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

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 “Decision-makers tend to cite outdated factors when denying young people access to the polls.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

Supreme Court Moves Voting Rights into Globalization Era in Frank Decision

by Jasmit de Saffel

In its first decision of the year, the Supreme Court of Canada sided with Canadian ex-pats in a case about their voting rights. Chief Justice Wagner held that “citizenship, not residence, defines our political community and underpins the right to vote” (para 35).

Frank v Canada had been initiated by two Canadians living in the United States after they were denied the right to vote in the 2011 federal election. Dr. Gill Frank and Mr. Jamie Duong live in the United States for work and educational purposes but maintain close ties to Canada. The impugned provisions of the Canada Elections Act held that citizens who had resided outside of Canada for more than five consecutive years were not able to vote in federal elections until they resumed residence in Canada. This provision was recently repealed by the government, and the Supreme Court decision has made the residence limitation on voting rights unconstitutional.

The application judge sided with the applicants in 2014, finding that the residence requirement infringes section 3 of the Charter and was not saved under section 1. On appeal to the Court of Appeal, the Attorney General of Canada conceded that the provision breached section 3 but argued that it was a justified infringement for the sake of the Canadian “social contract.” The appeal was allowed.

In his reasons Wagner CJ, writing for a 5-2 majority, emphasized that any intrusions on the core democratic right to vote must be reviewed on the basis of a stringent justification standard (para 25). He found that residence is not mentioned in the section 3 guarantee or established as essential to the right to vote in the jurisprudence. “The Charter tethers voting rights to citizenship, and citizenship alone” (para 29).

Under the section 1 analysis, Wagner CJ dismissed the Attorney General’s social contract argument as a vague and ill-suited objective to withstand the rigours of a section 1 justification. He quotes the Asper Centre’s factum in laying out the argument’s analytical failings, holding that using the social contract as an objective collapses any distinction between legislative means and ends (para 53).

The real downfall of the government’s case was at the minimal impairment stage. The Court held that the limit was over-inclusive and that no correlation had been shown between time lived abroad and subjective commitment to Canada. The Court held that we live in a globalized society and that the ability of citizens living abroad to remain connected to Canada is “unprecedented.” Non-residents, like the applicants, are able to maintain deep “political, familial, financial or cultural” roots in Canada (para 69). The limit was held to undermine, rather than promote, the underlying objective of electoral fairness in Canada. The Court found that our democracy is “manifestly strengthened” by the demonstration of civic commitment of Canadian citizens abroad voting via special ballot (para 75). Denying non-residing citizens the right to vote was understood as coming at the expense of their dignity and self-worth.

In a concurring judgement, Rowe J held that the residency requirement is not trivial and is firmly rooted in Canada’s representative democracy model (para 90). While finding that the limit on section 3 was not justified in this case, Rowe J held that the possibility of voting limits based on residence should not be entirely ruled out.

In their dissent, Cote and Brown JJ held that the decision is regressive and undoes a long-standing Westminster tradition of privileging local connections in electing local representatives.

Jasmit de Saffel  is a 1L JD Candidate at the Faculty of Law and is the current Asper Centre work-study student