asper centre case

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 “Decision-makers tend to cite outdated factors when denying young people access to the polls.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.

A historical first for the SCC

Posted on by Tal Schreier

The Asper Centre is intervening in the upcoming Supreme Court of Canada case of Conseil scolaire francophone de la Colombie Britannique v British Columbia (Éducation) relating to whether British Columbia failed to adequately fund and support French minority language education.

Section 23 of the Charter guarantees the right to minority language education. In British Columbia, the Conseil scolaire francophone de la Colombie-Britannique (B.C.’s French language school board) and co-plaintiff parents brought a lawsuit against the Ministry of Education to obtain the financing required in order to build schools that are equivalent to English-language schools. The trial judge said the province breached the French-speaking community’s rights under section 23 of the Charter in several areas of B.C. The Court of Appeal said courts needed to be practical when looking at section 23. Giving the school board what it wanted would cost too much and section 23 of the Charter didn’t mean the province had to provide all the school facilities right away. The school board appealed. In this case, the Supreme Court will decide how courts should deal with minority language rights including what governments must do when there aren’t enough students to justify offering full school services in the minority language. Another issue is whether courts should look at costs when deciding whether a breach of section 23 can be allowed.  Further, the court will have to decide whether the province should have to pay damages to the school board. This decision could affect other minority-language communities across Canada.

The focus of the Asper Centre’s intervention is on the availability of Charter damages and the appropriateness of the application of the Mackin principles to damages under s.24(1) of the Charter for unconstitutional policy decisions. Read our factum here.

The SCC will hear this case on September 26th 2019 in Winnipeg Manitoba, in Treaty One Territory. This is a historical first, where the SCC will sit outside of Ottawa.

Oral arguments for the Asper Centre will be presented by University of Toronto Professor of Law and Prichard-Wilson Chair of Law and Public Policy, Kent Roach (pictured above).

Freedom of expression in an election context: A purposive approach

Posted on by Tal Schreier

by Keely Kinley

On September 19, 2019, the Ontario Court of Appeal dismissed the City of Toronto’s legal challenge against the Province of Ontario for making unilateral changes to the size and structure of Toronto’s city council midway through last year’s municipal election period (Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732). In a 3-2 decision, the Court of Appeal held that the province had the “legitimate authority” to reduce council from 47 to 25 seats, and that doing so was constitutional even in the middle of an active election (para 6).

At trial, the Ontario Superior Court ruled that Bill 5 – the legislation that changed Toronto’s ward structure – “substantially interfered” with both candidates’ and voters’ freedom of expression contrary to s. 2(b) of the Charter (Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151). Specifically, the court found that Bill 5 interfered with candidates’ freedom to effectively communicate their political messages to voters and, by doubling the population size of City wards, also interfered with electors’ ability to express political views through voting. Nine days after the ONSC decision was released, the province won a stay of the ruling and the election proceeded with 25 wards on October 22, 2018.

On appeal, the court found that Bill 5 did not infringe the s. 2(b) rights of either candidates or voters. Justice Miller, writing for the majority, emphasized that s. 2(b) of the Charter protects against interference with expressive activity, not interference with expressive activity’s intended result; consequently, “legislation that changes some state of affairs (such as the number of electoral wards) such that a person’s past communications lose their relevance, and no longer contribute to the desired project (election to public office), is not, on that basis, a limitation of anyone’s rights under s. 2(b)” (para 41).

All five judges agreed that the Province had the constitutional authority to alter the structure of Toronto’s City Council, that legislation cannot be stuck down solely on the basis of unwritten constitutional principles, and that Bill 5 did not infringe voters’ 2(b) rights. However, MacPherson and Justice Nordheimer decried Miller’s characterization of the expressive activity affected by the ward changes as “a person’s past communications” as overly narrow and found that candidates’ 2(b) rights were infringed by the mid-election enactment of Bill 5.

MacPherson’s fiery dissent called for a purposive approach to freedom of expression in the election context and identified the 2(b) right implicated in this case as the “right of all electoral participants to freely express themselves within the terms of the election after it had begun” (para 128). Justice MacPherson cited para 1 of the Asper Centre’s factum to support this view: “The Charter’s guarantee of freedom of expression is a key individual right that exists within and is essential to the broader institutional framework of our democracy. In the election context, freedom of expression is not a soliloquy. It is not simply the right of candidates and the electorate to express views and cast ballots. It expands to encompass a framework for the full deliberative engagement of voters, incumbents, new candidates, volunteers, donors, campaign organizers and staff, and the media, throughout a pre-determined, stable election period.”

The dissenting judgment suggests that free expression in the election context requires that an election’s basic terms not be “upended mid-stream” (para 123). Reducing the size of city council during an active election made it difficult for volunteers, voters, donors, and commentators to carry on expressing themselves “within the established terms of [the] election then in progress” (para 128), and this is why Justice MacPherson’s finding that candidates’ 2(b) rights were infringed turned on the timing of the Bill; even though the province never directly curtailed expressive activity, it effectively “blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates” when it altered the ward structure in the middle of the election period (para 136).

While the majority did not adopt the Asper Centre’s broad, purposive view of freedom of expression in the election context, this was a successful intervention for the Centre. Its arguments were cited with approval in both judgments and provided important international context to this difficult case of first instance.

As of January 2019, Toronto City Council has instructed staff “to pursue a leave to appeal application to the Supreme Court of Canada in the event the Province is successful on its appeal at the Court of Appeal” (see the City’s public statement here: http://wx.toronto.ca/inter/it/newsrel.nsf/11476e3d3711f56e85256616006b891f/d354c2f99405923b8525847a0056fff8?OpenDocument); staff are now in the process of reviewing the court’s decision in detail. If the City appeals, the 3-2 split at the Court of Appeal and the national significance of the issues raised in this case might improve the odds of the Supreme Court of Canada granting them leave.

Keely Kinley is a 2L JD Student at the Faculty of Law. She was the 2019 Asper Centre summer research assistant and is currently leading the Asper Centre’s Climate Justice student working group.

Substantive equality in sentencing: Interventions in R v Morris and R v Sharma

Posted on by Tal Schreier

By Teodora Pasca

This fall, the Asper Centre is intervening in two cases before the Ontario Court of Appeal (ONCA) whose outcomes could significantly impact the province’s approach to sentencing marginalized people.

In R v Morris, the ONCA will consider the appropriate manner in which systemic factors should shape the sentencing framework for Black Canadians. Morris was convicted of possession of illegal firearms and received a sentence of 12 months, reduced from 15 months for Charter breaches. Among other factors, the sentencing judge was mindful of the social context in which Morris committed the offence with reference to reports from psychologists and social scientists with expertise on Black racism in Canada.

In R v Sharma, the Asper Centre and the Women’s Legal Education and Action Fund (LEAF) are jointly intervening on a constitutional challenge to ss. 742.1(c) and (e)(ii) of the Criminal Code, which eliminate conditional sentences for certain offences. Sharma is an Indigenous biracial woman convicted of a drug importation offence who, but for these provisions, would have been a suitable candidate for a conditional sentence.

Despite the Supreme Court’s aspirations in Gladue, Indigenous people in Canada continue to be criminalized and incarcerated at alarming rates. In particular, the overrepresentation of Indigenous women in prisons has increased substantially over the past 10 years. The criminal justice system in Canada is designed in a manner incompatible with Indigenous laws and conceptions of justice, which can be deeply alienating.

Though their historical circumstances are different, Black Canadians also experience significant systemic discrimination and bias when dealing with police, in the courts, and in corrections. Nationally, the rate of incarceration for Black Canadians is three times greater than their representation in the overall population, and the overrepresentation is even more pronounced for Black women.

Morris and Sharma illustrate how the overarching principle of substantive equality can illuminate sentencing decisions in cases involving marginalized people. Substantive equality is a constitutional imperative that requires courts to analyze the potentially discriminatory impact of laws with regard to their social, political, and legal context. Substantive equality plays a vital role in the criminal justice system, including at the sentencing stage. These cases suggest that sentencing judges should be mindful of systemic discrimination at all stages of the process and the ways in which that discrimination might have impacted the individual or their circumstances.

Since the Gladue decision came down in 1999, courts have been constitutionally mandated to consider the role that historical disadvantage, discrimination, and alienation play in cases involving Indigenous offenders. More broadly, the principle of restraint in s 718.2(e) of the Criminal Code requires courts to consider all sanctions other than imprisonment that are reasonable in the circumstances; though it is particularly vital for Indigenous people, this provision applies to all offenders in all cases.

It is settled that systemic factors such as historical disadvantage can be considered in sentencing cases involving Black Canadians. The question is how. The Crown’s position in Morris is that contextual factors should be considered only if the offender can establish a causal link between those factors and the offence. The Supreme Court in R v Ipeelee previously rejected the “causal link” requirement in the context of Indigenous sentencing. The Asper Centre argues it is unfair to ask marginalized people to demonstrate their life circumstances “caused” their crime — a burden even experts struggle to meet — and has put forward more robust guidelines for considering these factors that is informed by substantive equality principles.

In Sharma, conversely, the ONCA will consider whether eliminating conditional sentences for certain offences is incompatible with the Gladue framework. The potentially discriminatory effect of ss 742.1(c) and (e)(ii) is to deprive Indigenous people of a reasonable alternative to jail, despite the firm conclusions in Gladue and Ipeelee that alternatives to imprisonment must be prioritized. Asper and LEAF argue that the constitutionality of the provisions must be assessed in light of systemic discrimination against Indigenous people — especially Indigenous women, who are alarmingly over-represented both as offenders and as victims. Alternatives to incarceration are particularly essential when the system criminalizes acts that Indigenous women often turn to for survival, due to factors such as high levels of poverty, food insecurity, and overcrowded housing, as well as extremely high rates of physical and sexual abuse.

Collectively, Morris and Sharma acknowledge that consideration of historical and social context can be invaluable to the sentencing process for marginalized people. Requiring sentencing judges to at least turn their mind to these factors allows them to make a more informed decision about what is best for the individual and for society looking forward. While imposing a “fit” sentence is already the goal of sentencing, requiring that substantive equality shapes the analysis can make that goal a reality.

The Asper Centre’s intervener facta can be found at this link.  Sharma will be argued on November 20 and Morris will be argued TBD.

Teodora Pasca is a 2L JD Student at the Faculty of Law

Asper Centre granted intervener status in 2 upcoming Ontario Court of Appeal cases and seeks standing in a third one

Posted on by Tal Schreier

City of Toronto v. Attorney General of Ontario et al

On September 10, 2018, Ontario Superior Court Judge Edward Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 declared that the province of Ontario had “substantially interfered” with the Charter section 2(b) freedom of expression rights of both the municipal ward election candidates and City of Toronto voters and struck down the province’s Bill 5 (which reduced the number of City of Toronto wards from 47 to 25) as unconstitutional.

The province appealed the decision to the Ontario Court of Appeal, which on September 19, 2018 stayed the order of the Superior Court pending the appeal, and thus allowed the election to proceed with the reduced number of wards.

The appeal of the lower court decision will be heard on June 10-11, 2019. The Asper Centre has been granted intervener status in this appeal, with its arguments focusing on the role that section 2(b) of the Charter plays “in ensuring a stable and protected election framework which is necessary to foster full engagement in the democratic process.”  Read the Asper Centre’s Intervener Factum here.

R v. Sharma

Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence.

Based on a s.12 Charter argument advanced by Ms. Sharma that 2 years in jail would be grossly disproportionate and thus cruel and unusual punishment, the judge in R. v. Sharma, 2018 ONSC 1141, found that the mandatory minimum sentence of 2 years under the Act was unconstitutional and unjustified under section 1 of the Charter.  This aspect of the decision was not appealed.

Ms. Sharma also advanced a s.15 Charter argument that s.742.1(b) and (c) of the Criminal Code disproportionately affects Indigenous women as it removes the ability to serve their sentences as conditional sentences. The judge did not address (b) since he had already found the mandatory minimum to be unconstitutional. As for (c), the judge held that there is no reason to believe that the prohibition on conditional sentences, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. This claim was dismissed.

Ultimately, the judge determined 18 months incarceration to be just, and reduced it by only 1 month given Gladue factors.

Ms. Sharma appealed her sentence to the Ontario Court of Appeal and the Asper Centre jointly with LEAF (the Women’s Legal Education and Action Fund) were granted intervener status in this appeal.

R v. Morris

Mr. Morris is a black male who was charged with multiple offences including possession of illegal firearms and assaulting a police officer. He was convicted only of the firearms offences.

Upon sentencing, the judge considered Mr. Morris’ personal social context, based on reports from psychologists and social scientists with an expertise on black racism in Canada. The Crown sought 4-4.5 years while the defence sought 1 (before Charter breaches were accounted for). In his decision the judge mentions that reports, such as the ones he was presented with, are not new to the law given Gladue reports for Indigenous offenders. He ultimately, in light of  Mr. Morris’s upbringing and social context (among the other mitigating and aggravating factors), sentenced him to 15 months, reduced to 12 months for Charter breaches.

The Crown appealed the sentence stating that the sentencing judge erred by imposing an unfit sentence, erred in his treatment of social context evidence and erred in his treatment of aggravating/mitigating factors.

The Asper Centre has applied for intervener status in this case. The motion is scheduled to be heard on June 13th.