Fitzgerald et al. v. Alberta,

• Judge: Costigan,Picard,Sirrs
• Neutral Citation: 2004 ABCA 184
• Subject Matter: ELECTIONS,CIVIL RIGHTS,PRACTICE,COURTS
• Citation: 2004 ABCA 184,(2004), 348 A.R. 113 (CA),348 AR 113,(2004), 348 AR 113 (CA),348 A.R. 113
• Date: 13 May 2004
• Court: Court of Appeal (Alberta)

Fitzgerald v. Alta. (2004), 348 A.R. 113 (CA);

    321 W.A.C. 113

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JN.001

Eryn Fitzgerald and Christine Jairamsingh, by their next friend Mark Cherrington (appellants/applicants) v. Her Majesty the Queen in Right of Alberta (respondent/respondent)

(0303-0076-AC; 2004 ABCA 184)

Indexed As: Fitzgerald et al. v. Alberta

Alberta Court of Appeal

Picard and Costigan, JJ.A. and Sirrs, J.(ad hoc)

May 13, 2004.

Summary:

Section 16(b) of the Elections Act (Alta.) prohibited anyone under the age of 18 from voting in provincial elections. Section 47(1)(a) of the Local Authorities Elections Act (Alta.) prohibited anyone under the age of 18 from voting in municipal elections. The applicants applied for a declaration that s. 16(b) violated their right to vote under s. 3 of the Charter. They also sought a declaration that s. 16(b) and s. 47(1)(a) violated their equality rights under s. 15(1) of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at 331 A.R. 111, held that s. 16(b) violated the applicants' right to vote. Further, ss. 16(b) and 47(1)(a) violated their equality rights. However, the violations were justified under s. 1 of the Charter. The applicants appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 124

Voting and other democratic rights - Right to vote - Age requirements - Section 16(b) of the Elections Act (Alta.) prohibited anyone under the age of 18 from voting in provincial elections - The trial judge held that s. 16(b) violated the right to vote (Charter, s. 3) - However, the trial judge held that the violation was justified under s. 1 - The Alberta Court of Appeal dismissed an appeal - See paragraph 9.

Civil Rights - Topic 5658.2

Equality and protection of the law - Particular cases - Restrictions on right to vote - Section 16(b) of the Elections Act (Alta.) prohibited anyone under the age of 18 from voting in provincial elections - Section 47(1)(a) of the Local Authorities Elections Act (Alta.) prohibited anyone under the age of 18 from voting in municipal elections - The applicants argued that the age criteria for voting eligibility violated their s. 15(1) Charter right to equality - The Crown conceded that the applicants were subject to differential treatment based on the enumerated ground of age - The trial judge held that the age criteria violated s. 15(1) because it promoted the view that citizens under the age of 18 were less capable or worthy of recognition as members of Canadian society - The trial judge, inter alia, rejected the argument that s. 15(1) was not engaged because the applicants were only temporarily restricted from voting - However, the trial judge held that the violation was justified under s. 1 - The Alberta Court of Appeal dismissed the applicants' appeal - See paragraph 9.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - Section 16(b) of the Elections Act (Alta.) prohibited anyone under the age of 18 from voting in provincial elections - Section 47(1)(a) of the Local Authorities Elections Act (Alta.) prohibited anyone under the age of 18 from voting in municipal elections - The trial judge held that s. 16(b) violated the right to vote (Charter, s. 3) and ss. 16(b) and 47(1)(a) violated equality rights (Charter, s. 15(1)) - However, the trial judge held that the provisions were justified under s. 1 of the Charter - The government's objective of ensuring, as much as possible, that individuals eligible to vote had sufficient maturity to make rational and informed decisions was pressing and substantial - The voting restrictions were rationally connected to that objective - An age restriction was necessary and age 18 was an appropriate age at which to draw the line - Finally, the salutary effects of the restriction were proportionate to the deleterious effects - The Alberta Court of Appeal dismissed the applicants' appeal - See paragraph 9.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5658.2 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Section 16(b) of the Elections Act (Alta.) prohibited anyone under the age of 18 from voting in provincial elections - Section 47(1)(a) of the Local Authorities Elections Act (Alta.) prohibited anyone under the age of 18 from voting in municipal elections - The trial judge held that ss. 16(b) and 47(1)(a) violated the applicants' Charter rights, but were justified under s. 1 of the Charter - The applicants appealed - The applicants turned 18 -The Alberta Court of Appeal stated that the three years taken to reach the court was not surprising given the nature of preparation required for a Charter challenge, the parties to be notified and the time required to advance the case - The court agreed to hear the appeal - The court considered the nature of the right in issue, the relatively short time period for it to be advanced and the Crown's position that it would not argue that the appeal was moot - The court discussed the "unusual challenges" presented in this appeal where it was technically moot - See paragraphs 4 to 8.

Elections - Topic 2051

Voters - Qualifications - Age - [See Civil Rights - Topic 124 , Civil Rights - Topic 5658.2 and Civil Rights - Topic 8348 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 5].

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 5 C.R.(6th) 203; 2002 SCC 68, refd to. [para. 10].

Statutes Noticed:

Election Act, R.S.A. 2000, c. E-1, sect. 16(b) [para. 2].

Local Authorities Election Act, R.S.A., 2000, c. L-21, sect. 47(1)(a) [para. 2].

Counsel:

C.B. Davison, for the appellants;

M. Unsworth, for the respondent.

This appeal was heard on May 13, 2004, by Picard and Costigan, JJ.A., and Sirrs, J.(ad hoc), of the Alberta Court of Appeal. Picard, J.A., delivered the following oral memorandum of judgment for the court on the same date and filed it on May 21, 2004.