Author: Tal Schreier

Ontario Court of Appeal Allows Appeal by Youth Climate Litigants in Charter Challenge to Ontario’s Emissions Targets

Posted on by Tal Schreier

by: Chelsea Gordon and Daniel Kiesman

For the first time in Canada, an appellate court has considered the implications of the Canadian Charter of Rights and Freedoms (“Charter”) on climate change policy. In a decision released on October 17th, the Ontario Court of Appeal allowed the appeal in Mathur v Ontario[1] and remitted the application to be heard again by the Superior Court. In doing so, the Ontario Court of Appeal identified errors in the lower court judge’s analysis of the appellants’ case under ss. 7 and 15(1) of the Charter. This decision represents a significant win for youth climate activists.

The Asper Centre, represented by Ewa Krajewska, intervened in this case at both the Superior Court and the Court of Appeal.

Background

Superior Court Judgement

In the judgement on appeal at the Ontario Court of Appeal, a Justice of the Superior Court rejected the applicants’ constitutional challenge to the greenhouse gas emissions target set by the Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

In 2018, the Government of Ontario, through s. 3(1) of the CTCA set an emissions reduction target of 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. The applicants are a group of young Ontarians who argued that the target set by Ontario was too low, leading to adverse future consequences for young people and future generations.

At the Superior Court, the applicants advanced two Charter arguments. First, by failing to set the target high enough, Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the applicants argued the CTCA violates s. 15(1) of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change.

The judge characterized the applicants’ complaint as being a positive rights claim, suggesting that the applicants were seeking a declaration that the Ontario government has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[3]

You can read the Asper Centre’s Superior Court factum here. For a more in depth discussion of the Superior Court decision, please see the Asper Centre’s previous blog post here.

After framing this as a positive rights case, the judge went on to assume without deciding that a positive obligation arose in this case, but that Ontario did not violate the principles of fundamental justice when setting the emissions target.[4] On that basis, no violation of s.7 was found.  In deciding the applicants’ s.15(1) claim, the judge applied the two-part test from R v Sharma.[5] She held that while young people are disproportionately affected by climate change, that disproportionate effect is caused by climate change itself and not by the emissions target set by Ontario.[6] On this basis, she found that the government of Ontario had not caused or contributed to the disproportionate effects of climate change faced by young people. Further, there is no positive obligation on the government to address inequalities through remedial legislation.

Arguments on Appeal

The applicants appealed the Superior Court decision alleging that the application judge erred by characterizing their ss. 7 and 15(1) Charter claims as attempts to impose positive obligations on the Government of Ontario to combat climate change. Their position was that Ontario’s chosen response to climate change knowingly permits dangerously high levels of greenhouse gas emissions, which will discriminate against youth and future generations, and that both the Target and the Plan should be reviewed for constitutional compliance.

Ontario focused its arguments primarily on the issue of remedies, arguing that the appellants’ request for a science-based greenhouse gas reduction target was outside the court’s institutional capacity to order. Further, Ontario argued that the appellants’ have not proven that Ontario has caused or contributed to the worsening impacts of climate change and that the effects claimed are not caused by the Target, Plan or the CTCA.

Asper Centre Intervention

The Asper Centre intervened on two points. First, the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement, it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter. You can read the Asper Centre’s factum here.

With respect to s. 15(1), the Asper Centre urged the Court of Appeal to reinforce the flexible approach to causation in the context of governmental emissions targets. The Asper Centre emphasized that the caselaw has made clear that substantive equality is at the centre of s.15(1). To achieve substantive equality, courts must adopt a flexible approach to causation and consider the actual impact of the impugned law on the claimant group. Claimants need not show that the impugned law is the only or predominant cause of the disproportionate impact. Under the proper approach to causation, the claimants need only to show that the impugned emission targets contribute to the disproportionate effects of climate change. In this way, substantive equality may be achieved by allowing s. 15(1) to remain flexible to account for pre-existing problems such as climate change.

The Asper Centre also argued that the application judges’ approach, which viewed climate change itself as the cause of the disproportionate impact on youth, harkens back to the rejected formalistic approach to equality taken under the Canadian Bill of Rights. Instead, the Asper Centre argued that the application judge should have followed the approach to substantive equality taken by the Supreme Court of Canada in cases like Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux and Quebec (Attorney General) v A.[7] These cases recognized that while the government was not responsible for the underlying inequality, all that the claimant must show is that the government action contributes to a disproportionate impact.

With respect to s. 24(1) remedies, the Asper Centre argued that if a Charter violation is found, the Court can be creative in utilizing its remedial discretion under s. 24(1). The Asper Centre argued that, in this case, declaratory relief would be insufficient since the impacts of climate change and inadequate government action present complex and novel issues for the legal system. The Asper Centre submitted that when faced with novel issues, courts are able to fashion unique remedies under s. 24(1).

For a more fulsome discussion of the Asper Centre’s intervention before the Ontario Court of Appeal, please see our previous post here.

Decision of the Ontario Court of Appeal

In a unanimous decision, the Ontario Court of Appeal held that the application judge erred in characterizing this as a positive rights case. They stated, “Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose. Ontario was therefore obligated to produce a plan and a target that were Charter compliant.”[8] The Justices allowed the appeal owing to the errors in the lower court judgement but declined to decide the issues and instead remitted it back to the Superior Court to be heard again. They chose not to decide the issues based on the “institutional advantage” that courts of first instance have in issuing declarations and directions.[9]

Section 7

In the s. 7 analysis, the Ontario Court of Appeal found that the application judge’s incorrect framing of the issue as a positive rights claim has led to errors in her reasoning. The Court stated, “The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter complaint.”[10]

Section 15(1)

The Court held that the application judge had again erred by characterizing the appellants’ claim as a positive rights claim. In the case of s.15(1), this led the application judge to incorrectly conclude that the applicants sought to impose an obligation on the government to remedy inequality associated with climate change. The Court of Appeal emphasized that while s. 15(1) does not impose a general obligation on the state to remedy all inequalities, when a government has chosen to act, that legislation cannot have a discriminatory impact.[11]

The Ontario Court of Appeal held that the application judge’s analytical error in construing the appellants’ position as a positive right claim led to an improper causation analysis. The Court’s reasons indicate that the causation analysis at the first step of the s. 15(1) test should be flexible and responsive to the nature of the particular adverse impact claim.  Thus, the Court of Appeal held that proper causation analysis in this instance should have gone further and considered whether, by committing itself to a greenhouse gas emissions target that fell short of the scientific consensus on what was required, Ontario has caused or contributed to a disproportionate impact.[12] Because the province has chosen to enact the CTCA, the proper analysis should have addressed whether “there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground.”[13]

Additionally, the Court of Appeal determined that the application judge’s causation analysis was at odds with her findings under s. 7.[14] The application judge held that the appellants had met their causation burden of showing the CTCA engaged their rights to life and security of the person. The Court of Appeal noted that the causation burden under both s. 7 and s. 15(1) is the same in that a claimant does not need to show that state action is the dominant cause of the harm.[15] By finding that the causation burden was met under s. 7 and not under s. 15(1), the application judge drew conclusions which the Court of Appeal determined were inconsistent and not adequately explained.[16]

Implications Moving Forward

The Court of Appeal declined to decide the application and instead remitted the case back to the Superior Court for a new hearing.[17] Thus, the case will return to the Superior Court for the s. 7 and s. 15(1) issues to be decided on the merits and in light of this decision.

Overall, this decision is an important signal that Charter challenges of climate change legislation are not necessarily positive rights claims. In this case, the Court of Appeal made clear that while climate change is a global issue when a provincial government chooses to act to address it, the choices it makes are subject to review to ensure they are compliant with the Charter. Going forward, this case solidifies the role of the judiciary with respect to climate change and other remedial legislation. Ensuring that in the division of powers, the judiciary will maintain a role in reviewing legislation for constitutional compliance and, more than anything, leaves open the door to a finding that insufficient climate change action violates Charter rights.

This decision is also important as it is one of the first appellate decisions regarding s. 15(1) since the Supreme Court released its decision in Sharma.[18] The Court of Appeal recommitted to the flexible approach to causation that a substantive approach to equality requires. This decision makes clear that a rigid and formulaic approach to causation is improper and inadequate. Where a pre-existing societal inequity exists, and a government chooses to act to address it, courts must not focus only on pre-existing inequity at the causation stage of the analysis. Instead, as the Court of Appeal indicated in its reasons, courts must adopt a flexible approach to causation that considers the underlying contextual factors and examine whether the government action in question contributes to the inequality in question. In this instance, as the Court of Appeal concluded, the proper approach to causation necessitates an inquiry into whether the impugned emissions targets contribute to a disproportionate impact on youth.[19]

Chelsea Gordon and Daniel Kiesman are 3L JD Candidates at the Faculty of Law, and were Asper Centre Clinic students in Fall 2023, who worked on the Asper Centre’s intervention in Mathur.

[1] Mathur v Ontario, 2024 ONCA 762 [Mathur CA].

[2] Mathur v Ontario, 2023 ONSC 2316 [Mathur]; Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3]  Mathur, supra note 2 at paras 122-124.

[4] Ibid at para 142.

[5] R v Sharma, 2022 SCC 39.

[6] Mathur, supra note 2 at para 178.

[7] Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17; Quebec (Attorney General) v A, 2013 SCC 5.

[8] Mathur CA, supra note 1 at para 5.

[9] Ibid at para 7.

[10] Ibid at para 53.

[11] Ibid at para 40, 55-58.

[12] Ibid at para 58.

[13] Ibid at para 57.

[14] Ibid at para 59.

[15] Ibid at para 61.

[16] Ibid at para 65.

[17] Ibid at para 76.

[18] R v Sharma, 2022 SCC 39.

[19] Mathur CA, supra note 1 at para 58.

Meet Mary Birdsell, the Asper Centre’s new Constitutional Litigator in Residence for Fall 2024

Posted on by Tal Schreier

by Kate Shackleton 

From working directly with young clients to arguing cases at the Supreme Court of Canada, Mary Birdsell has advocated on behalf of children and youth for more than 25 years.  This fall, she will share her knowledge of children and youth justice, constitutional law, and appellate litigation with students in the Asper Centre’s clinic course as the Constitutional Litigator-in-Residence. I recently spoke with Birdsell about her career so far, her constitutional law expertise, and what she’s looking forward to her in her new role.  

Originally from Alberta, Birdsell chose to attend law school at Dalhousie University. She opted for Dalhousie because she was curious about living elsewhere and eager to meet classmates from across the country. When she started law school, she recalls being uncertain if she wanted to be a lawyer. However, she was drawn to law because she thought “it would be an interesting and excellent education in how society functions.” She notes that her first-year courses covering constitutional law, human rights, and the Charter affirmed her decision to pursue a law degree, since they were “exactly what [she] was interested in.”  

After graduating law school,  Birdsell articled with a full-service corporate law firm in Toronto where – coincidentally – her first case focused on section 15 of the Charter. She worked on behalf of an intervener in Thibaudeau v Canada – which examined the rule that child support payments were taxable on the receiving parents – under the tutelage of Mary Eberts and Steve Tenai.  

Following her articles, Birdsell joined Justice for Children and Youth (where she now serves as Executive Director). She knew that clinic work appealed to her thanks to the semester she spent working full-time at Dalhousie’s legal clinic and she was particularly interested in Justice for Children and Youth because of her pre-law experiences working with youth.  

During her time at Justice for Children and Youth, the organization has been involved in a number of landmark cases in the youth justice sphere – many of which centre on Charter rights. When I asked her to identify highlight cases, it was difficult for her to choose a select few. In terms of having a meaningful impact, R v D.B. came to mind first. The case, in which Asper Centre Executive Director Cheryl Milne was counsel for Justice for Children and Youth, established that diminished moral blameworthiness for youth is a principle of fundamental justice under section 7. More recently, she pointed to Justice for Children and Youth’s intervention in R. v Le,  where the Supreme Court of Canada affirmed that race relations inform the detention analysis under section 9 of the Charter.  

Although not every case has yielded the outcome she hoped for, she described constitutional litigation as a “powerful tool” in the hands of youth justice advocates. She observed that the Charter offers a “fundamental path” to confront some of the most pressing issues facing Canadian youth, such as the Saskatchewan law requiring parental consent for students under 16 to change their name or pronouns.  

For Birdsell, evidence is the key to success in constitutional litigation. She stressed that evidence is especially important in equality-based litigation, since evidence is how litigants demonstrate that “oppression is happening the way you say it is.” Especially when organizations like police services or family services are being challenged, as often happens in the youth justice context, she explained that evidence is crucial to “switch the vantage point” for courts.  

When asked if she had any advice for law students, she encouraged students to follow what interests them. For those considering public interest work, she emphasized that there are many places where you can do public interest work, including government positions and at big firms. She also highlighted the value of being well-educated in constitutional law, since it empowers you to spot Charter issues “where others might not.”  

As the incoming Asper Centre Litigator-in-Residence, Birdsell is excited to interact with and learn from students. She also welcomes the opportunity to take a pause from front-line work and spend time thinking “a little more broadly and deeply about the law.” On the voting age challenge, which will form an important part of the clinic students’ work this fall, Birdsell described the case as going beyond just the right to vote. At its core, she said, the case is about how youth “ought to be able to participate in decision-making about the present and future.”  

Kate Shackleton is a rising 2L JD Candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant. 

The State Is Not Immune: The Supreme Court Affirms that Crown Can be Held Liable in Damages for Unconstitutional Laws

Posted on by Tal Schreier

by Vlad Mirel, with Neil Abraham and Megan Stephens

In a 5-4 split, the Supreme Court of Canada in Canada (Attorney General) v. Power held that damages may be awarded to those affected by Charter-violating laws. Although the threshold that must be met to be awarded damages remains high, the Supreme Court has confirmed that the Crown does not have complete immunity from damages. Significantly, the Supreme Court’s view achieves a balance between important legislative privileges which weigh in favour of absolute immunity, and the Charter rights of all Canadians that favour no immunity.

Background

In 1996, Mr. Power was convicted of two indictable offenses and sentenced to eight months imprisonment. After serving his sentence, he received his x-ray technician diploma and became a medical radiation technician at a New Brunswick hospital. Over a decade later, Mr. Power’s employer received a tip about his criminal record and his employment was terminated. Mr. Power was subsequently unable to find new employment due to his record and decided to apply for a record suspension. Record suspensions enable those who have served their sentences and have demonstrated they are law abiding citizens to remove their criminal record from the Canadian Police Information Centre’s database and thus help them access employment.

While at the time of his conviction, Mr. Power could apply for a record suspension five years after his release, subsequent legislation made Mr. Power permanently ineligible for a record suspension. This legislation was soon declared unconstitutional by the courts. Mr. Power argued that he was owed damages under s. 24(1) of the Charter based on the breach of rights he suffered from the unconstitutional legislation.

Mackin Revisited

Much of this case was based upon revisiting the decision in Mackin v. New Brunswick (Minister of Finance), where the Supreme Court held that the Crown could be liable for damages if legislation was clearly unconstitutional, adopted in bad faith or an abuse of power. Canada sought to overturn Mackin in this appeal by arguing that it was entitled to absolute immunity in order to preserve its legislative privilege and protect the separation of powers. Parliamentary privilege plays an important role within Canadian politics, ensuring the legislature is able to execute its functions without fear of external review. Canada argued that if it were subject to damages, it would represent a loss of this privilege. Furthermore, Canada argued that the judiciary should not be able to demand the Crown pay damages as these two entities must be kept in isolation from each other based on the separation of powers.

Decision

The Asper Centre intervened in this appeal and its submissions can be traced throughout the majority’s decision. The Supreme Court agreed that adopting absolute immunity would ignore important constitutional principles of equal significance to legislative privilege. Instead, the Court approached the question by asking how s. 24(1) could be interpreted in a way that would reconcile these Canadian constitutional principles, including constitutionality and the rule of law, rather than allowing legislative privilege to trump Charter rights.

First, the Supreme Court held that forcing the Crown to pay damages for unconstitutional laws drafted by Parliament would not be a threat to parliamentary privilege. While legislative privilege ensures those creating legislation are free from external review, it does not extend the same protections to the state itself. Thus, as the damages would be levied upon the Crown rather than individuals, limited immunity would present no threat to this parliamentary privilege.

The Court also found that limiting the state’s immunity is consistent with the separation of powers, as each branch does not work in total isolation. Holding the legislature accountable for its misuse of power would not constitute judicial interference.

Having upheld the ruling in Mackin and reiterated the state’s limited immunity, the Court moved to clarify aspects of Mackin. In accordance with the Asper Centre’s own submissions, the majority first clarified that the “clearly wrong” (now termed “clearly unconstitutional”) threshold required for damages to be awarded is based on an objective standard. Thus, a claimant must demonstrate that it was clear at the time of the law’s enactment that the state would be violating Charter rights. By adding this objective standard, the Supreme Court has permitted plaintiffs to seek damages by arguing for the rights-violating effects of the respective law rather than requiring them to explicitly demonstrate any bad faith. However, a demonstration of Parliament’s bad faith would still provide an effective way of receiving damages.

Furthermore, the Supreme Court affirmed the three-part test established in Vancouver (City) v. Ward for determining whether damages ought to be awarded in the case of a Charter breach.  Now, the Power “clearly unconstitutional” threshold will be utilized to inform the third part of the Ward test, which asks whether the state has demonstrated that countervailing factors do not support damages being awarded. Thus, when investigating Charter damages, state immunity is considered within a wider three-part test rather than as a preliminary question.

Dissent in Part

Justices Jamal and Kasirer dissented in part. Although they agreed with the majority that a clearly unconstitutional law should lead to an award of damages, they disagreed that a demonstration of the Crown’s “bad faith” should achieve the same result. In Justice Jamal and Kasirer’s opinion, examining the intention of legislators in creating a law would represent the judiciary “second guessing” the legislature, and thus permit the judiciary to intrude upon legislative privilege. Thus, a Court deciding whether to award damages should only inquire if a law was clearly unconstitutional at the time of its creation and not if it was enacted in bad faith.

Dissent

In dissent, Justice Rowe and Côté argued that Canada should be allotted absolute immunity. Rowe and Côté expressed concerns that enabling courts to hold the Crown liable in damages effectively forces courts to adopt a supervisory role over the legislative process. Broadly speaking, both Justices agreed with Canada’s submissions, deciding that forcing the state to be held liable in damages for an unconstitutional law would stand in direct contradiction to legislative privilege. Furthermore, the separation of powers directly precludes the judiciary from scrutinizing the legislative process.

Looking Forward

The Supreme Court in Power has confirmed that state immunity is not absolute and has clarified the framework that future litigants will utilize when seeking damages for Charter breaches. Those who attack laws based on their unconstitutionality must orient their pleadings in a way that show “clear” rights violations which meet the “clearly unconstitutional” threshold. Proving that an impugned law has achieved this level of unconstitutionality will likely require utilizing precedent, which demonstrates the importance of employing language from existing authorities to prove the adverse effects of legislation.

Megan Stephens and Neil Abraham, the Asper Centre’s counsel in this intervention, commented that although the “clearly unconstitutional” threshold for damages has now been confirmed, it is unknown what form this threshold will truly take in practice. Instead, it is only through the resolution of future cases on this issue that the threshold will become clearly defined. Despite this uncertainty, Stephens and Abraham argue that the open-ended nature of “clearly unconstitutional” signifies that plaintiffs still have more than enough space to bring and argue their claims.

Stephens and Abraham also note that Power will be highly relevant for cases challenging laws passed through the notwithstanding clause. Parties to such cases should consider utilizing the invocation of the clause as proof that the legislature passed the law recklessly or in bad faith. Indeed, there are many cases in the lower courts that are currently challenging laws passed through s. 33, such as gender identity cases in Saskatchewan and New Brunswick, as well as religious symbols and language cases in Quebec.

Lastly, it remains to be seen whether Power will enable claimants to receive individual remedies under s. 24(1) even where the law cannot be struck down due to s. 33. In much of this future litigation, the language utilized in Power that balanced Charter rights with legislative principles will likely be used to evaluate how constitutional supremacy can be balanced with the legislative use of s. 33.

Vlad Mirel, U of T Law JD Candidate and Asper Centre Summer RA, with Neil Abraham and Megan Stephens, pro-bono counsel acting for the Asper Centre in the Power intervention

Mary Birdsell selected as new Constitutional Litigator in Residence

Posted on by Tal Schreier

We are pleased to announce that Mary Birdsell has been selected as the Asper Centre’s new Constitutional Litigator in Residence for Fall 2024.

Mary will be co-teaching the Asper Centre’s Clinic Course in the Fall 2024 term with our Executive Director, Cheryl Milne. This course offers upper year law students at the University of Toronto the unique opportunity to engage in Charter rights advocacy, including Charter and Constitutional litigation. Mary will bring her extensive constitutional litigation and children’s rights experience to the role and will greatly enrich the Asper Centre’s Clinic students next term. Amongst other projects, Mary will work with students on our Voting Age challenge.

Mary Birdsell is a lawyer and the Executive Director at Justice for Children and Youth (JFCY). JFCY is a child and youth rights organization and legal clinic that protects and advances the legal, equity, and human rights of children and youth. It provides representation and legal assistance to young people across a range of legal subjects including criminal justice, education, victim representation, child welfare, health and mental health, homelessness, human rights, immigration, and more. Mary is a child rights expert and a tireless advocate, providing legal services to young people who are facing significant adversity, and have complex personal, social and legal issues. She has appeared as counsel or as intervener at every level of court on a range of child rights matters. Mary has been involved with countless community organizations, engages in law reform activities, provides public legal education, and professional development. She has been significantly involved with OBA and the CBA, including as having been Chair of the Child and Youth Law Section in each organization. She is a former Board Member of the Canadian Coalition for the Rights of Children, and is currently on the Board of A Way Home Canada. Mary is the co-author of “Prosecuting and Defending Youth Criminal Justice Cases: A Practitioner’s Handbook”, 3nd ed. 2024. 

Asper Centre takes part in the Vote16 Summit in Ottawa

Posted on by Tal Schreier

By Vlad Mirel and Kate Shackleton

On May 29, 2024, academics, parliamentarians, and youth activists from across the globe gathered in Ottawa for Canada’s first-ever national Vote16 Summit. The event was organized by Vote16 Canada – a national campaign dedicated to lowering the voting age to 16 – and hosted by Senator Marilou McPhedran. 

To kick off the event, numerous experts presented evidence in favour of lowering the voting age to 16. Panelist Samantha Reusch (Executive Director, Apathy is Boring) stressed that the declining civic engagement Canada is experiencing presents a direct threat to the efficacy of its democracy. She emphasized that although youth feel alienated from the democratic process, they remain interested in politics. Sabreena Delhon illustrated how the pandemic negatively impacted civic engagement by removing students from schools and thus reducing their interaction with civic education. Lastly, Dr. Jan Eichhorn (Senior Lecturer/Research Director, University of Edinburgh) spoke about Scotland’s experience with lowering the voting age to 16, highlighting that Scottish youth became more politically-engaged than their UK peers who were not enfranchised. 

In the subsequent Q&A session, the panelists addressed audience concerns about social media and misinformation along with the partisan dimension of the voting age debate. The panelists expressed that many of the concerns that social media may unduly influence youth voting are already true for older generations. Furthermore, Professor Eichhorn outlined the non-partisan nature of the lowered voting age in Germany. 

Dr. Jan Eichhorn, Samantha Reusch, and Sabreena Delhon answer audience questions

Next up was the “Vote16 in Court” panel, featuring Sage Garrett and Caeden Tipler from Make It 16 New Zealand, Jacob Colatosti and Catherine He, who are two of the youth litigants involved in the ongoing voting age Charter challenge, and the Asper Centre’s Executive Director Cheryl Milne. 

Garrett and Tipler shared how Make It 16 New Zealand challenged the voting age based on the New Zealand Bill of Rights, which prohibits age discrimination against persons 16 years of age and older. They took their case all the way up to the Supreme Court, where the court held that the voting age was indeed inconsistent with the Bill of Rights. Although New Zealand’s parliamentary supremacy means that the government is not bound by the Court’s decision, Garrett and Tipler underscored that the case played a major role in raising awareness about their campaign. 

Next, Milne provided an update on the Canadian Charter challenge (led by the Asper Centre and Justice for Children and Youth). She explained that the government’s evidence has been reviewed and preparations for cross-examinations are underway. Colatosti and He also described how they got involved in the case and why youth voting is important to them. Colatosti was motivated to join the case when he was 16 due to his dissatisfaction with the rate of reform within Canadian politics. Meanwhile, He – who joined the litigation at 15 – voiced her support for enfranchising youth based on their position as “citizens, driving the future of change.”  

All five panelists then answered questions from the audience and noted some of the frequent questions they face. The panelists pointed out that Canada’s political cycle often results in the minimum voting age differing from when people actually get their first voting opportunity, with 19-year-old Colatosti still waiting to cast his first vote. In response to concerns that youth are too extreme or radical to vote, Garrrett stressed that no one should ever be disenfranchised based on their political opinions. Colatosti and He emphasized that parental influence is also not a persuasive counterargument, observing that youth are equally capable of influencing their parents. 

Panelists Caeden Tipler, Sage Garrett, Catherine He, Jacob Colatosti, and Cheryl Milne discuss the court challenges in New Zealand and Canada

The final panel – “Building Our Movement” – was composed of youth activists from across Canada (from various Vote16 chapters, the Fédération de la jeunesse franco-ontarienne, and the Francophone Youth Council) and international advocates like Bethania Lima from Brazil and Dr. Andrew Wilkes, who is the Chief Policy & Advocacy Officer of Generation Citizen in New York. The speakers encouraged those interested in advocating for legislative change to focus on drawing attention to their campaign and to reach out to local politicians. 

Bethania Lima (at far left) discusses how Brazil increased youth voter registration for the 2022 election

The Summit concluded with a symposium of more than 25 speakers who gave concise presentations on why they believed youth should be able to vote. Elder Verna McGregor welcomed the attendees. She analogized her dreamcatcher’s interwoven net to society itself, emphasizing how we are all interconnected and thus every voice must be heard in elections.  Several parliamentarians then expressed their support for lowering the voting age, such as Senators Robert Black, Kim Pate and Bernadette Clement as well as MPs Elizabeth May and Taylor Bachrach. Notably, Bachrach credited the youth litigants in the Charter challenge with inspiring the Private Member’s Bill to lower the voting age that he brought forward in 2021. MP Yves Perron of the Bloc-Quebecois outlined the important habit-forming impact voting at 16 would have. He stressed that youth voting is important not just for young people, but for the overall health of our democracy. Katie Yu and Amelia Penney-Crocker spoke on behalf of the youth litigants, with Yu commenting that lowering the voting age is about “treating young people as people.” 

MP Bachrach with the youth litigants (from left to right: Amelia Penney-Crocker, Katie Yu, Jacob Colatosti, and Catherine He)

Katie Yu and Amelia Penney-Crocker speak during the symposium portion of the Summit

Overall, the Vote16 Summit was an informative and inspiring event that promises to make important contributions to the movement for extending the vote to young people. By bringing together this diverse group of people with differing lived experiences and expertise, the Vote16 Summit provided its attendees with an incredibly enriching conversation surrounding youth voting. In addition to the ongoing Charter challenge, legislative change may be on the horizon thanks to Bill S-201 (introduced by Senator McPhedran). The bill is expected to go to Second Reading in the Senate in the near future, and to ensure the bill passes, interested individuals and organizations are encouraged to contact their provincial senators to express their support. A list of senators for each province as well as a statement in support of S-201 can be found on the Vote16 website. 

Emily Chan (Lawyer, Justice for Children and Youth), Mary Birdsell (Executive Director, Justice for Children and Youth), Katie Yu, Amelia Penney-Crocker, Jacob Colatosti, Catherine He (Youth Litigants), and Cheryl Milne (Executive Director, Asper Centre) 

Vlad Mirel and Kate Shackleton are rising 2L students at the Faculty of Law and are the current Summer Research Assistants at the Asper Centre.