David Butt is a Toronto-based criminal lawyer
Is it ever anyone else's business how we choose to raise our kids? When it comes to parenting, everybody has an opinion – and along the way, parents will make mistakes. Everyone does. If you'd like to witness the most passive aggressive of behaviours, visit a playground, where parents engage in small talk about their little one's food choices and A+ manners, thanks to a new trendy discipline technique; subtle eyebrow raising and fake smile-and-nods are plentiful.
If you're not the child's parent, you should mostly just shut up unless asked, and let the actual parents make the decisions – and inevitable fumbles along the way. Outsider intervention is often just ill-informed, unwelcomed meddling.
But nothing is more precious to our continuing viability as a successful society than raising children well. And that's why there's a law, holding parents criminally accountable when they fail to tend to the wellbeing of the child, even if they acted with the best of intentions.
Many Canadians expressed sympathy for David and Collet Stephan, the Alberta couple who provided natural remedies for their son suffering from bacterial meningitis, and who were convicted in the death of their little boy. Parents make mistakes – and they have suffered tremendously, many have said in the aftermath of the verdict.
While that's true – there is a strong social imperative for society to protect its children, and for others to take a stand in other people's parenting. No one is more vulnerable to harm than small children, who are utterly dependent upon adults.
The criminal law around parenting embodies the same contradiction we wrestle with socially. For the most part, the criminal law takes a hands-off approach to parental choices. We may be enraged at how much or little screen time someone's six year old has, but we never call 911. We routinely watch adults botch the parenting job, knowing they will never feel cuffs click around their wrists.
But when the criminal law decides to intervene, boy does it jump in with both feet. If you fail to provide the necessaries of life to your child, you can be prosecuted even if your thoughts as a parent are as pure as the driven snow.
Most of the criminal law rests upon the hallowed presumption that in order to be guilty of a crime, you must have a guilty mind, call it malicious intent. What this means is that to be guilty you must contemplate the depravity of what you are about to do, and go ahead anyway, fully aware you are acting badly.
But failing to provide the necessaries of life to a child in your care is a very different and rare sort of crime. You can be convicted and sent to jail without a guilty mind; that is, even if you honestly believed that you were doing what was best for your child.
So if a malicious intent to harm is not necessary, what is necessary to be convicted of failing to provide the necessaries of life to a child in your care? What is required is not just bad parental decision making, but really bad decision making that endangers a child's life or health: bad decision making that may not have been obvious to mom or dad, but is so offside that it should have been obvious.
Lawyers dress up this simple idea with ten dollar words, calling it "a marked departure from the conduct of a reasonably prudent parent" where risk of serious harm to the child was "objectively foreseeable".
(Full disclosure – I successfully argued in the Supreme Court of Canada the case that established this woolly articulation of the applicable legal standard.)
But the real message is this: we will not stand idly by and let children suffer enormously, to the point where their lives are endangered, just because parents don't know things they should.
Despite a live-and-let-live ethic that prevails around parenting, there are minimum standards, and parents who fall short of those standards will be prosecuted, even if their shortcomings were neither intentional, nor malicious.
There is a large kernel of wisdom in the notion that parents will be expected, when dealing with our most precious societal resource, to both know about minimum standards of health and safety and to meet them.
It takes a village to raise a child, which means sometimes the villagers must stand in judgment.