Mapping contested terrain : subtitle the doctrine of failure to protect in Canadian criminal law
University of British Columbia
Master of Laws - LLM
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 to 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.
Law, Peter A. Allard School of