Fitzgerald v. Alberta, 2002 ABQB 1086 Date: 2002 1212 Action No. 0103 16843 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: ERYN FITZGERALD and CHRISTINE JAIRAMSINGH, by their next friend MARK CHERRINGTON Applicants - and - HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA Respondent _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE E. S. LEFSRUD _______________________________________________________ APPEARANCES: Charles B. Davison for the Applicants Bonnie Commandeur for the Respondent





INTRODUCTION [1] The Applicants are both Canadian citizens who have lived in Alberta all of their lives. They were both 16 years of age in October 2001 when municipal elections were held across the province, and are now 17. [2] On August 13, 2001, shortly before the municipal elections, the Applicants commenced a Charter challenge to s. 47(1)(a) of the Local Authorities Election Act, R.S.A. 2000, c. E-1, which prevents anyone under the age of 18 from voting in municipal elections. It was not possible to have the application heard before the elections. As a result, the Applicants were unable to vote in those elections. [3] The Originating Notice was amended in September 2001 to include a challenge to s. 16(b) of the Election Act, R.S.A. 2000, c. L-21, which prevents anyone under the age of 18 from voting in provincial elections. [4] The Applicants both swore affidavits attesting to their involvement in community and political affairs. Mark Cherrington, who is bringing this application as their next friend also swore an affidavit attaching information about the qualifying age for membership in the various political parties, articles reporting the results of national historical surveys conducted in 2000 and 2001, and statistics printed from the Department of Education of Alberta’s website. [5] The only evidence presented by the Crown was a report entitled Why 16-year-olds cannot serve as rational and informed voters in a democracy prepared in October 2001 by Dr. John J. Mitchell, a professor of Education Psychology specializing in adolescent psychology and cognition [“the Report”]. [6] The Applicants objected to the Report on the ground that the Crown did not give any evidence of the intention of the Legislature at the time it passed the impugned legislation. They submitted that before any use could be made of the Report, the actual goals of the legislature would have to be proven. This objection will be dealt with when I consider the use to be made of the Report in my s. 1 analysis. LEGISLATIVE PROVISIONS [7] The relevant portions of s. 16 of the Election Act provide: 16 ...a person is eligible to have the person’s name included on a list of electors if that person... (b) is at least 18 years of age... [8] Section 47(1) of the Local Authorities Election Act states:





47(1) A person is eligible to vote in an election held pursuant to this Act if the person (a) is at least 18 years old... CHARTER PROVISIONS [9] The following sections of the Charter are at issue: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ISSUES [10] The issues raised in this application are: 1. Does the age criterion for voting eligibility in s. 16 (b) of the Election Act violate s. 3 of the Charter? 2. Do the age criteria for voting eligibility in s. 16(b) of the Election Act and s. 47(1)(a) of the Local Authorities Election Act violate s. 15(1) of the Charter? 3. If violations of ss. 3 and 15(1) of the Charter are found, are these violations justifiable under s. 1 of the Charter? ANALYSIS 1. Does the age criterion for voting eligibility in s. 16 (b) of the Election Act violate s. 3 of the Charter? [11] The Applicants submit that the age restriction from voting in provincial elections in s. 16(b) of the Election Act is a prima facie violation of their s. 3 Charter rights, given the clear wording “every citizen” in s. 3.





[12] The Crown submits that s. 3 contains its own internal limitations, namely that not every citizen has the right to vote, but only those who meet the other two basic criteria of the franchise: residence and age. The Crown relies on Badger v. A.-G. Manitoba (1986), 1986 CanLII 3989 (MB CA), 30 D.L.R. (4th) 108 (Man. Q.B.), in which Scollin J. stated at 112: The right to vote presupposes certain attributes of the voter which are inherent but not expressed in s. 3. These are qualities of the right, not limitations on it and they may quite properly be the subject of re-evaluation by lawmakers without resort to s. 1. Thus, just as the basic conditions of citizenship are outside the Charter, so the law governing elections must spell out residence and age requirement. It is pedantic to classify these as limits. They are simply the rational dimensions of the right. Of course, whoever sets the boundary also limits the field, and an issue under s. 1 of the Charter arises as soon as the law moves from standard qualification to selective disqualification. [13] This approach has been rejected by several courts, including the Supreme Court of Canada. [14] Section 3 clearly contains no limitations on the right to vote, other than citizenship. While the content of the right to vote might be subject to interpretation (Dixon v. British Columbia (Attorney-General (1989), 1989 CanLII 248 (BC SC), 59 D.L.R. (4th) 247 (B.C.S.C.); Reference re Provincial Election Boundaries, 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158 (S.C.C.)), the words “every citizen” are clear. Any limitation on those words constitutes a breach of s. 3, which must then be justified under s. 1. This was explicitly stated by Strayer J. in Belczowski v. Canada, [1991] 3 F.C. 151 (T.D.) at 159: It is quite clear in section 3 who are the holders of the right ("every citizen of Canada") and what they are thereby entitled to do ("to vote in an election of the members of the House of Commons ... ."). I am not deterred in this finding by the argument of the defendant that the section cannot be applied literally because there are some, such as infants, who clearly should not have the right to vote. I do not need to define here who may properly be denied the vote; that issue must be determined in each case under section 1 of the Charter. [15] On appeal, the Federal Court of Appeal stated that Strayer J.’s reasons on this point were “above reproach” ((1992), 132 N.R. 183, at 185-6). On further appeal to the Supreme Court of Canada, Iacobucci J. noted that the Attorney General of Canada “properly conceded” the issue of whether s. 3 was contravened (1993 CanLII 92 (SCC), [1993] 2 S.C.R. 438, at 439).





[16] In Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, LaForest J. confirmed this approach to s. 3, stating at para. 30, “[i]n interpreting the right to vote under s. 3 this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter.” [17] In Reid v. Canada (1994), 73 F.T.R. 290, Noël J. specifically considered the passage from Badger quoted above and stated, at 298: With respect for the view so expressed, it seems that whether the voting age requirement is described as a “reasonable restriction” or a “rational dimension” of the constitutional right to vote, it nevertheless stands as a limit to this right which must, in order to be saved, be justified under s. 1. [18] I note here that the distinction between “standard qualification” and “selective disqualification” urged by the Crown is as meaningless, to use an everyday example, as the distinction between a cup that is half-empty and a cup that is half-full. Barring minors from voting can be framed as either a standard qualification or a selective disqualification, depending on how you word it: “Voters must be 18 or over” is a standard qualification, and “All people may vote except those under 18” is a selective disqualification. As such, an age restriction cannot be justified without a s. 1 analysis simply because it is termed a standard qualification. [19] For these reasons, I find that s. 16 (b) of the Election Act violates s. 3 of the Charter. 2. Do the age criteria for voting eligibility in s. 16(b) of the Election Act and s. 47(1)(a) of the Local Authorities Election Act violate s. 15(1) of the Charter? [20] The Supreme Court of Canada decision in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 is the leading case on s. 15(1). Law involved a challenge to pension plan provisions which prevent a surviving spouse who is under the age of 35 at the time of the contributor’s death from receiving, until she reaches the age of 65, benefits which are available to those who are over the age of 35 at the time of the contributor’s death. Law sets out the inquiry to be followed in considering whether s. 15(1) Charter rights have been violated, at para. 88: A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and





C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? [21] The Crown concedes that the Applicants are subject to differential treatment based on the enumerated ground of age. Therefore, the central question is whether this differential treatment constitutes discrimination. In making that determination, the focus is on whether the legislation interferes with the Applicants’ dignity. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society (Law, at para. 53). [22] The focus of the discrimination inquiry is both subjective and objective: would a reasonable person, in circumstances similar to those of the claimant, taking into account the contextual factors relevant to the claim, conclude that the age distinction reflects a stereotypical application of group characteristics or promotes the view that minors are less capable or worthy of recognition (Law, at para. 88)? [23] The Applicants submit that the legislation clearly interferes with their dignity because it prevents them from participating as full citizens in our democratic society. They emphasize the following portion of Law which reiterates the purpose of s. 15(1), at para. 43: ...the equality guarantee was designed to prevent the imposition of differential treatment that was likely to ‘inhibit the sense of those who are discriminated against that Canadian society is not [sic] free or democratic as far as they are concerned’... [24] They submit that casting a ballot in an election is a central, if not the main, feature of our democratic system. They argue that denying them the right to vote is certainly likely to inhibit the sense that Canadian society is democratic as far as they are concerned. [25] The Applicants point out that the nature of the interest affected is one of the factors set out in Law to be considered in determining whether the legislation interferes with the Applicants’ dignity. The Court confirmed, at para. 74, earlier decisions which placed special emphasis upon “the constitutional and societal significance attributed to the interest or interests adversely affected” and indicated that it would be particularly relevant if the distinction in question “affects ‘a basic aspect of full membership in Canadian society.’”





[26] The Applicants also point to s. 3, which gives every citizen the right to vote in federal and provincial elections, in their s. 15(1) argument. They submit that it is proper to consider other rights and freedoms which may be associated with the one being interpreted in order that the various provisions of the Charter are interpreted in a consistent and coherent manner, citing R. v. Big M Drug Mart, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. In Law, the Supreme Court of Canada confirmed that the purpose of s. 15(1) is to be sought by reference to the character and the larger objects of the Charter itself, and to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter (at para. 40). Since any restriction on the s. 3 right to vote in federal and provincial elections must be justified under s. 1, the Applicants argue that the same should be true of a restriction on voting that is a distinction on an enumerated ground under s. 15(1), whether for a provincial or a municipal election. [27] The Crown responds that the age qualification for voting is not discriminatory because: (a) Age is different from the other enumerated grounds of s. 15(1) because it corresponds with ability; (b) The chosen age of 18 functions not by device of stereotype, but corresponds, albeit imperfectly, to a substantive difference between children and adults; and (c) It applies to everyone no matter what religion, colour, social origin, nationality or gender, so it does not suggest that the Applicants are undeserving or less worthy as persons. [28] I will consider each of these arguments in turn. (a) The correspondence between age and ability [29] On this point, the Crown cites a passage from McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at 297: ...It must not be overlooked, however, that there are important differences between age discrimination and some of the other grounds mentioned in s. 15(1). To begin with there is nothing inherent in most of the specified grounds of discrimination, e.g., race, colour, religion, national or ethnic origin, or sex that supports any general correlation between those characteristics and ability. But that is not the case with age. [30] The Crown does not clearly articulate how this should influence the s. 15(1) analysis in this case. The above quote appears in McKinney in the context of a preliminary discussion to the s. 1 analysis, after the s. 15(1) analysis had been completed, suggesting that this consideration does not come into play in s. 15(1).





[31] I note that the professor claimants in McKinney did not have to prove that they had the ability to continue teaching in order to establish that mandatory retirement provisions violated their s. 15(1) rights. Rather, since a distinction drawn on an enumerated ground took away their employment, an essential component of their sense of identity, self-worth and emotional well-being, all the members of the court were of the opinion that there was a violation of s. 15(1). Ability, or lack thereof, did not play any role in the analysis. Although there were differences of opinion as to whether the Charter applied in the case, McKinney has been consistently relied upon as the authority on mandatory retirement. (b) Substantive difference between minors and adults [32] The Crown argues that it is not stereotypical to use age to distinguish between two groups where the age corresponds, albeit imperfectly, to a substantive difference between two groups. The Crown relies on para. 102 of Law: Given the contemporary and historical context of the differential treatment and those affected by it, the legislation does not stereotype, exclude, or devalue adults under 45. The law functions not by the device of stereotype, but by distinctions corresponding to the actual situation of individuals it affects. By being young, the appellant, a fortiori, has greater prospect of long-term income replacement. [33] The Crown is also clearly relying on paras. 105-6 of Law in which Iacobucci J. states that he does not wish to imply that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter. [34] The Crown cites numerous cases and statutes to support its position that there is a substantive difference between persons over and under the age of 18. The Crown also makes reference, in this regard, to the Report. [35] In my view, the cases and the Report cannot be used in this way by the Crown, because the Crown has failed to properly characterize the inquiry. The question to be determined is whether the law “functions, not by the device of stereotype, but by distinctions corresponding to the actual situation of the individuals it affects,” as quoted above from para. 102 of Law. [36] The question of whether a distinction is stereotypical is not answered by reference to cases which have upheld distinctions between minors and adults in other situations. The fact that many other statutes draw a distinction at age 18 is also irrelevant. Even a report which addresses the emotional-mental abilities associated with voting, and contains an expert opinion that 16 and 17 year olds generally do not have sufficient abilities to vote, is of limited use. [37] The actual situation of the Applicants must be examined in order to determine whether the age distinction made in the legislation corresponds to their actual situation in this case. As stated in Law at para. 66:





The Charter guarantees equality rights to individuals...and infringement of s. 15(1) may...exist even if there is no one similar to the claimant who is experiencing the same unfair treatment. [38] In Law, Iacobucci J. made a finding, in para. 102, on the actual situation of Nancy Law, namely that she had a greater prospect of long-term income replacement by virtue of being young. [39] In this case, the Applicants did not try to establish that the age restriction on voting does not correspond with their actual situation, namely that they have the same ability to cast a vote as persons over the age of 18. Instead, they relied on the argument that the drawing of the line at the age of 18, in itself, has the effect of promoting the view that minors are less capable or worthy of recognition as members of Canadian society. It is clear from Law that this is sufficient, at para. 64: I emphasize, then, that any demonstration by a claimant that a legislative provision or other state action has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society (whether or not it involves a demonstration that the provision or other state action corroborates or exacerbates an existing prejudicial stereotype), will suffice to establish an infringement of s. 15(1). [40] As set out below, I am persuaded by the Applicants in this regard. Therefore, the difficulties associated with determining voting ability are avoided under s. 15(1), but remain to be dealt with under s. 1, where the burden switches to the Crown. (c) Youth as a temporary and universally experienced stage in a person’s life cycle [41] The Crown submits that the age restriction on voting does not promote the view that the Applicants are less capable or worthy of recognition as members of Canadian society because it simply means that the Applicants must wait to vote until they are adults, like every other citizen of Canada. The Crown relies, for this argument, on a statement from Dickason v. University of Alberta (1992), 1992 CanLII 30 (SCC), 95 D.L.R. (4th) 439 (S.C.C.), at 499, a human rights legislation case, and on para. 107 of Law which states:





In conclusion with respect to the particular circumstances of the appellant's case, I would also note that people in the position of the appellant are not completely excluded from obtaining a survivor's pension, although it is delayed until the person reaches age 65 unless they become disabled before then. The availability of the pension to the appellant strengthens the conclusion that the law does not reflect a view of the appellant that suggests she is undeserving or less worthy as a person, only that the distribution of the benefit to her will be delayed until she is at a different point in her life cycle, when she reaches retirement age. [42] I find that the above reasoning does not apply in the context of this case. [43] The nature of the interest affected is an important contextual factor to consider in a s. 15(1) analysis (Law, at para. 88). As submitted by the Applicants, the nature of the interest affected here is central to membership in a democratic society. Restricting minors from voting is clearly likely to inhibit their sense that Canadian society is democratic as far as they are concerned (Law, at para. 43). [44] Moreover, the reasoning behind the restriction, that minors are unable to make rational and informed decisions and therefore cannot be entrusted with the franchise, goes straight to the purposes of s. 15(1). The message is explicit that minors are less capable and less worthy of recognition. While the view that minors should not be entrusted with the franchise because they in fact do not have the ability to vote might be justified, such justification is more appropriately performed, at least in this case, under s. 1, as was the case in McKinney. [45] In contrast, the purposes of s. 15(1) were not engaged in Law because Law involved a challenge by a member of an advantaged group to ameliorative legislation designed to benefit a disadvantaged group. Nancy Law was denied a benefit because she was found to be more able by virtue of her relative youth. [46] The argument that s. 15(1) is not engaged because the Applicants are only temporarily restricted from voting cannot be accepted. To accept this argument would reduce the enumerated ground of age to protecting only those who are discriminated against on the basis that they are too old, since discrimination on the basis that a person is too young is, by its very nature, time-limited. [47] I also note that decisions made in elections have impact far beyond the day or year in which the election takes place. Representatives chosen in elections make decisions on their electorate’s behalf for several years, and the decisions made in those years have effects for many years, even decades, to come. [48] I find that a reasonable person, in circumstances similar to those of the Applicants, taking into account the contextual factors relevant to the claim, would conclude that the age distinction promotes the view that they are less capable or worthy of recognition as members of Canadian society.





3. Are the violations of ss. 3 and 15(1) of the Charter justifiable under s. 1 of the Charter? A. Introduction [49] Since this case was argued, the Supreme Court of Canada issued its reasons in Sauvé v. Canada (Chief Electoral Officer) 2002 SCC 68, striking down a provision in the Canada Elections Act which disqualified persons imprisoned in correctional institutions serving sentences of two years or more from voting in federal elections. McLachlin C.J., for the majority, prefaced her s. 1 analysis with a discussion of the proper approach to s. 1 justification in s. 3 cases. She stated, at para. 9: The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination. This is not a matter of substituting the Court's philosophical preference for that of the legislature, but of ensuring that the legislature's proffered justification is supported by logic and common sense. [50] She rejected the “range of acceptable alternatives” analysis, and instead approved of a stringent justification standard, at paras. 13-14: The core democratic rights of Canadians do not fall within a "range of acceptable alternatives" among which Parliament may pick and choose at its discretion. Deference may be appropriate on a decision involving competing social and political policies. It is not appropriate, however, on a decision to limit fundamental rights. This case is not merely a competition between competing social philosophies. It represents a conflict between the right of citizens to vote - one of the most fundamental rights guaranteed by the Charter -- and Parliament's denial of that right.... It is for the courts, unaffected by the shifting winds of public opinion and electoral interests, to safeguard the right to vote guaranteed by s. 3 of the Charter. Charter rights are not a matter of privilege or merit, but a function of membership in the Canadian polity that cannot lightly be cast aside. This is manifestly true of the right to vote, the cornerstone of democracy, exempt from the incursion permitted on other rights through s. 33 override. Thus, courts considering denials of voting rights have applied a stringent justification standard: Sauvé v. Canada (Attorney General) (1992), 1992 CanLII 2786 (ON CA), 7 O.R. (3d) 481 (C.A.) ("Sauvé No. 1"), and Belczowski v. Canada, 1992 CanLII 8580 (FCA), [1992] 2 F.C. 440 (C.A.). [51] She then addressed the application of this stringent justification standard, at para. 18:





While deference to the legislature is not appropriate in this case, legislative justification does not require empirical proof in a scientific sense. While some matters can be proved with empirical or mathematical precision, others, involving philosophical, political and social considerations, cannot. In this case, it is enough that the justification be convincing, in the sense that it is sufficient to satisfy the reasonable person looking at all the evidence and relevant considerations, that the state is justified in infringing the right at stake to the degree it has: see RJR-MacDonald, supra, at para. 154, per McLachlin J.; R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, at pp. 502-3, per Sopinka J. What is required is "rational, reasoned defensibility": RJR-MacDonald, at para. 127. Common sense and inferential reasoning may supplement the evidence: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 78, per McLachlin C.J. However, one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s. 1. [52] The stringent test set out in Sauvé would only necessarily apply to s. 16(b) of the Election Act, since s. 3 of the Charter only covers provincial elections. However, since s. 47(1)(a) of the Local Authorities Election Act also involves voting rights, does not involve a competition between the interests of two groups, and is not legislation with an ameliorative purpose, I find that very little deference is owed to the legislature with respect to it as well. B. Pressing and Substantial Objective [53] The first step of the s. 1 analysis entails a determination of the objective which the limiting measures seek to accomplish, and whether that objective is “pressing and substantial” to the point where its importance might justify overriding a constitutional right. [54] The Crown did not present any evidence of the objective the legislature had in mind at the time that s. 16 of the Election Act and s. 47 of the Local Authorities Election Act were passed. The amendments setting the voting restrictions at age 18 were passed in 1969, before legislative debates were published in the Alberta Hansard, and no other evidence of the legislative debates was tendered. The statutes themselves do not explicitly set out their objectives. The Applicants argued that this is fatal to the s. 1 justification. I do not agree. [55] In this case, it is possible, in the absence of direct evidence of the intention of the legislature, to determine the objective of the challenged provisions by reference to the statutes themselves. Both provisions are located in statutes which set out the procedures for conducting elections. Both provisions contain the same three requirements which must be met for a person to be eligible to vote: citizenship, residency, and age. The citizenship and residence requirements are clearly intended to ensure that only those who have a stake in the results of the election may vote.





[56] The objective of the age requirement is similarly clear if one considers that, in the absence of an age requirement, babies meeting the citizenship and residency requirements would be eligible to vote. In drawing the line at age 18, it is clear that the legislature’s objective was to ensure, as much as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government. A rational and informed electorate is essential to the integrity of the electoral process, the maintenance of which is “always of pressing and substantial concern in any society that purports to operate in accordance with the tenets of a free and democratic society” (Harvey, supra, at para. 38). [57] Therefore, I find that the government’s objective of ensuring, as much as possible, that individuals eligible to vote will have sufficient maturity to make rational and informed voting decisions is pressing and substantial. B. Proportionality i. Introduction [58] At this stage, the Crown must establish that the denial of the right will promote the asserted objective (the rational connection test); that the denial does not go further than reasonably necessary to achieve its objective (the minimal impairment test); and that the overall benefits of the measure outweigh its negative impact (the proportionate effect test). ii. Preliminary comment on the Report [59] Since I have decided that it is clear from the face of the statutes that the legislature’s objective was the maintenance of a rational and informed electorate, the Report, which addresses the capacity of youth to cast a rational and informed vote, is relevant and admissible. I have reviewed the Report for the purposes of the s. 1 analysis. iii. Rational Connection [60] Evidence is not necessary to establish a rational connection between the denial of the right to vote to minors and the objective of ensuring, as much as possible, that individuals eligible to vote will have sufficient maturity to make rational and informed voting decisions. This connection may be established on the basis of reason and logic (RJR-Macdonald Inc. v. Canada (Attorney-General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 154). [61] It is a basic fact that children become more mature as they get older, and that 18 year olds, with more years of experience, are more likely to serve as rational and informed voters than younger individuals with less experience. This fact is recognized in the Report at pages 4-7. [62] This fact was also recognized by McLachlin C.J. in Sauvé in her rejection of the government’s analogy between youth voting restrictions and inmate disenfranchisement in that case. In para. 37 she implied that a youth voting restriction is a legitimate voting regulation because “...Parliament is making a decision based on the experiential situation of all citizens when they are young.”





[63] I find that the voting restrictions are rationally connected to the legislature’s goal of ensuring, as much as is possible, that voters are sufficiently mature to cast a rational and informed vote. iv. Minimal Impairment [64] At this stage, the Crown must establish that the voting restrictions impair the right to vote and the right to equality as little as reasonably possible in order to achieve the objective. [65] The Crown’s argument on this point was based on a reasonable alternatives analysis with an emphasis on the deference owed to the legislature. In light of the approach to the s. 1 analysis adopted in Sauvé, supra, that type of argument is no longer appropriate. [66] The Applicants argued that the voting restrictions do not pass the minimal impairment test because they are not tailored to relate to a potential voter’s actual ability, and therefore exclude some people under 18 who would be able to cast a rational and informed vote. The Applicants argued that it is not for the court to find a reasonable alternative means; that is the job of the legislature. [67] The Applicants’ argument on this point does not take into account the word “reasonably” which occurs in every formulation of the minimal impairment test. The concept of reasonableness mandates, at least in this context, that the court consider whether the way that the government has chosen is the only workable way to attain that objective. [68] Common sense and inferential reasoning, which must be used when matters cannot be proved with empirical precision (Sauvé, supra), dictate that an age-based voting restriction is necessary. It is clear that some restriction is necessary since newborns and young children clearly do not have sufficient maturity to cast a rational and informed vote. Since there is no test to determine voting ability, as indicated in the Report at page 27 and acknowledged by the Applicants, individual evaluation of every potential voter is not even an option, leaving aside practical and budgetary considerations. Completion of high school, financial independence, and marriage are other possible indicators of maturity, but none of these are necessarily connected to the ability to cast a rational and informed vote. [69] Since an age-based voting restriction is necessary, the only matter remaining to be considered is whether setting the age at 18, rather than 16, 17 or some other age, impairs the right to vote and the right to equality as little as reasonably possible. Since individuals mature and develop at different rates, and their life experience varies greatly, any reasonable age-based restriction is going to exclude some individuals who could cast a rational and informed vote, and include some individuals who cannot.





[70] Common sense dictates that setting the restriction at age 18 does not go further than necessary to achieve the legislative objective. In general, 18 year olds as a group have completed high school and are starting to make their own life decisions. They must decide whether to continue with their schooling or join the workforce. This often coincides with the decision whether to remain at home with their parents, or move out on their own. It makes sense that they take on the responsibility of voting at the same time as they take on a greater responsibility for the direction of their own lives. Experience is a legitimate consideration in evaluating a voting restriction (Sauvé, at para. 37). [71] Furthermore, it can be assumed that by age 18 most individuals will have completed high school social studies courses giving them some information about our political system and our history as a nation. The completion of these courses gives these individuals important background knowledge for rational and informed voting. [72] I am aware that age 18 does not coincide for every individual with graduation from high school. Some graduate when they are younger than 18, some turn 18 after they graduate, and some do not graduate at all. I am also aware that many individuals are forced to make difficult life choices, such as moving away from home, before graduation from high school. However, as stated above, any age-based restriction will be imperfect in its application, and no other age relates more closely to this relevant changing point in an individual’s life. As such, I am satisfied that 18 is the appropriate age at which to draw the line. v. Proportionate Effect [73] The question at this point of the analysis is whether the salutary effects that actually result from the implementation of the voting restrictions are proportional to the deleterious effects they have on the right to vote and the right to equality. [74] In the context of this case, it is impossible to measure the salutary effects that actually result from the voting restrictions, since the restrictions have always been in place. It is not a situation where a law is enacted in response to a problem that was not previously addressed. In any case, evaluating whether these voting restrictions have resulted in a rational and informed electorate is impossible. The only salutary effect one can point to is that there is a good chance that all those who are casting votes have sufficient maturity to cast a rational and informed vote. [75] There are clear deleterious effects resulting from the voting restrictions. Some individuals under the age of 18, who are sufficiently mature to cast a rational vote and who are interested in voting, are denied the right to vote. [76] Weighing the deleterious effects against the salutary one, I am satisfied that they are proportionate. While it is a serious infringement to deny individuals the right to vote when they are sufficiently mature to cast a rational and informed vote, as stated above, it is the necessary result of the only reasonably effective means to ensure that there is a good chance that all those who are casting votes are sufficiently mature. Maintaining the integrity of the electoral system is sufficiently important to justify the infringement.



