The Legal Concept of the Child

The Centre for Innovation Law and Policy at U of T’s Faculty of Law held their 2nd International Symposium on Online Child Exploitation last Monday. Although the gamut of speakers ranged from media studies professors to clinical psychologists, one particularly noteworthy panel focused on the legal concept of the child. In doing so, this panel laid out the complex, multiple and sometimes divergent concepts of a child under the law.

Contrasting against the traditional paternalistic image of a helpless child subject to the protection of an authority figure (a view supported by the Supreme Court of Canada (“SCC”) in Canadian Foundation for Children, Youth and the Law v. Canada, 2004 SCC 4 [CFCYL], a.k.a. the spanking case), Professors Piper and Rogerson distilled two additional emerging views: a child as a decision maker, and a child as a responsible citizen. Although they pointed to a number of important sources supporting these views, (especially in the area of Health Law for the former view, and the UN ‘s Convention of the Rights of the Child for the latter view), Professor Rogerson used the SCC’s 2001 decision in R. v. Sharpe, 2001 SCC 2 [Sharpe], as a prime example of these budding perceptions of children in the law.

In Sharpe, the accused challenged the constitutionality of the then-new child pornography sanctions in the Criminal Code, RSC 1985, c C-46, which attached liability for possession, on the basis that it violated s.2(b) of the Charter. While the majority generally upheld the constitutionality of the prohibitions under s.1, it also carved out exceptions that alleviated criminal liability for records of lawful sexual activity between teenagers that are “held privately by the participants exclusively for their own private use.” (para 109) Continuing in the same paragraph, the judgment gives a view of adolescent youth that considers them as autonomous and capable decision-makers that are able to “deepen a loving and respectful relationship through erotic pictures of themselves engaged in sexual activity.”

This contrasts with the dissenting opinion written by L’Heureux-Dube J, who takes a more protectionist view of children. In exhibiting the traditional paternalistic tone, she requires proof that records of adolescent sexual activity satisfy the democratic value of self-fulfillment. At para 212, she writes,

“we see no evidence to support the notion that sexually explicit videos of teenagers “reinforce healthy sexual relationships and self-actualization”, as suggested by McLachlin C.J., at para. 109, rather than being harmful self-indulgence supporting unhealthy attitudes towards oneself and others.”

With this diminished sense of adolescent youth autonomy, the dissent deems the objective of overall child protection in society more important than that of the autonomy of the affected adolescents; taking the view that “restrictions on children’s liberties are sometimes necessary because of their vulnerability.” (para 238)

As mentioned earlier, the deference given to adolescent autonomy by the Sharpe majority is contrasted with the SCC’s failure to exclude adolescents from the parental defence to assault in CFCYL (at para 46). As such, the tension illustrated in Sharpe was a strong theme at the Symposium, i.e., how does the law respect the autonomy of adolescent youth in the face of the need to enact tougher sanctions against those who engage in child exploitation? As Osgoode Hall’s own Professor Bruce Ryder points out, with newly reformed child pornography provisions creating even tougher sanctions than those challenged in Sharpe, the dangers of overbreadth are even greater, and a more nuanced approach in our law may eventually be necessary.