Bambi meets Godzilla: children's and parents' rights in Canadian Foundation for Children, Youth and the Law v. Canada.

• Author: Sykes, Katie

Unlike parental rights, with their ancient pedigree, children's rights have a relatively recent origin in law, derived largely from international obligations. Since the emergence of the rights of children as rights entitled to recognition in Canada, they have coexisted somewhat uneasily with parents' rights. The author considers this tension between parental and children's rights in the context of the Supreme Court's recent guidance on the defence of reasonable correction in the Criminal Code in Canadian Foundation for Children, Youth and the Law v. Canada.

After canvassing the judgment's reasons, the author argues that the majority's guidelines for the application of the defence surfer from crucial definition gaps. These gaps both hamper efforts to remedy its current uncertainty and fail to address themes of sexual discipline that often underlie the most controversial cases. Moreover, by failing to recognize that parental and children's rights are innately intertwined and inform each other, and by privileging parental autonomy the Court's decision effectively subsumes children's rights into parental ones. As a result, the tension between the two is glossed over, but only at significant cost to children's autonomy.

Contrairement aux droits parentaux et leur origine ancienne, les droits des enfants n'ont que recemment vu le jour, et ce, par le biais d'obligations internationales. Depuis la mise en vigueur de ces obligations, les deux types de droits ont coexiste dans an certain malaise. L'auteure considere la tension entre les droits parentaux et les droits des enfants dans le contexte de la decision recente de la Cour supreme du Canada statuant sur la defense de la correction raisonnable contenue dans le Code criminel dans l'arret Canadian Foundation for Children, Youth and the Law v. Canada.

Suite a un apercu du raisonnement de la cour, l'auteure developpe l'argument que les indications de la majorite de la Cour au sujet de l'application de la defense souffre d'un important vide definitionnel. Ce dernier nuit aux efforts visant a remedier l'incertitude courante et empeche la consideration de sujets de discipline sexuelle qui sous-tendent souvent les cas les plus controverses. De plus, en omettant de reconnaitre l'intime entrelacement des droits parentaux et des droits des enfants, et en privilegiant l'autonomie parentale, la decision de la Cour fait des droits des enfants seulement une sous-categorie de droits parentaux. Par consequent, la tension entre les deux types de droit est apaisee, mais seulement aux depens de l'autonomie des enfants.

Introduction I. Background A. Parents' Rights B. Children's Rights C. The Defence of Reasonable Correction II. Canadian Foundation for Children: A Summary of the Decision A. Majority Opinion B. Justice Binnie C. Justice Arbour D. Justice Deschamps III. Critique of the Decision: How the Court's Approach Undermines Children's Rights A. The New Interpretation of Section 43: Paradoxes and Lacunae 1. Defining "Harm" 2. Defining "Correction" 3. Sexualized Discipline B. The Inferior Status of Children as Charter Applicants 1. Silencing Children's Voices a. Section 15: Perspective b. Section 7: Procedural Rights c. Section 7: Vagueness 2. Imposing a Higher Legal Burden on Children a. Section 7: The Best Interests of the Child b. Section 15: Correspondence Conclusion Introduction

This article discusses children's rights under the Canadian Charter of Rights and Freedoms (1) through the prism of the Supreme Court of Canada's recent decision in Canadian Foundation for Children, Youth and the Law v. Canada (A.G.). (2) The Court's most important decision to date on children's rights involved a constitutional challenge to the Criminal Code section (3) that relieves parents and their delegates who use correctional force against children of criminal liability for assault.

In Canadian Foundation for Children, the Court was faced with a difficult and divisive issue. The defence of reasonable correction reflects a legislative judgment about where acceptable discipline of children ends and criminally culpable violence against them begins. On the one hand, condemnation of the mistreatment of vulnerable children is a widely shared and deeply held social value. On the other, we are just as deeply committed to the idea that parents' legitimate decisions about how to raise and discipline their children are in the private sphere and should be shielded from majoritarian dictates and outside interference. What divides such private, protected decisions from behavior that may, and should, be outlawed is, however, a profoundly divisive question. This question has gained additional complexity with the adoption of the Charter and with the emergence of a jurisprudence of children's rights both in Canada and at the international level.

Canadian Foundation for Children is a puzzling decision, and it was a disappointing result for advocates of children's rights. Given the conflict of important social values it raised, the most obvious way for the Court to address the issue would have been to find that section 43 was a prima facie violation of children's rights. It could then have addressed, in the context of section 1 justification, the broad social consensus that certain minor uses of force against children are not the state's business. Instead, the majority found no violation of children's rights even in the first instance. It declined to recognize the "best interests of the child" as a principle of fundamental justice to be balanced against other such principles, and found that section 43, a special defence that only applies on the basis of the victim's age, was not a violation of children's equality rights. Although one might have expected the decision to focus on the difficult balance to be struck between children's rights and competing social values, the decision in fact barely gives children's rights status to have a place in the competition.

How did this result come about? I argue here that there is (as there almost invariably is in cases about the rights of children) an important third force at work, in addition to children's rights and the broader values and interests of society: the individual rights of parents. (4) Surprisingly, the Court barely acknowledges the importance of parents' rights to its reasoning, but their importance is manifest both in its reasoning and the legal tradition on which it relies. In fact, in important and perhaps determinative ways, the Court actually equates children's rights with parents' rights, in a situation where one might more naturally see them as pitted against each other. As a result, children's rights, which are conceptually difficult rights of relatively recent vintage, are effectively subsumed into their grown-up counterparts: parental rights, which have long roots in a powerful common law and constitutional tradition. This is how, in a case that offered the most important opportunity so far to formulate children's rights in Canadian constitutional law, the rights of children ended up so startlingly truncated.

Bringing together children's rights and parents' rights in this way is something like the famous encounter of the young fawn and the big monster in the short animated movie Bambi Meets Godzilla. (5) Godzilla squashes Bambi before the contest even begins. The conflict was similarly one-sided in this case, where children's rights were relegated to secondary, derivative status before any overt analysis of competing values even began.

This article begins with a background section setting out the development and status of children's and parents' rights in Canadian law, the history of the defence of reasonable correction, and the interpretive difficulties to which it has given rise. The next section summarizes the Supreme Court's decision and the three dissenting opinions in Canadian Foundation for Children. Finally, I will analyze what I see as the major flaws in the decision: first, the virtual impossibility of applying the Court's new interpretation of section 43 in a manner that gives practical effect to its holding that the section immunizes only non-harmful uses of force; and second, the various ways in which the Court's analysis places child claimants in a disadvantageous position relative to other Charter applicants.

1. Background

   A. Parents' Rights

   Parental rights have an ancient pedigree, akin to common law rights such as property and bodily integrity. Parents' rights are connected to the idea that there is a realm of autonomy in private decision making that is fundamental to individual freedom and is protected from intrusion.

   Parents' rights also have a place in constitutional law that predates the Charter. Section 93 of the Constitution Act, 1867 (6) limited legislative power in favour of individual citizens' rights to send their children to Protestant or Catholic schools, as the case might be, if they did not share the majority religion of the province. Section 93, which has been described by the Supreme Court as "a 'comprehensive code' of denominational school rights," (7) illustrates just how significant and cherished was this right, an aspect of the common law prerogative of custody and control of one's children. Arguably, the historical compromise leading to Confederation would not have been possible had this right not been given constitutional protection. (8) It could be said, then, that parents' rights (or, at least, an aspect thereof) are the oldest constitutionalized individual rights in Canadian law.

   The constitutional status of parents' rights has been reaffirmed in the Charter era. In B. (R.) v. Children's Aid Society of Metropolitan Toronto, (9) a majority of the Supreme Court held that parental rights were a liberty interest protected by section 7 of the Charter. The claimants were Jehovah's Witnesses, parents of a baby with severe medical problems. When the state attempted to impose a blood transfusion for the baby...