Constitutional Challenge

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 Charter:

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 below.

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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 harmful conduct.

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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Government Argument

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 to children.

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Intervenor Arguments

Organizations that applied to support challenge

Ontario 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 the challenge.

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.

OACAS argument

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 for “correction”.

Children have suffered serious harm because of s. 43.

Section 43 interferes with efforts to protect children under provincial child protection legislation.

CTF argument

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 s. 43.

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.

Coalition argument

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 children.

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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 tolerated.

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 compliance.

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 officials.

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 of Appeal

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 their education”.

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 harmful conduct.

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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Government Argument

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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Intervenor Arguments

OACAS argument

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 child.

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.

CTF argument

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 objectives.

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.

Coalition argument

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 punishment.

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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

  • preventing such harm is a pressing and substantial objective
  • allowing reasonable force is a rational way to achieve this objective
  • the resulting violation of the child’s equality rights
    is minimal, and
  • the beneficial effects of s. 43 outweigh its harmful consequences.

The judgement is reported at (2000) 57 OR (3rd) 511 and can be read on line at

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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:

  • children should be protected by law to the same extent as other Canadians
  • the government itself agrees that “spanking” is wrong and ineffective
  • 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 courts
  • judges and MPs have called for clarification or repeal of s. 43
  • s. 43 violates the UN Convention on the Rights of the Child

Application opposed by government

The government opposed a hearing by the Supreme Court on the grounds that

  • the application does not raise any legal issue of public importance
  • section 43 is an issue of pure social policy
  • the purpose of s.43 is not to punish children but to protect them
  • there is no judicial conflict in the interpretation of s. 43
  • section 43 does not raise any issue relating to Canada’s obligations under the UN Convention on the Rights of the Child.

Supreme Court of Canada agrees to hear CFCYL appeal

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

  • reasonable limit prescribed by law as can be
  • demonstrably justified in a free and democratic society

Onus and standard of proof

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 causes.

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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 considered.

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:

  • 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.

2. If s. 43 violates the Charter, is it a limit prescribed by law?

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 already exist.

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 section.

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) is justified.

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 the Charter?

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.

Other issues

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 ”significant consideration”.

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 eighteenth century.

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 of prosecutions.

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 objective.

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 education alone.

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 by Parliament.

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.

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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:

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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 unduly vague.

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
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 of others.

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 down.

Justice Deschamps opinion: Agrees with Arbour J. but decides case under s. 15(1) of 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.

Does S. 43 of the Criminal Code infringe s. 15(1) of the Charter?

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
Protection 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 child.

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:

  1. the force is used by a schoolteacher as corporal punishment
  2. the child is under 2 years of age
  3. the child is over 12 years of age
  4. the force involves the use of objects
  5. the force involves slaps or blows to the head
  6. the force is more than minor, more than transitory and trifling, and has
    more than a minimal, transient or trivial impact
  7. the force focuses on the gravity of the child’s wrongdoing ‘as this invites a punitive
    rather than corrective focus’
  8. the force causes bodily harm
  9. the force raises a reasonable prospect or apprehension of bodily harm
  10. the force either harms or degrades a child
  11. the child is incapable of learning because of disability
  12. the child is incapable of learning because of some other ‘contextual factor’
  13. the correction is the result of the caregiver’s loss of temper
  14. the correction is the result of the caregiver’s abusive personality
  15. 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 do so.

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

Do nothing
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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