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

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. 

Mary Birdsell selected as new Constitutional Litigator in Residence

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

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.

Asper Centre ED joins forces with child rights advocates to call for the safety of Canadian children deprived of their liberty during COVID-19

On May 6th 2020, a group of child rights organizations, lawyers and advocates from across Canada, including Asper Centre ED Cheryl Milne, joined forces to advocate for the rights of children in detention during the Covid-19 pandemic.

The group addressed their concerns in an open letter to the Minister of Justice and Attorney General of Canada. Their letter urges Canada to do its utmost during the COVID-19 pandemic to protect the rights, health, and well-being of young people who interact with the justice system.

The organizations and advocates based many of their recommendations on the Alliance for Child Protection in Humanitarian Action’s recently published Technical Note on COVID-19 and Children Deprived of their Liberty, which provides detaining authorities with key information and steps to respond to COVID-19.

The group is calling on government to pursue all efforts to divert youth from institutions during the pandemic and to actively seek the release and reintegration of youth who are currently detained, whenever possible. Further, they are urging for greater transparency about the health and well-being of young people in the justice system and the necessary oversight, as advocates and organizations have not been able to enter institutions to check in on youth and the conditions of their detention during this time.

Ms. Milne co-wrote the letter with Rowena Pinto (UNICEF Canada), Rachel Gouin (Child Welfare League of Canada), Shawn Bayes (Elizabeth Fry Society of Greater Vancouver), Mary Birdsell (Justice for Children and Youth), Heather Sago (Murray McKinnon Foundation) and Senator Kim Pate. Ms. Milne is the past Chair of the Canadian Coalition for the Rights of Children and Justice for Children and Youth.

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.