Section Four of the Canadian Charter of Rights and Freedoms is one of three 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...

 rights sections in 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...

. Section 4 guarantees that federal and provincial 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...

s 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

War

War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...

 or rebellion

Rebellion

Rebellion, uprising or insurrection, is a refusal of obedience or order. It may, therefore, be seen as encompassing a range of behaviors aimed at destroying or replacing an established authority such as a government or a head of state...

 causes two-thirds of the membership to believe a House of Commons or legislature should last longer.

Text

The section reads,

Background

Section 4, with the Charter and Constitution Act, 1982

Constitution Act, 1982

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...

, came into effect in 1982. However, similar provisions had existed in the Constitution of Canada

Constitution of Canada

The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in 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

Constitution Act, 1867

The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...

. It reads,
Although section 50 names the Governor General of Canada

Governor General of Canada

The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...

 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

Prime Minister of Canada

The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...

. 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

Constitutional amendment

A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...

, namely the British North America Act, 1916. The rule was also going to be entrenched in the bill of rights

Bill of rights

A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...

 in the proposed constitution of 1971, the Victoria Charter

Victoria Charter

The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official...

. 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

Canadian federalism

Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...

 in the Constitution Act, 1867 by adding section 91(1). This section had stated that 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...

 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,

Interpretation

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

Section Five of the Canadian Charter of Rights and Freedoms

Section Five of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, and the last of three democratic rights in the Charter. Its role is to establish a rule regarding how frequently the Parliament of Canada and the legislatures of the provinces and territories of...

 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, and in any event the point is theoretical.

Section 4 came before the Alberta Court of Queen's Bench

Court of Queen's Bench of Alberta

The Court of Queen's Bench of Alberta is the superior court of the Canadian province of Alberta....

 in 1994, in the case Atkins et al. v. City of Calgary. In Alberta

Alberta

Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...

, when municipal elections

Municipal elections in Canada

Municipal elections in Canada fall within the jurisdiction of the various provinces and territories. Therefore, they occur on different dates, depending on which province they are in. However, municipalities in the same province will usually have their elections on the same day...

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.

External links

• 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