Fitzgerald et al. v. Alberta, (2002) 331 A.R. 111 (QB)

• Judge: Lefsrud, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 22, 2002
• Citations: (2002), 331 A.R. 111 (QB);2002 ABQB 1086

Fitzgerald v. Alta. (2002), 331 A.R. 111 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.086

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

(Action No. 0103 16843; 2002 ABQB 1086)

Indexed As: Fitzgerald et al. v. Alberta

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lefsrud, J.

December 12, 2002.

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 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.

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General - Scope of - The Alberta Court of Queen's Bench rejected the argument that s. 3 of the Charter contained its own internal limitations - The court stated that "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 ... 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." - See paragraphs 12 to 18.

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 Alberta Court of Queen's Bench held that s. 16(b) violated the right to vote (Charter, s. 3) - See paragraphs 11 to 19 - However, the court held that the violation was justified under s. 1 - See paragraphs 49 to 76.

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 Alberta Court of Queen's Bench 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 court, inter alia, rejected the argument that s. 15(1) was not engaged because the applicants were only temporarily restricted from voting - See paragraphs 20 to 48 - However, the court held that the violation was justified under s. 1 - See paragraphs 49 to 76.

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 Alberta Court of Queen's Bench 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 court 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 - See paragraphs 49 to 76.

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 ].

Elections - Topic 2051

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

Cases Noticed:

Badger et al. v. Manitoba (1986), 39 Man.R.(2d) 107; 30 D.L.R.(4th) 108 (Q.B.), not folld. [para. 12].

Dixon v. British Columbia (Attorney General) (1989), 59 D.L.R.(4th) 247 (B.C.S.C.), refd to. [para. 14].

Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161; 81 D.L.R.(4th) 16, refd to [para. 14].

Belczowski v. Canada, [1991] 3 F.C. 151; 42 F.T.R. 98 (T.D.), affd. 132 N.R. 183 (F.C.A.), affd. [1993] 2 S.C.R. 438; 153 N.R. 242; 64 O.A.C. 124, refd to. [para. 14].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 16].

Reid et al. v. Canada (1994), 73 F.T.R. 290 (T.D.), refd to. [para. 17].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 20].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 26].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 29].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241; 95 D.L.R.(4th) 439, refd to. [para. 41].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1 (S.C.C.), refd to. [para. 49].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 60].

Statutes Noticed:

Election Act, R.S.A. 2000, c. E-1, sect. 16(b) [para. 7].

Local Authorities Election Act, R.S.A., 2000, c. L-21, sect. 47(1)(a) [para. 8].

Authors and Works Noticed:

Mitchell, John J., Why 16-year-olds cannot serve as rational and informed voters in a democracy (October 2001), generally [para. 5].

Counsel:

Charles B. Davison, for the applicants;

Bonnie Commandeur, for the respondent.

This application was heard on October 22, 2002, by Lefsrud, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 12, 2002.