Section 4 of the Canadian Charter of Rights and Freedoms

Section Four of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. As Canadian citizens have a right to vote for (or to qualify to become) members of the Canadian House of Commons and of the provincial legislatures under section 3 of the Charter, section 4 ensures these elections must take place at least once every 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.

Text

The section reads,

4.(1) No House of Commons and no 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.

Background

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 ever 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

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.

References

• Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.

External links

• Overview of section 4 case law in the Canadian Legal Information Institute.