Section 4 – Maximum duration of legislative bodies

Provision

  1. No House of Commons and no legislative 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.

Similar provisions

Prior to 1982, subsection 91(1) of the Constitution Act, 1867, as enacted by the British North America Act (No. 2) of 1949, determined the duration of the House of Commons in the same way as section 4 of the Charter. The provision was repealed by the Constitution Act, 1982, enacting the present Charter provision. Also, section 50 of the Constitution Act, 1867 limits the duration of a House of Commons to five years without referring to a possibility of extension, even in case of war. Section 50 presumably now must be read in conjunction with section 4 of the Charter.

Section 85 of the Constitution Act, 1867 sets the duration of the legislatures of Ontario and Quebec at four years. The legislatures could provide otherwise by virtue of subsection 92(1) of the 1867 Act (in respect of provincial power to amend provincial constitutions; subsection 92(1) was repealed, but a provincial amending power is now found at section 45 of the Constitution Act, 1982). Such power by the legislatures in respect of the duration of legislatures is now subject to section 4 of the Charter.

Section 56.1 of the Canada Elections Act stipulates that federal elections “must be held on the third Monday of October in the fourth calendar year following polling day for the last general election”, although this is stipulated as not affecting the power of the Governor General to order dissolution. Section 56.1 has been found not to create a constitutional convention under which the Prime Minister would be prevented from advising the Governor General to order dissolution other than at the interval specified (Conacher v. Canada (Prime Minister), 2009 FC 920, affirmed by 2010 FCA 131, leave to appeal to the SCC denied, 2011 CarswellNat 46). Provisions for fixed election dates are also found in the statutes of various provinces (see, interpreting one of these provisions, Engel v. Alberta (Executive Council), 2015 ABQB 226 adopting an approach akin to that in Conacher).

The origin of limits on the terms of legislatures under British Parliamentary systems dates back to the Triennial Act of 1641 in England, which required that general elections be held every three years. This requirement was made more flexible by the Triennial Act of 1664, which required merely that Parliament sit once in every three years. Under Charles II, the same Parliament accordingly sat from 1661 to 1678. The term of Parliament was again limited to three years in 1694 following the second revolution: An Act for the Frequent meeting and calling of Parliaments (1694), 6-7 William & Mary, U.-K., c. 2.

Article 25 of the International Covenant on Civil and Political Rights requires that elections be held on a "periodic" basis. Similarly, article 3 of the First Additional Protocol to the European Convention on Human Rights and Fundamental Freedoms (the European Convention) requires that elections be held "at reasonable intervals".

The American Constitution provides fixed terms for members of the House of Representatives and the Senate as well as for the presidency.

Purpose

There has been very little judicial commentary on this Charter provision. Presumably, the purpose of section 4 is to preserve the democratic character of the House of Commons and legislatures by ensuring that no House of Commons or legislature should last for an excessive period and not reflect the will of the people.

Analysis

It would appear that the limit imposed by section 4 formally applies to the Governor General and to the lieutenant governor of each province, since it is they who formally call elections under the Royal prerogative. It has been recognized in other contexts that the Charter applies to the exercise of the Royal prerogative (Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441; Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44).

Section 4 has no application to municipal councils: such councils are not “legislative assemblies” within the meaning of section 4, but are bodies created by provincial legislatures (Atkins v. Calgary (City), (1994), 148 A.R. 81, 16 Alta. L.R. (3d) 429 (Q.B.), appeal on other grounds dismissed (1994), 162 A.R. 97, 25 Alta. L.R. (3d) 365; see also, Great Harbour Deep (Community) v. Higdon (1996), 431 A.P.R. 120 (Nfld. Prov. Ct.)).

Section 4 is not subject to override by the notwithstanding clause at section 33 of the Charter. In theory, a limitation on rights under section 4 might be justifiable under section 1 of the Charter, but query whether this would be possible in practice given that factors that presumably would be relevant to section 1 analysis are already included in subsection 4(2).

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