Old enough to choose: The case for letting younger Canadians vote

A new legal challenge filed in Ontario against Canada's federal voting age — coupled with the reintroduction of Sen. Marilou McPhedran's bill to lower the age limit — has revived the question of whether Canadians under the age of 18 should be allowed to vote.

Some are ready to say the answer should be "no."

But it might be useful to turn the question around. Is there anything particularly magical about the current voting age of 18? If not, why couldn't we lower it to something like 16?

In an essay published two and a half years ago, Colin Feasby — an Alberta lawyer appointed to the Court of Queen's Bench this summer — suggested that a new challenge to the voting age could be warranted because of the Supreme Court's January 2019 decision in Frank v. Canada, which concerned the voting rights of Canadian citizens living abroad. At the time, Canadians were not permitted to vote if they had lived outside the country for five years or more.

The court found the ex-pat voting rule violated Section 3 of the Charter of Rights and Freedoms — which says "every citizen" has the right to vote — and could not be justified under Section 1, which says all rights and freedoms are "subject only to such reasonable limits … as can be demonstrably justified in a free and democratic society."

"Since voting is a fundamental political right, and the right to vote is a core tenet of Canadian democracy, any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification," the Supreme Court majority wrote in a 5-2 decision.

Feasby argued that, in the event of a future legal challenge of the voting age, the federal government would "bear the burden of justifying" the status quo.

There are good reasons to extend the franchise by changing the voting age.

For one thing, the youngest members of society have the most at stake in what's likely to be the pre-eminent public policy issue for the foreseeable future: climate change.

In their notice of application filed with the Ontario Superior Court of Justice, lawyers with the organization Justice for Children and Youth and the David Asper Centre for Constitutional Rights argued that "denying the right to vote to all young people under 18 is incongruent with the fact that many young people are already granted an array of legal rights and obligations that imply a significant degree of maturity, capacity, and social participation and responsibility.

"They are trusted to engage in employment, drive vehicles, consent to sex, and pay taxes, among other things — all major areas of law and policy to which they are subject but over which they have no power to influence."

Why not 16?

The lawyers supporting the applicants also point out that the major national political parties — the Liberals, Conservatives and New Democrats — allow members as young as 14 to vote in leadership elections.

The legal challenge would merely strike down the current age limit — it doesn't suggest a different age limit. If it should succeed, the courts likely would turn the matter over to Parliament to pick a new number.

In that event, there's a decent case for making 16 the new 18.

As the applicants' lawyers argue, 16 is already the voting age in a handful of countries and sub-national jurisdictions. So far, those places have not been plunged into anarchy as a result.

Sixteen is old enough to start learning to drive in every province. It's old enough to apply for a passport. It's the age of sexual consent under federal law, the minimum age at which an individual can leave home in several provinces and the age at which school ceases to be compulsory in most provinces.

Would teen voters be less rational than adults?

The legal challenge also points to research that suggests "the cognitive capacities necessary for voting are present by the age of 14-16, if not younger."

"Although all 16-year-olds would not necessarily make 'good' decisions in the voting booth or doctor's office," one such study concluded, "their decisions in these contexts, on average, would be as logical as adults' decisions."

(That study's authors note that while 16-year olds may have the cognitive capacity required to vote, they often still lack "the capacity to exercise self-restraint, especially in emotionally-arousing contexts" — which might justify higher age limits for criminal liability.)

The voting age has been challenged at least once before, at the provincial level in Alberta in 2002. In that case, the judge ruled that the limit did violate Section 3 of the Charter, but the violation was justified.

"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," Justice Erik Lefsrud wrote.

"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."

The Supreme Court refused to hear a further appeal, but the fight wasn't entirely over. In the fall of 2004, a young Liberal MP introduced a private member's bill that would have lowered the voting age to 16. That MP was Mark Holland, now the government House leader.

Cheryl Milne of the Asper Centre said the decision in Frank v. Canada and developments in social science and international politics over the past 20 years set the stage for revisiting the voting age.

"I also think that people's approaches to the voice of young people [are] different now than ... back then," Milne said. "I think we're in a better climate for listening to young people than we were back then."

Regardless of what the courts decide, this seems like something worthy of Parliament's consideration.