Keeping it simple

[whirlygigspin]

As we ponder the likelyhood of millions of our friends and neighbors to the south being disinfranchised by republican fraud in the upcoming election, take a moment to be thankful for the Charter of Rights & Freedoms.

"Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

-snip-

3. Every citizen of Canada has the right to vote.


-No exeptions-

http://laws.justice.gc.ca/en/const/annex_e.html#I

and that's the name of that tune.

[canuckforpeace]

1. Here here!

I'll drink to that!

:toast:

[Swede]

2. They have an overly complicated system it seems.

Your a citizen,you get a vote. Seems to work here.

[LiberteToujours]

3. Are people under 18 not citizens?

And if they are, how do they rectify that with what is written in the constitution?

[iverglas]

4. justifiable limitations

It's that old section 1, which codifies for Canada what is done in other constitutional democracies also. (For instance, govts in the US may interfere in the exercise of free speech where there is a "clear and present danger", or violate the right to equal protection where they have a "compelling state interest": http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm.)

The temperamental Justice Canada laws site isn't responding, but here's what it says:
http://laws.justice.gc.ca/en/charter/

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.

This allows laws to be made against shouting "fire!" in a crowded theatre, for example, without violating section 2:

2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

If a 16-year-old challenged the age requirement for voting, there would be a violation of section 3 (democratic rights) and section 15 (equality rights) on the face of the law. The government would then have to justify its legislation under section 1: show that it is demonstrably justified, in a free and democratic society, to restrict voting to adults. I think it would succeed.

The fed. govt. failed when it came to denying inmates of penitentiaries the vote (on a 5-4 decision of the Supreme Court of Canada):
http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol3/html/2002scr3_0519.html
Sauvé v. Canada (Chief Electoral Officer)

The test applied is called the "Oakes test", after the case in which it was first developed by the Supreme Court (which has since refined it), and basically goes like this:

http://www.lexum.umontreal.ca/csc-scc/en/pub/1986/vol1/html/1986scr1_0103.html

Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society.

First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components.

- To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective.

- In addition, the means should impair the right in question as little as possible.

- Lastly, there must be a proportionality between the effects of the limiting measure and the objective -- the more severe the deleterious effects of a measure, the more important the objective must be.

This test is now fundamental to the interpretation and application of the Charter. For instance, see EGALE's factum in the BC same-sex marriage appeal (starting at para. 49):
http://www.samesexmarriage.ca/legal/bc_case/egalefactum_appeal.htm

and the Canadian Unitarian Council's factum in the reference to the SCC:
http://www.cuc.ca/queer/marriage_factum.pdf

We submit that in this case a section 1 analysis is unnecessary. However, it is our submission that following the test in Oakes there is no pressing and substantial objective to the prohibition against same-sex marriage. As earlier noted, arguments that excluding same-sex couples from marriage will benefit opposite-sex couples or children are fallacious. Alternatively, even if there is some benefit, the means chosen to achieve the objective:
(1) are not reasonable and demonstrably justifiable in a free and democratic society as they are not rationally connected to any objective of the law;
(2) more than minimally impair the Charter guarantees of same-sex couples;
(3) do not provide for proportionality between the effect of the law on same-sex couples and its objective to benefit opposite-sex couples and children.
R. v. Oakes <1986> 1 S.C.R. 103

I highly recommend memorizing the Oakes test and insisting that anyone who objects to extending equal treatment to anyone else (or who objects to his/her personal freedom being minimally impaired for an important public purpose) take it and pass it!


(edit ... you'd think I could spell "justifiable by now ...)