CHILDREN AND YOUTH RIGHTS

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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Click here for the Court of Appeal decision

EDUCATION

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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Click here for the Divisional Court decision

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

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.

Justice for Children and Youth was granted standing as an intervener in the appeal of this case before the Supreme Court of Canada.  The hearing took place on October 10, 2007 and the Court reserved its decision.  Supreme Court decisions are usually released within 4 to 6 months.

Click here for our legal argument at the Court of Appeal

Click here for our legal argument at the Supreme Court of Canada

Click here for a link to the Court of Appeal decision

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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Click here for a link to the Supreme Court decision