asper centre case

R v Chouhan: The Supreme Court of Canada finds room for disagreement

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By Wei Yang

On June 25, 2021, the Supreme Court of Canada (SCC) released its reasons for judgement in R v Chouhan,1 a case that the Asper Centre intervened in last year.

Background

Mr Chouhan was charged with first-degree murder and was thus entitled to a trial by jury. His trial date was scheduled for September 19, 2019, the same day that legislation eliminating peremptory challenges and substituting the trial judge as the trier for challenges for cause took effect.2 Prior to the new law, a limited number of peremptory challenges were available for both the accused and the Crown to dismiss potential jurors without cause.3 Challenges for cause used to be heard by lay triers instead of the trial judge.4

The federal government introduced this legislation in response to the trial of Gerald Stanley, who was charged with murder in the death of Colten Boushie, an Indigenous man. Mr Stanley was acquitted by a jury composed of zero Indigenous persons – a result of Mr Stanley’s peremptory challenges against five Indigenous prospective jurors.5

Mr Chouhan argued before his trial that the elimination of peremptory challenges violated his ss. 7, 11(d), and 11(f) Charter rights.6 If the amendments were constitutional, Mr Chouhan argued that they applied prospectively and not to his trial.7 The trial judge determined that there were other sufficient jury selection protections and the amendments were purely procedural.8 Therefore, the law was constitutional and applied to all trials after entering into force, including Mr Chouhan’s; neither party was entitled to peremptorily challenge any prospective jurors. Mr Chouhan was convicted.

At appeal, the Court of Appeal for Ontario rejected Mr Chouhan’s constitutional arguments, echoing the trial judge’s finding that other jury-related protections such as representative jury rolls, judicial excusals, and challenges for cause sufficiently preserved Mr Chouhan’s ss. 11(d) and 11(f) rights.9 However, the Court of Appeal held that his substantive right to peremptory challenges was nevertheless affected.10 Therefore, the amendments applied prospectively and Mr Chouhan was entitled to peremptory challenges.11

At the Supreme Court of Canada

The Crown appealed on the temporal applicability issue and Mr Chouhan cross-appealed on the constitutional question.12 The Supreme Court of Canada released its decision from the bench: Wagner CJ declared that a majority of the Court believed that the amendments were constitutional and purely procedural. The appeal was allowed, the cross-appeal was dismissed, and the conviction was restored.

The SCC released its divided reasons eight months later. Writing the joint reasons for judgement (alongside four other sets of reasons) Wagner CJ, Moldaver and Brown JJ held that s. 11(d) does not entitle anyone to a particular jury process.13 The question to be asked on a s. 11(d) challenge is “whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal”, citing Valente v The Queen.14 They agreed with the lower courts that representative jury rolls, the randomness of jury selection, unlimited challenges for cause, and the judge’s power to excuse (or stand aside) prospective jurors protect the independence and impartiality of the tribunal and thus the amendments were constitutional.15 In addition, the changes were purely procedural and applied retrospectively.16 The justices found that abolishing peremptory challenges will likely increase the representativeness of the jury.17 The justices specifically noted, however, that jury diversity is not constitutionally required.18

Wagner CJ, Moldaver and Brown JJ proceeded to define the scope of the existing protections. First, trial judges should consider issuing jury charges and instructions to militate against unconscious bias.19 With challenges for cause, jurors should be asked relevant questions related to circumstances of the case and whether they can set aside compromising beliefs.20 However, the questions must respect juror privacy.21The judge can exercise their discretion to exclude prospective jurors since it is unlikely that individuals will openly admit to their biases.22 Judges can also stand aside prospective jurors if doing so would uphold public confidence.23

Karakatsanis, Martin and Kasirer JJ agreed with the final disposition and the need for robust jury instructions, but cautioned against Wagner CJ, Moldaver and Brown JJ’s description of the scope of the existing jury procedures.24 They opined that it should be left for the lower courts to decide how to interpret and apply the new amendments.25 In addition, one must not rely too heavily on the randomness of jury selection since random selection within an “unequal society” does not eliminate systemic bias.26

Rowe J, in another separate concurring opinion, agreed with the disposition but cautioned against interpreting this judgement as constitutionalizing these jury selection procedures.27 Interpreting these statutes as constitutional requirements would create the absurd consequence of eliminating Parliament’s ability to repeal their own laws, undermining the principle of parliamentary sovereignty.28

Abella J agreed that the amendments were constitutional but dissented on its temporal applicability. In opposition to Wagner CJ, Moldaver and Brown JJ’s more conservative approach, Justice Abella held that as long as judges “vigorously exercise their authority” by using their stand aside power to increase jury diversity and jurors are asked more probing questions when challenged for cause, the accused’s s. 11 rights are sufficiently protected.29 However, the abolition of peremptory challenges still affected a substantive right; the ability for an accused to participate in the empanelment of a jury they themselves view as representative and impartial is a substantive right even if it is not a constitutional one.30 The amendment, therefore, was not purely procedural and did not apply to Mr Chouhan’s trial.31

Côté J, in dissent, claimed Wagner CJ, Moldaver and Brown JJ attempted to create a new jury regime to disguise the fact that the existing one is inadequate.32 The abolition of peremptory challenges creates a gap in the system, violating Mr Chouhan’s s. 11(f) Charter right.33 Stand asides do not sufficiently preserve impartiality because they do not completely eliminate the possibility that the prospective juror will be empanelled.34 Jury rolls are not necessarily representative: when they are sourced from municipal assessment rolls, it prevents some Indigenous persons from being selected.35 Those who have committed certain provincial and criminal offences are also omitted from the jury roll, which excludes many Indigenous and Black persons who are disproportionally represented in the criminal justice system.36 Finally, without peremptory challenges, there is no assurance that jurors will share similar life experiences to the accused, affecting the common sense, competence, and fact finding ability of the jury.37 This infringement cannot be saved under s. 1 of the Charter: it is not rationally connected to the objective of combatting jury discrimination and promoting jury diversity, nor is it minimally impairing (peremptory challenges ought to have been regulated, not eliminated).38 In the alternative, the abolition applied prospectively.39

Implications

The Asper Centre is pleased to see that a majority of the Court shared our view that the amendments were constitutional. The majority of the Court also recognised the reality of unconscious bias, as we stated in our submissions, in addition to affirming the Asper Centre’s argument that peremptory challenges were only one component of a jury selection system that otherwise provides sufficient protections for an accused person.40 However, we recognize the differing views on peremptory challenges in relation to jury representativeness.

Nader Hasan, co-counsel for the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers (and adjunct professor at UofT Law and Asper Centre’s Fall 2020 constitutional litigator-in-residence), who intervened to support Mr Chouhan’s cross-appeal, lauded Côté J’s dissent.41 Despite the Court’s disposition, Hasan noted that this decision will empower defence counsel to more aggressively challenge for cause prospective jurors.42

R v Chouhan continues the Supreme Court of Canada’s pattern of divided opinions.43 Although the judgements on the constitutional question and temporal applicability were relatively clear, this decision nevertheless produced five distinct sets of reasons, none of which represented a plurality or majority of the Court. This division likely reflects the diverse views on the effectiveness of peremptory challenges on jury representativeness, as demonstrated by the parties’ submissions. Ultimately, however, this outcome leaves Canadians and lower courts with a clear conclusion but without decisive directions.

Wei Yang is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.

Footnotes:
1. R v Chouhan, 2021 SCC 26 [Chouhan].
2. Ibid at para 1, citing Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Leg, 2019, c 25.
3. Chouhan, supra note 1 at paras 10, 13.
4. Ibid at para 27.
5. Ibid at para 41.
6. Ibid at para 3.
7. Ibid.
8. Ibid at para 4.
9. Ibid at paras 6, 35.
10. Ibid at para 6.
11. Ibid.
12. Ibid at para 7.
13. Ibid at para 31.
14. Ibid, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25.
15. Ibid at paras 33–36.
16. Ibid at para 90.
17. Ibid at para 41.
18. Ibid at paras 43, 74 (citing Abella J at para 164), 79.
19. Ibid at para 49.
20. Ibid at para 64.
21. Ibid at para 66.
22. Ibid at para 67.
23. Ibid at paras 70–71.
24. Ibid at paras 109–111.
25. Ibid at paras 111–112.
26. Ibid at para 114.
27. Ibid at para 126.
28. Ibid at paras 141–142.
29. Ibid at paras 159–161, 165.
30. Ibid at paras 167, 189, 194, 204–205.
31. Ibid at paras 165, 220.
32. Ibid at para 267.
33. Ibid at paras 260, 267.
34. Ibid at para 269.
35. Ibid at para 272.
36. Ibid.
37. Ibid at paras 275–277.
38. Ibid at paras 288–291.
39. Ibid at para 293.
40. Ibid (Asper Centre’s factum at paras 2, 3, 20).
41. Nader Hasan, “The Côté J dissent in #Chouhan is [three consecutive fire emojis]. The lead decision, on the other hand, suggests that we can deal with potentially racist jurors with a mid-trial instruction ‘don’t be racist’. [Quote Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442578501001216>.
42. Nader Hasan, “On the plus side, the Chouhan decision as a whole is a clarion call to defence counsel to be aggressive with their challenge-for-cause and stand-aside applications. There is at least some recognition that an important tool has been lost with the abolition of peremptory challenges [Reply Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442579977490435>.
43. Cristin Schmitz, “Supreme Court of Canada Hits Record Low 40% Unanimity Rate in 2019; Many Appeals Came from Quebec” (20 January 2020), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada-hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec> (last modified 21 January 2020).

LEAF and the Asper Centre welcome the Ontario Court of Appeal’s Decision in R. v. Sharma

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A majority of the Ontario Court of Appeal has struck down Criminal Code provisions which made conditional sentences unavailable for certain offences. The ruling comes in response to Cheyenne Sharma’s constitutional challenge to these provisions, and explicitly acknowledges and draws on the arguments and information provided by LEAF and the Asper Centre in their joint intervention.

Ms. Sharma – a young Indigenous woman, an intergenerational residential school survivor, and a single mother – faced financial hardship and potential eviction for her and her young daughter. She acted as a drug courier, importing 2 kg of cocaine into Canada, and then pleaded guilty to importing drugs.

As an Indigenous person, Ms. Sharma is entitled to the use of the Gladue framework. The Gladue framework is an individualized approach to sentencing that requires judges to consider the impact of systemic factors such as intergenerational trauma of residential schools and the harms of colonial oppression, and to consider alternatives to incarceration when sentencing Indigenous offenders. These options include conditional sentences, a community-based alternative to a custodial sentence.

However, 2012 amendments to the Criminal Code made conditional sentences unavailable for offences with a maximum penalty of 14 years or life in prison, and for offences involving the import, export, trafficking, or production of drugs, with a maximum penalty of 10 years in prison. As a result, Ms. Sharma was not eligible for a conditional sentence. Ms. Sharma argued that the provisions violated her rights under section 15 of the Charter, but the trial judge did not accept these arguments and imposed a custodial sentence.

LEAF and the Asper Centre intervened before the Ontario Court of Appeal to argue that the constitutionality of the provisions needed to be assessed in the context of systemic discrimination against Indigenous people, especially Indigenous women, in the administration of criminal justice.

This discrimination is clearly evident in the overwhelming overincarceration of Indigenous people, particularly Indigenous women, in Canada. In 2017/2018, Indigenous persons represented approximately four percent of the adult population in Canada, but accounted for 30 percent of admissions to provincial or territorial custody, and 28 percent of admissions to federal custody. The crisis of overincarceration has worsened over time. Between 2007/2008 and 2017/2018, for example, the number of admissions of Indigenous women to provincial/territorial custody increased by 66 percent.

The majority’s decision means that conditional sentences will now be an available option for trial judges to consider in sentencing Indigenous offenders for a wide variety of offences, provided other requirements are also met (including that the sentence is less than two years, and serving the sentence in the community will not endanger the community).

Ms. Sharma will not get to see the direct benefit of her victory, having already served her jail sentence before the appeal. The decision, however, will help to ensure that, moving forward, Indigenous offenders receive the benefit of the different approach to sentencing enshrined in the Gladue framework. It will also serve as a small step towards reducing the overincarceration of Indigenous people and in particular Indigenous women.

The majority’s decision represents an important articulation of substantive equality under section 15 of the Charter. Section 15, despite its potential for advancing equality, remains complex and under-applied. The majority’s analysis provides a clear example of how to apply section 15 where an applicant argues that a law appearing neutral on its face is discriminatory in its effect – and illustrates the potential of section 15 to be used as tool for addressing the overincarceration of Indigenous people, and Indigenous women in particular.

“We are extremely pleased with the decision in R. v. Sharma,” said Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights. “The Court’s decision affirms our position that substantive equality requires a different approach to criminal justice for Indigenous people. Allowing judges to consider conditional sentences in these cases should help contribute, incrementally, to reducing the overincarceration of Indigenous people.”

“This decision is a breakthrough in how courts think about section 15 of the Charter and criminal law, and affirms the substantive equality rights of Indigenous women in the criminal justice context.” said Megan Stephens, Executive Director and General Counsel of LEAF. “The majority decision is remarkable for both its analytical rigor and its compassion concerning the devastating consequences of the overincarceration of Indigenous women, and the ongoing intergenerational harms to Indigenous women caused by colonialism, sexism, and racism.”

Case Committee and Counsel

LEAF and the Asper Centre’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The committee members for this intervention are (in alphabetical order): Emma Cunliffe (Allard School of Law, University of British Columbia), Gillian Balfour (Department of Sociology, Trent University), Martha Shaffer (University of Toronto Faculty of Law), Mary Eberts OC, Naiomi Metallic (Schulich School of Law, Dalhousie University), Rakhi Ruparelia (Faculty of Law – Common Law Section, University of Ottawa), and Renée Pelletier (Olthius Kleer Townshend LLP).

We are grateful to pro bono counsel Adriel Weaver and Jessica Orkin of Goldblatt Partners LLP, who acted for LEAF and the Asper Centre in this important case.

About Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.

To support our work to protect the equality rights of women and girls, please consider donating today.

About David Asper Centre

The David Asper Centre for Constitutional Rights is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). For more information please visit www.aspercentre.ca.

For media inquiries, contact:

Megan Stephens, Executive Director & General Counsel
Women’s Legal Education and Action Fund (LEAF)
T: 416-317-4440
E: m.stephens@leaf.ca

Cheryl Milne, Director
The David Asper Centre for Constitutional Rights
T: 416-540-7619
E: cheryl.milne@utoronto.ca

Supreme Court of Canada Affirms Asper Centre’s Position on Charter Damages 

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The Supreme Court of Canada heard this appeal in Treaty One Territory (Winnipeg, Manitoba). This was the Court’s first time sitting outside of Ottawa. 

by Amy Chen

On June 12, 2020, the Supreme Court of Canada released its judgment on Conseil scolaire francophone de la Colombie-Britannique v. British Columbia. The primary issue was whether the Province of British Columbia  failed to adequately fund its French-language school board, therefore violating the board’s  s. 23 minority-language Charter rights. The secondary issue was whether the Province owed the school board damages for said violations under s. 24(1) of the Charter. The Asper Centre’s intervention focused on the scope of the government’s qualified immunity from Charter damages. The SCC affirmed the Asper Centre’s position – the government may only have qualified immunity from Charter damages if its actions are authorized by statute, not policy.

Background

The Conseil scolaire francophone de la Colombie‑Britannique (“CSF”) is the only French‑language school board in British Columbia. It submitted multiple s. 23 Charter claims against the Province, including, among other things, the Province freezing its funding for school transportation. The CSF sought a significant amount of damages under s. 24(1) of the Charter.

Damages may be awarded under s. 24(1) for a Charter breach where it is “appropriate and just” from the perspective of the claimant and the state (Vancouver (City) v. Ward [Ward]). The government may use its qualified immunity to oppose a damages award if it can prove that there are concerns of “good governance” or that alternate remedies are available. This qualified immunity was first established in Mackin v. New Brunswick [Mackin]: “absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional”. The immunity allows public officials to carry out their duties without fear of liability, in the event that the statute is later struck down (Ward).

The trial judge found that the Province’s freeze on transportation funding constituted an infringement of s. 23, and awarded CSF $6 million in damages. She concluded that the Province was not immune to damages in this case, as she did not foresee any chilling effects to good governance or government decision-making.

On appeal, the British Columbia Court of Appeal (BCCA) set aside the $6 million remedy, endorsing a broader reading of Mackin. A government can utilize its qualified immunity when fulfilling its legislative or policy-making function, excepting any conduct found to be “clearly wrong, in bad faith or an abuse of power”. The BCCA found precedent for this interpretation in the 2006 Ontario Court of Appeal case Wynberg v Ontario [Wynberg], which rejected a distinction between legislative and policy-making functions regarding the Mackin immunity. The trial judge was found to be in error for considering chilling effects and “overriding” the Province’s qualified immunity in the present case. The Province acted in good faith pursuant to policy, and therefore the CSF was not entitled to any damages.

The Asper Centre’s Position

The Asper Centre, as represented by Professor Kent Roach and Anisha Visvanatha (Norton Rose Fulbright Canada), opposed the BCCA’s extension of the scope of qualified immunity. In its factum, the Asper Centre stated that the BCCA erred in considering Wynberg, an outdated case that ignored the distinctions between s. 24(1) of the Charter and s. 52(1) of the Constitutional Act, 1982. Ward clearly limited the scope of the government’s qualified immunity to government actions taken under statutes, an approach which is principled, democratic, and based on the rule of law.

The Asper Centre further argued that an extension of the qualified immunity would place an unfair burden on Charter claimants. After establishing the existence of a Charter violation and a functional need for damages, claimants would still have to prove that the government acted in bad faith. Meanwhile, the government would have an incentive to argue that its impugned actions were authorized by policy. Since the definition of “policy” is so vague, excessive amounts of preliminary litigation would likely be required to determine the nature of the government action. Overall, an extension of the qualified immunity would restrict access to justice and access to remedies. It would place a significant evidentiary and financial burden on Charter claimants.

The Supreme Court Judgment

The Supreme Court held that the Province unjustifiably breached CSF’s s. 23 Charter rights in two instances: first, when they  denied CSF adequate funding for school transportation; second, when they denied  CSF an Annual Facilities Grant. The lower courts interpreted s. 23 too narrowly, without fully considering the section’s remedial purpose.

While a significant portion of the judgment concerned the interpretation of s. 23, the Majority adopted all of the Asper Centre’s arguments concerning remedies. They recognized that Ward was the appropriate authority and that the qualified immunity should only apply to state actions authorized by legislation. They agreed that it was appropriate for government immunity to apply “in respect of a well-defined instrument such as a law”, but not in respect of “undefined instruments with unclear limits, such as government policies”. It was also recognized that the extension would allow the government to avoid liability by claiming that their unlawful actions were authorized by policy, which would in turn restrict access to justice. The Majority restored the $6 million remedy and added a further $1.1 million remedy for the second s. 23 breach.

The Dissent stated that there was no principled basis to limit the application of Mackin to legislation. The question to be asked is not what the vehicle of state action was, but under what circumstances should the state be liable for damages. As Professor Roach comments, the dissent’s approach would still allow the government to insulate themselves from damages by claiming that their actions were authorized by policy.

Overall, Professor Roach is very satisfied with the outcome of this case. The Asper Centre has once again helped set a new precedent on Charter remedies and has provided significant input  at the Supreme Court level.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s 2020 summer research assistant. 

Reflections on the Asper Centre Intervention in Ontario v. G

Posted on by Tal Schreier

By Jeffrey Wang

As a clinic student this term, I had the opportunity to hear the Asper Centre’s oral arguments in its intervention at the Supreme Court of Canada in the appeal of Ontario v. G, which took place on February 20, 2020. The appeal concerned the constitutionality of the Ontario and federal sex offender registry laws, which required offenders found not criminally responsible (NCR) to report to the registry for life, even if they had been absolutely discharged by the Ontario Review Board (ORB). Offenders not found NCR who receive an absolute discharge, record suspension, or pardon do not have to report to the registries. In this way, the claimant, G, who was found to be NCR after his criminal trial, argued that the Ontario and federal sex offender registry laws violated his s. 7 and s. 15 rights under the Charter.

Justice Doherty for the Ontario Court of Appeal did not find a s. 7 violation. However, he recognized that the sex offender registries drew a discriminatory distinction based on the ground of mental disability under s. 15 of the Charter, since the law reinforces the stereotype that NCR offenders are indeterminately dangerous. Under s. 1, the court focused on the fact that the reporting requirements for NCR offenders did not have any “exit ramps” even though similar “exit ramps” are available for non-NCR offenders. Justice Doherty found that this was not a minimal impairment of s. 15 rights and struck down the laws.

Supported by the faculty of law’s Professor Kent Roach, the Asper Center intervened in this appeal on the issue of remedies, specifically about when delayed declarations of invalidity intersect with the need for constitutional exemptions in Charter litigation.  In this case, the Ontario Court of Appeal suspended the declaration of invalidity for one year in order to allow the legislature to amend the impugned laws. However, Justice Doherty exempted the applicant G from this suspension, which meant that G was removed from the sex offender registry reporting requirements, effective immediately. This was controversial, since the Supreme Court in R v Demers had expressly advised against exempting individual claimants from suspended declarations. The Asper Center argued that the Demers rule must be overturned. This is due to the fact that the Supreme Court has exempted individual claimants from suspended declarations in the past, such as in Corbiere and Carter. In addition, without the ability to exempt claimants from suspended declarations, individual claimants must wait until the completion of the suspended declaration in order to receive any benefits of their successful claim. The Asper Center also argued that the Supreme Court should only use suspended declarations of invalidity as a remedy when it is justified as necessary and proportional. This is in line with international practices such as the Hong Kong courts’ use of suspended declarations as well as the Supreme Court’s own jurisprudence on other constitutional remedies. Furthermore, many scholars are critical of the overuse of suspended declarations of invalidity since the remedy creates uncertainty and allows laws to continue violating Charter rights during the suspension.

My experience working on this case provided me with an invaluable look into appellate advocacy. At the Supreme Court, the arguments focused on if the sex offender registry laws violated s. 15 of the Charter and security of the person under s. 7. Many of the Justices were critical of the government’s s. 15 argument, asking numerous questions on the implications of their evidence that NCR offenders are more likely than the average population to commit another offence. Although the Asper Center was only given five minutes, Asper Centre Executive Director Cheryl Milne effectively addressed all of our arguments, and the Justices seemed receptive. It was exciting to see the research I conducted on Hong Kong’s jurisprudence not only be included in our factum, but also mentioned in our oral arguments. Ultimately, we will have to wait to see if the Supreme Court will take our invitation to re-imagine the use of suspended declarations of invalidity as a constitutional remedy.

Jeffrey Wang is a 2L JD student at the Faculty of Law and is the current Half-time Asper Centre Clinic student.

News Release: Asper Centre and Justice for Children and Youth organize youth consultations for legal challenge to Canada’s voting age

Posted on by Tal Schreier

Toronto, November 14, 2019 — In partnership with several child rights organizations, Justice for Children and Youth (JFCY) and the David Asper Centre for Constitutional Rights (Asper Centre) have secured case development funding from the Court Challenges Program, which helps finance cases of national significance related to constitutional human rights issues. They will be hosting a consultation for children and youth to inform a legal challenge against Canada’s minimum voting age.

The consultation is designed to hear from children and youth on the voting age and determine a legal approach to a constitutional challenge that both respects and represents their interests. If you are interested in joining the consultations, reach out to the Asper Centre through the contact information provided below.

Section 3 of the Canadian Charter of Rights and Freedoms is clear that all Canadian citizens are allowed to vote. JFCY and the Asper Centre will be working with other child rights organizations and young people to challenge section 3 of the Canada Elections Act, which prevents citizens under the age of 18 from voting in federal elections, on the grounds that the voting age requirement is unconstitutional.

17-year-old student Samantha Walsh supports a legal challenge to the voting age. “As a young person who was unable to vote during the last federal election, I’m excited about a challenge to lower the voting age. Lowering the voting age would allow youth to feel as though they are a more valued part of the society they are contributing to.”

Mary Birdsell, Executive Director of JFCY, agrees. “Decision-makers tend to cite outdated factors when denying young people access to the polls. They are the same factors historically used to deny other groups the right to vote,” she says. “We have seen a continued rise in young people’s efforts to be heard — millions marching on issues that have a direct impact on their lives and the world in which they live in, yet they still can’t vote.”

Increasing social science evidence about adolescent decision-making has established that adolescents are just as cognitively capable of voting as adults, which supports the position that the voting age restriction is unconstitutional. The Universal Declaration of Human Rights states that “everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” The United Nations Convention on the Rights of the Child requires countries to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” in accordance “with the age and maturity of the child.”

There are many international success stories of the voting age being lowered. Turnout among 16- and 17-year-olds was 75 percent in Scotland’s 2014 independence referendum, and 16-year-olds can now vote in both Scotland and Wales. In Austria, lowering the voting age increased civic interest among 16- and 17-year-olds — part of growing evidence that voting early is more likely to result in voting later in life.

Canada’s four federal political parties also permit those under 18 to vote for party leadership. The Liberal Party of Canada, Conservative Party of Canada, and Green Party of Canada allow members as young as 14. The federal New Democratic Party does not set out a minimum age for membership, but its provincial and territorial NDPs typically require members to be 14 or older. The Ontario NDP accepts 13-year-olds as full voting members. Moreover, many 16- and 17-year-olds shoulder “adult-like” privileges and duties in Canada, including being allowed to join the military, drive in many provinces and territories, work entry-level jobs, and pay taxes.

Last year, Chief Electoral Officer of Canada Stéphane​ Perrault said the idea of lowering the voting age is “worth considering.” Cheryl Milne, the Executive Director of the Asper Centre, agrees. “Our Supreme Court has made it clear that any limit on Canadians’ right to vote must be clearly justified,”. Given our political parties welcome 14-year-olds to vote in their leadership races, the position that under-18s lack the experience and knowledge to vote responsibly in federal elections is untenable.”

PARTNERS:

Canadian Civil Liberties Association

Canadian Coalition for the Rights of Children

Children First Canada

Society for Children and Youth of BC – Child and Youth Legal Centre

The Students Commission of Canada

UNICEF Canada

AVAILABLE FOR COMMENT:

Cheryl Milne, Executive Director, Asper Centre: cheryl.milne@utoronto.ca or 416-978-0012

Mary Birdsell, Executive Director, JFCY: birdsem@lao.on.ca or 416-920-1633

For media inquiries with Samantha Walsh, please contact Emily O’Connor, Communications Manager at UNICEF Canada: eoconnor@unicef.ca or 647-500-4230

ABOUT JUSTICE FOR CHILDREN AND YOUTH

Justice for Children and Youth provides select legal representation to low-income children and youth in Ontario. We are a non-profit legal aid clinic and specialize in protecting the rights of those facing conflicts with the legal system, education, social service or mental health systems. We give summary legal advice, information and assistance to young people, parents (in education matters), professionals and community groups across Ontario.

ABOUT DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS

The Asper Centre is devoted to realizing constitutional rights through advocacy, research and education. We play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty, and members of the bar to work on significant constitutional cases and advocacy initiatives.