Course:Law3020/2014WT1/Group V

R v A.D.H., 2013 SCC 28

Wal-Mart

Facts

The accused was unaware she was pregnant and gave birth while using the toilet in a Wal-Mart bathroom. She thought the baby was dead, so she cleaned up as best she could and left. The baby was actually alive and tended to by the store manager. It was taken to the hospital, was resuscitated, and found to be completely healthy. The accused was seen entering a leaving the bathroom at the time of the incident and was identified. She cooperated with authorities and confirmed she was the mother. She was charged with unlawfully abandoning a child under the age of ten and thereby endangering its life, contrary to section 218 of the Criminal Code. The trial judge held that she admitted she had abandoned the baby, which constitutes the actus reus of the offence. The judge also held that she did not know she was pregnant and honestly believed the baby was dead when it was delivered. The judge applied a subjective standard of fault and found that she therefore did not meet the mens rea requirement of the offence. Her behavior after the birth was also explained as being caused by shock, fear, and confusion. The Court of Appeal agreed that the provision in the Criminal Code requires a subjective mens rea.

Issue

S. 218 of the Criminal Code reads:

"218. Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months."

Since the provision does not set out a fault requirement, the issue in this case is whether the fault should be assessed subjectively (what the accused actually knew or believed) or objectively (what a reasonable person in the circumstances would have done).

Decision

Appeal dismissed; the trial judge was correct to hold that s. 218 requires subjective fault.

Reasons

McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ., delivered by Cromwell J.:

The majority employs the method of statutory interpretation mandated by Rizzo & Rizzo Shoes Ltd. (Re): it reads the words of the statute in their context, in their grammatical and ordinary sense harmoniously with the scheme of the statute, its objectives, and the intention of Parliament. By doing so, it finds that there is substantial support for the proposition that subjective fault is required by the provision.

The majority looked at the specific words of the provision. Words like “abandon”, “expose”, and “wilful” suggest a subjective standard of fault. The court also turned to the French version and common law precedent to find that the word “likely” does not suggest and objective fault (as the Crown argued) It also examined the broader context in which the provision fits. It explored the legislative presumption of subjective fault, the provision’s evolution and its purpose, and concluded there are significant reasons to assign the provision a subjective fault element. It was clear that the purpose of the provision was the protection of children and that, therefore, the scope of those the section could apply to is very broad. Because of the broad scope of potential liability, a subjective standard would serve the purpose of preventing that scope from reaching too far. The court was careful to consider the potential of innocent people being wrongfully convicted and made this a central issue of its analysis.

The majority also looked at what was not included in the provision to show that subjective intent was intended and is appropriate. They examine other offences in the Criminal Code that have long required objective fault and find that the significant elements of those offences are missing in s. 218.

The majority relies on extensive statutory interpretation of text, context, and purpose of s. 218 to find that subjective fault is required. The trial court and the Court of Appeal reached the same conclusion.

Rothstein and Moldaver JJ., delivered by Moldaver J.:

Moldaver argues that the text of the provision suggests penal negligence (objective standard) is all that is required. He employs statutory interpretation and looks at the plain language of the provision, its legislative history, relevant scholarly opinion, and the Supreme Court’s precedent to establish his argument. He says that putting all these together shows that the offence is duty-based: s. 218 is child protection legislation targeted at three limited classes of people faced with a situation where a child under 10 is or is likely to be at risk of injury or death. These groups are: 1. Those who have an ongoing and pre-existing legal duty to take charge of the child, 2. Those who choose to come to the aid of the child in that situation, and 3. Those who place the child in that situation. Because of its duty-based nature and its proscribed consequences, penal negligence is the appropriate fault level. Penal negligence, Moldaver says, does not punish people for simple negligence. It is an objective standard that requires a marked departure from the standard of care of a reasonable person in all the circumstances. These circumstances take into account some subjective elements and allows for the accused’s honestly mistaken beliefs. The objective standard should be modified to give the accused the benefit of any reasonable doubt. The test does not, however, take into account the personal attributes of the accused, short of any incapacity to appreciate risk.

Moldaver applies this objective standard to the accused and finds that she should still be acquitted. He agrees with the trial judge that A.D.H.’s belief that the child was dead was honestly and reasonably held. Because the mistaken belief was honest and sincere, the accused cannot be held morally blameworthy.

Traditional Natural Law Theory: Law for the Common Good

Brooklyn Museum - San Thomas Aquino - overall

According to Aquinas, natural law comes from God and exists independently in nature. The closer human-made laws align with natural law, the more correct they are. Humans were created by God as rational beings. This rationality allows humans to exercise reason, and when this reason is used correctly it will lead towards the natural law. According to Aquinas, it is the nature of mankind to seek after good, and this desire, too, was implanted by God. By using reason, humans can develop and implement the steps that will lead toward the common good. This is the heart of lawmaking. The objective of laws should be the common good.

Aquinas holds that in order for a law to be valid, it must contain four elements: It must (1) be directed at the common good, (2) follow practical reason, (3) be made by a valid lawmaker, and (4) be promulgated. Each of these elements is present in R v A.D.H.

1. The Common Good

The common good is a central issue in R v A.D.H. Aquinas believes the common good is the good of the community. Law imposes order on the community, and happiness is only possible within such order and stability. This was an overarching theme in the case. The court focused its approach on not punishing people who are not guilty. Aquinas would say that this is essential for maintaining order in society. The court found that A.D.H. did not make immoral choices and thus should not be punished. According to Aquinas, this is a way of ensuring people stay on the moral path towards the common good. The court found that she was not straying from the moral path, since she was unaware she was pregnant and thought the baby was dead. Her behavior was not a lapse in morality: while mothers are expected to provide for their children (as another part of the common good), her legitimate belief that the child was dead freed her from any moral obligation. If it had been a lapse in morality (i.e. if she thought the child was alive but momentarily neglected it for whatever reason), she would have been off the moral path and should be punished. But punishing the blameless would undermine the objective of the natural law.

The court also held that the law was in place in order to protect vulnerable people, particularly children. According to Aquinas, this is a valid objective as part of the common good. People would only abandon their children if they were off the moral path.

2. Practical Reason

Aquinas sees law as teleological: it is directed at a purpose. In that sense, laws are practical reason directed at the common good. If a law does not have that as its goal, it is not a valid law and does not need to be followed. In order to be law, it must be in accord with reason. The court in R v A.D.H. held that the law in question was laid out reasonably. A central issue in the case was whether or not the provision required subjective or objective knowledge. The court held that if the provision required objective knowledge, it would have been written differently. The use of subjective interpretation was to ensure that the morally innocent should not be punished. This is in line with practical reason and makes the law valid.

3. Valid Lawmaker

According to Aquinas, the natural rulers know what is in the common good, and what will achieve universal happiness. They can threaten, coerce and punish the ruled to pursue this goal. But Aquinas does not believe in democracy. The law in A.D.H. was passed by an elected legislature. Though these are not natural rulers in the sense Aquinas would have in mind, the elected officials have been recognized by the public as having the necessary skills to rule. These skills would allow them to closely align with natural law, making the laws they pass valid.

In the case the court focused on legislative interpretation, based on the intent of parliament. This shows judicial trust in the ruling abilities of parliament. Aquinas also preferred legislation to judge-made laws. Legislation deals with broader laws, which Aquinas sees as more moral than case-by-case decision-making. Though the court held that the law in question was meant to be dealt with on a case-by-case basis, the fact that it was passed by a legislature instills it with wisdom and morality. Aquinas would also likely approve of the court’s decision to give a looser interpretation of the provision, as he holds that the spirit of the law is more important than the letter of the law.

4. Promulgation

In order for a law to be valid, it must be written, known, and available. It is likely, then, that Aquinas would approve of the codification of Canada’s criminal laws. The law in question in the case was from the Criminal Code, which is available to the public. The purpose of the law is to compel obedience, and people cannot obey laws about which they are ignorant.

Legal Positivism

Positivism is a reaction to traditional Natural Law theory. Positivists are concerned with rules that are created by men in power, while Natural law is said to come from a higher being that is beyond human creation. Positive Law divides morality from law and asks that these be assessed separately. Rules are law as long as a person or group of authority creates them. Morality is irrelevant to the functioning of a given law.

John Austin- Founder of Positivism

John Austin

John Austin, an English philosopher of law in the early eighteen hundreds, believed that positive law is made up of commands. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 35) Superiors give these commands to subordinates and punishments or sanctions are put in place to ensure these commands are followed. These are his only requirements for a law to be valid.

Legal Positivists like John Austin, would agree that sovereign superiors must issue commands. They may be individuals or aggregate bodies as long as they exert control and demand obedience over a given set of people. In our context, the Legislature is our country’s governing body. They create law that we as citizens must follow or face penalties for our disobedience.

Austin’s critique of Natural law was that it had no distinction between matters of law, morality, and religion. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36) As a positivist, he believed that the law and morality must be approached independently. He rejects the premise that for laws to be valid, they must be fair and apply equally to all people. “Positivists insist that a rule may be legally valid and yet morally objectionable. The existence of a law is separate from its moral acceptability. This is what is known as the "Separation Thesis” (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 34)

John Austin advanced three different types of directives that govern all human behaviour: (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36)

1. Laws set by God for human beings

This is law of religion. God created this law for the greater good of all. He wishes to serve the greatest number of people. Although not all of God’s actions are visible to humans, we can use belief to guide us when interpreting his commands.

2. Positive Morality

This is not official law created by a sovereign superior, such as the Legislature, though it still has some command over groups of people. Positive morality informs humans how to act but does not have specific punishments in place for those who do not follow this guidance. These rules could be created by governing bodies, clubs or organizations.

3. Positive Law

This is law that has been created for human beings by human beings in positions of authority. They are directed at inferior individuals who do not have the power to create law. Individuals must abide by these rules or face reprimand. These include government laws that have penalties attached to them.

Bentham and Hart- Modern Positivists

These philosophers take a more radical approach to legal positivism. The separation of legal rules from morality allows for skepticism by individuals. By separating law form morality, we can challenge, critique, and change laws.

Application to R v. A.D.H.

Criminal law fits with John Austin's principles of how law should be formed. Sovereign superiors created the Criminal Code and citizens of Canada must follow this law. Specifically, S.218 states that it is a crime to abandon a child and the penalty for doing this can reach upwards of 5 years imprisonment. The woman in this case was clearly a subordinate to the sovereign, and this command therefore applied to her the same as all citizens of Canada. It is an application of Positive Law. (R v. A.N.H., 2013 SCC 28 at para 73)

Natural law would say that law is morality written down, and if a law is not moral, it need not be followed. Legal positivists disagree. Positivism states that the two must be separated, and even if a law is not moral, it can still be valid. In application to R v. A.D.H., even if S. 218 (Abandoning a Child) was an immoral law, the mother would still be bound by it.

In this case the appellant and respondent are debating the interpreting of the law as to whether guilt should be found through subjective or objective mens rea. The Judges in this case are trying to give effect to what parliament’s intentions were by implementing the law. Judges are delegated authority as lawmakers. However, parliament can change the laws if they do not like the result. This is what Bentham was referring to when he said, separating law's essence from morality provides for critiquing, challenging, and changing the law. This is what the judges in R v. A.D.H. were doing when they were deciding how the reading of S.218 should be applied. Austin would consider laws that could repeal laws something other than positive laws. He calls these revocations of command “permissive laws”. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 45)

Bentham gave us context to determine whether or not law is good, based on utilitarianism. This concept seeks after the greatest good for greatest number of people. This parallels Aquinas’s Natural Law theory that law should promote the common good. However, Bentham would not say that a law that was not for the common good was invalid, but simply that it was not a very good law.

In our case, when Judges were determining whether subjective or objective fault should apply, they should choose which ever is best for all citizens. Bentham and Austin would agree with the Court's decision in this case.

Separation Thesis and the Morality of law

H.L.A. Hart

H.L.A. Hart supports the Legal Positivist Theory along with Jeremy Bentham and John Austen, and he offers clarification of the Separation Thesis. (Susan Dimock ed. Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, ON: Pearson Education Canada, 2002)) We are discussing this theory through the lens of R v A.D.H (R v ADH, 2013 SCC 28). This case required the court to determine whether the fault requirement for Section 218 of the Criminal Code should be subjective or objective. (Ibid and Criminal Code, RSC 1985, c. C-46 Section 218) Section 218 is a moral law, as it upholds societies’ value of protecting children as vulnerable members of society. (Criminal Code supra). Under the “Rule of Recognition”, Hart claims that even an immoral law could be a valid law, if at least some people in society follow and recognize it. (Dimock Supra at 185 text book and Lecture) Therefore, even laws that promote immoral acts such as genocide could be valid under this theory. (Ibid) Positivists contend that when there is a conflict between “moral” and “legal” obligations it is up to individuals to determine which is more important to follow. (Ibid) However, this does not preclude legal and moral obligations from operating parallel to each other in the law. This is the case in R v A.D.H (Dimock Supra at 188.) Therefore, people who violate Section 218 would be going against both their “moral obligation” and their “legal obligation” not to abandon children under the age of 10. (Dimock Supra at 188)

In R v ADH there was a gap in the legislation regarding whether section 218 should be interpreted with a subjective or objective fault element.(ADH Supra and Criminal Code Supra) This creates a “Hard Case” situation where judicial interpretation falls within a grey area of the law. Hart calls this grey area the “penumbra”. (Dimock Supra at 193)

Decision making in the “Penumbra”, requires judges to make law rather than merely decide an outcome based on the “settled core of meaning”. (Dimock Supra at 195) This means that when judges cannot decide a case merely by applying a rule to the facts, they are required to interpret and determine what the law is. However, Hart contends, this is not entirely discretionary because judicial interpretation is guided by rules. Hart claims judges are “only drawing out of the rule what, if it is properly understood, is latent within it”. (Ibid) In R v ADH, the judges decided on a subjective fault element regarding the abandonment of children under 10. The Judges would have been considered, by Legal Positivists, to be guided by; the Rule of Law, Precedent, and Principles of Fundamental Justice in making their decision. Therefore, a Positivist would say that subjective fault was chosen, because having objective fault as the standard for section 218 could allow a morally innocent person to be convicted in the future, even though that would not have happened in this case. (Ibid) This is distinguishable from Legal Realism, which would contend that in these situations judicial interpretation is entirely discretionary (Lecture).

Lon L. Fuller is a critic of Legal Positivism whose beliefs are similar to Natural Law Theorists (Dimock Supra at 209) He contends that law and morality are not separate because laws are inherently moral in order to be a “good law” (Dimock Supra 217 and Lecture) Section 218 of the Criminal Code would likely fit into Fuller’s contemplation of a good law because it is moral. Also, the common law interpretation of requiring subjective fault for s 218 would fit in the “good law” category, as it upholds the moral of only punishing the morally culpable.

Fuller contends that there is not a “core of settled meaning” and therefore no “penumbra” of judicial interpretation. He claims laws are always interpreted with reference to the purpose of the “rule” and the good it aims to accomplish. (Dimock Supra at 227 and Lecture) The “hard cases” are those where the purpose is uncertain or competing purposes are in play. Fuller claims that “when questions of this sort are decided there is at least an intersection of 'is' and 'ought', since the judge, in deciding what the rule 'is', does so in the light of his notions of what it 'ought' to be in order to carry out its purpose” (Dimock Supra 227)

The Supreme Court in R v ADH satisfies Fuller’s theory of interpretation by comparing Section 218 with similar sections in the criminal code and applying the textual, contextual, and purposive approaches established in Rizzo & Rizzo Shoes Ltd. (ADH Supra at para 19-26) The Judges explain that they were determining Parliament’s intent for section 218. This legislative interpretation falls in line with Fuller’s theory, as it engages the judges in an assessment of the good that the section was meant to accomplish. The purpose of section 218 is to protect children, but it is a principle of fundamental justice to not punish the morally culpable. (ADH Supra at para 27) Therefore, requiring subjective fault addresses the conflict between the two goals.

Fuller contends that if the law no longer furthered its rules of inner morality it would fall apart and cease to function as a law. (Dimock Supra at 217) He also claims that society follows the law because it thinks the law is good and produces good outcomes. (Dimock Supra at 226) So under this theory, the Supreme Court’s decision to apply subjective fault further legitimized section 218 as law. (Dimock Supra at 217)

Dworkin and System Of Rights and Principles

Ronald Dworkin at the Brooklyn Book Festival

Ronald Dworkin opposes the Positivist assumption that laws are only made up of rules. (Susan Dimock ed. Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, ON, Pearson Education Canada, 2002) at 236) He argues that principles and policies are important in shaping the law. (Ibid) According to Dworkin, principles are based on ideas of justice and fairness within society that support specific rights and duties (Dimock Supra at 243 and Lecture) Whereas, Policies are “social goals pursued on behalf of some segment of the population” (Dimock Supra at 243 and Lecture). For the purpose of this discussion principles will refer to both principles and policies. (Dimock Supra at 243)

Dworkin believes principles have an important role in judicial decision making, especially for “Hard Cases”. (Dimock supra at 260) Judicial interpretation involves looking at the history of the legislation and its purpose to analyze the underlying principles (Dimock Supra at 238). According to Dworkin, judges are not using their discretion; they are balancing the weight of principles to determine which is the right answer. (Dimock Supra 254)

Law as a stream

Judicial decision making for “Hard Cases” can be illustrated by a metaphor of a stream. The stream is the law, flowing from the past and picking up rocks and dirt. These rocks and dirt are principles, which the law carries towards the future. These principles become embedded in the stream as sediment. Judicial decisions for “Hard Cases” are like a cloud above the stream. The judges pick up the water with sediment to weigh the principles in the cloud. When they find the right answer they rain it down to the stream, as a binding precedent with the embedded principles. The precedent guides future judicial interpretation to avoid judicial activism. (Dimock Supra at 261 and 264)

(The stream metaphor from lecture)

Dworkin’s theory is applicable to the case of R. v. A.D.H. (R v ADH, 2013 SCC 28) The case required the Supreme Court to balance principles to determine the applicable level of mens rea for section 218 of the Criminal Code. (Criminal Code, RSC 1985 c. C-46 and R v ADH Supra) Section 218 had a legislative gap regarding whether a subjective or objective mens rea should be applied as the standard for assessing fault for the Abandonment of children.(R v ADH)

To fill the gap, the judges were forced to look backwards at the intent of parliament and analyze the context and purpose of the legislation. (R v ADH Supra at para 19 and Dimock Supra at 264) The court adopted this contextual, textual, and purposive approach from precedent in Rizzo & Rizzo Shoes. The precedent serves as a guideline for judicial interpretation. (Dimock Supra at 254 and ADH Supra at para 19 and Rizzo & Rizzo Shoes Ltd. [1998] 1 SCR 27). Following precedent supports Dworkin’s theory, which states, “statutes and common law rules are often vague and must be interpreted before they apply to novel cases”. However, he warns that to uphold the “integrity of the law when creating new laws or using principles to decide a new case, judges must be consistent with their principles”. (Dimock Supra at 238 and 259) In this case, the statute was “vague”, as it did not expressly state which form of mens rea should be applied. Therefore, in order to uphold the integrity of the law, the judges were required to consider the intent of parliament with reference to the underlying principles of the law, in a way that was consistent with prior judicial principles and interpretation. (Dimock Supra at 238 and 259 and ADH Supra)

Judicial interpretation in R v ADH involved balancing the principles behind subjective or objective fault in relation to section 218. Having an objective fault requirement would potentially allow for greater protection of children from abandonment, but could also allow for a morally innocent person to be criminally convicted. However, subjective fault still offered the protection of children while upholding the principle of not punishing the morally innocent (ADH Supra at para 27). Under Dworkin’s theory this means the court balanced these principles in order to find the right answer that best upholds the principles of society.

For Dworkin, in some hard cases the judges could grant much more weight to some principles than to others. (Dimock Supra at 260) However, in R. v. A.D.H., the principles of protecting vulnerable children from harm and the principle of not criminalizing the morally innocent are both strongly held in society. The court was therefore required to find a balance between the two. (ADH Supra at para 4, 27, and 46) According to this theory the Subjective fault was the correct decision, as it provides balance between the similarly weighted principles. (Dimock Supra at 260)

The Supreme Court chose the standard of subjective fault as binding precedent for future court decisions (Dimock Supra at 247 and 264). Establishing a precedent, according to Dworkin’s theory, will prevent judicial activism for section 218, as the law regarding the fault requirement has now been established through the common law. (Dimock Supra at 264 and Criminal Code Supra)

Liberty and Paternalism

Liberty and Paternalism

John Stuart Mill by John Watkins, 1865

This section takes on a different question from what has been asked in previous theories. We are no longer concerned with what law is. Here, we ask when the liberty of a person should be interfered by the law. Restriction of liberty may be justified when there is a risk to other or to enforce the moral code of society. The limits of intruding on a person’s liberty must be defined and John Stuart Mill establishes when such action is necessary.

John Stuart Mill- Liberty Advocate

John Stuart Mill was a philosopher in the mid eighteen hundreds who wrote about society's individualism and protection of liberties. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 303) He proposed that individuals within a society need a significant degree of independence. Their freedom allows them to live happy lives. This autonomy also protects society from revolt by individuals. However, untrammeled freedom can also be problematic. Mill put fourth four possible justifications for restricting the liberty of individuals by law: (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 303)

1. The Harm Principle

The harm principle states that it is acceptable and necessary for a society to restrict individuals' liberty when their actions may put others in harms way. Law should step in and restrict any harmful action. In return for this protection, all members of a society have a responsibility to defend the society from outside harm and to use their liberty in a manner that does not endanger others.

2. Paternalism

The infringement of individual liberty is also justified for the protection of individuals from themselves. This justification can be used when long term and irreversible damage may be done to the individual. The criminalization of attempted suicide may be an example of such a justified paternalistic state intrusion.

3. Legal Moralism

Here a society may restrict one's actions if these actions are likely to undermine the values of the society as a whole. Whenever a person uses his or her liberty in an immoral manner that would upset others in the society, this action must be stopped. The state is therefore justified in intervening. The protection of society as a whole outweighs the sanctity of individual liberty.

4. The Offence Principle

This principle suggests that liberty may be justifiably infringed when a person’s actions will offend others in the society. These actions are not physically harmful to others, but they are unacceptable to the common good of all people. An example of a type of behavior that would not be accepted is public nudity. State intrusion on individual liberty would be justified to prevent offence to the societal standard.

Dworkin’s Paternalism theory

Dworkin also argues that paternalism is necessary to prevent individuals from harming themselves. He says, “we may be justified in restricting the freedom of individuals to make decisions, the consequences of which are far reaching, potentially dangerous and irreversible.” (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 321)

Application to R v. A.D.H.

Mill’s justifications for restricting liberty apply to this case in several ways. State criminalization of the abandonment of a child is an illustration of the harm principle. If a person was totally autonomous, they could abandon a child if they wanted. However, the harm principle states that conduct that may be of harm to others must be stopped. Allowing abandonment would undermine the social values in a society. Therefore, it is justifiable to charge people criminally for this behaviour. According to Mill, this is a justifiable limit on a person’s liberty.

S. 215 of the Criminal Code places a duty of parents and caretakers to provide the necessities of life. This section goes beyond restricting liberty: it actually imposes a duty on parents to provide for their child. This can also be justified under the harm principle: failing to provide for children what they are unable to provide for themselves is a direct application of harm, which must be prevented. John Stuart Mill also argues that individual autonomy imposes an obligation to protect society from harm. Preventing such harm to children is a way of living up to that obligation.

Mill's Tyranny of the Majority says that a balance must be achieved between the power a society has over a person and a person’s right to freedom from authority. This applies to R v. A.D.H. Children occupy a minority position in society. Measures must be put in place in order to prevent majoritarian tyranny from neglecting such minority groups. Minorities are vulnerable by nature; children are even more so. There is therefore an urgent need to protect them, and legislative measures such as the provision in the Criminal Code at issue, are an effective way to ensure such protection.

Canadian society as a whole has proceeded down a path away from tyranny as it seeks to address minority interests. Such efforts as decriminalizing abortions, making it easier to adopt a child, and establishing social programs to assist mothers, are all evident of this goal. It remains important that our society does not marginalize these minority groups. This interest is reflected in the court's decision in R v ADH.

By establishing that an individual must have subjective mens rea to commit S. 218 Child Abandonment, the courts aims to prevent innocent people from going to jail. Dworkin likely has no problem with this, but he draws a distinction between reversible and irreversible damage. He argues that society should not interfere with an individual’s liberty in cases other than suicide. Preventing the innocent from imprisonment serves this goal of limiting state intrusion on liberty.

After the police charged the accused, they continued to interfere with her liberty. They took the child away from the mother and restricted the terms in which she was allowed to see her baby. Here, society was balancing the mother’s liberty with the protection of the child. Mill says that children cannot make decisions as they do not have mature faculties. The result is that children are unable to recognize their own self-interest, so the state’s interference is required. This justifies the interference of the accused's liberty and suggests the interests of the vulnerable are more important than those of the majority.

Law and Economics: Law as Efficiency

Law and Economics

At the intersection of law and economic policy, societal norm’s and views on accepted and prohibited conduct are at the core of the creation of criminal offences. Expected conduct and deviation from that conduct is considered in totality to impose and implement sanctions. Inherently, implementation and enforcement of sanctions has cost implications for society. Legislators and judges have a significant role to play in increasing economic efficiency in the common law, whereas their role through the common law with respect significant redistribution is minimal (Susan Dimock ed. Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, ON: Pearson Education Canada, 2002) at 121).

The judiciary can be seen engaging in efficiency in three contexts: 1) “unlike redistributive goals, efficiency is something they can achieve [through case law] 2) deciding cases efficiently, since judgments are otherwise likely to be appealled, principle of stare decisis 3) judges tend to be conservative, and efficient decisions serve broad bases social demands” (Ibid at 122). When economic considerations are applied in the case of R v. A.D.H. (R. v. A.D.H., 2013 SCC 28) the most salient costs under consideration can be thought of as falling under two themes: 1) the costs associated with entry and exit from the judicial system (including potential incarceration); 2) the costs of child welfare and social programming.

In the case of R v. A.D.H. (Ibid) the accused was charged under section 218 of the Criminal Code (Criminal Code, RSC 1985, c. C-46 Section 218). The provision prohibits the abandonment of children under 10. It is thus a form of behavior control (Dimock, supra 132). In the Court’s assessment, the judges established the standard of subjective intent for the offence. In establishing this standard, the Court balanced and considered the cost of criminalizing an offence for objective foresight versus subjective. The abandonment of children under 10 is clearly conduct society has sanctioned as criminal. The Court balanced this consideration with the potential financial costs of assessing the offence on an objective standard. An objective standard would likely render some offenders, such as the accused in this case, a significant economic burden on the justice system. The costs of criminalizing an offence are borne by society. Therefore, criminal charges are disposed by the judiciary on appropriate standards to ensure innocent individuals are not convicted.

Society places a significant interest in protecting children as they are vulnerable and cannot provide the necessities of life for themselves. The costs of providing necessities are a financial burden inherently assumed by those who choose to become parents. However, in some scenarios, low income and unstable parents resort to radical decision-making under stressful circumstances such as the birth of a child. One such experience is the decision to abandon a baby, when one feels that the baby’s needs cannot or may not be provided for by the parent. Despite these issues, society has largely offered other avenues of action for those in such circumstances through social assistance and welfare programs. The decriminalization of abortion is a flagship example of social policy advancement, allowing for mothers-to-be to utilize such a measure in light of an assessment of their own circumstances. As a result, society does not want parents to abandon children, and the offence has been formalized under section 218 of the Criminal Code (Criminal Code, supra).

Section 218 of the Criminal Code (Criminal Code, supra) has prohibited the conduct of an individual abandoning a child because of the extremely costly overall economic burden placed on society based on such actions. The legislation created to keep parents from abandoning children minimizes the cost of social programs to provide for children in such circumstances, as the cost of raising a child placed on the state would lead to long term economic impacts borne by society at large (Dimock, supra 132). In this spirit, if the Court had established the standard of objective intent for the offence, one adverse effect that could occur would be the potential imprisonment of innocent individuals, triggering the negative externality of providing for the children. It is crucial to note that such externalities depend on societal norms and practices at the time. One example is the view of family or children as a unit of production, on one hand, or increased dependency of children on family and their parents, on the other hand. In order to prevent parents from abandoning their children, by the criminalization of child-abandonment, the state has shifted the burden of providing the necessities and amenities on to the parents (Dimock, supra 132). With this frame as a starting presumption, it is clear that society places value on social programs and assistance to aid those in need. The cost balancing of providing such programming in the larger systemic frame would be lesser than the financial burden of the state supporting children under such circumstances. Also, individuals likely engage in prohibited conduct primarily to obtain some benefit or incentive. Accordingly prohibiting the abandonment of children eliminates any potential advantage of such actions.

Feminist Jurisprudence

Feminist fist

The case of R v. A.D.H. (R. v. A.D.H., 2013 SCC 28) is well situated in feminist theory as the facts of the case center on abandonment of a child by its mother. In situating the case in feminist theory, a variety of underlying considerations are factored in. A starting point would be if section 218 of the Criminal Code had been interpreted with objective intent rather than subjective intent. By implying the reasonable person standard, the Court noted that the decision would remain the same, for this particular case, because the mother would have satisfied the objective intent test. In the Court’s application of section 218 of the Criminal Code (Criminal Code, RSC 1985, c. C-46 Section 218), a subjective fault approach was taken. With this decision, the court is supporting aspects of legal feminism by embracing the need for analyzing and including special contextual factors such as gender, in using a subjective intent standard for an offence women would predominantly be subjected to. A subjective test allows for the consideration of each woman in each circumstance.

Although the patriarchal foundations of such provisions are not obvious –often appearing neutral– feminist theory advocates for the deconstruction of law to delineate the diversity of impacts on men versus women (Susan Dimock ed. Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, ON: Pearson Education Canada, 2002) at 140 & 149). Subjective intent would allow future courts to engage a feminist perspective in analyzing the individual and her actions in abandoning the child, rather than on the standard of a reasonable person, which is inherently and traditionally masculine. However, establishing subjective intent alone would still not take into account the broader, more expansive circumstances of women. It would only account for whether or not she intended to abandon the child. This fails to consider factors such as socioeconomic status, age, ability to provide for a child, and other relational circumstances that triggered her decision. These are important social factors that must be considered in order to prevent upholding the patriarchal subtleties that are hallmarks of the system (Dimock, supra 149).

Radical Feminism

From a radical feminist perspective, requiring subjective fault is not enough to take on a feminine perspective, since the foundation of the law and court system excludes women. Simply reading in gender is not enough, as the whole system is created and upheld by men (Dimock, supra 142). From this perspective, removing barriers for women to engage in economic and political structures will not abolish the subjugation of women. Patriarchy will continue to underlie the system. Women are already marginalized and their role as child bearers is a significant and unique factor (Dimock, supra 142). In supporting women's quest for equality, the social systems must deconstruct norms to bring about real change in the traditional gender roles. It may be necessary to achieve androgyny (Dimock, supra 142), creating a society where men become equal or even primary child-rearers. Only by accomplishing this equilibrium would it be possible to establish a valid argument that Section 218 be interpreted on objective fault (reasonable person standard) and be applied to men and women evenly. The provision could then be interpreted to have an overall aim of decreasing child-abandonment at the root of the system. The current status-quo is the socialization of women to believe it is their nature to be relegated to the private sphere for child-rearing. This is a major underlying factor in assuming subjective intent for such non gender-neutral offences. The overall aim of radical feminism can also be tied to relational feminism: aiming for the re-socialization of society to engage and practice a conscious inclusion of the different needs presented by women (Dimock, supra 144). These factors potentially would include promoting the role of fatherhood as a much more significant social undertaking, promoting the inter-connectedness of the relationships, and adapting existing institutions to better account for women’s needs.

Liberal Feminism

From a liberal feminism perspective, the subjective intent standard of the offence is inherently necessary as childbirth is an emotional experience unlike any other, possibly leading a woman to depart from rational decision making. As such, this perspective would support a more open discussion around childbirth and child-rearing for women in order to normalize the often overwhelming experience. In addition, since women bear the primary responsibility for raising children, this leaves them vulnerable from an economic point of view. Liberal feminism would advocate for allowing women to enter, exit, and re-enter the workforce around childbirth, through the creation and implementation of social supports that would remove barriers from their labor force participation. Further, this perspective would push for a positive reception of utilizing social assistance programs for those who need it, as opposed to stigmatization. All these factors would eventually aim to provide for equal opportunity for both sexes (Dimock, supra 142).

Marxist Feminism

From a Marxist feminist perspective, women are characterized as economically marginalized – with no value attached to their labor – leaving them less financially capable of caring for children on their own (Dimock, supra 143). The economic plight of women leaves them susceptible to departing from rational decision making under the unique and sometimes traumatic circumstance of childbirth. Such an experience could be seen to trigger child abandonment when the individual views her options for providing for their child and being financially stable as slim. Removing the barriers for women to participate in the labor force to promote economic independence would be the solution to eradicating patriarchal hallmarks of the system. Doing so would prevent women from being susceptible to exploitation based on economic weakness (Dimock, supra 143). In this case, the age of the mother lends to the inference of lack of earning capacity and wealth accumulation of any sort, creating a potentially immense financial pressure of providing the necessities for the baby.

Postmodern Feminism

The postmodern perspective of feminism is situated in some of the inferences the court drew in establishing the standard of subjective intent. The subjective standard takes into account the unique characteristics of the individual accused in this case. Postmodern feminism advocates for an even further subjective test taking into account characteristics such as socioeconomic status, ability to provide, upbringing, age, etc. In our society, postmodern theorists would argue, motherhood is socially constructed. This places a heavy burden on mothers to ensure they meet societal views of providing all the necessities of life for their offspring. In contrast, society’s views on fathers abandoning children do not delve into the criminality of such actions as much, as the role of childrearing is viewed as a feminine endeavor.

Catharine MacKinnon

The application of subjective intent as the standard for the offence, MacKinnon would argue, was the appropriate decision. However, the decision glossed over the fact that the provision is actually targeted at women. The neutrality of this provision could then be stated to be a cloak, as it actually subjects women to the law through their inherent role as childbearers and primary child-rearers (Dimock, supra 150). The analysis of the Court in presenting only two options, subjective and/or objective intent, and not discussing methods to protect the interests of women, illustrates the reinforcement of precedent. This reinforcement is a problematic element of patriarchy and dominant masculinity. The system is characterized as male, naturally operating to suppress women. The accused was not aware she was pregnant until well into her pregnancy, and even after experiencing a traumatic birth, was not able to have a truly open discussion about the event she had experienced. This evidenced the notion that discussion around issues characterized as ‘feminine issues’ has generally been stigmatized and seen as of secondary importance at best in patriarchal society (Dimock, supra 155). As a result, the social construct of gender inequality provides foundational continuity for the patriarchal elements of the law, taking control over the lives of women in both the social and legal contexts (Dimock, supra 155).