| Charter of Rights and Freedoms l CFCYL
Argument in Ontario Superior Court l Government
Argument l Intervenor Arguments
l Superior Court Decision l CFCYL
Argument in Ontario Court of Appeal l Government
Argument l Intervenor Arguments
l Court of Appeal Decision l Application
to Supreme Court of Canada l Issues for
Supreme Court of Canada l Hearing
by Supreme Court of Canada l Decision
by Supreme Court of Canada | Supreme Court Guidelines for Interpreting S. 43 | Comment
on Supreme Court Decision | Government
Options re Supreme Court Decision | Open
Letter to Prime Minister
The Canadian Foundation for
Children, Youth and the Law (CFCYL) is a Toronto-based organization
founded to uphold the rights of children. In November 1998,
it started an action in the Ontario Superior Court of Justice
challenging the constitutionality of section 43 of the Criminal
Code on the basis that s. 43 violates the Canadian Charter
of Rights and Freedoms and the United Nations Convention on
the Rights of the Child.
A number of organizations with an interest in the outcome
of the challenge and a different perspective on the issues
applied to the court for intervenor status to participate
in the hearing.
The challenge was dismissed by the Ontario Superior Court
and by the Ontario Court of Appeal. The CFCYL applied to the
Supreme Court of Canada for leave to appeal. Leave was granted
by the Court in October 2002. The appeal is expected to be
heard in 12-18 months.
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Charter of Rights and Freedoms
The CFCYL challenge is based on the following sections of the
S. 1 The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only
to such reasonable limits prescribed by law that can be demonstrably
justified in a free and democratic society.
S. 7 Everyone has the right to security of the person
and the right not to be deprived thereof except in accordance
with the principles of fundamental justice.
S. 12 Everyone has the right not to be subjected
to any cruel and unusual treatment or punishment.
S.15 (1) Every individual is equal before and under
the law and has the right to the equal protection and equal
benefit of the law without discrimination based (among other
grounds) on age.
Each participant in the constitutional challenge presented
an overview of its argument. These overviews are summarized
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CFCYL Argument in Ontario Superior Court
Children are the most vulnerable persons in our society and
the only group that can be lawfully assaulted by way of correction.
S. 43 has acquitted adults who have assaulted children with
belts, paddles, sticks and other objects and has affected
police so that many assaults never come before the courts.
S. 43 permits and perpetuates child abuse and interferes
with education to prevent use of punitive force. Evidence
shows that it is not in the best interests of children.
The government itself states its never okay to spank children;
it's a bad idea and it doesn't work..
Even the government's experts agree that s. 43 has justified
S. 43 infringes sections 7,12 and 15 of the Charter and is
not saved by s. 1 as a reasonable limit on these Charter rights.
S. 43 is inconsistent with the UN Convention on the Rights
of the Child. The UN Committee that interprets the Convention
has called for a prohibition on corporal punishment of children.
The Charter is the supreme law of the land and s. 43 should
be declared of no force and effect to bring the Criminal Code
into compliance with the Charter.
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Section 43 does not violate the Charter.
If it does violate the Charter, the violation is justified
under s.1 of the Charter.
The government is fostering parental education to discourage
physical force as a normative technique of correction.
There is no evidence that ending s.43 would change attitudes
to physical punishment.
Parliament has chosen to maintain s.43 and Parliament should
be deferred to.
The CFCYL has not established that s. 43 alone causes harm
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Organizations that applied to support challenge
Association of Children's Aid Societies (OACAS)
Child Welfare League of Canada
Canadian Council of Provincial Children's Advocates
Defence for Children International-Canada
Repeal 43 Committee
National Youth in Care Network
Society for Children and Youth of British Columbia.
The OACAS was the only organization granted status to support
Organizations that applied to oppose challenge
The Canadian Teachers' Federation (CTF) and the Coalition
for Family Autonomy (Coalition) applied to oppose the challenge.
The Coalition is an umbrella group of the following organizations
formed to oppose the challenge.
Focus on the Family
REAL Women of Canada
Canadian Family Action Coalition
Home School Legal Defence Association of Canada
The CTF and the Coalition were both granted status to oppose
the CFCYL application.
Section 43 plays a significant part in creating an environment
where violence towards children is accepted.
The criminal law plays a fundamental role in setting acceptable
standards of behaviour in society.
Section 43 sends a message that there is nothing wrong with
hitting a child so long as the hitting is "reasonable" and
Children have suffered serious harm because of s. 43.
Section 43 interferes with efforts to protect children under
provincial child protection legislation.
The CTF does not support corporal punishment.
Physical intervention is often required to maintain order
and discipline in school. Examples of physical intervention
include removing a child from classroom, leading to principal's
office, gaining attention during verbal reprimand, placing
uncooperative young child on school bus, restraining a cognitively
impaired child, and guiding a child to line up. All these
physical interventions would be criminal assaults but for
Removing s.43 would have a chilling and detrimental effect
on the quality of education.
If s. 43 violates a Charter right, it is a reasonable limit
under s. 1 of the Charter.
Section 43 does not violate the
Charter and there is no need for an analysis under s. 1.
At least 75% of Canadian parents use physical discipline
on their children. Ending s.43 would subject all these parents
to criminal prosecution.
Ending s.43 would result in criminal prosecution for removing
a screaming child from a shopping mall or holding a child
in place against her/her will.
The Coalition does not have a formal policy on corporal punishment
but agrees that in the "proper use" of corporal punishment
spanking should not be the primary method of punishing all
undesirable behaviour, should occur immediately after the
child's offence, be in private, be followed by a loving embrace,
not be administered on impulse or in anger, and should have
regard to child's age or maturity.
The Coalition vigorously opposes and condemns the abuse of
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Superior Court Decision
Mr. Justice McCombs of the Ontario Superior Court of Justice
heard the CFCYL application from December 6-10, 1999 and delivered
judgement on July 5, 2000. He dismissed the application on the
grounds that s. 43 did not violate any provision of the Charter.
The judgement is reported at (2000) 188 DLR (4th) 718.
Most of the McCombs judgement deals with section 7 of the
Charter. The arguments on the equality rights under s.15 of
the Charter were dealt with in less than half a page.
Justice McCombs held that the equality rights of children
are not infringed by s. 43. He agreed that s. 43 subjects
children to different treatment from adults but held this
does not amount to discrimination under s. 15(1) because s.
43 does not further a pre-existing disadvantage of children,
does not increase their vulnerability, and does not represent
state action based upon stereotypes about children.
Findings by expert witnesses
Justice McCombs summarized the following areas of agreement
among the expert witnesses on both sides of the issue.
1. Corporal punishment of very young children:
Hitting a child under two is wrong and harmful. With very
young children, even mild spanking has no value and can destroy
a child's sense of security and self-esteem, essential components
of a healthy nurturing environment. A child under two will
not understand why he or she is being hit. (All social science
witnesses in the application accepted a definition of spanking
as "the administrating of one or two mild to moderate 'smacks'
with an open hand, on the buttocks or extremities which does
not cause physical harm.)
2. Corporal punishment of teenagers: Is not helpful
and potentially harmful. There is a consensus that corporal
punishment of teenagers achieves only short-term compliance
and carries with it the danger of alienation from society,
along with aggressive or otherwise anti-social behaviour.
3. Use of objects in corporal punishment: Corporal
punishment using objects such as belts, rulers, etc., is potentially
harmful both physically and emotionally and should not be
4. A slap or blow to the head: Corporal punishment
should never involve a slap or blow to the head.
5. Injury: Corporal punishment which causes injury
is child abuse.
6. Resort to spanking for correction: None of
the experts goes so far as to advocate or recommend spanking,
or other forms of corporal punishment, as a form of child
discipline. They agree that other forms of discipline, such
as withdrawal of privileges or removing a child from the room,
are equally effective in most cases.
7. Absence of evidence of benefits of spanking:
There is general agreement among the experts that the only
benefit of spanking to be found in the research is short-term
8. "Time out" as an effective alternative to spanking:
The experts all endorsed the "time out" method as an effective
and appropriate method of child discipline. (The "time out"
method involves placing a child in a chair or room, sometimes
using mild force, and requiring the child to remain there
for a period of time until he or she calms down.)
9. Spanking is not child abuse: Most of the social
science witnesses and professionals, agree that spanking as
defined here is not child abuse.
10. Only abusive physical punishment should be criminalized:
The consensus among the experts is that not every instance
of physical discipline by a parent should be criminalized.
Many believe that the desirable objective of changing societal
attitudes regarding child discipline would be best achieved
through educational incentives, rather than the use of criminal
sanctions to prosecute non-abusive physical punishment. The
experts agree that extending the reach of criminal law in
this way would have a negative impact upon families and hinder
parental and teacher efforts to nurture children.
Significant evidence that corporal punishment a risk
Despite the absence of statistically reliable empirical
evidence, the experts generally agreed that there is a significant
body of 'associational' evidence that corporal punishment
is a risk factor linked to poor outcomes for children... (however)
it is impossible to determine with scientific precision whether
corporal punishment leads to negative outcomes... the ethical
impediments to empirical studies of child abuse are obvious.
Justice McCombs concluded his judgment as follows:
These reasons for judgment are not intended to be taken
as a wholehearted endorsement of the provisions of s. 43.
The evidence shows that public attitudes toward corporal
punishment of children are changing.
There is a growing body of evidence that even mild forms
of corporal punishment do no good and may cause harm.
There has been disparity in the judicial application
of s. 43
It may well be that the time has come for Parliament
to give careful consideration to amending s. 43 to provide
specific criteria to guide parents, teachers and law enforcement
Superior Court decision appealed
The CFCYL appealed the decision of Justice McCombs to the
Ontario Court of Appeal in January 2001 on the grounds that
his reasons were in error and unsupported by the evidence.
Each participant in the appeal presented an overview
of its argument. These overviews are summarized below.
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CFCYL Argument in Ontario Court
This constitutional challenge is about the right of children
to be protected to the same extent as other individuals. They
need this protection because they are vulnerable.
S. 43 justifies the use of force and denies children their
fundamental right to dignity and security of the person.
S. 43 relegates children to "second class" status, exposes
them to violence based on an archaic notion that corporal
punishment is for their own good and " for the benefit of
Justice McCombs found that corporal punishment has no beneficial
value other than, perhaps, short term compliance and is harmful
to many children. "Spanking" is not advocated by any experts
and s. 43 has led to acquittals where children have been injured.
Evidence shows that s. 43 has impeded education and child
protection efforts to prevent punitive force and is not in
the best interests of children.
Experts for the government agree that s. 43 has justified
The UN Committee on the Rights of the Child has called for
a review and prohibition on corporal punishment.
In finding that s. 43 did not violate any rights under the
Charter, Justice McCombs took an adult centered approach to
the rights of children and perpetuated the notion that children
are less entitled to security and protection from violence
than adults. His decision is unsupportable and should be overturned.
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Societal interest in maintaining the family unit must be
balanced with the Charter rights of the child.
Maintaining s. 43 so that parents and teachers will not be
prosecuted for a limited use of force in correcting children
is one part of the government's two-pronged policy. The important
second part is providing parent education to discourage the
use of physical force as a normative technique of correction.
The CFCYL failed to establish that s.43 results in harm to
children. The scientific evidence presented did not demonstrate
that the actions justified under a proper and constitutional
interpretation of s.43 are harmful to children.
The proper interpretation of s.43 takes into account all
the circumstances of the child with the result that s.43 does
not apply to circumstances of potential harm.
The correction of children is a complex social policy issue
and there are a number of policy options open to address it.
Parliament has chosen to maintain s.43 and McCombs J. has
correctly deferred to Parliament's prerogative.
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Section 43 increases the risk of serious
physical and mental harm to children and impedes Children's
Aid Societies in preventing abuse.
The adverse effects of s.43 are shown by expert evidence,
recent acquittals and the government's own studies and publications.
Ending s.43 does not mean that parents and teachers must
be prosecuted for every beach of the assault provision of
the Criminal Code. Guidelines and diversion programs can ensure
that counselling and parenting education are the first option,
with prosecution only where necessary.
Ending s.43 will not make reasonable force in other child-caring
situations a criminal offence. The common law permits the
use of reasonable force in the normal every-day care of a
Other defences to assault in the Criminal Code ( e.g., self-defence,
defence of others, defence of property) give ample protection
to parents and teachers in these situations.
The issue before the Court is whether
applying reasonable force to children by teachers and parents
violates the Charter.
The CTF does not support the use of corporal punishment by
teachers. This is a subset of the force allowed by s.43.
The CTF is concerned with an entirely different subset of
physical interventions allowed by s.43. These have as their
purpose restraint, directional aid, and other non-punitive
Without s.43, physical interventions needed for removing
a child from a classroom, leading to principal's office, gaining
attention during a verbal reprimand, placing uncooperative
young child on school bus, restraining a cognitively impaired
child, and guiding a child to line-up would be criminal assaults.
The CTF takes no position on whether s.43 violates one or
more Charter rights, but if it does, it is a reasonable limit
on these rights that is justified under s. 1 of the Charter.
The Coalition's arguments in
opposing the CFCYL application were the same as in the hearing
before the Superior Court of Justice, except that it did not
include its qualifications on the "proper use" of corporal
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Court of Appeal Decision
The appeal from the Superior Court decision of Justice McCombs
was heard by Justices Catzman, Doherty and Goudge of the Ontario
Court of Appeal from September 10 - 12, 2001. Judgement was
delivered on January 15, 2002 dismissing the appeal on the basis
that sections 7 and 12 of the Charter were not violated. The
judgement devotes most of its twenty-six pages to the law on
s.7 of the Charter.
On s.15(1), the Court of Appeal proceeded on the basis that
s.43 does violate s.15 of the Charter but held that this violation
was "clearly justified" under s.1 of the Charter.
It found that the objective of s.43 is to permit parents
and teachers to use reasonable force to correct children without
being subject to harmful criminal prosecutions, and that
The judgement is reported at (2000) 57 OR (3rd) 511 and can
be read on line at www.ontariocourts.on.ca/appeal.htm
- preventing such harm is a pressing and substantial objective
- allowing reasonable force is a rational way to achieve
- the resulting violation of the child's equality rights
is minimal, and
- the beneficial effects of s. 43 outweigh its harmful consequences.
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Application to Supreme Court of Canada
The CFCYL filed an application in March 2002 for leave to appeal
to the Supreme Court of Canada on the basis that the Ontario
Court of Appeal erred in law, ignored the weight of expert evidence,
and the issue was of public importance and should be heard by
the Court. In particular, the Court should hear the appeal because:
Application opposed by government
- children should be protected by law to the same extent
as other Canadians
- the government itself agrees that "spanking" is wrong
- s. 43 justifies harmful assaults on children
- s. 43 impedes efforts to reduce violence against children
- the public importance of the case was noted by the lower
- judges and MPs have called for clarification or repeal
of s. 43
- s. 43 violates the UN Convention on the Rights of the
opposed a hearing by the Supreme Court on the grounds that
Supreme Court of Canada agrees to hear CFCYL appeal
- the application does not raise any legal issue of public
- section 43 is an issue of pure social policy
- the purpose of s.43 is not to punish children but to protect
- there is no judicial conflict in the interpretation of
- section 43 does not raise any issue relating to Canada's
obligations under the UN Convention on the Rights of the
The Supreme Court announced in October/02 that it will
hear the CFCYL appeal from the Ontario Court of Appeal decision.
Only about 10% of applications to hear appeals are accepted by
the Court. Its decision to hear the appeal indicates the importance
of this constitutional challenge.
Supreme Court of Canada sets June 6/03 to hear appeal
The Supreme Court notified CFCYL
on March 4 that it will hear the constitutional challenge to section
43 on Friday, June 6/03. The CFCYL filed its argument with the Supreme
Court on March 28. Organizations wanting to intervene in the case must
file applications for permission to do so by April 25. The federal
government must file its argument by May 9. Hearings are held in Ottawa.
Intervenors in Supreme Court Appeal
The intervenors (Ontario Association of Children's Aid Societies,
Canadian Teachers' Federation and Coalition for Family Autonomy) in the
hearing in the lower courts were all granted intervenor status by the
Supreme Court on May 9.
Three new organizations applied for intervenor
status to support CFCYL: Child Welfare League of Canada, Commission des
droits de la personne et de la jeunesse, (Quebec Human Rights Commission)
on behalf of itself and of the Canadian Council of Provincial Children's
Advocates, and Saskatchewan Coalition for Children. The first two were
granted status; the Saskatchewan Coalition was not.
The five intervenors
are each entitled to file a written 20 page argument (factum) with the Court
by May 26. They will present oral argument if called on to do so by the Court.
Time of hearing
The hearing begins at 9 am sharp on Friday, June 6/03 and is expected to
end by 1 pm. The Supreme Court of Canada is located on Wellington Street,
Ottawa and is as usual open to the public.
Section 15(1) of the Charter
When the Supreme Court hears the CFCYL appeal, it will address
the CFCYL argument on s. 15(1) of the Charter in addition
to the other issues raised in the application.
Section 15(1) states that every individual is equal before
and under the law and has the right to the equal protection
and equal benefit of the law without discrimination based,
among other things, on age.
If a Charter right is violated, the violation can nevertheless
be upheld under s.1 of the Charter if the violation is a
Onus and standard of proof
- reasonable limit prescribed by law as can be
- demonstrably justified in a free and democratic society
The onus of proving that
a Charter right is violated is on the party claiming the violation,
in this case, the CFCYL.
The onus of proving that a violation is justified under
s. 1 of the Charter is on the party claiming the justification,
in this case, the government.
The standard of proof in justifying the violation is the
civil standard of the preponderance of probability. Previous
Supreme Court of Canada decisions have held that this standard
must be rigorously applied, particularly where a s.15 Charter
right is violated.
Criteria for deciding if a violation of a Charter right
is justified under s. 1 of the Charter
Supreme Court decisions have held that a law that violates
Charter rights can only be justified under s. 1 of the Charter
if it meets the following criteria:
- the objective of the law must be sufficiently important
to override the right violated, and
- the means to achieve the objective must
- be rationally connected to the law's objective,
- impair the right violated as little as possible, and
- be proportional in its effects, in the sense that the
benefit gained by the violation outweighs the harm it
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Issues for Supreme Court of Canada
Only the issues raised by s. 15(1) of the Charter and six
other issues raised by the government and its supporters are
1. Does s. 43 violate s. 15(1) of the Charter?
For a law to violate s.15(1), it must have a discriminatory
and adverse effect on an individual or group that has suffered
harmful discrimination in the past and must treat the individual
or group in a stereotypical way that devalues its intelligence,
dignity or worth.
Section 43 discriminates against children and therefore
violates this section of the Charter because:
2. If s. 43 violates the Charter, is it a limit prescribed
- children have suffered harmful discrimination in the past
by corporal punishment justified in the name of correction.
This reflects an historical stereotype of children as unable
to respond to guidance without the use or threat of physical
punishment. In the words of the eighteenth century writer,
Samuel Johnson, children, not being reasonable, can be governed
only by fear. Section 43 perpetuates this historical notion
and continues to be a form of discrimination that devalues
the intelligence of children
- even where corporal punishment appears to cause no harm,
it violates a child's dignity and shows a lack of respect
in the same way as it does for an adult
- section 43 jeopardizes the health and safety of children.
Being defenceless, they are particularly vulnerable to physical
and emotional harm. By denying them the full benefit of
the law against assault, s. 43 increases this vulnerability
- section 43 is not a law intended to benefit a group that
has suffered historical discrimination or to protect a group
from harming itself or others such as laws prohibiting children
from drinking, driving, marriage and voting
- the effect of s. 43 must be judged from the perspective
of the group discriminated against. From this point of view,
s. 43 is clearly adverse discrimination against children
that violates their right to the equal protection and benefit
of the law against assault.
The government argues that if judicial interpretations
of s. 43 include decisions that violate the Charter, the court
should nevertheless uphold the section, simply acknowledging
that these interpretations are unconstitutional.
It argues that the proper interpretation of s. 43 can be
found in judicial decisions that list factors, such as age,
character of child, and nature of child's "offence" in deciding
whether the force used was reasonable and for correction.
But it does not want these or the limitations noted by Justice
McCombs to be spelled out in s. 43. It maintains that if these
factors are taken into account on a case-by-case basis, the
section can be interpreted in a constitutional manner.
This argument ignores the public's right to know the state
of the law on an issue as basic as assault. Judges may attempt
to interpret s.43 in light of previous decisions, but parents
and teachers would have to study them to understand how these
factors are applied. It is at best questionable whether s.43
can be properly characterized as a limit "prescribed by law"
when these factors are not spelled out in the Criminal Code
itself. This alone may be enough to render s. 43 unconstitutional.
As Justice McCombs stated, people are entitled to know
what the law is.
3. If s. 43 violates the Charter, is its objective sufficiently
important to override a Charter right?
To decide whether a law that violates a Charter right can
be justified under s. 1 of the Charter, the objective of the
law must first be determined and then found to be sufficiently
important to override a Charter right.
Both the Ontario Superior Court and the Court of Appeal
held that the objective of s. 43 is to allow parents and teachers
to carry out their responsibilities without the harm caused
by prosecuting them for "non-abusive physical punishment".
All witnesses in the case agreed that such punishment should
not be prosecuted and accepted a definition of non-abusive
punishment to mean one or two mild to moderate "smacks" with
an open hand on the buttocks or extremities that does not
cause physical harm.
If preventing parents and teachers from prosecution for
non-abusive punishment is in fact the objective of s. 43,
this objective is not sufficiently important to override a
Charter right because alternative measures for achieving this
The common law de minimus rule prevents prosecutions
for minor breaches of the law. Even where spankings or other
forms of corporal punishment go beyond the definition accepted
by witnesses, prosecution can be avoided by provincial guidelines
and local protocols that mandate education and other assistance
instead of prosecution.
Since this objective of s. 43 can be achieved by existing
alternatives to prosecution, the section is not sufficiently
important to override a Charter right. Objectives that are
not sufficiently important do not gain the protection of s.
1 of the Charter and the government's defence of s. 43 fails
without needing further analysis.
The Supreme Court of Canada decision in the 1984 Ogg-Moss
case, however, implies that protection from prosecution is
not in fact the objective of s. 43. The Supreme Court described
this as the effect rather than the objective of the section
and stated that the true purpose of s. 43 must await an accurate
assessment. No such assessment has yet been made.
Legal scholars and judges since the eighteenth century have
explained that the purpose of the s. 43 defence is to keep
children in order and obedience for the benefit of their education.
This, rather than preventing harmful prosecutions, appears
to be the more accurate assessment of the objective of the
Assuming this is a valid objective sufficiently important
to override a Charter right, corporal punishment as the means
to achieve this objective must meet the criteria established
by previous decisions in deciding if the violation of s. 15(1)
4. If the objective of s. 43 is sufficiently important
to override a Charter right, do the means to achieve this
objective meet the criteria for justifying a violation of
Justice McCombs did not have to address this issue because
he found that s. 43 did not violate s.15(1) of the Charter.
The Court of Appeal, however, proceeded on the basis that
s. 43 does violate s.15(1), but held that the objective of
preventing prosecution for non-abusive punishment was sufficiently
important to override a Charter right and that the means to
achieve this objective were justified.
If the Supreme Court of Canada agrees that s. 43 violates
s.15(1), the onus will be on the government to prove not only
that the objective of s. 43 is sufficiently important to override
this Charter right but also that the means to achieve this
objective meet the criteria laid down by previous Court decisions.
The means to achieve the objective of s. 43 do not meet
these criteria because:
- corporal punishment is not a rational means for preventing
prosecutions for non-abusive physical punishment since alternatives
are available to achieve this. Nor is it a rational means
for correcting and educating children in present-day Canadian
society given contemporary knowledge of child development
and respect for fundamental human rights
- the impairment of the child's Charter right to the equal
protection of the law against assault is not minimal in
light of the kind of acquittals under s. 43, the expert
evidence presented to Justice McCombs, and his finding that
despite the absence of statistically reliable empirical
evidence, experts agree that there is a significant body
of "associational" evidence that corporal punishment is
a risk factor linked to poor outcomes in children. Where,
as Justice McCombs acknowledged, there are ethical impediments
to empirical studies, this associational evidence is enough
to show that the impairment of the child's right to equal
protection of the law against assault is not minimal
- section 43 is not proportional in its effects. Aside from
short-term compliance, the expert evidence before Justice
McCombs is that s. 43 has no salutary effects on children
and the government itself advises through Health Canada
that spanking is wrong and is a bad idea that doesn't
work. Since the effects of violating a Charter right
must be judged from the point of view of the group whose
rights are violated, the harm to children of s. 43 far outweighs
any benefits to them that may result from short-term compliance.
The issues summarized above are the
basic constitutional issues on sections 1 and 15(1) of the
Charter. In addition to these, the government and its supporting
intervenors raise a number of other issues in their arguments
for maintaining s. 43. Some of these are considered below.
5. Would ending s. 43 make using reasonable force for
restraint and control a criminal assault?
The government and its supporting intervenors argue that
declaring s. 43 unconstitutional would make any physical interventions
by parents and teachers to maintain discipline in the home
and school criminal assaults subject to prosecution. Both
Justice McCombs and the Court of Appeal accepted this as a
Striking down s. 43 would clearly end legal approval of
corporal punishment as a method of discipline. But it would
not end the common law power of parents and teachers to use
reasonable force to restrain or control children. This common
law power is recognized by legal scholars going back to the
When the U.K .Education Act was amended in 1998 to ban corporal
punishment in all schools, it was made clear to teachers that
this power remained. If, in spite of this, our government
sees a need to make this clear to parents and teachers, this
common law power to use reasonable force for restraint and
control can be spelled out in the Criminal Code.
6. Would ending s. 43 make using reasonable force to
protect another child a criminal assault?
The right to use reasonable force for the defence of others,
defence of property, self-defence and in other situations
are set out in sections 25 to 42 of the Criminal Code and
would not be affected by ending s. 43. Breaking up a school
fight would not become a criminal offence.
Section 25 of the Criminal Code is an additional protection
for teachers since it specifically allows the use of reasonable
force by persons required by law to carry out certain duties.
Since teachers have the duty under provincial education acts
to maintain discipline, they can also avail themselves of
this section of the Code, as well as their common law right
to use reasonable force for restraint.
7. Would ending s. 43 result in increased prosecutions
for corporal punishment?
On the contrary, retaining s. 43 is likely to actually
increase the need for prosecutions. As more Canadians become
critical of this method of discipline, prosecutions will be
increasingly needed to test the limits of s. 43 by seeking
guidance from the courts.
Ending the section, along with an effective educational
campaign, could on the other hand, decrease the need
for such prosecutions by giving the public a clear message
that hitting for discipline was no longer justified by the
law. This would encourage parents to adopt more positive methods
of discipline and result in fewer incidents of the kind of
corporal punishment that require prosecution.
8. Is the fact that a majority of Canadian parents have
at some time slapped their children a significant consideration
for the Court?
Some surveys in the early 1990s indicate that 75% of Canadian
parents use some form of corporal punishment as a method of
discipline. The government and its supporters claim that ending
s. 43 would subject this large group of parents to criminal
charges for assault.
A more recent national survey of 1500 Canadian parents by
Leger Marketing in 2002 paints a different picture. It found
that 50% of parents have at some time used "light corporal
punishment, like a slap" and that approximately 6 % have sometimes
used corporal punishment that was painful, involved use of
an object, or caused injury.
It appears from this survey that the majority of Canadian
parents do not use the kind of corporal punishment that would
attract criminal sanctions. There is therefore no realistic
basis for claiming that ending s. 43 would result in a flood
Whatever the results of surveys, they are not a significant
consideration in deciding constitutional questions. The Charter
exists to protect fundamental rights and is an important safeguard
of the rights of minorities. Children are a particularly vulnerable
minority that need the full protection of the Charter.
9. Is education alone enough to end corporal punishment?
The government claims that parenting education advising
against corporal punishment is sufficient to discourage the
practice and that it is providing parenting education to achieve
This claim ignores the effect of the law in setting standards
of behaviour. It also ignores the fact that advising against
corporal punishment has little or no effect on parents and
teachers who have a religious basis for their belief in this
method of discipline.
The government has not in fact developed any widespread
educational campaign on the issue of corporal punishment.
Its funding of two pamphlets advising against spanking is
hardly sufficient for effective public education. Moreover,
if Health Canada were to launch a widespread campaign, it
would be in direct conflict with s. 43 of the Code. Such conflicting
messages from Health Canada and Justice Canada would undermine
any serious attempt to discourage corporal punishment through
10. Is the argument that Parliament has chosen to maintain
s. 43, and should therefore be deferred to, valid?
This argument presupposes that Parliament has fully considered
section 43 and come to a reasoned decision to retain this
defence. In fact, s. 43 has never been properly considered
The defence came into our Criminal Code in 1892. The only
change to it since then was in 1953 when the power of masters
to use correctional force on apprentices was removed. There
is no record of a debate on the merits of s. 43 at that time.
Since 1994, seven Private Members Bills to repeal s.43 have
been introduced in Parliament. One had second reading in the
Senate and one in the House but the government declined to
refer either to a Parliamentary Committee for study. Three
Standings Committees of the House and Senate have also recommended
repeal or reconsideration of s. 43.
In his judgement on the constitutional challenge over two
years ago, Justice McCombs stated that the time may well have
come for Parliament to give careful consideration to amending
s.43.There is no sign that the government is considering this.
Instead, it persists in defending s. 43 and maintaining that
this 1892 justification of corporal punishment is fully appropriate
for the twenty-first century.
Whether Parliament has or has not chosen to maintain s.
43, the last word on its constitutionality is up to the Supreme
Court of Canada. A growing number of organizations and individuals
believe the Court will recognize that section 43 is a clear
violation of the Charter and that it will uphold a child's
right to its full protection.
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Hearing by Supreme Court of Canada
The appeal by the Canadian Foundation for Children, Youth and the Law (CFCYL) of the Ontario Court of Appeal dismissal of its constitutional challenge to section 43 was heard by the full Court on June 6/03. The hearing lasted 4 hours and included presentations by 5 intervenors. The intervenors supporting the CFCYL were the Ontario Assn. of Children's Aid Societies, Child Welfare League of Canada, Commission des droits de la personne et de la jeunesse (Quebec Human Rights Commission) on behalf of itself and the Canadian Council of Provincial Children's Advocates. The intervenors supporting the government were the Canadian Teachers' Federation and the Coalition for Family Autonomy. The Court's decisions was reserved and is expected by December 2003.
Comment on SCC hearing in Law Times
Strike down s. 43
By Corinne Robertshaw
For Law Times June 16, 2003
On June 6, the Supreme Court of Canada heard an application by the Canadian Foundation for Children, Youth and the Law (CFCYL) to strike down s. 43 of the Criminal Code. This is the defence to "corrective" assaults on children by teachers and parents that came into our Code when our criminal law was first codified in 1892. It should be struck down without delay. Too many children are being abused in the name of discipline by this 19th-century hitting license. It's a defence that's wrong in principle and harmful in practice.
The Court could strike the section as a violation of the Charter or uphold it by reading the section down to allow only mild to moderate spankings as defined in the lower court. If the Court does the latter, the result is likely to be further public confusion on just when, where, and how parents and teachers can hit a child as a method of discipline.
If, on the other hand, it strikes down s. 43, it will be clear that children have the same legal protection from assault as adults. The fear that in this event, parents will be prosecuted for minor smacks to a child's buttocks are unrealistic and should not be allowed to overshadow the benefits of ending section 43.
Prosecutions would be as rare as for other minor domestic assaults because of the de minimus rule and the right of provincial attorneys general to establish guidelines for sensible and realistic prosecution policies.
The foundation's constitutional challenge to s. 43 was first heard in 1999. It argued that the section violates ss. 7, 12 and 15 of the Charter, is harmful to children, contrary to the United Nations Convention on the Rights of the Child, and cannot be justified under s. 1. Acquittals for assaults ranging from slaps on the face to strapping with a horse harness were presented to the court. Volumes of affidavit evidence on the harm of corporal punishment were submitted.
In the first hearing, expert evidence was summed up by Ontario Superior Court Justice J. David McCombs. He found general agreement that a significant body of "associational" evidence exists showing corporal punishment to be a risk factor linked to poor outcomes for children. However, he found this was impossible to verify with "scientific precision" because of the obvious ethical impediments to empirical studies on child abuse.
The conclusion reached was that only "mild to moderate 'smacks' with the open hand to the buttocks or extremities" of children between the ages of two and twelve should be allowed. There was consensus that only "abusive physical punishment" should be prosecuted. Although what constitutes "abusive' was not defined, the "mild to moderate smacks" finding implies that only physical punishment beyond this should be subject to prosecution.
In the CFCYL and its supporting intervenors' submissions to the Supreme Court, the constitutional analysis of ss. 7, 12 and 15 was restated and the effect of the UN Convention on Canadian law fully canvassed. Forty decisions since 1990 were cited to show how section 43 is being used to justify acquittals for severe spankings, slapping, kicking, bruising, and hitting with objects.
Decisions filed by an intervenor for the government demonstrated convictions result only where severe maltreatment or serious bodily harm occurs.
All parties agreed it was necessary to proscribe physical harm. The CFCYL stressed, however, that this is only part of the issue. Respect and personal dignity are important Charter values. Even mild to moderate slaps are assaults to a child's dignity and self-respect just as they are to an adult. Reading down section 43 would continue to justify this as rightful conduct.
Using the analysis of s. 15 established in previous Supreme Court decisions, the CFCYL argued s. 43 discriminates against a vulnerable group and reflects a stereotypical understanding of children. Children are vulnerable because of their lack of physical strength and total dependence on adults.
The stereotype embodied in s. 43 is the 19th-century notion that children cannot be reasoned with and that corporal punishment and the fear of it are essential and effective methods of discipline.
If the Court agrees that s. 43 discriminates in a way that violates s. 15 of the Charter, the government must then prove s. 43 is a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified in a free and democratic society.
To do this, the purpose of the limitation must be established and the government must show it to be sufficiently important to override a constitutional right. If sufficiently important, the means to achieve the purpose must be rational, a minimum impairment of the right violated, and the effect of the impairment must be proportional to its purpose, i.e., the advantages must clearly outweigh the disadvantages. The CFCYL argued that the historical objective of the section is to benefit a child's education and that corporal punishment, as the means to achieve this objective, does not meet these tests.
Counsel was asked by the court why the court couldn't simply read s. 43 down as a defence to only mild and moderate smacks. How much detail should the court set out in limiting s. 43? Would the court be legislating if it did this? If s. 43 were interpreted constitutionally, would the outcome be the same as in Sweden?
Another concern was whether ending s. 43 would eliminate the right of parents and teachers to use reasonable force for restraining - as opposed to hitting - children. Doesn't the definition of assault cover restraint as well? Is correction the same as restraint?
Comments also focused on whether ending s. 43 would lead to inappropriate prosecutions. Can we rely on prosecutorial discretion not to prosecute mild smacks? Sending a parent to jail could harm the child. Wouldn't education be better than ending the section? Don't provincial statutes protect children adequately? The court also reminded parties that the challenge to s. 43 is about children's rights. A question was asked as to how such a discussion related to the constitutional arguments on ss. 7 and 15.
For opponents of s. 43, reading down is not a solution. It assumes the public will understand judicial limits on corporal punishment even though the actual words of the section remain the same. Parents will be mislead by this contradiction. Prosecutions will be needed to test these judicial limits, resulting in more rather than fewer criminal charges. Any real attempt by government to educate against using corporal punishment will be contradicted by the section itself.
If the government attempted to clarify the situation by amending the section, this would involve detailed fine-tuning that could raise more problems than it solved.
The best result for all concerned would be to fully uphold a child's right to the equal protection and benefit of the law against assault by completely ending this defence. Parents, teachers and the public in general would then know that corporal punishment of any kind is illegal. Inappropriate prosecutions could be avoided by the de minimus rule and provincial guidelines. If the common law on restraint and section 25 of the Code are not clear enough, Parliament could specifically include this defence in the Code.
Section 43 should be struck down. This would uphold a child's fundamental human rights and be a major step forward in our treatment of children. LT
Corinne Robertshaw is a retired lawyer who founded the Repeal 43 Committee in 1994. The committee has supported the CFCYL constitutional challenge since it was launched by bringing decisions and arguments to its attention. www.repeal43.org
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Decision by Supreme Court of Canada
Chief Justice Beverley McLachlin on behalf of herself and Justices Gonthier, Iacobucci, Major, Bastarache, and LeBel wrote the majority decision of the Supreme Court of Canada. They held that s. 43 does not infringe the Charter and is therefore constitutional. Justices Louise Arbour, Marie Deschamps, and William Binnie wrote dissenting opinions. Justices Arbour and Deschamps held that s. 43 infringes the Charter and should be struck down. Justice Binnie held that s. 43 infringes the Charter but is justified under s. 1.
The 30-page decision was delivered on January 30, 2004. The
principal submissions by the Appellant, the Canadian Foundation
for Children, Youth and the Law (CFCYL) were that section
43 offends sections 7 and 15(1) of the Charter of Rights and
Freedoms and cannot be justified under s. 1 of the Charter.
The following is a synopsis of the decision, deals only with
the main issues addressed, and uses the judge's own words.
For the full decision see: http:www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc004.wpd.html
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Synopsis of Supreme Court Decision
Does section 43 of the Criminal Code infringe section
7 of the Charter?
Section 7 of the Charter guarantees that everyone has the right to security
of the person, and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.
CFCYL argued that s. 43 is vague and overbroad
and therefore violates a fundamental principle that the law
must be clear. A second argument made was that a fundamental
principle of justice requires children to be afforded procedural
protections such as independent representation at trial where
s. 43 is raised as a defence. The majority rejected this second
argument with little discussion on the grounds that the Crown
prosecutor adequately represents the child's interests at
trial. Dissenting judges did not address this argument.
Majority opinion: S. 43 does not infringe S. 7 –
no need to consider s. 1 of Charter
To accord with
principles of fundamental justice, a law must be reasonably
clear and give sufficient notice of what conduct is prohibited.
It must set an intelligible standard for both citizens and
enforcement officials. A vague law prevents citizens from
realizing when they are entering an area of risk for criminal
sanction. Section 43 delineates who may use this defence and
what conduct falls within its sphere. Properly construed,
s. 43 meets this principle of fundamental justice and is not
It must be conceded that judicial interpretation in the past has sometimes been unclear, inconsistent, muddled, subjective, and not viewed as sufficiently serious to merit in-depth research, expert evidence, or appeals to permit a unified national standard to emerge. This case, and those that build on it may permit a more uniform approach to emerge. There is substantial social consensus, supported by expert evidence in the appeal, on what constitutes reasonable correction. Section 43 sets an intelligible standard for citizens and is not unduly vague if limited by the following requirements.
The first requirement is that the force must be intended for a corrective
purpose. Only sober, reasoned use of force that addresses
actual behaviour and is designed to restrain, control or express
some symbolic disapproval is allowed. The child must have
capacity to learn. Therefore corrective force cannot be used
against children under two years of age or against children
who may be incapable of learning because of a disability or
some other contextual factor. Force that focuses on the gravity
of the wrongdoing is improper because it invites a punitive
rather than corrective focus.
The second requirement is that the corrective force must be reasonable.
Only the mildest form of assault is allowed. Generally, s.
43 allows only minor force of a transitory and trifling nature.
Therefore causing harm or the prospect of bodily harm is unreasonable.
On the basis of current expert consensus, corporal punishment
of children under two years of age or of teenagers is unreasonable.
Discipline that involves objects such as rulers and belts
or blows or slaps to the head is also unreasonable. Schoolteachers
may use corrective force to remove children from classrooms
or secure compliance with instructions, but corporal punishment
by teachers is not acceptable. These limitations are not judicial
amendment, but judicial interpretation. There is a solid core
of meaning to s. 43. It is not unduly vague or overbroad and
does not infringe s. 7 of the Charter.
Justice Binnie opinion: Majority decision pushes
the boundary but is acceptable
The limitations set
out by the majority help to protect children but do not relieve
a court from considering what is reasonable in all the circumstances
in section 43 cases. These limitations still leave considerable
scope for corporal punishment of children between ages 2 and
12. This, and restricting the power of teachers, pushes the
boundary between judicial interpretation and judicial amendment.
However, if there are overly elastic interpretations of s.
43, appellate courts can rein them in light of the interpretative
guidance offered by the majority – providing the courts stop
short of judicial amendment.
Justice Arbour opinion: Section 43 infringes s. 7
and must be struck down
Limiting s. 43 in the way done by the majority is a laudable
effort to take the law where it ought to be, but the constitutionality
of the section must be interpreted as it stands. As it stands,
it has allowed a wide range of force against a wide range
of children. To essentially rewrite s. 43 before validating
its constitutionality is not the proper role of the courts.
Corrective force by parents and teachers should be permitted
only when minimal and insignificant. This is not what the
Code currently provides but it is what the Constitution requires.
Section 43 is rooted in an era where "reasonable" violence was accepted to maintain hierarchies in the family and society. Children remain the only group deprived of the protection of the criminal law in relation to use of force. Force can no longer be used to correct wives, servants, apprentices, persons convicted of crimes, or (only recently) to maintain discipline on ships.
Section 43 deprives children of their personal security. The only question is whether this deprivation accords with the principle of fundamental justice that laws must not be vague. Vague laws do not give "fair warning" to individuals as to the legality of their actions and increase the amount of discretion given to law enforcement officials. The existing record on s. 43 does not give adequate notice to parents and teachers as to what is permissible. The restrictions put forth by the majority do not emerge from existing case law, are far from self evident, and would not have been anticipated by many parents, teachers or enforcement officials. These restrictions do not amount to a permissible "reading down" of s. 43, but to a judicial rewriting of the section.
Our courts have been unable to establish a legal framework for "reasonableness" in s. 43 cases despite judicial attempts to do so. Reasonableness in other areas of the law may not be overly vague because it is used in contexts in which the factors for assessing reasonableness are clear and commensurable. This is not so with corporal punishment of children. On this issue, what is reasonable varies widely and is affected by cultural, religious, political and ethical beliefs. It may depend in large part on a person's own parenting style and experiences. Vagueness in defining a defence affecting the physical integrity of children may call for a stricter standard than in other contexts.
Our international obligations are also relevant to the degree of protection children are entitled to under the Charter. The Committee overseeing implementation of the UN Convention on the Rights of Children does not recommend clarifying corrective force against children. It recommends abolishing it entirely.
Justice Arbour concludes that the infringement of s. 7 cannot be justified
under s. 1 of the Charter
Section 1 of the Charter guarantees all the rights and freedoms set
out in the Charter, subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free
and democratic society. If an infringement of any section
of the Charter is found, s. 1 may nonetheless allow the infringement
if it can be justified by the party claiming the justification.
The question is whether s. 43 can be justified as a reasonable limit under s.1 of Charter. If it does not give fair notice of what is illegal, it is not a limit 'prescribed by law' and for this reason alone does not pass the section 1 test. Even if it did pass this test, s. 43 will still not qualify as a reasonable limit because it is unconstitutionally vague.
Striking it down for vagueness is the most appropriate remedy. Parliament is best equipped to consider this defence. The expert testimony in this case is voluminous and the court process necessarily adversarial. The court hearings do not cover all the interests that could be heard in a Parliamentary debate, in committee hearings, or by the public at large. Parliament should have a chance to consider s. 43 in light of the Charter, current social norms, and all the evidence.
The defences of necessity and de minimus will
protect parents from excusable and/or trivial assault
Some are concerned that striking down s. 43 will expose parents
to the criminal system for every minor instance of assault.
The common law defences of necessity and de minimus will protect
them from excusable and/or trivial conduct. The necessity
defence excuses people where disobedience of the law is impelled
by ordinary human instincts of self-preservation or preservation
The de minimus defence is available because it reserves
the criminal law for serious misconduct, protects people from
criminal conviction for relatively trivial actions, and saves
courts from being swamped by unimportant cases. The act of
breaking the law is still illegal, but because of its triviality,
punishment is not appropriate. Courts are not bound to a harsh
and pedantic strictness in applying the law. This would not
be in the public interest. As a result, the courts are not
plagued with a multitude of insignificant prosecutions for
technical breaches of the law. These common law defences would
be available if s. 43 were struck down and are sufficient
to ensure that parents and teachers will not be branded as
criminals for using trivial force to restrain children. Section
43 infringes the rights of children under s. 7 and cannot
be justified under s. 1 of the Charter. It must be struck
Justice Deschamps opinion: Agrees with Arbour J.
but decides case under s. 15(1) of Charter
Does S. 43 of the Criminal Code infringe s. 15(1) of the Charter?
The aim of statutory interpretation is to determine and apply
the intention of Parliament at the time of enactment. The
ordinary and contextual meaning of s. 43 cannot bear the restricted
interpretation proposed by the majority. Section 43 justifies
an extensive range of conduct, including serious force against
children. The Court cannot read the section down to create
a constitutionally valid provision. Doing so turns statutory
interpretation into legislative drafting. It is not the role
of the court to substitute its own views for those of Parliament.
An example of this is reading into the section a completely
different standard for teachers than for parents.
Section 15(1) of the Charter guarantees that everyone
is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination
and, in particular, without discrimination based (among other
grounds) on age.
CFCYL argued that s. 43 is inconsistent
with s. 15(1) because it deprives children of the full benefit
of the law against assault and violates their dignity and
physical security simply on the basis of age and a stereotypical
assumption that children need to be hit in order to learn.
This amounts to discrimination against an already disadvantaged
and vulnerable class of citizens.
Majority opinion: S. 43 does not infringe s. 15(1)
– no need to consider s. 1 of Charter
Section 43 does not violate s. 15(1). Equal treatment does not mean identical
treatment. The blunt hand of the criminal law should not come
down on the minor disciplinary contacts already described.
Parliament has chosen not to make such contacts a criminal
offence and its choice responds to the reality of children's
lives by addressing their need for safety and security in
an age-appropriate manner.
The perspective must be whether a reasonable adult in the child's circumstances would conclude that s. 43 marginalizes the child. The perspective cannot be that of a reasonable, fully apprised preschool-aged child. This would be a fiction. The best we can do is to adopt the perspective of a reasonable person acting on behalf of the child – although a court must also try to take into account the subjective view of the child. The child's view will often include a sense of relative disempowerment and vulnerability.
Although children are highly vulnerable and disadvantaged, and the question of their physical vulnerability profound, s. 43 accommodates their needs, capacities and circumstances. They need to be protected from abuse, but they also need guidance and discipline from their parents to promote their healthy development. Parliament has accommodated these needs by allowing only minimum force of a transient or trivial impact. Using the criminal law in such circumstances would harm more than help children, and the government has decided not to do so – preferring the approach of educating against physical discipline.
Criminal law is a blunt instrument that can destroy family relationships. The 1969 Ouimet Report characterizes criminal law as traditionally, and perhaps inherently, involving the imposition of a sanction. A sanction may destroy families. The 1984 Law Reform Commission of Canada concluded that repealing s. 43 would expose families to the incursion of state law enforcement for every trivial slap or spanking. Without s. 43, placing an unwilling child in a chair for a 'time-out' would be a criminal offence.
These risks cannot be avoided by prosecutorial discretion. Moreover, if as argued, it is discriminatory to deny children the full benefit of the law against assault, discretion not to prosecute is also discriminatory.
A reasonable person acting on behalf of a child would not conclude that a child's dignity is offended by s. 43. A reasonable person would conclude that the limited force permitted is justified when set against the reality of a parent being charged and pulled into the criminal justice system with its attendant rupture of the family system. Section 43 is firmly grounded in the actual needs and circumstances of children and does not offend s. 15(1) of the Charter. It is therefore unnecessary to consider s. 1 of the Charter.
Justice Binnie opinion: S. 43 infringes s. 15(1)
but is justified under s. 1 of Charter
of physical integrity is a fundamental value. Denying this
to children makes them second-class citizens. Section 43 protects
teachers and parents. It does not protect children. Our law
against assault is very broad – much broader than just protection
against physical harm. The traditional justification for this
is that there is no sensible dividing line and this broad
definition at least declares the law's regard for the physical
integrity of citizens. It aims at protecting physical integrity.
Stripping children of this protection is destructive of dignity
from any perspective, including that of a child. The dignity
requirement is one of the elements of s. 15(1). Corporal punishment
violates the child's dignity, party due to the humiliation
felt, but mainly due to its inherent lack of respect for the
The majority interpretation of s. 43 still withholds protection from a child in circumstances where such force against an adult would be a criminal offence. Section 43 therefore denies children the equal benefit and protection of the law and this denial is discriminatory according to all the criteria established in previous Supreme Court decisions. The majority holds that s. 43 is not discriminatory and claims that the violation corresponds with the needs of the child.
I have difficulty with the proposition that children "need" correction that,
if applied to an adult, would be a criminal assault – unless
the assault were de minimus – in which case the s.
43 defence is not relevant. The idea that all children have
the same needs does not fit reality. The use of force against
a child cannot be said to "correspond" to a child's needs
from the vantage point of a person who seriously considers
a child's views and circumstances. The question of whether
s. 43 in fact corresponds with the needs of children should
be dealt with under s. 1 of the Charter. The onus would then
be on the government to establish that s. 43 is a reasonable
limit. Such considerations should not form part of the s.
15(1) analysis but should be dealt with under s. 1. It should
be conceded that s. 43 infringes s. 15(1).
The infringement of s. 15(1) is a reasonable limit that is justified under
s. 1 of the Charter.
Whether s. 43 benefits children by
avoiding conflict between the family and the criminal justice
system should also be dealt with under s. 1 of Charter. While
s. 43 infringes s. 15(1), the effect of giving the Criminal
Code a larger role in the home would be profound. The heavy
machinery of the criminal courts is not designed to deal with
this kind of domestic dispute. Keeping the heavy hand of the
law out of the home is a pressing and substantial objective
as far as parents and substitute parents are concerned. This
limitation on s. 15(1) is proportional. Its salutary effects
exceed its potential deleterious effects, particularly in
view of the more important protections afforded by child welfare
legislation. Children have effective recourse under such legislation.
Although section 43 infringes s. 15(1) of Charter, the infringement
is a reasonable limit under s. 1 in relation to parents and
persons standing in place of parents.
This justification does not, however, apply to teachers whose relationship to children is different from that of parents. Teachers should not be immune from criminal responsibility for assaults "by way of correction". The attempt to save the constitutionality of s. 43 by writing teachers out of the section is the job of Parliament. The infringement of s. 15(1) cannot be justified for teachers.
Justice Arbour: Does not deal with s. 15(1) in view
of her decision on s. 7 of Charter
Justice Deschamps opinion: S. 43 infringes s. 15(1)
and must be struck down
Section 43 draws a formal
distinction between children and adults by granting the fundamental
right to bodily integrity to every one, but then withdrawing
it from children. The distinction is clearly based on age,
not on the "relationship" between parent and child or teacher
and child. The fact that such a relationship exists does not
alter this fact.
The distinction is discriminatory because it is an explicit choice by the government not to criminalize certain assaults against children. It is this choice that infringes their human dignity. Further, children are a disadvantaged group, historically seen as the property of their parents. Section 43 appears to be a throwback to this notion. It compounds the child's vulnerability because it applies to persons who have control over the child.
The argument that s. 43 corresponds to the inherent circumstances of childhood and is age appropriate to these unique circumstances is not convincing. This may be true for minor force to restrain a child, but it cannot be seriously argued that children need corporal punishment to grow and learn. Indeed, the opposite would seem to be true. By condoning assaults, s. 43 perpetuates the notion of children as property. Far from corresponding to their actual needs, it compounds their pre-existing disadvantage as a vulnerable and often powerless group. Section 43 therefore infringes s. 15(1).
The infringement of s. 15(1) cannot be justified under
s. 1 of Charter.
Section 1 requires an examination
of whether the objective of s. 43 is sufficiently pressing
and substantial to warrant infringement of s. 15(1) and whether
the means used to achieve this objective is proportional.
The purpose of s. 43 is to recognize that parents and teachers require reasonable latitude in carrying out their responsibilities to nurture and educate their children. It is asserted that the central aspect of this objective is to protect children and families from the damaging aspect of criminal sanctions. This attempts to shift the emphasis from one of parental rights to one of child protection. When s. 43 was enacted, its objective was based on the notion of children as property, capable of learning through physical violence. The heading of s. 43, "Protection of Persons in Authority", confirms that the aim was to protect such persons – not to protect children from intrusions of the criminal law. This attempt to portray a child-centered objective was never the intent of s. 43. But it may be relevant to whether the means chosen to attain the true objective are proportional.
A serious infringement of physical integrity cannot be easily justified. Less intrusive means could have been tailored to meet this objective. The section could have been limited to minor force, rather than more serious assaults, and to those to whom it applies, and to whom it protects. Section 43 does not do this.
The belief that child protection laws and other federal education initiatives will protect children in less intrusive ways would be more important if we were dealing with discrimination that was less basic. This is not a delicate balancing act. The Charter infringement in this case is direct and clear. It impairs the equality rights of children in a very intrusive way. Provincial and federal policy initiatives do not change this.
As to the proportionality between the beneficial and harmful effects of s. 43: the harmful effects relate to such a core right of children that the beneficial effects must be very compelling to overcome them. Although there is a benefit to escape the unnecessary intrusion of the criminal law, where there is harm, it is precisely at this point that the disapproval of the criminal law is necessary. It may not follow that the full weight of the law must be brought to bear. Child protection agencies, police, and prosecutors – taking into account the best interests of the child, can decide this.
Striking down s. 43 is the only appropriate remedy. It should be severed from the rest of the Code. Parliament can then choose how to respond. Reading down, so that its scope would be "interpreted" as proposed by the majority, may bring it in line with constitutional requirements. But this is not the role of the Court. Restricting s. 43 in this way may be one less intrusive means of dealing with the section. However, it may not be the only way open to Parliament. Nor would it necessarily be free from constitutional scrutiny if chosen.
Section 43 must fall. It would not be proper to delay a declaration of invalidity. There are no compelling reasons to permit the continued violation of the equality rights of children. There is neither harm to the public nor budgetary reasons for delaying a declaration that s. 43 is invalid and of no force and effect.
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Supreme Court Guidelines for Interpreting S. 43
The Jan/04 majority decision of the Supreme Court of Canada sets out the following 15 guidelines for interpreting S. 43 of the Criminal Code. Generally, the guidelines state that the force allowed by S. 43 is ‘within the larger realm of common assault’, is limited to the mildest form of assault, and is to express ‘some symbolic disapproval’.
Specifically, the guidelines hold that S. 43 is no longer a defence to an assault on a child for correction if:
- the force is used by a schoolteacher as corporal punishment
- the child is under 2 years of age
- the child is over 12 years of age
- the force involves the use of objects
- the force involves slaps or blows to the head
- the force is more than minor, more than transitory and trifling, and has
more than a minimal, transient or trivial impact
- the force focuses on the gravity of the child’s wrongdoing ‘as this invites a punitive
rather than corrective focus’
- the force causes bodily harm
- the force raises a reasonable prospect or apprehension of bodily harm
- the force either harms or degrades a child
- the child is incapable of learning because of disability
- the child is incapable of learning because of some other ‘contextual factor’
- the correction is the result of the caregiver’s loss of temper
- the correction is the result of the caregiver’s abusive personality
- the correction is the result of violence motivated by anger or frustration
The guidelines also state there may be instances in which a parent or school teacher may use reasonable force to restrain or remove an adolescent from a particular situation ‘falling short of corporal punishment’; to secure compliance with instructions; or restrain or remove a child ‘in appropriate circumstances’.
The Supreme Court guidelines are largely unknown by the public
The Court’s guidelines for interpreting S. 43 are a fundamental change in the law on physical punishment of children. This judicial change in the law has never been discussed in the House of Commons and is largely unknown by the public. In May 2006, a national survey for Toronto Public Health of 2450 Canadian adults on their knowledge of the law on physical punishment of children found that only 19% of the public was aware of the Jan/04 Supreme Court of Canada decision. Of this 19%, only a small minority was aware of all the guidelines. See Research chapter for survey. This means that parents unaware of this judicial change in the law may be physically punishing children in a way that it is now a criminal offence – without knowing it to be a criminal offence.
The Council of Europe’s Committee of Social Rights confirmed in June 2005 that although court judgments may prohibit all corporal punishment, not enough education takes place to make the public aware of these changes in the law. No federal or provincial government in Canada has undertaken or sponsored a widespread public education campaign to make the general public aware of these fundamental changes in the law.
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Comment on Supreme Court Decision
Summary of Decision
The majority of the Court held that s. 43 is not unduly vague if interpreted according to the limitations outlined in its decision. It does not violate a principle of fundamental principle of justice that laws must be reasonably clear. It therefore does not infringe s. 7 of the Charter. Neither does it infringe s. 15(1) of the Charter. It is not discriminatory because s. 43 responds to the reality of children's lives and their need for guidance and discipline. It does not offend their dignity. Section 43 does not violate the Charter and is therefore constitutionally valid.
Justice Arbour dissented on the grounds that s. 43 infringes s.7 because it is unduly vague and the Court cannot rewrite the section to cure this. This is the job of Parliament. Justice Deschamps agreed but her dissent focused on s. 15(1). She held that s. 43 is discriminatory because it seriously infringes the physical integrity and dignity of a vulnerable and disadvantaged group and cannot be justified under s. 1 of the Charter. It should be struck down. Justice Binnie also dissented on the grounds that s. 43 infringes s. 15(1) but held it justified under s. 1.
The dissenting opinions are clear and compelling. The main points are set out in our synopsis. They provide strong legal arguments for repealing s. 43. Only some of the differences with the majority decision are referred to below.
Children between 2 and 12 years of age still subject to legal physical punishment
The majority decision still leaves children within this age group legally subject to physical punishment by parents. It has simply narrowed the class of "punishable" children and placed limits on the kind of punishment allowed. The risks and dangers of this legal approval of physical punishment will continue until this defence to assault is repealed.
Nature and extent of "mild assaults" allowed by decision are unclear
It remains to be seen how lower courts will interpret the punishment allowed by the Court for 2 to12 year-olds; children incapable of learning because of disability "or some other contextual factor"; and at what point frequent "mild assaults" become unreasonable or cause "harm or the prospect of bodily harm". Justice Binnie observed that these limitations do not relieve a court from considering what is reasonable "in all the circumstances" and that they leave "considerable scope" for punishment of children.
Clarity in the law needed, not just for parents, but also for children and public
All opinions expressed on the vagueness argument focus on
the need for "fair warning" to parents and teachers as to
what force is permissible. The need for children and the general
public to know what, if any, force is allowed seems to be
overlooked. This is an important omission because we know
that many children suffer months of assaults before their
injuries or deaths but do not ask for help. They do not know
that such assaults are criminal and appear to assume that
injuries and beatings are a normal part of childhood. Five
year-old Farah Khan and 6 year-old Randal Dooley might not
have suffered appalling deaths if corporal punishment were
clearly illegal and if they had learned at kindergarten and
school that it is not allowed. They might have mentioned these
assaults to teachers or neighbours and, if reported, their
deaths could have been prevented.
We need to educate children so they can learn to protect themselves by asking for help. Children as young as 4 can be taught to speak up if they are experiencing violence at home. We also need to educate the public to report assaults that come to their attention. Section 42 of the UN Convention in fact requires signatories to makes the rights of children, including the right to a violence-free upbringing, "widely known, by appropriate and active means, to adults and children alike." Countries that have abolished corporal punishment are doing so. Such a campaign by our government would be difficult as long as s. 43 remains in the Code.
The government has no public education campaign against physical punishment.
The claim that the government is educating the public against physical discipline is a fiction. There is no widespread educational campaign aimed at the general public. One or two pamphlets and a video targeted at a specific audience do not amount to public education. Given that s. 43 would conflict with an effective campaign against corporal punishment, it is not surprising that no such campaign has been launched.
Judicial interpretations of section 43 have indeed been "muddled and subjective"
The majority acknowledges that judicial interpretations of
s. 43 have been muddled and subjective right up to the present.
Courts have acquitted parents and teachers for assaults with
objects, to the head, on young children and teenagers, and
assaults causing bruises and contusions. See Law,
Table of Acquittals for examples of such acquittals in
the 1990s to the present.
Physical punishment by schoolteachers illegal
While all justices agreed that schoolteachers may use reasonable force to restrain or remove children, they were unanimous in holding that corporal punishment by teachers is "not acceptable". However, the strap and paddle are still being used and threatened in some public and private schools. The education acts of Ontario, Manitoba, Saskatchewan and Alberta should be amended to make it clear that this is not allowed. Other provinces have already done so. When corporal punishment in all British schools was finally banned in 1996, the common law power to restrain students was set out in the UK Education Act. These provinces could do the same if they considered it necessary.
Court can't rewrite section 43 to make it constitutional
Both Justices Arbour and Deschamps held that the majority failed to interpret s. 43 according to its wording and decisions by lower courts and essentially rewrote the section in order to find it constitutional. Justice Binnie agreed that the majority interpretation "pushes the boundary between judicial interpretation and judicial amendment".
Jeffrey Miller, columnist for The Lawyer's Weekly (Feb. 20/04), comments: Some say the judges feared striking down the section would give the political right another stick to beat courts with, over supposed judicial activism. The Supreme Court was afraid the argument goes, to seem to overrule elected Parliaments. Certainly, the majority's anxiety to limit the spanking defence – to striking children between two and 13 years; no sticks or other objects; not on the head; etc. – shows how equivocal the judges felt about their decision.
Ironically, Canada Family Action Coalition, the "family values" group that intervened to uphold s. 43, now complains that the Court "blatantly" rewrote the law instead of simply interpreting it. It suggests that it may be "culturally insensitive" to ban the use of "an inanimate object, such as a wooden spoon" for "corrective discipline" and wonders whether disallowing the hitting of children under 2 years of age isn't simply "political correctness".
The "reasonable" test works in other areas of the law but is too vague for section 43
A major argument by the government and its intervenors was that the "reasonable" force standard in s. 43 is not unduly vague because the test of what is "reasonable" is used successfully in other areas of the law and is therefore constitutional in this section. The majority of the Court accepted this proposition.
But as Justice Arbour indicated, the context in which the force used is crucial. As an example, the amount of force used in defending oneself against an assault can be measured against the force used in the initial assault. If the force in the latter is moderate, only moderate force in self-defence will be considered reasonable. Conversely, if the initial assault is severe, equally severe force will be reasonable in self-defence. Measuring what is "reasonable" in this context is therefore generally "clear and commensurable".
This is not the case in assessing reasonable force under s. 43. Here, as Justice Arbour stated, subjective cultural, religious, and political attitudes determine what the parent considers "reasonable" force for disciplining children. All parents do not share the "substantial social consensus" on reasonable correction referred to by the majority. It is the children of these parents who are most in need of protection from assault.
The "blunt hand of the law" does not have to be used in section 43 cases
The majority assumes that the "blunt hand of the law" will involve criminal prosecutions that could "destroy family relationships". This appears to be its principal reason for upholding s. 43. The 1969 Ouimet Report is quoted to support this contention even though the words quoted actually question whether criminal law "inherently" requires a sanction. Both Justices Arbour and Deschamps reject the notion that it is necessary to bring the full weight of the criminal law to bear if s. 43 is repealed.
In 1975, the Law Reform Commission recommended diversion from the criminal justice system instead of prosecution in social policy areas where community support services can be used in accordance with express guidelines. Diversion has been increasingly used since then. We have argued throughout our campaign that if s. 43 is repealed, provincial Attorneys General can develop guidelines to mandate practical help and parenting education in response to reports of corporal punishment. Prosecution can and should be a last resort.
The fact that such guidelines still involve limited prosecutorial discretion is not discriminatory, as the majority claims. As Justice Binnie stated, the broad law against assault establishes the fundamental principle of physical integrity. Justice Deschamps described s. 43 as an "explicit choice" to deprive children of the full protection of laws against assault. Discrimination is a matter of excluding a class of persons from the benefit of this law. The question of how assault laws should be enforced, if s. 43 is repealed, is a different question.
The majority also refers to a later Law Reform Commission in 1984 as authority for the fear of the "blunt hand". Initially, Law Reform Commissioners favoured repeal but later reversed their view. A minority of commissioners dissented from this conclusion and dismissed the fear of "over-zealous state intrusion".
Parents would not be exposed to criminal prosecutions for trivial slaps
The majority believed that ending s. 43 would leave parents
exposed to prosecution for "every trivial slap" or even for
"placing an unwilling child in a car seat". The same type
of objection could be made with respect to spousal assault,
but there is no evidence that "trivial" spousal assaults are
being prosecuted. These assaults are criminal offences notwithstanding
the theoretical possibility of "trivial" prosecutions. In
dissenting from the majority on this point, Justice Arbour
stressed that the defences of necessity and de minimus
would protect parents from trivial or excusable assaults if
s. 43 were repealed; that these two common law defences to
assault would not be affected by ending s. 43; and that if
Parliament considered it necessary to codify them, it could
The majority decision will actually increase
the need for prosecutions
The Supreme Court's attempt to delineate the kind of mild assaults allowed and its belief that appeals "will permit a unified national standard to emerge" will tend to increase the need for prosecutions to test the meaning of this decision. Lower court judgements are more likely to be appealed in the hopes that such a national standard will emerge. This is at odds with the majority's belief that prosecutions are destructive to family life. Relying on in-depth research and expert evidence in an attempt to establish this standard will also require longer, more complicated and more expensive trials.
The child's perspective on section 43 is not a "fiction"
The majority acknowledges that in deciding whether s. 43 "marginalizes" children, it must try to take account of the "subjective view" of the child; but then holds that the perspective on the section must be that of a reasonable adult in the child's circumstances. A "reasonable, fully-apprised pre-school-aged child would be a fiction", according to the majority. A reasonable adult would not conclude that the hitting allowed by s. 43 offends a child's dignity. Dissenting Justice Binnie emphatically disagreed – stating that corporal punishment violates a child's dignity from any perspective.
The majority opinion seems to suggest that rights of children
under the Charter and the UN Convention are not really their
rights. They are rights only in so far as a reasonable adult
considers them rights. While it's obviously true
that many decisions concerning a child must be made from the
parent's perspective, this should not apply to freedom from
assault. It is the child's perspective that must be paramount
where such a basic and fundamental right is the issue.
Children do not "need" to be hit for correction
All parties in the case agreed that children need correction. The majority held that this need included discipline involving mild forms of assault. Justice Binnie questioned whether children "need" such discipline and held that this should be decided under s. 1 of the Charter – with the onus on the government to prove the alleged need. Although he held that s. 43 violates s. 15(1), he found it justified under s. 1, not because of "need", but because of the "blunt hand" argument. Since the majority did not accept that s. 43 violates any provisions of the Charter, they did not have to address these issues under s. 1.
Child welfare legislation cannot adequately protect children
Like the majority, Justice Binnie held that s. 43 was needed for "keeping the heavy hand of the law out of the home". He also justified the section on the basis that children are protected under child welfare legislation and that this protection is more important than ending s. 43. Justice Deschamps disagreed, stressing that child protection laws cannot compensate for infringing a right as basic as the right to physical security. Where children are at risk of harm, this is the point at which the disapproval of the criminal law is necessary. There is no "delicate balancing act", she said, between these federal and provincial laws. In his reliance on child protection laws, Justice Binnie dos not seem to appreciate that child welfare legislation essentially comes into play only after a child has been harmed, and only if the harm is reported. Its role in preventing harm is partly undermined by s. 43's justification of physical punishment.
Parliament has not "chosen" to retain section 43
It's another fiction to claim that Parliament has "chosen" to retain s. 43. This defence to assault was simply adopted from English law when Parliament first codified our criminal law in 1892. There was no real debate either then or since. Although Private Members bills to repeal the section have been introduced in the Commons and Senate since 1994, only two have reached Second Reading. The government opposed both and there has been no further parliamentary discussion of this 19th century section of the Code.
Parliament is better equipped to deal with section 43 than the courts
As Justice Arbour observed, a court is not the best forum in which to examine an issue of social policy as contentious as s. 43. Court proceedings are adversarial and do not lend themselves to an objective approach to the issue. Twenty-four expert witnesses were examined and volumes of evidence produced in this case. Only brief excerpts of this evidence reached the public. If the Government introduced a bill to amend or repeal s. 43,
a full parliamentary debate would ensue and committee hearings would be held to allow input by interested organizations and individuals. This would make for an in-depth discussion and a better-informed public.
Majority ignores recommendation by UN Committee on Rights of the Child
The UN Committee overseeing the implementation of the Convention on the Rights of the Child published its comments in 1995 and 2003 on Canada's implementation of the Convention. In 1995, it recommended that physical punishment of children in families be prohibited and asked Canada to review s. 43 in light of this recommendation. In 2003, it stated it was "deeply concerned" that our government has taken no action to remove s. 43. This recent recommendation was brought to the attention of the Court but was not even referred to in the majority decision.
Children have no procedural protection before punishment by parent
The Court dismissed the argument that children should have independent representation at trial where s. 43 is raised as a defence, but no consideration was given to a child's lack of procedural rights before being punished. Adults accused of an offence have fundamental rights to a fair hearing before being adjudged guilty and punished by the state. Children have no such rights before being punished by parents. Since it is obviously impossible to legislate or enforce such rights for children, this fundamental principle of justice cannot be guaranteed and Charter s. 7 is violated on this ground alone.
The Court's decision makes certain parenting advice illegal
"Spanking" children with switches, paddles or belts or spanking toddlers is now a criminal offence as a result of the Court's decision. Some parenting books advocate such punishment. This now amounts to counseling the commission of a criminal offence. The government should advise publishers, libraries, and booksellers that these books must be revised or withdrawn from sale in Canada.
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Government Options re Supreme Court Decision
Doing nothing to repeal or amend s. 43, or to educate the public on the limitations imposed by the Court would simply ignore the Court's decision and fail to acknowledge the public's right to know the law. Children would remain ignorant of the limitations imposed by the Court. Parents and teachers would risk criminal prosecution for acts previously considered legal. This would be a dangerous option for all concerned.
Initiate public education campaign on Supreme Court limitations
The government could initiate an educational campaign to advise the public in general, and children, parents and teachers in particular, that corporal punishment by teachers and certain types of punishment by parents are now illegal and that the defence to assaults on children under 2 and over 12 no longer exists. This option would require the government to explain why "mild assaults" on children between the ages of 2 to 12 are still legal. This mixed message would be difficult to justify and confusing for much of the public.
Issue consultation paper on section 43
Governments in both Scotland and the UK issued consultation papers in the 1990s on their "reasonable chastisement" defence. Since there were apparently no grounds on which the constitutionality of this defence could be challenged in Britian, this was an appropriate way to canvas the views of interested groups and stimulate public discussion. This option is unnecessary in Canada as the issue has been before the courts for 5 years and before the public for even longer. It is time to act on the basis of the research and knowledge already available.
Introduce legislation to amend section 43
The wording of s. 43 is unchanged by the Court's decision. If the section were to reflect the limitations imposed by the Court, it would have to be amended by an Act of Parliament. But a bill to amend s. 43 would entrench the power to use "mild assaults" on young children for years to come, would be difficult to draft, would ignore the UN Committee's clear recommendation to completely abolish s. 43, and as Justice Deschamps indicated, could in fact turn out to be unconstitutional.
Introduce legislation to repeal section 43
The Supreme Court's decision is not the last word on s. 43. The section has at best squeaked through constitutional scrutiny in a problematic judgement with three strong dissenting opinions. Whether constitutional or not, section 43 is nevertheless bad social policy. It is out of step with the rights of children and their need for the full protection of the law against assault. Their health and safety is at stake. A bill to repeal s. 43 is the only just and effective option and should be introduced, passed, and brought into force without delay.
Parkhurst Exchange debate on Supreme Court decision
For a debate between Corinne Robertshaw, founder, Repeal 43 Committee, and
Nicholas Bala, Queen’s University law professor and witness for the
government in the constitutional challenge to s. 43, see “Head to Head,
Supreme Court decision on spanking” in Parkhurst Exchange News/Archives,
Articles/Letters 2004 – 1990 May/04.
July/04 assault acquittal
For an assault acquittal using this Supreme Court of Canada judgement as the
authority, see The Law, Judicial Interpretation
of Supreme Court of Canada Decision.
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Open Letter to Prime Minister
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