Should children be entitled to different constitutional protections from the courts than similarly situated adults?

Canadian law has long recognized the inherent vulnerability of children and the need to provide them with particular protections in a variety of contexts. Yet, surprisingly, the courts have been reluctant to explicitly hold that the Charter of Rights and Freedoms bestows upon children any enhanced constitutional protections. For example, over 20 years ago, in R v M. (G.C.), the Ontario Court of Appeal ruled that young persons are not to be granted a “special constitutional guarantee” which would differ in substance to that available to adults.

Yet two recent judgments – decided in very different contexts – may signal a tipping point has been reached where courts are finally willing to recognize that violations of children’s constitutional rights should be viewed differently – and inevitably more significantly – than those of adults. This blog post will address the Ontario Court of Appeal’s decision in R. v S.B. 2014 ONCA 576 (decided under s. 11(e) of the Charter) and the Federal Court’s decision in Canadian Doctors for Refugee Care v Canada (Minister of Citizenship and Immigration) 2014 FC 651 (decided in part under s. 12 of the Charter) and their potential implications.

R. v S.B. 2014 ONCA 576

On April 3, 2011 a search warrant was executed on S.B.’s residence. Two loaded guns were found in his closet. He was arrested and held for a bail hearing. The case was adjourned, first on consent, to April 6, and then over the objections of S.B.’s counsel to April 14. The Crown sought his detention, but he was released by the youth justice court. He was 17, and had no prior record.

At trial, S.B. claimed that his rights under section 11(e) of the Charter were violated. Section 11(e) provides that any person charged with an offence is “not to be denied reasonable bail without just cause.” The delay of 12 days before S.B. could have his bail hearing was found to violate this provision by the trial judge and this decision was upheld on appeal.

S.B. sought a stay of proceedings of the charges he faced as a remedy under section 24(1) of the Charter. While the Court of Appeal ultimately upheld the trial judge’s decision to decline such a remedy, the Court did make several findings worthy of note.

First, it held that the delay in obtaining a bail hearing for 12 days for S.B. undermined the integrity of the justice system. S.B.’s status as a young person, that he had no record, and that he “probably” would have been released in any event were noted as significant factors to weigh.[1]

The Court had particularly strong language for the conduct of the Crown, which had been responsible for much of the delay:

The Crown’s conduct failed to take into consideration the need, especially for young persons, for an early bail hearing. As the trial judge said: “The fact that the declaration of principle in the Y.C.J.A. refers to special considerations which apply in respect to proceedings against young persons should compel all persons participating in the proceedings to guard against infringements.[2]

The emphasis is my own, but the point is clear: the infringement of S.B.’s constitutional right was “especially” significant due to his status as a young person.

Canadian Doctors for Refugee Care v Canada 2014 FC 651

In Canadian Doctors the applicants challenged the constitutionality of the Federal government’s 2012 cuts to health insurance coverage for refugee claimants. The result of the cuts was to significantly reduce the level of health care available to these individuals, and all but eliminate it for some pursuing risk-based claims.

Some 21 national medical organizations offered statements expressing concerns with respect to the cuts. Expert evidence filed in the application noted that the lack of health insurance would have a “detrimental impact on the health of children.” The President of the Paediatric Chairs of Canada criticized the cuts as well and warned against the negative impact they would have on children’s health outcomes.

The applicants (including JFCY, for further information click here) alleged these cuts violated sections 7, 12 and 15 of the Charter. It is under the Court’s section 12 analysis that the most powerful findings with respect to the rights of children may be found.

Section 12 of the Charter prohibits “cruel and unusual treatment or punishment.” As held by the Supreme Court of Canada in penal cases, only treatment or punishment that “shocks the conscience” of the community and “outrages our standards of decency” will rise to the level of a breach of this section.

In paragraph 11 of the judgment the Federal Court found that the health care cuts in question met this very high standard. The cuts constituted cruel and unusual treatment “particularly, but not exclusively”, as they affected children who had been brought to Canada by their parents.

The Court further held that the modifications to the health care program in fact

…potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency.[3]

The “cruelty” of the cuts, which could lead to “unnecessary pain and suffering”, was “especially evident insofar as they affected children.”[4] Children, the Court emphasized, who were entirely innocent and subject to the whims of their parents’ decisions.[5]

Potential For A New Paradigm?

Thus, “especially” and “particularly”, the Charter rights of these children were found to have been breached. It should be noted that in neither case did the Court find that a similarly situated adult would not have had his or her Charter rights violated as well. (Indeed, in Canadian Doctors the court expressly found both adults and children had their Charter rights violated.)

But by noting that the violations in question took on an enhanced or unique status given that the applicants were children, the Courts may be slowly opening the door to a formal recognition that state conduct must, in certain circumstances, be held to a higher standard of scrutiny and care when the constitutional rights of children are at stake.

Written by JFCY guest blogger: Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. This is written in a personal capacity and does not reflect the views of the Attorney General of Ontario nor the Office of Crown Law Criminal.

[1] Para 39.

[2] Para 21.

[3] See para. 691.

[4] See paras. 637 and 658.

[5] See, for example, paras 638, 664, and 669.