Access to Justice and Youth

What does Access to Justice Mean for Youth?

For youth, access to justice involves both being heard and being protected. Tensions arise between the two when what a youth wants does not, in the government’s opinion, afford him/her adequate protection. The United Nations’ Convention on the Rights of the Child, 20 November 1989, 1577 UNHR art 3 (entered into force 2 September 1990) [UNCRC] provides that “the best interests of the child” be the primary consideration in all actions concerning children. Canada ratified the treaty and has adopted the “best interest doctrine” as a guiding principle in all youth-related actions.

Barriers to Justice Faced by Youth

Practical Barriers

Youth face unique practical and legal barriers in accessing justice. The main practical barriers stem from the inherent vulnerability of being a young person with limited access to formal avenues of redress. In relation to adults, most youth are unaware of the law, financially dependent, lacking in social power, physically under-developed and psychologically immature. Some youths may be vulnerable by the very fact of belonging to this demographic group, while others’ vulnerabilities can be exacerbated by belonging to additional vulnerable groups such as the disabled or the homeless.

Legal Barriers

Standing is the major legal barrier preventing youth from accessing justice. Before the court, minors are treated similarly to incompetent adults. Consequently, they face many of the same obstacles. For example, Alberta’s civil procedure rules restrict young people from bringing their own claims to court without the support of a competent adult. In Alberta, individuals under the age of 18 require the assistance of a litigation representative in order to bring or defend an action (Alta Reg 124/2010, s 2).

What is a litigation representative?

Litigation representatives look after the interests of the minor whom they represent and assist in guiding their lawyer. There are three categories of litigation representatives: automatic, self-appointed, and court- appointed.

(a) automatic representatives are persons authorized under an instrument to commence or defend a minor’s claim. Ex: an individual with power of attorney (ibid, s 2.13).

(b) self-appointed representatives are “interested persons” over the age of 18 who are concerned for the welfare of the individual whom they represent; usually a parent or guardian (ibid, s 2.14; Adult Guardian Trusteeship Act, SA 2008, c A-4.2, s 1).

(c) court-appointed representatives, as the name suggests, are individuals selected by the court to represent a minor. Though the legislation only mandates that the court must appoint a litigation representative in situations where a trust is unclear, there is nothing barring the court from using its discretion and appointing litigation representatives in other situations (Alta Reg, supra s 2.16). However, this discretion will only be exercised in extraordinary circumstances.

In most cases, the only option for a litigation representative will be a minor’s parent or guardian. Access to justice issues arise when a minor has experienced an actionable wrong but is unable to resolve it in court because their parent or guardian is unwilling or unable to support them in their claim.

Limitation Periods For Actions

Civil limitation periods are governed by provincial legislation and as such vary based on jurisdiction. Alberta has arguably the harshest limitation rules out of any of the other provinces or territories. Alberta does not function on a discoverability principle. Except for two narrowly construed exceptions, Alberta is subject to a 10-year maximum limitation period (Limitations Act, RSA 200, c L-12 s 3 [Limitations Act]). More simply, the maximum time an individual has to begin an action is 10 years from the time the incident arose. This period is usually reduced to 2 years if a claimant knew or ought to have known to bring the action to court (Limitations Act). The court will determine when a person “ought to have known” based on an objective standard of reasonable diligence (see Yugraneft Corp v Rexx Management Corp (2010), 1 SCR 649 at para 60).

Examples:

• If a wrong occurred in 2015 and the individual knew or ought to have known that the wrong was actionable, they would only have until 2017 to begin an action.
• If an actionable wrong occurred in 2015 and the individual, in exercising reasonable diligence, was unaware that they should begin an action, they will have until 2025 to begin an action.

As briefly mentioned, there are two exceptions to Alberta’s limitation periods. First, the operation of the limitation periods is suspended during any period of time that the defendant fraudulently conceals the fact that the injury has occurred (Limitations Act, s 4). Second, the operation of the limitation periods is suspended during any period that the claimant is considered a person under disability (Limitations Act, s 5). “Person under disability” is not defined by the Act however WP v Alberta, 2014 ABCA 404 [WP] makes clear that Alberta’s legislators have chosen to make the standard for disability high. The court will only accept that a person is under disability if the claimant can prove that the disability prevented them from making reasonable judgments about their claim (WP, at para 38).

Limitation Periods And Minors

If a young person experiences a wrong and is unable to bring the claim to court, he/she may be able to pursue an action in adulthood. For minors, the limitation period is suspended until they turn 18 (Limitations Act, s 5.1). Once they turn 18, the standard clock begins to run. An exception to this is rule is that a potential defendant can cause the limitation period to begin to run against a minor if they deliver a notice to proceed to the minor’s guardian and pay the Public Trustee’s fee (Limitations Act, s 5.1). A defendant cannot exercise this exception if the action is sexual in nature.

Examples:

• If a minor turns 18 years old and already knows or ought to know that they experienced an actionable wrong during childhood, they will only have until they turn 20 to begin the action.
• If the minor, in exercising reasonable diligence, is unaware that they should begin an action, they will have until they turn 28 to begin an action.

Situations that Engage Minors’ Rights

Divorce And Separations

Custody Disputes

Child rights become actively engaged during custody disputes. The best interests of the child is a primary consideration in all actions. Problems arise when parents have conflicting ideas about what is in their child’s best interest. A solution is for children and youth to be appointed their own lawyer or counsellor to advocate on their behalf. This would be particularly helpful in situations of domestic violence where a child may be experiencing intense anxieties and fears. However, due financial to constraints on the justice system this may not be a feasible solution.

Child Support

Child rights also become engaged when a parent fails to provide child support. Child support is the right of the child, not of the parent (see CMM v DGC, 2015 ONSC 2447 at para 24 [CMM]). Consequently, a young person may be denied access to justice if they are unable to find a litigation representative to aid them in enforcing their right (CMM).

Medical Decisions

The tension between individual autonomy and governmental protection is strikingly apparent in the medical context. Most issues arise when an individual’s religious beliefs prevent them from accepting medical treatment. For competent adults, section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 guarantees that individuals be allowed to make decisions related to their bodies, regardless of whether or not these decisions are medically in their best interest Carter v Canada, 2015 SCC 5. When are youth afforded this same level of bodily autonomy?

The Mature Minor Doctrine

While the age of majority is 18 or 19, Canada follows the mature minor doctrine. The mature minor doctrine establishes that individuals are given the right to make medical decisions based on their level of maturity rather than their age (see AC v Manitoba, 2009 SCC 30 at para 46 [Manitoba]). The doctrine is rooted in an understanding that the transition from childhood to adulthood is gradual and evolves over time and consequently so should a youth’s autonomy). The best interest doctrine continues to apply but with the court increasingly exercising restraint as a young person matures (Manitoba, at para 58). The more severe the potential consequences of the medical decision, the greater level of scrutiny applied when assessing the youth’s maturity and ability to make medical decisions (Manitoba, at para 86).

Factors to Consider

There are several factors that are of assistance when deciding the level of autonomy a youth should be granted (Manitoba, at para 96).

1. What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?
2. Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?
3. Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?
4. What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?
5. Are there any existing emotional or psychiatric vulnerabilities?
6. Does the adolescent’s illness or condition have an impact on his or her decision-making ability?
7. Is there any relevant information from adults who know the adolescent, like teachers or doctors?

Aboriginal Right to Traditional Medicine- An Area of Unsettled Law

Courts are extremely reluctant to allow youth or parents to make medical decisions that are not in a minor’s physical best interests. In other words, courts are unlikely to rule against the recommendation of medical experts who has advised medical treatment that is against the wishes of the child. However, two recent situations in Ontario have suggested that the law is not entirely as clear as one might have previously assumed. Both situations involve 11-year-old Aboriginal girls with leukemia. In both cases, the parents (acting on their children’s behalves) refused to continue with chemotherapy against medical advice, in favour of traditional Aboriginal treatment. Only one of the cases appeared before the court.

The Ontario Native Council on Justice held that the child was not “in need of protection” under Ontario’s Child and Family Services Act and refused to apprehend her. The Court reasoned that the child’s mother has a constitutionally protected right to pursue traditional Aboriginal medicine (see Hamilton Health Sciences Corp v DH, 2014 ONCJ 603 at para 83 [Hamilton Health Sciences Corp]). The court later amended the decision to clarify that, “[…] the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount. The aboriginal right to use traditional medicine must be respected and must be considered, among other factors, in any analysis of the best interests of the child, and whether the child is in need of protection” (Hamilton Health Sciences Corp para 83a). The court did not change its decision that the child was not in need of protection. However, by this time the child and her parents had chosen to begin a combination of chemotherapy and Aboriginal medicine.

This case creates uncertainty as to how government actors and agencies should respond to a parental refusal of western medicine in favour of traditional Aboriginal treatment. In other words, how should the courts reconcile the best interests of the child when the western medical perspective conflicts with the Aboriginal perspective?

Punishment & Discipline

Under the Canadian Criminal Code RSC 1985, c C-46, s 265 [Criminal Code] a person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly. However, an exemption exists; section 43 of the Code creates a statutory defence for parents and teachers who use “reasonable physical force” to discipline children (Criminal Code, s 43). The constitutionality of this provision was challenged and upheld by the Supreme Court of Canada (SCC) in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 [CFCYL]. The court’s decision to uphold s 43 was in large part due to limitations placed on the provision (CFCYL, para 30).

The SCC outlined that force will only be “reasonable” when:

1. The purpose of applying the force is for an educative or corrective purpose. Therefore, s. 43 does not provide a defence for actions motivated by anger or frustration (CFCYL para 24).
2. The child is capable of benefiting from the correction. As such, the defence does not apply to children under the age of two or in theory children with a disability over the age of two whose cognitive limitations prevent them from understanding why they were punished (CFCYL, para 25).
3. The force does not result in harm or the prospect of bodily harm, as defined by the Criminal Code. Force is harmful when it involves the use of objects, slaps or blows to the head, or when it is exercised on a teenager since this can induce aggressive or antisocial behaviour (CFCYL, para 37).
4. For teachers, social consensus is that corporal punishment is unacceptable but corrective force to remove children from classrooms or secure compliance with instructions can be acceptable (CFCYL, 38).

The SCC suggests that these limitations reduce the force to the mildest forms of assault (CFCYL, 30). While this may be sound in theory, the language of s.43 makes no reference to any of the limitations laid out by the majority. A logical conjecture is that without being familiar with the relevant case law a parent may interpret the meaning of “reasonable” subjectively, which could give rise to the exercise of unreasonable force. In response to this reality, Child advocates, including the UNCRC, argue that physical punishment of children should be outlawed not to punish parents, but to close the gap in protection for young people and increase respect for their dignity (Michael DA Freeman, “Upholding the Dignity and Best Interests of Children: International Law and the Corporeal Punishment of Children” (2010) 73:2 Law & Contemp Probs 211 at 250).

Adoption

In some circumstances a parent may refuse to disclose information regarding their child’s biological parent(s). In Alberta, a young person has little agency to learn the identity of their birth parents until age 18 when they can request a release of adoption information (Child, Youth and Family Enhancement Act, RSA 2000, c C-12, ss 74.2, 74.3). Courts recognize that not knowing one’s biological parents and cultural history has the potential to raise complex issues for youth (Tia M Young, “Removing the Veil, Uncovering the Truth: A Child’s Right to Compel Disclosure of His Biological Father’s Identity”, Note and Comment, (2009) 53 How LJ 217 at 234 [Young]):

(a) it can cause psychological damage that persists through adulthood;

(b) create a disadvantage in detecting and preventing certain hereditary diseases; and

(c) deny a potentially necessary source of financial support.

Should youth be given a pathway to this information before reaching the age of majority? On one hand, parental interests should be protected and young people should wait until they reach the age of majority to learn this information. On the other hand, by the time a child reaches the age of majority they might have missed an opportunity for support and self-actualization that would have greatly benefited them in their transition to adulthood (ibid 237).

In Sutton v Diane J, 273519 WL 840900 (Mich App 2007) an American court confronted this question when a 17-year old tried to sue his mother to discover his biological father’s identity. The court refused to grant the minor standing. In making this decision the court weighed the competing interests of all of the parties involved including a parent’s right to privacy and the state interest in protecting family unity and avoiding a floodgate of litigation (Young, at 224). Canadian courts have yet to address this issue.

Schools

“Justice” takes on much more practical meaning in the context of schools. In most cases it means access to a safe environment to grow and learn. Common topics that arise in this dialogue are bullying, punishment, sexuality and the question of who should be allowed to decide how young people are educated: parents or teachers?

Bullying

Bullying comes in many forms and can be exercised in a variety of ways. For this reason it is difficult to develop an effective framework for how to deal with it. Child advocates suggest that if a young person is being bullied it is most important that they talk to an adult whom they trust. This person can help to decide how to approach the situation but more importantly, can provide the young person with support. ACRLC offers seminars aimed at reducing bullying in schools (click here to be directed to our anti-bullying resources).

Punishment

Many academics and educators suggest that schools should move away from punitive forms of discipline, such as suspension, towards more restorative forms that focus on keeping young people in school. There is no credible evidence to suggest that exclusionary disciplinary measures function as a deterrent for poor behaviour. Further, missing even a few days of school can have a negative impact on student performance. Exclusionary policies are additionally problematic because they are disproportionately exercised on racialized students (Thalia Gonzalez, “Keeping Kinds in Schools: restorative justice, punitive discipline, and the school to prison pipeline” (2012) 41:2 Educ & LJ 283). A just disciplinary school policy must strive to decrease poor behaviour through means other than suspension and expulsion.

Sexuality & The Question of Who Should Decide how Young People are Educated

The debate between educators and parents over how and what information should be taught to young people becomes apparent in the context of sexuality. Sexuality is a contentious issue across the country. From sexual education reforms in Ontario to gay-straight alliances in Alberta, it appears there are strong and conflicting views on what information should be made available to young people. Many parents believe that it is their right to control the information that their child receives. The alternative perspective is that children have a right to know information that will contribute to their safety as well as have a right to learn about the diverse society that they are member to.

Recent Gains

As of June 1 2015, the Alberta Bill of Rights has been amended to require school boards to allow students to set up gay-straight alliances or queer-straight alliances in their schools and has enshrined sexual orientation, gender identity, and gender expression as protected grounds for discrimination (An Act to Amend the Alberta Bill of Rights to Protect our Children).

Current Initiatives

In addition to numerous non-governmental agencies dedicated to protecting and advocating for youth, there are a number of government initiatives in place to assist youth in accessing justice.

Youth Criminal Justice Act

The Youth Criminal Justice Act applies to persons aged 12-17 and suggests that young people must be held accountable for criminal activities but not necessarily in the same manner or extent as adults (Department of Justice Canada, “The Youth Criminal Justice Act: Summary and Background”, (Ottawa: J2- 375 Department of Justice Canada, 2013) [DOJ]). The Act recognizes that a lack of maturity can lead young persons to make poor decisions. It promotes the rehabilitation and reintegration of youth who have committed offences and supports the prevention of crime by referring them to community programs. Proceedings under the Act are conducted in special youth justice courts. While youth courts have the power to impose adult sentences, they generally seek to impose sentences that are meaningful, taking into account the young person’s needs, their level of development, and special considerations of factors such as gender, cultural, and language differences (DOJ, 2).

Accommodations for Child Testimonies

Sections 486.1 and 486.2 the Criminal Code provide special accommodations for young victims and witnesses. Specifically, s 486.1 allows a person under the age of 18 a “support person” to assist them in giving evidence and s 486.2 allows a person under the age of 18 to testify outside of the court room or behind a screen or other device that would prevent them from facing the accused. In R v JZS, [2010] 1 SCR 3 [JZS] the SCC upheld the fairness of s 486.2. The court held that child testimonies are necessary to the truth-seeking goal of criminal justice (JZS, para 54). These provisions aid young people in accessing justice by removing the fear and potential intimidation associated with being forced to face the accused. They do not render a trial fundamentally unfair (JZS, para 54).

Child Advocacy Centres

Child Advocacy Centres (CACs) increase access to justice by supporting victims and witnesses involved in the justice system. CACs seek to reduce the stress and trauma associated with being involved in the justice system by providing child-appropriate settings and resources (Canada, Department of Justice, “Child Advocacy Centres Initiative”, (4 April 2013)).

Future Directions

In 2009 the United Nations Convention on the Rights of the Child celebrated its 20th anniversary. In response, the Canadian Coalition for the Rights of Children produced a report on the best interest of the child and how it has been applied in Canada. At the end of the report, the Coalition outlined a series of targets it hoped to achieve by 2015, the Convention’s 25th anniversary. These targets are repeated below (Canadian Coalition for the Rights of Children, Best interests of the child: Meaning and application in Canada, (1 June 2009) at 22). By 2015:

• no child in Canada will need to leave their parents and become a ward of the state in order to access health services judged to be essential for the best interests of the child.
• no young person, parent, or legal counsel is in a situation where conviction for criminal activity is the only way to access mental health care or other assistance that is essential for the best interests of the child.
• the following question will be routinely asked as part of policy formation at all levels of government: “What is the impact of this policy or law for children?”
• 75% of children over the age of 7 will have age-appropriate awareness of their rights and responsibilities to respect the rights of others and knowledge of what they can do or to whom they can go for help when their rights are violated.
• every court case or hearing that involves children will have taken into consideration the views of the child or given a sound rationale for not doing so.
• the regular application of Jordan’s Principle will be routine for Aboriginal services and expanded to apply to inter-departmental delivery of assistance for all children.
• Canada’s national Children’s Commissioner will be investigating and responding to requests for help from children in areas under federal jurisdiction and working with provincial children’s advocates on a regular basis to close gaps between federal and provincial laws and programs for children.
• Canada will have reduced child poverty to less than 5%, with a target for elimination by 2020.
• Canada will have a national policy for early childhood that can be favourably compared with practices in other industrialized countries.

The coalition has not yet produced a report on where Canada stands today, however it is apparent that these targets in large measure have not been met. While there has been progress in the arena of children’s rights, these unachieved goals are a reminder of where Canada can improve in order to better respect the dignity and best interests of the child.

What does Access to Justice Mean for Youth?

For youth, access to justice involves both being heard and being protected. Tensions arise between the two when what a youth wants does not, in the government’s opinion, afford him/her adequate protection. The United Nations’ Convention on the Rights of the Child, 20 November 1989, 1577 UNHR art 3 (entered into force 2 September 1990) [UNCRC] provides that “the best interests of the child” be the primary consideration in all actions concerning children. Canada ratified the treaty and has adopted the “best interest doctrine” as a guiding principle in all youth-related actions.

Annotated Bibliography

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