Democratic legitimacy of executive government under the Charter of Rights and Freedoms: reassessing crown prerogatives and political constitutionalism under sections 3 to 5 of the Charter

Abstract

This thesis reviews the effect of the democratic rights contained in the Charter of Rights on the political constitution, being the extra-legal rules that have traditionally structured Canadian democracy. This thesis investigates the possibility that the political constitution is now augmented by the democratic Charter rights and that the historic prerogative powers, traditionally viewed as being plenary and not subject to judicial scrutiny, may now be legally restricted and judicially reviewable.

This thesis does so based on a novel interpretation of section 3, focusing on the representative and institutional elements referred to in the text of this provision. Specifically, that the “right to vote” is meant to result substantively in democratic outcomes and that the members elected to the House of Commons must have a role in perfecting the outcome of an election. Section 3 is also analyzed in the context of the unwritten constitutional principles and the related democratic Charter rights set out in sections 4 and 5 of that instrument. This thesis finds that section 3 provides not simply the right to vote in elections, but it also provides a right to an executive government with democratic legitimacy based on the confidence of the House of Commons.

This thesis concludes that such a right to democratic legitimacy might create a correlative duty on the Crown when exercising prerogative powers relating to democracy and the democratic process. For instance, there might now be a legal framework surrounding prerogative matters, such as the appointment of a prime minister and control of the Parliamentary process. This thesis also explores justiciability of prerogative powers and potential judicial remedies for breaching section 3. This thesis finds that courts may limit justiciability of certain prerogative decisions to protect the democratic process from undue litigation and that the democratic process could be further protected by limiting tangible legal remedies to only the most pressing circumstances.