Section 4 of the Canadian Charter of Rights and Freedoms
of Rights and Freedoms
|Part of the Constitution Act, 1982.|
|Guarantee of Rights and Freedoms|
|3, 4, 5|
|7, 8, 9, 10, 11, 12, 13, 14|
|Official Languages of Canada|
|16, 16.1, 17, 18, 19, 20, 21, 22|
|Minority Language Education Rights|
|25, 26, 27, 28, 29, 30, 31|
|Application of Charter|
Section 4 of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. Section 4 guarantees that federal and provincial elections must take place from time to time. Subsection 4(1) provides that the maximum term of the House of Commons, and of all the provincial legislative assemblies, is five years. Under subsection 4(2), an exception is made if war or rebellion causes two-thirds of the membership to believe a House of Commons or legislature should last longer.
The section reads,
|“||4.(1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.
(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.
Section 4, with the Charter and Constitution Act, 1982, came into effect in 1982. However, similar provisions had existed in the Constitution of Canada prior to that time. For example, the fact that a House of Commons could not last more than five years was first set by section 50 of the Constitution Act, 1867. It reads,
|“||50. Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.||”|
Although section 50 names the Governor General of Canada as the official who may call an election early (and section 4 does not specify an official), usually the Governor General acts on the advice of the Prime Minister of Canada. Before and after section 4, the Prime Minister may call an election early simply because he or she feels it is the right time, or because he or she may be faced with a non-confidence motion.
In 1916, an exception was made to the rule so that a House of Commons could last longer than five years, but this had to be done through a constitutional amendment, namely the British North America Act, 1916. The rule was also going to be entrenched in the bill of rights in the proposed constitution of 1971, the Victoria Charter. However, this was never enacted.
Subsection 4(2) replaced the British North America (No. 2) Act, 1949, which was repealed in 1982. That Act had amended the division of powers in the Constitution Act, 1867 by adding section 91(1). This section had stated that Parliament could unilaterally amend the Constitution except in regard to certain issues. One rule that Parliament could not unilaterally amend was that the House of Commons could not last for more than five years without an election, unless war or rebellion caused two-thirds or more of the House to believe a longer term would be necessary. It read,
|“||... no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House.||”|
Interpretation and enforcement
In peacetime, the Charter could theoretically allow almost six years between elections: under subsection 4(1) the House of Commons (or legislative assembly) would expire five years from the return of the writs of the previous election, and then section 5 would require an election to be called approximately nine months after that (at the latest), in order that Parliament (or the legislature) could fulfil its obligation of sitting at least once every twelve months. This interpretation is not universally accepted, but in any event the point is theoretical since no Prime Minister or Premier has neglected or refused to request a dissolution of his or her respective Parliament or legislature prior to its "expiration" date since the Charter came into effect.
Section 4 came before the Alberta Court of Queen's Bench in 1994, in the case Atkins et al. v. City of Calgary. In Alberta, when municipal elections are held, work on proposed laws and agendas can be continued when the new municipal council meets. This is unusual, as at the federal and provincial level such legislation would expire and would have to be reintroduced. As it was argued the municipal council thus never ceases to operate even for elections, it could be considered a violation of section 4. Although municipalities are not mentioned by section 4, they are under the control of the provinces, which are bound by section 4. However, the court refused to accept that just because the municipal council was under the control of the legislative assembly, it could be considered a legislative assembly itself and was thus bound by section 4. The municipal council would rather be a creation of the legislature.
- Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.
- Overview of section 4 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
- Boyer, J. Patrick (1987). Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections. I. Toronto and Vancouver: Butterworths. pp. 164–165. ISBN 0-409-81600-0.
- James R. Robertson; Sebastian Spano (2008-09-29). "Electoral Rights: Charter of Rights and Freedoms". Library of Parliament - Parliamentary Information and Research Service. Retrieved 2011-04-14.
These sections have not been controversial. Some questions have arisen as to how long a government might be able to continue to operate after the five‑year life of the Parliament had expired; however, these questions have been only theoretical.
- Atkins et al. v. City of Calgary (1994), 148 A.R. 81 (Alta. Q.B.).