This paper examines the Supreme Court of Canada’s use of the concept of “harm” in its decisions in R. v. Malmo-Levine, which upholds the criminal prohibition on marijuana possession, and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), which upholds the reasonable correction defense for parents and teachers charged with assaults against children in their care. The author argues that these decisions employ contradictory characterizations of the role of harm in determining the proper scope of the criminal law. Although the majority in Malmo-Levine cites protecting vulnerable groups from harm as a valid purpose of the criminal law, the Court fails in Canadian Foundation to adequately consider how the reasonable correction defense in fact perpetuates the harms children suffer as a result of socially accepted physical discipline. Further, the Court suggests in Malmo- Levine that conduct causing only trivial harm within the de minimis range cannot legitimately attract criminal sanction, but the n claims in Canadian Foundation that the reasonable correction defense is necessary to prevent families from being torn apart when parents are charged with assault for trivial touchings. The author supports the Court’s decision in Malmo-Levine, but argues that its reasoning in Canadian Foundation ignores discrimination against a vulnerable group.
"Hierarchies of Harm in Canadian Criminal Law: The Marijuana Trilogy and the Forcible “Correction” of Children."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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