The Children's Trilogy: The Best Interests of the Child Principle and the Principles of Fundamental Justice

• Author: Mark Carter
• Pages: 17-38

17

 

e Children’s Trilogy: e Best Interests

of the Child Principle and the Principles of

Fundamental Justice

 

e “Bala per spective” on the const itutional statu s of children’s rights dem-

onstrates comprehensi ve legal knowledge and sophisticated ana lysis, but its

most disting uishing characte ristic is its compassion. Nicholas Bala’s work on

the constit utional dimensions of t he crimina l sentencing of youths bear s all

of these hallma rks. Employing precise legal ana lysis and integrating impor t-

ant psychological research about the intellec tual and emotional develop-

ment of child ren and young people, he ha s stood rmly a gainst aempts to

impose a “law and order” agenda upon c hildren th rough the use of manda-

tory and presumpt ive adult sentencing.

e constit utionality of the provisions in the Youth Cri minal Justice A ct

(YCJA) relating to presumptive adult sentencing of young people was central

 See, for ex ample, Nichola s Bala, “Char ter Chal lenges to Presu mptive Adul t Sentences

for Seriou s Youth Oenders” ( ),  CR (th) .

 See, for example, Carla Cesaroni & Nicholas Bala, “Deterrence as a Principle of Youth Sen-

tencing : No Eect on Youth, but a S ignica nt Eect on Jud ges” ()  Queen’s LJ .

 In an inter view with t he CBC’s John Grey in S eptember   concernin g the governi ng

Conser vative Par ty’s election p roposal to lower t he age at which yo ung people could b e

subjecte d to presumpt ive adult sentenc es, Professo r Bala chara cterized t he proposal as

“seriousl y bad social pol icy.” Asked by Gre y why the Conser vatives wo uld advance t he

proposal , Grey reports , “Bala laugh ed: ‘We’re in the midd le of an elect ion campaig n!’”

John Grey, “e Une asy Mix of Cr ime, Puni shment, and Pol itics,” onl ine: www.cbc.ca/

news/canadavotes/realitycheck///the_uneasy_mix_of_crime_punish.html.

 SC , c .  [YCJA].

  18

to t he Supreme Cou rt of Canada’s decision in R . v. D. B. Writi ng aer the

Ontario Court of Appeal ’s decision in the case, Ba la c orrec tly pred icted that

the Supreme Court would  nd these provisions a n unreason able infr inge-

ment of section  of the Cana dian Chart er of Rights and Freedoms . At the

time, howe ver, he considered it “unwise to pred ict how the Supreme Court

will resolve [the] controversial issue” of how the “best interests of the child”

principle (the “best interests” principle) might inform the Court’s interpreta-

tion of the “principles of fu ndamental justice” under sect ion .

e controversy at that time was rooted in opposing dec isions by the

Quebec and Briti sh Columbia courts of appeal on t he constitut ionality of

the YCJA provisions. In nding that the presumptive adult sentencing of

young people w ho have commied certain ser ious crimes i nfringes section

, the Quebec Court of Appe al in Québec (Minist re de la Justice) c. Canada

(Ministre de la Justice) identied the be st interests principle as one of the

dimensions of f undamental justic e with which the YCJA provisions were in-

consistent. Subsequently, in R . v. T. (K. D.) the Br itish Columbia Court of

Appeal upheld the same YCJA provision s. Among the reasons that the BC

court gave for rejecting the Quebec Court of Appeal ’s approach wa s the Su-

preme Court’s intervening decision in Canadian Foundat ion for Children ,

Youth and the Law v. Canada (Aorney General). In uphold ing the consti-

tutional ity of the corporal pun ishment defence in Foundation, the majorit y

refused to recogniz e the best interests principle as a principle of fundamenta l

justice. In D. B. itself, the Ontario Cou rt of Appeal s ided with the Quebec

Court of Appeal as to the unconstitutiona lity of the YCJA provisions, while

avoiding the Quebec court’s su ggestion that the best interests of the child

principle is a principle of fundamenta l justice . e Supreme Court upheld

the Ontario Cou rt of Appeal’s decision in D.B .

 []  SCR . [D.B .].

 R .v. D.B. ( ),  CR (th)  (ONCA).

 Bal a, above note  at  –; Canadi an Charter o f Rights and Fr eedoms, Par t I of the

Consti tution Act , , being Sc hedule B to the Ca nada Act  (U K), , c.  [Char-

ter]. Section  of the C harter read s: “Everyone ha s the right to l ife, liber ty and secu rity

of the perso n and the right no t to be deprived t hereof except i n accordance w ith the

princi ples of funda mental just ice."

 Bal a, ibid. at  .

 (),  CR (th)  (QCCA).

  BCCA  .

   SCC  [Foundation].

 Criminal C ode, RSC , c . C-, s. .