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 Canada must meet. This section is thus meant to reflect and constitutionally guarantee a "basic democratic principle" that "a government must explain its actions to the people." [ [http://www.pch.gc.ca/progs/pdp-hrp/canada/guide/democratic_e.cfm#5 Guide to the Canadian Charter of Rights and Freedoms.] Human Rights Program. Canadian Heritage. URL accessed on November 19, 2005.]

The section reads,

Function

Section 5 guarantees that, since Parliament and each legislature must sit at least once a year, Members of Parliament and Members of the Legislative Assemblies may raise concerns or inquiries or challenge government policies ("See Question Period"). [Guide to the Canadian Charter of Rights and Freedoms.]

This right did not exist in the Canadian Bill of Rights. [Hogg, Peter W. "Canada Act 1982 Annotated." Toronto, Canada: The Carswell Company Limited, 1982.] Insofar as the Parliament of Canada is concerned, section 5 instead replaced section 20 of the Constitution Act, 1867, which had read:

When the Charter came into force in 1982 as part of the Constitution Act, 1982, section 53 of the Constitution Act, 1982 repealed section 20 of the Constitution Act, 1867. The difference was that section 5 merely requires a sitting of Parliament at least once a year, whereas section 20 had required not only a sitting but also a session of Parliament every year. [Gérald-A. Beaudoin, "The Democratic Rights." In "The Canadian Charter of Rights and Freedoms: Commentary," eds. Walter S. Tarnopolsky and Gérald-A. Beaudoin (Toronto: The Carswell Company Limited, 1982), 235.] Every session must begin with a Speech from the Throne, and moreover, bills that had not been passed when a session comes to a close must be introduced again, after a new session is initiated, if it is still desired to become law. Hence, governments sometimes prefer that sessions last longer than the twelve months that had been prescribed by the Constitution Act, 1867. Writing in 2000, political scientist Rand Dyck observed that while sessions even now usually last a year, they "often spilled over to two or even three years." [Rand Dyck, "Canadian Politics: Critical Approaches". Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000.] Even before 1982, governments sometimes extended session lengths to give more time to parliamentary committees to work, even though the Canadian House of Commons and Canadian Senate would stop working. [Beaudoin, 235.]

As far as the province of Manitoba is concerned, section 5 of the Charter replaced section 20 of the Manitoba Act, which was also repealed in 1982. Section 5 still co-exists with section 86 of the Constitution Act, 1867, which requires annual sessions for the legislatures of the provinces of Ontario and Quebec.

Enforcement

There are no examples in Canadian history of cabinets ruling without consulting Parliament at least once a year. If it were to happen, Professor Gérald-A. Beaudoin wrote in 1982 that section 5 would not allow courts to take any remedial action besides ruling the government's refusal to let a legislature sit is inappropriate. If it were necessary to resolve the problem, the Governor General of Canada would have to appoint a new government and new prime minister. [Beaudoin, 236.]

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