Section 3 of theCanadian Charter of Rights and Freedoms constitutionally guaranteesCanadiancitizens theright to vote for a federal and provincial representative and the right to be eligible for membership in the House of Commons or of a provincial legislature. The rights provided under section 3 of theCharter may be subject to reasonable limits underSection 1 of the Charter.

Section 3 is one of the provisions in theCharter that cannot be overridden by Parliament or a legislative assembly underSection 33 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 preventParliament or the provincial governments from disenfranchising any Canadian citizen for ideological or political purposes, among others.^{[citation needed]}

Section 3 has been interpreted by theSupreme Court of Canada to strike down legislation preventing prisoners, persons in mental institutions, and non-resident Canadians from voting.^{[citation needed]}

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

3. Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

No formal right to vote existed in Canada before the adoption of theCharter. There was no such right, for example, in theCanadian Bill of Rights. Indeed, in the caseCunningham v Homma (1903), it was found that the government could legally deny the vote toJapanese Canadians andChinese Canadians (although both groups would go on to achieve the franchise before section 3 came into force).^[1]

The section has generated some case law expanding the franchise. In 1988, section 3 had been used to grantsuffrage to federal judges and those inmental institutions. A more controversial example isSauvé v. Canada (2002),^[2] in which it was found thatprisoners could vote. They did so in the2004 federal election, despite public opposition fromConservative leaderStephen Harper.^[3]

In the 2002 caseFitzgerald v. Alberta,^[4] theCourt of Queen's Bench of Alberta found that although a minimum voting age of 18 violated section 3 of the Charter, it was justifiable undersection 1 of the Charter. The decision was upheld upon appeal.^[5]

Section 3 of theCharter provides the right to citizens of Canada to be qualified for membership in the House of Commons. In the 1996 caseHarvey v New Brunswick (Attorney General), the Supreme Court of Canada held that section 3 provides the right to be a candidate and the right to sit as a member of Parliament or a legislature.^[6]Fred Harvey, a member of theNew Brunswick Legislature was convicted of illegal practice, and contested his subsequent disqualification from the legislature under section 119 of theElections Act.^[7] The six member majority for the Supreme Court held the provision violated section 3 of theCharter, but the violation was justified as a reasonable limit under section 1 of theCharter as it furthered the objective of preserving the integrity of the election process.^[8]

InFigueroa v Canada (AG) the court determined that Section 3 explicitly grants both the right to vote and the right to run for office to all Canadian citizens. In Szuchewycz v. Canada^[9] theCourt of Queen's Bench of Alberta found that the $1000 federal candidate deposit requirement violated Section 3 and could not be justified under Section 1. Justice Inglis noted in paragraph 59 "I agree that the potential to prevent a serious and impressive candidate from running in an election, due to the financial pressure a $1000 deposit could create, is a real risk of the requirement. In my opinion, the impugned Deposit Requirement Provision would infringe many individuals’ – including the Applicant's – ability to communicate their messages to the public, and participate meaningfully in the electoral process as a candidate."^[10]

Generally, the courts have interpreted section 3 as being more generous than simply providing a right to vote. As stated in the caseFigueroa v. Canada (2003),^[11] 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, thatinterest groups have complete freedom to promote their beliefs and opinions. Since the voter must have an opportunity to balancevarious ideas in his or her own mind beforemeaningfully participating in anelection, theSupreme Court has, in the caseHarper v. Canada (Attorney General) (2004),^[12] upheld laws that limit the amount of money a single group can contribute in the election (to prevent a monopolization of the campaign).

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. InReference re Prov. Electoral Boundaries (Sask.) (1991),^[13] it was found thatconstituencies 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, givengeographical limits in drawing boundaries and a general desire to giveminorities more representation. WhileSaskatchewan's constituencies were found to be valid in the 1991 decision,Prince Edward Island's were later deemed unconstitutional by the courts and the province's electoral map had to be redrawn.^{[citation needed]}

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 areferendum. InHaig v. Canada (1993),^[14] 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.^{[citation needed]}

• Overview of section 3 case law inthe 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

• Canadian Charter of Rights and Freedoms
• Election law in Canada

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