Bambi Meets Godzilla: Children's and Parents' Rights in Canadian Foundation for Children, Youth and the Law V. Canada

Abstract

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 suffer 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.

Keywords: constitutional law, children's rights, Canadian Foundation for Children, Youth and the Law v. Canada