and to run in an election is subject to other reasonable limits prescribed by law under Section 1 of the Charter

Section One of the Canadian Charter of Rights and Freedoms

Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...

.

Text

Under the heading "Democratic Rights," the section reads:

Interpretation

Generally, the courts have interpreted section 3 as being more generous than simply providing a right to vote. As stated in the case Figueroa v. Canada

Figueroa v. Canada (Attorney General)

Figueroa v. Canada , [2003] 1 S.C.R. 912 is a leading Supreme Court of Canada decision on the right to participate in a federal election under section 3 of the Canadian Charter of Rights and Freedoms...

 (2003), the section has been viewed as a constitutional guarantee to "play a meaningful role in the electoral process," which in turn encourages governmental "respect for a diversity of beliefs and opinions." This does not mean, however, that interest groups have complete freedom to promote their beliefs and opinions. Since the voter must have an opportunity to balance various ideas in his or her own mind before meaningfully participating in an election

Elections in Canada

Canada holds elections for several levels of government: nationally , provincially and territorially, and municipally. Elections are also held for self governing First Nations and for many other public and private organizations including corporations and trade unions...

, the Supreme Court

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 has, in the case Harper v. Canada (Attorney General)

Harper v. Canada (Attorney General)

Harper v. Canada , [2004] 1 S.C.R. 827, 2004 SCC 33, is a leading decision of the Supreme Court of Canada wherein the Court ruled that Canada Elections Act's spending limits on third party election advertising does not violate section 2 and 2 and section 3 of the Canadian Charter of Rights and...

 (2004), upheld laws that limit the amount of money a single group can contribute in the election (to prevent a monopolization of the campaign).

Suffrage

No formal right to vote existed in Canada before the adoption of the Charter. There was no such right, for example, in the Canadian Bill of Rights

Canadian Bill of Rights

The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...

. Indeed, in the case Cunningham v. Tomey Homma (1903), it was found that the government could legally deny the vote to Japanese Canadians and Chinese Canadian

Chinese Canadian

Chinese Canadians are Canadians of Chinese descent. They constitute the second-largest visible minority group in Canada, after South Asian Canadians...

s (although both groups would go on to achieve the franchise before section 3 came into force).

The section has generated some case law expanding the franchise. In 1988, section 3 had been used to grant suffrage

Suffrage

Suffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...

 to federal judges and those in mental institutions. A more controversial example is Sauvé v. Canada

Sauvé v. Canada (Chief Electoral Officer)

Sauvé v. Canada , [2002] 3 S.C.R. 519 is a leading Supreme Court of Canada decision where the Court held that prisoners have a right to vote under section 3 of the Canadian Charter of Rights and Freedoms. The Court overturned the prior decision of the Federal Court of Appeal and held that s...

 (2002), in which it was found that prison

Prison

A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...

ers could vote. They did so in the 2004 federal election

Canadian federal election, 2004

The Canadian federal election, 2004 , was held on June 28, 2004 to elect members of the Canadian House of Commons of the 38th Parliament of Canada. The Liberal government of Prime Minister Paul Martin lost its majority, but was able to form a minority government after the elections...

, despite public opposition from Conservative

Conservative Party of Canada

The Conservative Party of Canada , is a political party in Canada which was formed by the merger of the Canadian Alliance and the Progressive Conservative Party of Canada in 2003. It is positioned on the right of the Canadian political spectrum...

 leader Stephen Harper

Stephen Harper

Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...

.

Sizes of constituencies

Although one cannot see this on the face of the Charter, the Supreme Court has also ruled that section 3 guarantees a measure of equality in voting. In Reference re Prov. Electoral Boundaries (Sask.) (1991), it was found that constituencies should have roughly the same number of voters, although perfection was not required. The reasoning behind this expansion of section three's meaning was that it supposedly reflected the original purpose of the section, namely to allow "effective representation." The concession that perfection is not required stemmed from the fact that perfection would be impractical, given geographical limits in drawing boundaries and a general desire to give minorities more representation. While Saskatchewan

Saskatchewan

Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....

's constituencies were found to be valid in the 1991 decision, Prince Edward Island

Prince Edward Island

Prince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...

's were later deemed unconstitutional by the courts and the province's electoral map had to be redrawn.

Referendums

While section 3's reach has been expanded to cover the sizes of constituencies, it has not been extended to guarantee the right to vote in a referendum

Referendums in Canada

National referendums are seldom used in Canada. The first two referendums saw voters in Québec and the rest of Canada take dramatically opposing stands, the third saw most of the voters take a stand dramatically opposed to that of the politicians in power....

. In Haig v. Canada

Haig v. Canada

Haig v. Canada [1993] 2 S.C.R. 995 is a leading Supreme Court of Canada decision on the protection of the right to vote under section 3 of the Canadian Charter of Rights and Freedoms.-Background:...

(1993), it was ruled that since section 3 was designed in specific reference to electing representatives, the right could not include participation in a "device for the gathering of opinions." It was also noted that unlike elections, governments do not have to hold referendums, nor do governments have to commit themselves to the result of a referendum. Thus, how a referendum is administered is within governmental discretion.

External links

• Overview of section 3 case law in the Canadian Legal Information Institute.
• Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages