MAPPING CONTESTED TERRAIN: THE DOCTRINE OF FAILURE TO PROTECT IN CANADIAN CRIMINAL LAW by LORI ANN LOTHIAN B.A., University of Winnipeg, 1985 L.L.B., University of Manitoba, 1988 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA June 2002 © Lori Ann Lothian 2002 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Faculty of/ The University of British Columbia Vancouver, Canada ABSTRACT This thesis examines the operation of the doctrine in Canadian criminal law. The doctrine of failure to protect is a rule or principle based on the widely accepted 'common-sense' belief that parents have a responsibility and a duty to protect their children from harm. Under the doctrine of failure to protect a parent who fails to fulfil this responsibility becomes as responsible for the harm to the child as the person who inflicts the harm. Using the concepts of ideology and discourse, this thesis examines the doctrine of failure to protect from a feminist perspective, and is concerned with how the doctrine operates in ways that are oppressive to women and, in particular, to women who are battered. Failing to protect a child from harm has been codified as an offence in most American criminal statutes but not, to date, in the Canadian Criminal Code. This study is based on a review of American literature and Canadian case law, and demonstrates how the doctrine of failure to protect has emerged and now operates in Canadian criminal law, notwithstanding the lack of an express provision in the Criminal Code. This thesis argues that an understanding of women's experiences of violence and of mothering in the context of violence is crucial to just determinations of the guilt or innocence of women who are prosecuted for failing to protect their children. This thesis then demonstrates how legal method and ideology contribute to make women's experiences of mothering in the context of violence irrelevant t> legal enquiry and to their being judged against standards of motherhood based on an ideal. The thesis concludes by discussing the implications of the findings of the thesis for criminal law policy and practice. 11 TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iii ACKNOWLEDGEMENTS v Chapter 1 - Introduction 1 1. The Case of Donna Roud 1 2. The Genesis of the Project 4 3. The Doctrine of Failure to Protect 9 4. The Research Problem 15 5. The Importance of the Research 16 6. Outline of the Thesis 21 Chapter 2 - Theoretical Framework: Ideology, Discourse and Legal Method 23 1. Feminist Analysis of Law 23 2. Analytical Concepts 27 a) Ideology 27 b) Postmodernism and Discourse 33 3. The Problem of Legal Method 41 4. A Final Word 52 Chapter 3 - Literature Review - The U.S. Experience 55 1. General Characteristics of the Literature 57 2. The Context of Violence 61 a) The "Why Didn't She Leave" Question 63 b) Why She Doesn't Leave 66 3. Nature of 'Failure to Protect' Laws 72 a) 'Failure to Protect' under U.S. Criminal Law 73 b) Failure to Protect Under U.S. Child Welfare Law 75 c) The Legal Standards in U.S. Failure to Protect Prosecutions 78 i) The 'Reasonable Parent' Test 78 ii) Strict Liability 82 d) Defences to Failure to Protect 85 4. Summary & Conclusions 88 iii Chapter 4 — The Doctrine of Failure to Protect in Canada and Legal Method 92 1. Research Method 93 2. Overview of Charging Sections 97 3. The Doctrine of Failure to Protect 102 a) The Expansion of the Parental Duty 104 i) The Parental Duty Pre-Popen 104 ii) R. v. Popen 107 iii) The Parental Duty After Popen 116 b) Introducing the Reasonable Mother 121 i) The Standards of Fault Pre-Naglik 122 ii) R. v. Naglik and the Creighton Quartet 129 4. An Overly Broad Application of the Doctrine of Failure to Protect 147 Chapter 5 - The Doctrine of Failure to Protect and Ideology 154 1. Avenging Angels? 156 2. Judicial Discourse Reflecting the Ideology of Motherhood 160 a) All- Loving - Mother Lo ve 161 i) "Mom's gotta choose" 162 ii) Sacrifice of Motherhood 166 b) All-knowing - "Mother's Intuition" 170 c) All-powerful - "The Maternal Instinct" 179 3. The Context of Violence 185 Chapter 6 - Conclusion 195 1. Basic Research Findings 196 2. Implications of the Thesis 205 3. Further Research 212 BIBLIOGRAPHY 214 APPENDIX 1 - TABLE OF CASES 225 APPENDIX 2 - CRIMINAL CODE PROVISIONS 228 iv ACKNOWLEDGEMENTS I dedicate this work in memory of Professor Marlee Kline. Without Marlee's guidance and encouragement (and the occasional push) I would never have taken the path I now tread. I also wish to thank Professor Susan Boyd for her dedication, hard work, support, encouragement, insight and innumerable other contributions to this project. I count myself very lucky to have had the opportunity to work with such a brilliant scholar and wonderful person. I thank Professor Isabel Grant for her steady hand and patience, and for sharing her scarce time and wealth of knowledge. Finally, and most especially, I thank Tom. For everything, and for always. v Chapter 1 - Introduction 1. The Case of Donna Roud In 1981 Donna R>ud, a 37-year-old aboriginal1 mother of three teenage boys, was convicted by an Ontario court of the attempted murder of her 14-year-old son Gary. Donna Roud did not fire the shot that wounded her son; her violent, abusive husband Harvey did. Donna's part in the crime was to obey Harvey when he ordered her to fetch his gun. Harvey was convicted and sentenced to 9 years for the crime. Donna Roud was sentenced to 6 years. Violent episodes were not uncommon in the Roud household. Testimony at trial revealed that Harvey (and sometimes Donna) Roud would often shoot the gun into the ceiling or wall of their home. Harvey Roud, who was not the father of the boys, was often physically and mentally abusive to Donna and her sons. Donna Roud testified that he had started drinking heavily after their marriage and had become increasingly violent over time. There was also evidence that on occasion Donna Roud used violence with her sons "if she was told to do so by her husband".3 Donna Roud testified that she was frightened of her abusive husband. Two weeks prior to the shooting, he had beaten her so badly that she spent four or five days receiving "medical treatment at a residence for women with marital problems."4 She testified that Harvey told 1 The Court of Appeal decision did not mention the fact that Donna Roud was aboriginal. This information was obtained from a court case involving her son. See R. v. Skedden, [2000] OJ. No. 3546. (C.J.), online: QL (CJP). 2 (1981), 58 C.C.C. (2d) 226 (Ont.C.A.). 3 Ibid, at para 9. 4 Ibid, at para 10. 1 her he would kill her if she tried to leave him and she believed him. She also testified about an incident the day before the shooting: She said that she was awakened about 3 o'clock in the morning by her husband who had called her two sons Gary and Duayne. She said that her husband came back to the bedroom where he sat on the bed with the boys standing in the doorway of the bedroom, and that he pointed his rifle at them and accused them of stealing his medication. She told the boys to go back to bed, and they did so. Her husband then started firing the gun approximately four or five inches above her head. She asked him in effect why he did not shoot her and he told her that she wasn't worth it. In cross-examination, she agreed with the Crown that she had sent the children to bed because she felt that he was so angry that there certainly was a danger that he might shoot one of the children. She agreed that her husband "most definitely" would be capable of shooting her.5 The Court of Appeal found that this evidence was incriminating rather than exculpatory because it showed that Donna Roud knew about the potential violence of her husband. The Court said: In my respectful view, there was evidence to support the conviction; perhaps of great significance to the jury v\ere the fact that she handed him the gun and the statements which she made in cross-examination which I have previously set out, which included some to the effect that there was a danger that he might shoot one of the children when he was angry. Without this evidence, I would be inclined to agree with the appellant's submission [that the verdict was unreasonable and not supported by the evidence].6 The subtext of this statement is that a 'reasonable' person will avoid or prevent danger s/he knows of. Donna Roud knew Harvey was dangerous, and thus her failure to avoid or prevent the shooting was evidence of her complicity.