CHILDREN AND YOUTH RIGHTS

Canada (Prime Minister) v. Khadr (2010) Supreme Court of Canada

JFCY was granted intervener standing with the Canadian Coalition for the Rights of Children. 

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R. v. JZS (2010) Supreme Court of Canada

JFCY was granted intervener standing in a case in which an accused was challenging the provisions of the Criminal Code and the Canada Evidence Act that governs the manner in which children can testify in court.  The Supreme Court dismissed the appeal for the reasons given by the British Columbia court of Appeal.

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A.C., A.C. & A.C. v. Director of Child and Family Services [Manitoba], (2008) Supreme Court of Canada

Justice for Children and Youth was granted intervener standing in a case in which a 14 year old girl has challenged provisions in the Manitoba child welfare legislation which allowed child protection authorities to override her refusal of a blood transfusion through a court order.  The Appellant is arguing that this breaches her rights under the Charter to security of the person (s.7), equality (s.15) and religion (s.2).  She was found by doctors to have capacity to make medical decisions, but the court ruled that a blood transfusion was in her best interests and ordered that she be forced to undergo the procedure.  The case was heard by the Court on May 20, 2008.

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Canadian Foundation for Children Youth and the Law v. Canada (Attorney General), (2004) Supreme Court of Canada

In 1998, we launched a constitutional challenge to the criminal defence for corporal punishment of children.  The case went all the way to the Supreme Court of Canada which held that the section did not infringe the Charter rights of children and youth, but limited the application of the defence.  For detailed information about the case and our law reform efforts click on our Corporal Punishment page.

R. v. Banks – the Safe Streets Act, (2006) Ontario Court of Appeal

Justice for Children and Youth represented some young people who were ticketed under the Safe Streets Act for squeegeeing and panhandling.  The defendants challenged the constitutionality of the Safe Streets Act, 1999 (the Act), on several grounds. The Act prohibits squeegeeing and “aggressive panhandling” with penalties under the Provincial Offences Act.  On behalf of the defendants in the case, JFCY argued that the Act offends the Constitution in the following ways:

1.      the Act is essentially criminal law, which is not within the jurisdiction of the province.

2.      the Act is a restriction on the Charter right to freedom of speech (s.2(b)), in that it prohibits many forms of asking for money

3.      the Act infringes the Charter right to life, liberty, and security of the person (s.7), because it prevents people from earning money to eat

4.      the Act infringes the Charter right to equality (s.15) because ‘legitimate’ soliciting of charities is exempted under the Act, while soliciting by the poor is made illegal

5.      the Act infringes the Charter right to be presumed innocent (11(d)), because the definition of “aggressive” panhandling includes many activities that most people would not consider to be aggressive.

The hearing of the appeal at the Ontario Court of Appeal was held over two days in late February of 2006.  The Court released its decision in which it upheld the constitutionality of the Act on January 16, 2007. Our application for leave to appeal to the Supreme Court of Canada was dismissed on August 23, 2007.

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EDUCATION

Kawartha Pine Ridge Distrcit School Board v. Grant (2010) Divisional Court

JFCY intervened in case where a high school student had been expelled from school for sharing marijuana with other young people at a house party on a Saturday night. The student had won his appeal at the Child and Family Services Review Board, the Tribunal which hears appeals of student expulsions.  The School Board then made an Application for Judicial Review of the Tribunal’s decision, seeking to reinstate the expulsion. JFCY intervened in this case because of the important issue of determining just how far Schools and School Boards can go when it comes to disciplining students for conduct that occurs off school property. The Divisional Court sided with the student, holding that the Tribunal’s decision to overturn the expulsion was reasonable. In order to discipline by way or suspension/expulsion, a Principal must have evidence of a “nexus” between the student’s off-campus misconduct and a negative affect at school. This was an important result for JFCY and students across the province.

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Jackson v. Toronto Catholic District School  Board et al., (2006) Ontario Divisional Court

Justice for Children and Youth was granted intervener standing in a judicial review of an expulsion of an 11 year old boy from a Toronto school.  This is one of the first cases before the Ontario Divisional Court to address the application of the Safe Schools Act which has led to a significant increase in the number of students expelled from Ontario public schools.  At issue are the legal requirements for a fair hearing in an appeal of a limited expulsion by the principal.  Justice for Children and Youth also argued that children have a constitutional right to education under s.7 of the Charter.  The Court released its judgment on July 17, 2006 and upheld the decision of the Toronto Catholic District School Board.  African Canadian Legal Clinic, on behalf of the mother of the student sought leave to appeal the decision to the Ontario Court of Appeal, but this was denied.

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K. B.  and T. M.  v. Toronto District School Board and Louie Papathanasakis (principal) Emery Collegiate Institute ( Court file 55/06) Ontario Divisional Court

Justice for Children and Youth is intervening as a “friend of the court” at a judicial review at the Ontario Divisional Court. Lawyers at Justice for Children and Youth will argue that a  principal and school board cannot use  powers under ss. 265 (1)(m) and 305 of the Education Act to transfer students to another school once the student’s suspensions have been completed and they would otherwise return to their home school. The judicial review also concerns whether the principal, and the school board, acted fairly when they used the provisions ss.265 (1)(m) and 305 to transfer the student for safety reasons.  The case has been adjourned so the school board can bring an application before the Ontario Court of Justice (youth criminal court) for directions on whether the board can disclose youth records that the police gave to the school board.  The judicial review will most likely be heard in January or February of 2007.

No decision or materials are available at this time.

YOUTH CRIMINAL JUSTICE

R. v. L.T.H. (2008) Supreme Court of Canada [Police Interrogation of Young People]

Justice for Children and Youth intervened at the Supreme Court of Canada in a case against a young person from Nova Scotia.  The young person had been charged with dangerous driving causing bodily harm.  When he was taken to the police station, the police went through a standard form with him, telling him about his right to refuse to answer questions or to have a lawyer or other adult present. While the officer was reading the form, the responses of the young person seemed to indicate that he did not understand the nature of the form.  The young person had a learning disability, and the police were aware of this because his mother had told them.  The Youth Criminal Justice Act states that no statement of a young person can be used against him unless his rights have been “Clearly explained to the young person, in language appropriate to his or her age and understanding”.

JFCY argued that the correct way of interpreting the JFCY, according to previous cases, international law, and the plain meaning of the words, requires an individual approach to providing young people with their rights. Young people are vulnerable when they are being interrogated by the police, and this is even more so when the young person faces a barrier which makes his or her understanding of rights more difficult.

The SCC held that the statement should not have been used against the young person, and that the police must take reasonable steps to determine whether the language they are using to explain his rights to him is appropriate – not to young people generally, but to the individual young person who they are interrogating.

On the secondary issue of the degree to which the crown has to prove that the language was appropriate, four of the seven judges decided that the standard is ‘beyond a reasonable doubt’, a very high standard, and the other three would have held that the proper standard is ‘on a balance of probabilities’, which is a lower standard of proof.

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R. v. S.A.C. (2008) Supreme Court of Canada

Justice for Children intervened at the Supreme Court of Canada in this case, appealing a decision from the Nova Scotia Court of Appeal.  This case involved a sentencing appeal in which the issues included determining the interpretation of “… a history that indicates a pattern of findings of guilt…” (under s. 39(1)(c) of the YCJA), the requirements for a DNA order on a secondary designated offence, and the comprehensiveness of Pre-Sentence Reports (under s.40(1) of the YCJA). 

On July 31, 2008, the Supreme Court of Canada delivered their judgment.  The court held that, a pattern is a minimum of three prior findings of guilt unless the court can find that the offences are so similar that a pattern can be found in only two prior findings of guilt.  Further, the prior findings of guilty need not relate to similar or indictable offences.  The Court also held that a DNA order for secondary designated offences required the Crown to show that such an order would be in the best interests of the administration of justice.  With respect to Pre-Sentence Reports, the Court held that a full pre-sentence report and two updated letters contained sufficient individualized information to allow the court to craft an appropriate and meaningful sentence.

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R. v. A.M. (2008) Supreme Court of Canada [Sniffer Dogs in Schools]

Justice for Children intervened at the Supreme Court of Canada in a case against a student at a Sarnia high school.  Using a practice that some schools and boards liked more than others, the principal invited the police to drop by with their sniffer dogs to search for drugs anytime.  On one such day all of the students were “locked down” in their classrooms and were not permitted to move to their next classes until the search was completed.   Only one student was found with any drugs and they were inside his knapsack. He was criminally charged. At trial, the drug evidence was excluded because the judge said that the sniffer dogs and police had performed an illegal search that violated the rights of the student. 

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B.V.N. and B.W.P. v. Her Majesty the Queen (2006) Supreme Court of Canada

Justice for Children and Youth appeared as interveners at the Supreme Court of Canada on these two cases which were heard together, appealing decisions from the Courts of Appeal in British Columbia and Manitoba.  The cases involved sentencing appeals in which the issue was whether general deterrence was a factor to be considered in sentencing a young person under the YCJA.  General deterrence means that the sentence is to serve as a way of discouraging other people from committing the same crime as the young person before the court.  Justice for Children and Youth argued that general deterrence plays no part, either philosophically, legislatively or at international law in the sentencing of young persons under the YCJA and that applying deterrence to the sentencing of young people would undermine the sentencing principles expressed in the YCJA.

On June 22, 2006 the Supreme Court of Canada delivered their judgment.  The court held that the deliberate omission to include deterrence in the Youth Criminal Justice Act indicated that Parliament chose not to incorporate that principle in the youth sentencing regime.  Accordingly, neither specific nor general deterrence is to be considered under the Youth Criminal Justice Act.

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R. v. C.D. & R. v. C.D.K., (2005) Supreme Court of Canada

JFCY intervened in 2 cases heard together in the Supreme Court of Canada in the spring of 2005 about the interpretation of the term “violent offence” under the Youth Criminal Justice Act. The youth court can only consider custodial sentences for certain offences including a violent offence.  The young people had been found guilty of arson and dangerous driving in incidents in which no persons were injured.  The Court decided that the term violent offence meant that the crime had to be one in which bodily harm was actually caused or threatened.  This was one of the first cases in which the Court was asked to interpret the relatively new Youth Criminal Justice Act.

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R. v. D.B., (2006) Ontario Court of Appeal and Supreme Court of Canada

D.B. is a young person who was found guilty of manslaughter and given a youth sentence.  The sentencing judge declared unconstitutional the sections of the Youth Criminal Justice Act which make it a presumption that the youth would get an adult sentence and have his identity published.  The Crown appealed the decision to the Ontario Court of Appeal.  Justice for Children and Youth was made an intervener in the appeal and argued that the sentencing judge was correct.  The Court of Appeal in a unanimous decision held that those sections of the Act were unconstitutional because it is a principal of fundamental justice under section 7 of the Charter that youth be dealt with in a separate youth justice system.  They decided that the Crown had to prove whether an adult sentence was appropriate and not that the young person had to prove why they should remain in the youth system.

The case was appealed to the Supreme Court. Justice for Children and Youth was granted standing at the hearing which took place on October 10, 2007. The Court released its decision on May 16, 2008 dismissing the appeal and finding that it is a principal of fundamental justice that young people be presumed to have diminished moral culpability in the criminal justice system.  It also held that the onus was on the Crown to establish that an adult sentence was warranted as this would be a harsher penalty for the young person.

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L.T.H. v. Her Majesty the Queen (2007) Supreme Court of Canada

A young person in Nova Scotia waived his rights to consult with a lawyer and have a parent present prior to giving a statement to police in relation to driving related offences.  The police had been advised by the young person's parent that he had a learning disability and might not understand.  At issue in the case is the procedures that must be followed by police when taking a statement from a young person, particularly a young person with a learning disability, in order to use that statement against the young person in the subsequent criminal trial.  The case is scheduled to be heard on February 25, 2008.

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R. v. R.C.,  (2005) Supreme Court of Canada

A Nova Scotia court ordered that a young person found guilty of an assault was required to give a DNA sample.  The decision was appealed to the Supreme Court of Canada.  Justice for Children and Youth intervened in this case as a “friend of the court”.  Lawyers at Justice for Children and Youth successfully argued that in deciding whether to order DNA from a young person the trial judge must take into account the underlying principles and objectives of the youth criminal justice legislation as well as those in international law. The Court stated that taking and retention of a DNA sample constitutes a grave intrusion on a person's right to personal and informational privacy, and that Parliament in creating a separate criminal justice system for young persons, recognized their heightened vulnerability and has sought to extend enhanced procedural protections to them.  The Supreme Court also stated that the U. N. Convention on the Rights of the Child was incorporated in the Youth Criminal Justice Act.

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