Senator Plett Speaks at the Second Reading of Bill S-201
Honourable senators, I’m rising to speak to Bill S-201, voting age, as the opposition critic to this legislation. It has been adjourned in Senator Dean’s name, and of course, if he would like it to be adjourned in his name again, I would be happy with that, but I will leave that for him to decide.
Colleagues, on October 23, 1969, the government of Pierre Elliott Trudeau lowered the voting age from 21 to 18. Although the change was made with little public consultation, it was broadly accepted as the right decision.
There were numerous factors that contributed to the ease with which this change was made. For starters, over 700,000 military personnel under the voting age of 21 were already permitted to vote due to their military service.
In addition, many provinces had been moving in this direction for some time. Alberta had lowered its provincial voting age to 19 back in 1944. Saskatchewan had changed theirs to 18 in 1945. British Columbia followed suit, lowering theirs to 19 in 1952, followed by Quebec, Prince Edward Island and Manitoba who all reduced their voting age to 18.
By the time the federal government changed the general voting age, it was far from a radical idea. But while the change in the general voting age from 21 to 18 took more than 100 years to transpire, it took less than two decades before a push began to see the voting age lowered even further — to the age of 16.
It’s not clear what initially fuelled the efforts to see the voting age reduced to 16, but between 1969 and 1989 a significant development had taken place in Canada. We now had a Charter of Rights and Freedoms.
The Charter had given every citizen of Canada the right to vote in an election. This meant that, as explained in the 1991 report of the Royal Commission on Electoral Reform and Party Financing, the Charter had shifted the onus of the argument from “Why should we change the voting age?” to “Why should we not?”
In 1969, a case had to be made to extend the franchise. But now, as the report noted in 1991, “. . . a case must be made to restrict the franchise.” Since every Canadian now had the Charter right to vote, the shoe was on the other foot.
The Royal Commission on Electoral Reform — known as the “Lortie Commission” — was the first to tackle the question: Why 18 and not 16?
According to the commission, when the government lowered the voting age from 21 to 18, three things were considered. The first was the question of the extent to which those to be enfranchised had a stake in the governance of society. The second was the extent to which they could be expected to exercise a mature and informed vote. And the third was their level of participation in activities of citizenship.
The commission then applied these same criteria to the idea of lowering the voting age further, from 18 to 16. On the first criterion of the extent to which 16-year-olds had a stake in the governance of society, the commission said:
The nature and extent of ’adult’ responsibilities entrusted to those under 18 are considerable. In 1990, for instance, almost 50 per cent of Canada’s 700 000 16- and 17‑year‑olds were in the work force; close to 50 per cent of 16‑year‑olds filed income tax returns. Rights and responsibilities are also conferred on 16-year-olds under provincial laws on social and employment policy. The ability to obtain a driver’s permit is one example.
On the second criterion, the extent to which 16- and 17‑year‑olds could be expected to exercise a mature, informed vote, they noted:
. . . by the age of 15 or 16, most young people have acquired a view of the social and political world that is not significantly different from the perceptions and understanding of adults. In addition, although the amount and depth of civics education vary between and within provinces, courses are now generally offered in high schools across the country. . . . Moreover, as with the rest of the population, today’s youth have more sources of information on current affairs than was the case even two decades ago. Thus, in terms of political competence, 16 could be just as defensible an age as 18.
And on the third criterion, the level of participation of 16- and 17-year-olds in activities of citizenship, they noted the following:
The third criterion, responsible citizenship, raises the question of whether young people generally act responsibly when they participate in public affairs. There is no evidence to suggest that they act otherwise. Research on their political attitudes indicates that they tend to be less cynical about the political process and are more likely than older persons to have a sense of political efficacy — a feeling that participating in the political process is meaningful and worthwhile.
And yet, colleagues, even after acknowledging these positive qualities of 16- and 17-year-olds, the commission still came to the following conclusion:
These arguments for lowering the voting age to 16 constitute the best case for this proposal, but they are not sufficiently compelling. Ultimately, any decision on the voting age involves the judgement of a society about when individuals reach maturity as citizens. Under most statutes, a person is not considered an adult until age 18; for example, a person under 18 is not an adult for purposes of criminal proceedings unless special application is made under the Young Offenders Act. Further, a minor requires parental consent for many important decisions, including applying for citizenship, getting married and seeking certain medical interventions. As expressed many times at our hearings, there remains a strong conviction that the time has not come to lower the voting age.
The primary point that the commission was making was that, even though all three criteria seem to be met, there was an overwhelming consideration: When do individuals reach maturity as citizens?
The commission did not provide any definitive answers to that question, but rather acknowledged that there was no consensus at that time to lower the voting age further.
Ten years later, in 2001, the question of whether 16- and 17‑year‑olds should be permitted to vote was brought before the courts by two 16-year-old Albertans. In Fitzgerald v. Alberta, Eryn Fitzgerald and Christine Jairamsingh challenged the age restriction’s constitutionality. This was not the first Charter challenge around voting rights, but it was the first one that focused on whether the legislated age limits contravened the rights of Canadians.
In his decision, Justice Lefsrud agreed with the applicants that the age restriction on voting violated their rights under section 3 of the Charter. Section 3 says:
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.
Furthermore, as the justice pointed out, if “every citizen” has the right to vote, then legislation that limits that right to those 18 or over is a violation of this Charter right. It is not only a violation of the Charter rights of 16- and 17-year-olds but, colleagues, of all Canadian citizens under the age of 18.
Justice Lefsrud also found that the voting age limit violated the rights of the applicants under section 15(1) of the Charter, which reads:
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.
Those who argue that not allowing 16-year-olds to vote violates their Charter rights are correct; on that there is no debate. However, as many Canadians learned during the pandemic, Charter rights are not absolute. They are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In his deliberations in the 2002 Fitzgerald v. Alberta case, Justice Lefsrud had the advantage of decisions made in previous cases challenging the legislated limitations on voting rights. These limitations had already been tested by the courts, most notably in the 2002 case of Sauvé v. Canada (Chief Electoral Officer), when the Supreme Court of Canada struck down the prohibitions on the rights of prisoners to vote.
In Sauvé v. Canada (Chief Electoral Officer), Chief Justice McLachlin noted the following:
The framers of the Charter signaled the special importance of this right not only by its broad, untrammeled language, but by exempting it from legislative override under s. 33’s notwithstanding clause.
The Chief Justice went on to say:
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.
The court was pointing out that not only is the right to vote protected by the Charter, but the language of the right is intentionally and unusually strong and cannot be overridden by governments choosing to use the “notwithstanding” clause.
As you know, the “notwithstanding” clause permits governments to override Charter rights in various matters and has been used many times at the provincial level. However, it cannot be invoked to override voting rights.
Furthermore, while the court often defers to the will of Parliament in its deliberations, Chief Justice McLachlin noted that such deference on the right to vote was not appropriate:
While a posture of judicial deference to legislative decisions about social policy may be appropriate in some cases, the legislation at issue does not fall into this category. To the contrary, it is precisely when legislative choices threaten to undermine the foundations of the participatory democracy guaranteed by the Charter that courts must be vigilant in fulfilling their constitutional duty to protect the integrity of this system.
Colleagues, I point these things out for two reasons, the first of which is to underscore that any limitations on the right to vote are not taken lightly by our courts and should not be taken lightly by parliamentarians. The right to vote is, as the Chief Justice stated, “fundamental to our democracy and the rule of law.”
But, second, these facts are significant to our consideration of Bill S-201 because all of them were taken under consideration in the 2002 Fitzgerald case, when the question of lowering the voting age from 18 to 16 was first considered by the courts.
When he made his ruling in Fitzgerald, Justice Lefsrud had the ruling of Chief Justice McLachlin in his hands. The Sauvé v. Canada decision had been released three months earlier in October of 2002.
And yet, even after noting the Supreme Court’s decision that the voting age limit violated the Charter rights of Canadians under the age of 18, and even after concurring with the observations made by Chief Justice McLachlin about the sanctity and priority of the right to vote, Justice Lefsrud still found that limiting the right to vote to those aged 18 and over was justified under section 1 of the Charter.
Colleagues, the obvious question is: Why did the justice come to this decision, and his analysis in doing so relevant in our deliberations today? On that point, it is interesting to note that those who are advocating today for 16-year-olds to have the right to vote have not strayed far from the same arguments that were made in the 1991 Lortie commission’s report, and in the Fitzgerald case.
Senator McPhedran said in her speech that, “Maturity and social responsibility should play the defining role in deciding whether to allow someone to vote . . . .”
On that point, I agree with Senator McPhedran. The Lortie commission noted the same in 1991, stating:
Ultimately, any decision on the voting age involves the judgement of a society about when individuals reach maturity as citizens.
Justice Lefsrud also echoed this sentiment, saying:
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.
Colleagues, numerous other arguments have been made about why 16-year-olds should be allowed to vote. I would argue that most of them are simply not relevant to our consideration of this issue. For example, consider the argument we have been presented with a number of times where we are told that we should decrease the voting age in order to increase voter turnout. This same argument could be made for reducing the voting age to 14, or perhaps 12, or maybe even 10.
Increasing voter turnout is commendable, but it is not an appropriate standard to use in a decision to lower the voting age. If we have a problem with voter turnout, we should be addressing the root causes behind that, not simply broadening the voting criteria to inflate the numbers of those who turn out on election day.
Another argument that we hear is that if you allow 16‑year‑olds to vote, they are likely to continue voting later in life and will take a greater interest in their civics education. Again, this is interesting and voter engagement is important, but the same argument could be applied to 14-year-olds and probably even 10‑year-olds. I am certain that by giving 14-year-olds the right to vote, you are likely to increase the attention of at least some of them in their social studies classes. But, again, as commendable as this objective may be, it is irrelevant as a criterion regarding whether the voting age should be lowered to 16.
During debate on this bill, one senator advocated that since our youth are eloquent, confident and asking to be included in our democratic process, they should be allowed to vote. I applaud the eloquence, confidence and the eagerness of our youth. But, once again, I disagree strongly that this constitutes a solid rationale for reducing the voting age. I have seen eloquent and confident four‑year-olds on YouTube, but I doubt anyone would be advocating for them to be able to vote. Eloquence, confidence and interest are not the metrics we should be using when determining who should be able to vote.
My point, senators, is that we must be precise in how we assess whether the voting age should be lowered. This is not whether we value the voices and the engagement of young people, as I know we all do. It is not about our respect for them and the fact that they are already leaders in their own right. It is not about making them feel good or included or some other emotional metric. This decision turns on the question of maturity.
As I noted earlier, Justice Lefsrud was clear on this point, stating that:
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.”
Justice Lefsrud concluded by saying:
. . . 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.
With the understanding that Charter rights are being infringed upon by the age restriction, and that the purpose of that infringement is to ensure a sufficiently mature voting population, the next question is, to quote Justice Lefsrud:
. . . 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.
This is the crux of the issue before us in this chamber: Are 16-year-olds mature enough to make rational and informed decisions about who should represent them in government?
Colleagues, I will concede that, as noted by the Lortie commission in 1991, the issue is somewhat arbitrary, which makes it difficult to be dogmatic on either side of the debate. How do you define maturity? How do you address the fact that in every age demographic there will be a wide array of maturity? These are issues that have been examined by academics for years.
In her lengthy article published in 2012 in the Brooklyn Law Review, Professor Vivian Hamilton — who advocates for dropping the voting age to 16 — noted that “. . . no principled conception of electoral competence exists . . . .” Professor Hamilton explained — as others before her have done — how age has become an imperfect proxy for competence. She wrote:
It is thus young people’s lack of the relevant competence that must justify their electoral exclusion. There can be little dispute that newborns lack that competence, or that the typical person acquires it at some point over the course of his or her development. Age and cognitive development are predictably correlated. There is, then, a temporal element to the attainment of electoral competence, for which age is arguably the most reasonable proxy. The impracticality of widespread individual competence assessments, moreover, makes an age-based qualification reasonable.
A voting-age qualification thus helps ensure that voters will satisfy the criterion of electoral competence. What electoral competence entails, however, remains ill-defined, even among voting experts.
This poses significant challenges for those who are attempting to change the voting age. With no clear criteria by which to define and measure “maturity,” it is simply difficult to justify lowering the voting age further. Perhaps that is why at least 15 bills to lower the voting age to 16 have been presented in Parliament since 1998 and not one has made it past committee stage in the originating chamber.
If you ask the average person on the street whether 16‑year‑olds should vote, you will get a range of responses. I do not have an official study to back this up, but I suspect that for most people their response is based on their impression of the 16‑year‑olds whom they know personally.
Even young people themselves are divided on the issue. While a survey by Children First Canada indicated that the majority of young people supported lowering the voting age, many did not. It is simply difficult to get around the subjectiveness of the question.
These are not new challenges. In Fitzgerald v. Alberta, Justice Lefsrud made some astute observations that I believe continue to inform the debate today. With your indulgence, I would like to read three paragraphs from his judgment:
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.
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.
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.
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.
I would point out that this decision was later appealed by the applicants, and in 2004, the Court of Appeal of Alberta upheld the original judgment, stating:
Upon a thorough review of his reasons, we find no error and are in substantial agreement with his analysis and his decision.
Colleagues, this is an excellent summary of why the voting age should remain at 18, and it is as relevant today as it was 20 years ago when it was written.
In fact, if anything, since that time, the societal definition of when a person becomes a fully responsible citizen has coalesced further around the age of 18, not moved lower.
For almost 20 years after the voting age was lowered to 18, 17‑year-olds who were in the Canadian Forces were allowed to vote. The Lortie commission noted that this was problematic under the Charter, stating:
“This is discrimination with respect to those under 18 years of age who are not in service as members of the forces. It would be difficult to support such discrimination by applying the criteria identified in section 1 of the Charter.” Given this inconsistency, the question arises whether the voting age should be lowered to 17 for all citizens or raised to 18 for those in the forces to ensure equality before the law. Colleagues, the outcome was the latter. The right of 17‑year-olds in the Canadian Forces to vote was removed in the 1990s, and the voting age reverted to 18.
Consider also the evolution of driver’s licences in Canada. Prior to 1994, when you got your driver’s licence at age 16, you immediately had unrestricted driving privileges. In 1994, provinces began introducing graduated driver’s licences, which restricted your driving privileges for certain periods of time and contingent upon additional testing. Sixteen-year-olds have had their rights to drive walked back, not forward, over the last 30 years. In Ontario, these enhanced driving restrictions are not lifted fully until the age of 20. In Alberta, it’s 18.
Also, as I mentioned earlier, under the Youth Criminal Justice Act, 16- and 17-year-olds are treated differently than 18‑year‑olds. In three provinces, the minimum legal drinking age is 18, and in the rest, it is 19. In most provinces, the age of majority is 19, while federally, it is 18. Everywhere you look, the evidence indicates that society still believes that its citizens reach maturity around the age of 18.
Colleagues, as I said earlier, this decision is neither clear-cut nor scientific. But on balance, I believe that we have already struck the right compromise at the age of 18 and that this is consistent with the societal consensus regarding what constitutes adulthood. To borrow a quote from Justice Lefsrud:
. . . 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 . . . .
— and we should not be lowering it any further.
In closing, I would like to draw your attention to one other consideration. As parliamentarians who are appointed and not elected, I do not believe that a bill which attempts to change the legal voting age should originate in this chamber. That, in my view, is the prerogative of the elected house, not this one.
I would further note that Bill C-210, which is identical to this bill before us today, is currently proceeding through second reading in the other place, which begs the question: Why are we using precious Senate time and resources to duplicate what is already under way in the other chamber? We should wait and allow the other place to render its decision on Bill C-210. If they pass the legislation, it will come to us for consideration. If they do not, then we have the decision we are looking for.
Colleagues, as most of you know, I normally support sending bills to committee for further study. However, in this case and for the reasons I just mentioned, I cannot and will not be doing so. Thank you, colleagues.