Canadian Foundation for Children, Youth and the Law v. Canada
(Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4
Canadian Foundation for Children, Youth and the Law Appellant
v.
Attorney General in Right of Canada Respondent
and
Focus on the Family (Canada) Association, Canada Family
Action Coalition, Home School Legal Defence Association
of Canada and REAL Women of Canada, together forming the
Coalition for Family Autonomy, Canadian Teachers’ Federation,
Ontario Association of Children’s Aid Societies, Commission des
droits de la personne et des droits de la jeunesse, on its own
behalf and on behalf of Conseil canadien des organismes
provinciaux de défense des droits des enfants et des jeunes,
and Child Welfare League of Canada Interveners
Indexed as: Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General)
Neutral citation: 2004 SCC 4.
File No.: 29113.
2003: June 6; 2004: January 30.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache,
Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights
— Fundamental justice — Vagueness — Corporal punishment — Section 43 of
Criminal Code justifying use of reasonable force by parents and teachers by way
of correction of child or pupil — Whether provision unconstitutionally vague or
overbroad — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code,
R.S.C. 1985, c. C-46, s. 43 .
Constitutional law — Charter of Rights
— Cruel and unusual punishment — Corporal punishment — Section 43 of Criminal
Code justifying use of reasonable force by parents and teachers by way of
correction of child or pupil — Whether provision infringes right not to be
subject to cruel and unusual treatment or punishment — Canadian Charter of
Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 43 .
Constitutional law — Charter of Rights
— Equality rights — Children — Corporal punishment — Section 43 of Criminal
Code justifying use of reasonable force by parents and teachers by way of
correction of child or pupil — Whether provision infringes right to equality —
Canadian Charter of Rights and Freedoms, s. 15(1) — Criminal Code, R.S.C.
1985, c. C-46, s. 43 .
Section 43 of the Criminal Code
justifies the reasonable use of force by way of correction by parents and
teachers against children in their care. The appellant sought a declaration
that s. 43 violates ss. 7 , 12 and 15(1) of the Canadian Charter of
Rights and Freedoms . The trial judge and the Court of Appeal rejected the
appellant’s contentions and refused to issue the declaration requested.
Held
(Binnie J. dissenting in part; Arbour and Deschamps JJ. dissenting): The appeal
should be dismissed.
Per
McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.:
Section 43 of the Criminal Code does not offend s. 7 of the Charter .
While s. 43 adversely affects children’s security of the person, it does
not offend a principle of fundamental justice. First, s. 43 provides
adequate procedural safeguards to protect this interest, since the child’s
interests are represented at trial by the Crown. Second, it is not a principle
of fundamental justice that laws affecting children must be in their best
interests. Thirdly, s. 43, properly construed, is not unduly vague or
overbroad; it sets real boundaries and delineates a risk zone for criminal
sanction and avoids discretionary law enforcement. The force must have been
intended to be for educative or corrective purposes, relating to restraining,
controlling or expressing disapproval of the actual behaviour of a child
capable of benefiting from the correction. While the words “reasonable under
the circumstances” on their face are broad, implicit limitations add
precision. Section 43 does not extend to an application of force that results
in harm or the prospect of harm. Determining what is “reasonable under the
circumstances” in the case of child discipline is assisted by Canada’s
international treaty obligations, the circumstances in which the discipline
occurs, social consensus, expert evidence and judicial interpretation. When
these considerations are taken together, a solid core of meaning emerges for
“reasonable under the circumstances”, sufficient to establish a zone in which
discipline risks criminal sanction.
The conduct permitted by s. 43 does not
involve “cruel and unusual” treatment or punishment by the state and therefore
does not offend s. 12 of the Charter . Section 43 permits only
corrective force that is reasonable. Conduct cannot be at once both reasonable
and an outrage to standards of decency.
Section 43 does not discriminate
contrary to s. 15(1) of the Charter . A reasonable person acting on
behalf of a child, apprised of the harms of criminalization that s. 43
avoids, the presence of other governmental initiatives to reduce the use of
corporal punishment, and the fact that abusive and harmful conduct is still
prohibited by the criminal law, would not conclude that the child’s dignity has
been offended in the manner contemplated by s. 15(1) . While children need
a safe environment, they also depend on parents and teachers for guidance and
discipline, to protect them from harm and to promote their healthy development
within society. Section 43 is Parliament’s attempt to accommodate both of
these needs. It provides parents and teachers with the ability to carry out
the reasonable education of the child without the threat of sanction by the
criminal law. Without s. 43, Canada’s broad assault law would criminalize
force falling far short of what we think of as corporal punishment. The
decision not to criminalize such conduct is not grounded in devaluation of the
child, but in a concern that to do so risks ruining lives and breaking up
families — a burden that in large part would be borne by children and outweigh
any benefit derived from applying the criminal process.
Per Binnie
J. (dissenting in part): By denying children the protection of the criminal
law against the infliction of physical force that would be criminal assault if
used against an adult, s. 43 of the Criminal Code infringes
children’s equality rights guaranteed by s. 15(1) of the Charter .
To deny protection against physical force to children at the hands of their
parents and teachers is not only disrespectful of a child’s dignity but turns
the child, for the purpose of the Criminal Code , into a second class
citizen. Such marginalization is destructive of dignity from any perspective,
including that of a child. Protection of physical integrity against the use of
unlawful force is a fundamental value that is applicable to all.
The majority in this case largely
dismisses the s. 15(1) challenge because of the alleged correspondence
between the actual needs and circumstances of children and the diminished
protection they enjoy under s. 43 . In the majority view, the objective of
substantive equality (as distinguished from formal equality) calls for the
differential treatment of children. Here, however, the “correspondence” factor
is used as a sort of Trojan horse to bring into s. 15(1) matters that are
more properly regarded as “reasonable limits . . . demonstrably justified in a
free and democratic society” (s. 1). Section 43 protects parents and teachers,
not children. The justification for their immunity should be dealt with under
s. 1.
The use of force against a child, which in
the absence of s. 43 would result in a criminal conviction, cannot be said
to “correspond” to a child’s “needs, capacities and circumstances” from the
vantage point of a reasonable person acting on behalf of a child who seriously
considers and values the child’s views and developmental needs. Furthermore, the
use of the “correspondence” factor to deny equality relief to children in this
case is premised on the view that the state has good reason for treating
children differently because of the role and importance of family life in our
society. However, to proceed in this way just incorporates the “legitimate
objective” element from the s. 1 Oakes test into s. 15, while
incidentally switching the onus to the rights claimant to show the legislative
objective is not legitimate, and relieving the government of the onus of
demonstrating proportionality, including minimal impairment. This denies
children the protection of their right to equal treatment.
The infringement of children’s equality
rights is saved by s. 1 of the Charter in relation to parents and
persons standing in the place of parents. The objective of s. 43 of limiting
the intrusion of the Criminal Code into family life is pressing and
substantial and providing a defence to a criminal prosecution in the
circumstances stated in s. 43 is rationally connected to that objective.
As to minimal impairment, the wording of s. 43 not only permits
calibration of the immunity to different circumstances and children of
different ages, but it allows for adjustment over time. The proportionality
requirements are met by Parliament’s limitation of the s. 43 defence to
circumstances where: (i) the force is for corrective purposes, and (ii) the
measure of force is shown to be reasonable in the circumstances. What is
reasonable in relation to achievement of the legitimate legislative objective
will not, by definition, be disproportionate to such achievement. Moreover,
the salutary effects of s. 43 exceed its potential deleterious effects
when one considers that the assault provisions of the Criminal Code are
just a part, and perhaps a less important part, of the overall protections
afforded to children by child welfare legislation. To deny children the
ability to have their parents successfully prosecuted for reasonable corrective
force under the Criminal Code does not leave them without effective
recourse. It just helps to keep the family out of the criminal courts.
Section 43 in relation to parents is justified on this basis.
The extension of s. 43 protection to
teachers has not been justified under the s. 1 test. Parents and teachers
play very different roles in a child’s life and there is no reason why they
should be treated on the same legal plane for the purposes of the Criminal
Code . The logic for keeping criminal sanctions out of the schools is much
less compelling than for keeping them out of the home. While order in the
schools is a legitimate objective, giving non-family members an immunity for
the criminal assault of children “by way of correction” is not a reasonable or
proportionate legislative response to that problem. Section 43 does not
minimally impair the child’s equality right, and is not a proportionate
response to the problem of order in the schools.
Per Arbour
J. (dissenting): Section 43 of the Criminal Code can only be
restrictively interpreted if the law, as it stands, offends the Constitution
and must therefore be curtailed. Absent such constitutional restraints, it is
neither the historic nor the proper role of courts to enlarge criminal responsibility
by limiting defences enacted by Parliament. The reading down of a statutory
defence amounts to an abandonment by the courts of their proper role in the
criminal process. Nothing in the words of s. 43 , properly construed,
suggests that Parliament intended that some conduct be excluded at the outset
from the scope of its protection. This is the law as we must take it in order
to assess its constitutionality. To essentially rewrite it before validating
its constitutionality is to hide the constitutional imperative.
Section 43 of the Criminal Code
infringes the rights of children under s. 7 of the Charter . The
phrase “reasonable under the circumstances” in s. 43 violates children’s
security of the person interest and the deprivation is not in accordance with
the relevant principle of fundamental justice, in that it is unconstitutionally
vague. A vague law violates the principles of fundamental justice because it
does not provide “fair warning” to individuals as to the legality of their
actions and because it increases the amount of discretion given to law
enforcement officials in their application of the law, which may lead to
arbitrary enforcement. There is no need to speculate about whether s. 43 is
capable, in theory, of circumscribing an acceptable level of debate about the
scope of its application. Canadian courts have been unable to articulate a
legal framework for s. 43 despite attempts to establish guidelines and
have been at a loss to appreciate the “reasonableness” referred to by
Parliament. “Reasonableness” with respect to s. 43 is linked to public
policy issues and one’s own sense of parental authority and always entails an
element of subjectivity. Conceptions of what is “reasonable” in terms of the
discipline of children, whether physical or otherwise, vary widely, and often
engage cultural and religious beliefs as well as political and ethical ones.
While it may work well in other contexts, in this one the term “reasonable
force” has proven not to be a workable standard and the lack of clarity is
particularly problematic here because the rights of children are engaged. The
restrictions put forth by the majority with respect to the scope of the defence
in s. 43 have not emerged from the existing case law. These restrictions
are far from self-evident and would not have been anticipated by many parents,
teachers or enforcement officials. Attempts at judicial interpretation which
would structure the discretion in s. 43 have failed to provide coherent or
cogent guidelines that would meet the standard of notice and specificity
generally required in the criminal law.
Since s. 43 is unconstitutionally vague,
it cannot pass the “prescribed by law” requirement in s. 1 of the Charter
or the minimal impairment stage of the Oakes test and accordingly cannot
be saved under that section. Striking down the provision is the most
appropriate remedy, as Parliament is best equipped to reconsider this vague and
controversial provision. Striking down s. 43 will not expose parents and
persons standing in the place of parents to the blunt instrument of the
criminal law for every minor instance of technical assault. The common law
defences of necessity and de minimis adequately protect parents and
teachers from excusable and/or trivial conduct. The defence of necessity rests
upon a realistic assessment of human weaknesses and recognizes that there are
emergency situations where the law does not hold people accountable if the
ordinary human instincts overwhelmingly impel disobedience in the pursuit of
self-preservation or the preservation of others. Because the s. 43
defence only protects parents who apply force for corrective purposes, the
common law may have to be resorted to in any event in situations where parents
forcibly restrain children incapable of learning, to ensure the child’s safety,
for example. With respect to the common law defence of de minimis, an
appropriate expansion in the use of that defence would assist in ensuring that
trivial, technical violations of the assault provisions of the Criminal Code
do not attract criminal sanctions.
Per
Deschamps J. (dissenting): The ordinary and contextual meaning of s. 43 cannot
bear the restricted interpretation proposed by the majority. Section 43
applies to and justifies an extensive range of conduct, including serious uses
of force against children. There was agreement with Arbour J. that the body of
case law applying s. 43 is evidence of its broad parameters and wide scope.
Where, as here, the text of the provision does not support a severely
restricted scope of conduct that would avoid constitutional disfavour, the
Court cannot read the section down to create a constitutionally valid
provision. It is the duty of the Court to determine the intent of the legislator
by looking at the text, context and purpose of the provision.
Section 43 infringes the equality
guarantees of children under s. 15(1) of the Charter . On its face,
as well as in its result, s. 43 creates a distinction between children and
others which is based on the enumerated ground of age. Moreover, the
distinction or differential treatment under s. 43 constitutes
discrimination. The government’s explicit choice not to criminalize some
assaults against children violates their dignity. First, there is clearly a
significant interest at stake because the withdrawal of the protection of the
criminal law for incursions on one’s physical integrity would lead the
reasonable claimant to believe that her or his dignity is being harmed. Second,
children as a group face pre-existing disadvantage in our society and have been
recognized as a vulnerable group time and again by legislatures and courts.
Third, the proposed ameliorative purposes or effects factor does not apply and
has only a neutral impact on the analysis. Lastly, s. 43 perpetuates the
notion of children as property rather than human beings and sends the message
that their bodily integrity and physical security is to be sacrificed to the
will of their parents, however misguided. Far from corresponding to the actual
needs and circumstances of children, s. 43 compounds the pre-existing
disadvantage of children as a vulnerable and often-powerless group whose access
to legal redress is already restricted.
The infringement of s. 15(1) is not
justified as a reasonable limit under s. 1 of the Charter . The
legislative objective behind s. 43 of recognizing that parents and
teachers require reasonable latitude in carrying out the responsibility imposed
by law to provide for their children, to nurture them, and to educate them is
pressing and substantial. As well, there does appear to be a rational
connection between the objective and limiting the application of the criminal
law in the parent-child or teacher-pupil relationship. However, it is clear
that less intrusive means were available that would have been more
appropriately tailored to the objective. Section 43 could have been
defined in such a way as to be limited only to very minor applications of force
rather than being broad enough to capture more serious assaults on a child’s
body. It could also have been better tailored in terms of those to whom it
applies, those whom it protects, and the scope of conduct it justifies. A
consideration of the proportionality between the salutary and deleterious
effects of the application of s. 43 also supports the conclusion that the
proportionality part of the Oakes test has not been met. The
deleterious effects impact upon such a core right of children as a vulnerable
group that the salutary effects must be extremely compelling to be
proportional. The discrimination represented by s. 43 produces the most
drastic effect in sending the message that children, as a group, are less
worthy of protection of their bodies than anyone else.
The striking down of s. 43 is the only
appropriate remedy in this case and s. 43 should be severed from the rest
of the Criminal Code . It does not measure up to Charter
standards and, thus, must cede to the supremacy of the Constitution to the
extent of any inconsistency.
Cases Cited
By McLachlin C.J.
Referred to: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Rodriguez v.
British Columbia (Attorney General), [1993] 3 S.C.R. 519; Baker
v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817; R. v. Nova Scotia Pharmaceutical Society, [1992]
2 S.C.R. 606; Grayned v. City of Rockford, 408 U.S. 104
(1972); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27;
Bell ExpressVu Limited Partnership v. Rex, [2002]
2 S.C.R. 559, 2002 SCC 42; Ogg-Moss v. The Queen,
[1984] 2 S.C.R. 173; R. v. K. (M.) (1992), 74 C.C.C.
(3d) 108; Ordon Estate v. Grail, [1998] 3 S.C.R. 437;
Eur. Court H. R., A. v. United Kingdom, judgment of
23 September 1998, Reports of Judgments and Decisions
1998-VI; R. v. Dupperon (1984), 16 C.C.C. (3d) 453; Reference
re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123;
R. v. Smith, [1987] 1 S.C.R. 1045; Harvey v. New Brunswick (Attorney
General), [1996] 2 S.C.R. 876; Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497; Gosselin v.
Quebec (Attorney General), [2002] 4 S.C.R. 429,
2002 SCC 84.
By Binnie J. (dissenting in part)
Law v. Canada (Minister of Employment
and Immigration), [1999] 1 S.C.R. 497; Ogg-Moss
v. The Queen, [1984] 2 S.C.R. 173; R. v. Cuerrier, [1998]
2 S.C.R. 371; Streng v. Township of Winchester (1986), 31 D.L.R.
(4th) 734; Jones v. Ontario (Attorney General) (1988), 65 O.R. (2d)
737; Piercey v. General Bakeries Ltd. (1986), 31 D.L.R. (4th) 373; Andrews
v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Little
Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000]
2 S.C.R. 1120, 2000 SCC 69; Gosselin v. Quebec (Attorney
General), [2002] 4 S.C.R. 429, 2002 SCC 84; Egan v.
Canada, [1995] 2 S.C.R. 513; Eaton v. Brant County Board of
Education, [1997] 1 S.C.R. 241; Granovsky v. Canada (Minister
of Employment and Immigration), [2000] 1 S.C.R. 703,
2000 SCC 28; Nova Scotia (Workers’ Compensation Board) v. Martin,
[2003] 2 S.C.R. 504, 2003 SCC 54; Miron v. Trudel,
[1995] 2 S.C.R. 418; R. v. Oakes, [1986]
1 S.C.R. 103; Winnipeg Child and Family Services v. K.L.W.,
[2000] 2 S.C.R. 519, 2000 SCC 48; New Brunswick
(Minister of Health and Community Services) v. G. (J.), [1999]
3 S.C.R. 46; R. v. Jobidon, [1991] 2 S.C.R. 714; Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
By Arbour J. (dissenting)
R. v. Pickard, [1995] B.C.J. No. 2861 (QL); R. v. G.C.C. (2001), 206
Nfld. & P.E.I.R. 231; R. v. Fritz (1987), 55 Sask. R. 302; R. v.
Bell, [2001] O.J. No. 1820 (QL); R. v. N.S., [1999] O.J.
No. 320 (QL); R. v. Asante-Mensah, [2003] 2 S.C.R. 3,
2003 SCC 38; R. v. Ruzic, [2001] 1 S.C.R. 687,
2001 SCC 24; Ogg‑Moss v. The Queen, [1984]
2 S.C.R. 173; R. v. Sharpe, [2001] 1 S.C.R. 45,
2001 SCC 2; R. v. McCraw, [1991] 3 S.C.R. 72; R.
v. Campbell (1977), 38 C.C.C. (2d) 6; R. v. Dupperon
(1984), 16 C.C.C. (3d) 453; R. v. Wetmore (1996), 172 N.B.R. (2d)
224; R. v. Graham (1995), 160 N.B.R. (2d) 306; R. v. Plourde (1993),
140 N.B.R. (2d) 273; R. v. Caouette, [2002] Q.J. No. 1055 (QL); R.
v. Skidmore, Ont. C.J., No. 8414/99, June 27, 2000; R. v.
Gallant (1993), 110 Nfld. & P.E.I.R. 174; R. v. Fonder, [1993]
Q.J. No. 238 (QL); R. v. James, [1998] O.J. No. 1438 (QL); R.
v. Wood (1995), 176 A.R. 223; R. v. Vivian, [1992] B.C.J.
No. 2190 (QL); R. v. Murphy (1996), 108 C.C.C. (3d) 414; R. v.
K. (M.) (1992), 74 C.C.C. (3d) 108; R. v. Goforth (1991), 98
Sask. R. 26; R. v. Wheeler, [1990] Y.J. No. 191 (QL); R. v.
V.L., [1995] O.J. No. 3346 (QL); R. v. Holmes, [2001] Q.J.
No. 7640 (QL); R. v. Harriott (1992), 128 N.B.R. (2d) 155; R.
v. Atkinson, [1994] 9 W.W.R. 485; R. v. L.A.K. (1992), 104 Nfld.
& P.E.I.R. 118; R. v. Robinson, [1986] Y.J. No. 99 (QL); R.
v. V.H., [2001] N.J. No. 307 (QL); R. v. O.J., [1996] O.J.
No. 647 (QL); R. v. Dunfield (1990), 103 N.B.R. (2d) 172; Kindler
v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v.
White, [1999] 2 S.C.R. 417; Reference re ss. 193 and
195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R.
v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Irwin
Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R.
v. LeBeau (1988), 41 C.C.C. (3d) 163; Law v. Canada (Minister
of Employment and Immigration), [1999] 1 S.C.R. 497; Winnipeg
Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519,
2000 SCC 48; R. v. Heywood, [1994] 3 S.C.R. 761; R.
v. Morales, [1992] 3 S.C.R. 711; Osborne v. Canada (Treasury Board),
[1991] 2 S.C.R. 69; R. v. Oakes, [1986]
1 S.C.R. 103; Morgentaler v. The Queen, [1976]
1 S.C.R. 616; Perka v. The Queen, [1984]
2 S.C.R. 232; R. v. Manning (1994), 31 C.R. (4th)
54; R. v. Morris (1981), 61 C.C.C. (2d) 163; R. v. Kormos
(1998), 14 C.R. (5th) 312; The “Reward” (1818), 2 Dods. 265,
165 E.R. 1482; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571,
2003 SCC 74; R. v. Overvold (1972), 9 C.C.C. (2d) 517; R.
v. S. (1974), 17 C.C.C. (2d) 181; R. v. McBurney (1974),
15 C.C.C. (2d) 361, aff’d (1975), 24 C.C.C. (2d) 44; R. v. Li (1984),
16 C.C.C. (3d) 382; R. v. Lepage (1989), 74 C.R. (3d) 368; R.
v. Matsuba (1993), 137 A.R. 34; R. v. Cuerrier, [1998]
2 S.C.R. 371; R. v. Hinchey, [1996] 3 S.C.R. 1128.
By Deschamps J. (dissenting)
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559,
2002 SCC 42; Slaight Communications Inc. v. Davidson, [1989]
1 S.C.R. 1038; R. v. Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606; R. v. Lucas, [1998]
1 S.C.R. 439; Law v. Canada (Minister of Employment and
Immigration), [1999] 1 S.C.R. 497; R. v. Cuerrier, [1998]
2 S.C.R. 371; B. (R.) v. Children’s Aid Society of Metropolitan
Toronto, [1995] 1 S.C.R. 315; Winnipeg Child and Family
Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; R.
v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Ogg-Moss
v. The Queen, [1984] 2 S.C.R. 173; R. v. Oakes, [1986]
1 S.C.R. 103; Schachter v. Canada, [1992]
2 S.C.R. 679; Reference re Manitoba Language Rights, [1985]
1 S.C.R. 721; R. v. Swain, [1991]
1 S.C.R. 933; M. v. H., [1999] 2 S.C.R. 3.
Statutes and Regulations Cited
Age of Majority and Accountability Act,
R.S.O. 1990, c. A.7, s. 1.
Canada Shipping Act, 2001, S.C. 2001, c.
26, s. 294 (not yet in force).
Canadian Charter of Rights and
Freedoms, ss. 1 , 7 , 12 , 15(1) .
Child and Family Services Act, R.S.O. 1990, c. C.11, s. 1(a).
Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 19(a).
Constitution Act, 1982, s. 52 .
Convention for the Protection
of Human Rights and Fundamental Freedoms, 213
U.N.T.S. 221.
Convention on the Elimination
of All Forms of Discrimination against Women, Can.
T.S. 1982 No. 31, Arts. 5(b), 16(1)(d).
Convention
on the Rights of the Child, Can. T.S. 1992
No. 3, Arts. 3(1), 5, 19(1), 37(a), 43(1).
Crimes Act 1961 (N.Z.), 1961, No. 43, s. 59.
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [am. 1994, c. 44,
s. 2(2)], 8(3), 9, 27, 30, 32, 34, 35, 37, 39, 40, 41, 43, 44 [rep. 2001,
c. 26, s. 294 (not yet in force)], 45, 232, 265, 267 [repl. 1994, c. 44,
s. 17], 273.2(b) [ad. 1992, c. 38, s. 1], 495 [rep. &
sub. 1985, c. 27 (1st Supp.), s. 75 ].
Criminal Code, S.C. 1953-54, c. 51, ss. 43, 44.
Criminal Code, 1892, S.C. 1892, c. 29, ss. 44, 45, 55.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 16(8) , (10) , 17(5) ,
(9) .
Education Act, S.N.B. 1997, c. E-1.12, s. 23.
Education Act, S.N.W.T. 1995, c. 28, s. 34(3).
Education Act, S.Y. 1989-90, c. 25, s. 36.
Education Act 1989 (N.Z.), 1989, No. 80, s. 139A.
Education (No. 2) Act 1986 (U.K.), 1986, c. 61, s. 47.
Family Relations Act, R.S.B.C. 1996, c. 128, s. 24(1).
Immigration and Refugee
Protection Act, S.C. 2001, c. 27, ss. 25 ,
28 , 60 , 67 , 68 , 69 .
International Covenant on Civil
and Political Rights, Can. T.S. 1976 No. 47,
preamble, Arts. 7, 24.
School Act, R.S.B.C. 1996, c. 412, s. 76(3).
School Act, R.S.P.E.I. 1988, c. S-2.1, s. 73.
Schools Act, 1997, S.N.L. 1997, c. S-12.2, s. 42.
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 25(8) , 27(1) , 30(3) , (4) .
Authors Cited
Ashworth, Andrew. Principles
of Criminal Law, 4th ed. Oxford: Oxford University Press, 2003.
Bernard, Claire. “Corporal
Punishment as a Means of Correcting Children”. Quebec: Commission des droits
de la personne et des droits de la jeunesse, November 1998.
Blackstone, William. Commentaries
on the Laws of England, Book III. Oxford: Clarendon Press, 1768.
Canada. Canadian Committee on
Corrections. Report of the Canadian Committee on Corrections — Toward
Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.
Canada. Department of Justice. Reforming
the General Part of the Criminal Code: A Consultation Paper. Ottawa:
Dept. of Justice, 1994.
Canada. Law Reform Commission.
Working Paper 38. Assault. Ottawa: The Commission, 1984.
Canada. The Canadian
Constitution 1980: Proposed Resolution respecting the Constitution of Canada.
Ottawa: Publications Canada, 1980.
Canadian Bar Association.
Criminal Recodification Task Force. Principles of Criminal Liability:
Proposals for a New General Part of the Criminal Code of Canada. Ottawa: Canadian
Bar Association, 1992.
Colvin, Eric. Principles of
Criminal Law, 2nd ed. Scarborough, Ont.: Thomson Professional
Publishing Canada, 1991.
Greene, Sharon D. “The
Unconstitutionality of Section 43 of the Criminal Code : Children’s Right
to be Protected from Physical Assault, Part 1” (1999), 41 Crim. L.Q.
288.
Hétu, Jean. “Droit
judiciaire: De minimis non curat praetor: une maxime qui a toute son
importance!” (1990), 50 R. du B. 1065.
Hogg, Peter W. Constitutional
Law of Canada, vol. 2, 4th ed. Scarborough, Ont.: Carswell, 1997
(loose-leaf updated 2003, release 1).
Martin, John C. The
Criminal Code of Canada. Toronto: Cartwright, 1955.
McGillivray, Anne. “‘He’ll
learn it on his body’: Disciplining childhood in Canadian law” (1997), 5 Int’l
J. Child. Rts. 193.
McGillivray, Anne. “R. v.
K. (M.): Legitimating Brutality” (1993), 16 C.R. (4th) 125.
Mewett, Alan W., and
Morris Manning. Mewett & Manning on Criminal Law, 3rd ed.
Toronto: Butterworths, 1994.
Newell, Peter. Children
Are People Too: The Case Against Physical Punishment. London: Bedford
Square Press, 1989.
Sharpe, Robert J.,
Katherine E. Swinton and Kent Roach. The Charter of Rights and
Freedoms, 2nd ed. Toronto: Irwin Law, 2002.
Strauss, S. A. “Book Review of South
African Criminal Law and Procedure by E. M. Burchell, J. S. Wylie and P. M.
A. Hunt” (1970), 87 So. Afr. L.J. 471.
Stuart, Don. Canadian Criminal
Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.
United Nations. Committee on the
Rights of the Child. Consideration of Reports Submitted by State Parties
Under Article 44 of the Convention, Thirty-fourth Session, CRC/C/15/Add.215
(2003).
United Nations. Committee on the
Rights of the Child. Report adopted by the Committee at its 209th meeting on
27 January 1995, Eighth Session, CRC/C/38.
United Nations. Committee on the
Rights of the Child. Report adopted by the Committee at its 233rd meeting
on 9 June 1995, Ninth Session, CRC/C/43.
United Nations. Report of the
Human Rights Committee, vol. I, UN GAOR, Fiftieth Session,
Supp. No. 40 (A/50/40) (1995).
United Nations. Report of the
Human Rights Committee, vol. I, UN GAOR, Fifty-fourth Session, Supp.
No. 40 (A/54/40) (1999).
United Nations. Report of the
Human Rights Committee, vol. I, UN GAOR, Fifty-fifth Session,
Supp. No. 40 (A/55/40) (2000).
APPEAL from a judgment of the Ontario
Court of Appeal (2002), 57 O.R. (3d) 511, 207 D.L.R. (4th) 632, 161 C.C.C. (3d)
178, 154 O.A.C. 144, 48 C.R. (5th) 218, 23 R.F.L. (5th) 101,
90 C.R.R. (2d) 223, [2002] O.J. No. 61 (QL), affirming a judgment of
the Superior Court of Justice (2000), 49 O.R. (3d) 662, 188 D.L.R. (4th)
718, 146 C.C.C. (3d) 362, 36 C.R. (5th) 334, 76 C.R.R. (2d) 251, [2000] O.J.
No. 2535 (QL). Appeal dismissed, Binnie J. dissenting in part and Arbour
and Deschamps JJ. dissenting.
Paul B. Schabas, Cheryl Milne and Nicholas Adamson, for the
appellant.
Roslyn J. Levine, Q.C., and Gina M. Scarcella, for the
respondent.
Allan O’Brien and Steven J. Welchner, for the intervener the Canadian
Teachers’ Federation.
J. Gregory Richards, Ritu R. Bhasin and Marvin M. Bernstein,
for the intervener the Ontario Association of Children’s Aid Societies.
David M. Brown, Manizeh Fancy and Dallas Miller, Q.C.,
for the intervener the Coalition for Family Autonomy.
Hélène Tessier and Athanassia Bitzakidis, for the intervener the Commission
des droits de la personne et des droits de la jeunesse.
Michael E. Barrack and Christopher A. Wayland, for the intervener the
Child Welfare League of Canada.
The judgment of McLachlin C.J. and
Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. was delivered by
1
The Chief Justice — The
issue in this case is the constitutionality of Parliament’s decision to carve
out a sphere within which children’s parents and teachers may use minor
corrective force in some circumstances without facing criminal sanction. The
assault provision of the Criminal Code, R.S.C. 1985, c. C-46, s. 265 ,
prohibits intentional, non-consensual application of force to another. Section
43 of the Criminal Code excludes from this crime reasonable physical
correction of children by their parents and teachers. It provides:
Every schoolteacher, parent or person standing in
the place of a parent is justified in using force by way of correction toward a
pupil or child, as the case may be, who is under his care, if the force does
not exceed what is reasonable under the circumstances.
The
Canadian Foundation for Children, Youth and the Law (the “Foundation”) seeks a
declaration that this exemption from criminal sanction: (1) violates s. 7 of
the Canadian Charter of Rights and Freedoms because it fails to give
procedural protections to children, does not further the best interests of the
child, and is both overbroad and vague; (2) violates s. 12 of the Charter
because it constitutes cruel and unusual punishment or treatment; and (3)
violates s. 15(1) of the Charter because it denies children the legal
protection against assaults that is accorded to adults.
2
The trial judge and the Court of Appeal rejected the Foundation’s
contentions and refused to issue the declaration requested. Like them, I
conclude that the exemption from criminal sanction for corrective force that is
“reasonable under the circumstances” does not offend the Charter . I say
this, having carefully considered the contrary view of my colleague, Arbour J.,
that the defence of reasonable correction offered by s. 43 is so vague that it
must be struck down as unconstitutional, leaving parents who apply corrective
force to children to the mercy of the defences of necessity and “de minimis”.
I am satisfied that the substantial social consensus on what is reasonable
correction, supported by comprehensive and consistent expert evidence on what
is reasonable presented in this appeal, gives clear content to s. 43 . I am
also satisfied, with due respect to contrary views, that exempting parents and
teachers from criminal sanction for reasonable correction does not violate
children’s equality rights. In the end, I am satisfied that this section
provides a workable, constitutional standard that protects both children and
parents.
I. Does Section 43 of the Criminal Code
Offend Section 7 of the Charter ?
3
Section 7 of the Charter is breached by state action depriving
someone of life, liberty, or security of the person contrary to a principle of
fundamental justice. The burden is on the applicant to prove both the
deprivation and the breach of fundamental justice. In this case the Crown
concedes that s. 43 adversely affects children’s security of the person,
fulfilling the first requirement.
4
This leaves the question of whether s. 43 offends a principle of
fundamental justice. The Foundation argues that three such principles have
been breached: (1) the principle that the child must be afforded independent
procedural rights; (2) the principle that legislation affecting children must
be in their best interests; and (3) the principle that criminal legislation
must not be vague or overbroad. I will consider each in turn.
A. Independent Procedural Rights for
Children
5
It is a principle of fundamental justice that accused persons must be
accorded adequate procedural safeguards in the criminal process. By analogy,
the Foundation argues that it is a principle of fundamental justice that
innocent children who are alleged to have been subjected to force exempted from
criminal sanction by s. 43 of the Criminal Code have a similar right to
due process in the representation of their interests at trial. Section 43
fails to accord such process, it is argued, and therefore breaches s. 7 of the Charter .
The implication is that for s. 43 to be constitutional, it would be
necessary to provide for separate representation of the child’s interests.
6
Thus far, jurisprudence has not recognized procedural rights for the
alleged victims of an offence. However, I need not consider that issue. Even on
the assumption that alleged child victims are constitutionally entitled to
procedural safeguards, the Foundation’s argument fails because s. 43 provides
adequate procedural safeguards to protect this interest. The child’s
interests are represented at trial by the Crown. The Crown’s decision to
prosecute and its conduct of the prosecution will necessarily reflect society’s
concern for the physical and mental security of the child. There is no reason
to suppose that, as in other offences involving children as victims or
witnesses, the Crown will not discharge that duty properly. Nor is there any
reason to conclude on the arguments before us that providing separate
representation for the child is either necessary or useful. I conclude that no
failure of procedural safeguards has been established.
B. The Best Interests of the Child
7
The Foundation argues that it is a principle of fundamental justice that
laws affecting children must be in their best interests, and that s. 43 ’s
exemption of reasonable corrective force from criminal sanction is not in the
best interests of the child. Therefore, it argues, s. 43 violates s. 7 of the
Charter . I disagree. While “the best interests of the child” is a
recognized legal principle, this legal principle is not a principle of
fundamental justice.
8
Jurisprudence on s. 7 has established that a “principle of fundamental
justice” must fulfill three criteria: R. v. Malmo-Levine, [2003] 3
S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal principle.
This serves two purposes. First, it “provides meaningful content for the s. 7
guarantee”; second, it avoids the “adjudication of policy matters”: Re B.C.
Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Second, there must be
sufficient consensus that the alleged principle is “vital or fundamental to our
societal notion of justice”: Rodriguez v. British Columbia (Attorney
General), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental
justice are the shared assumptions upon which our system of justice is
grounded. They find their meaning in the cases and traditions that have long
detailed the basic norms for how the state deals with its citizens. Society
views them as essential to the administration of justice. Third, the alleged
principle must be capable of being identified with precision and applied to
situations in a manner that yields predictable results. Examples of
principles of fundamental justice that meet all three requirements include the
need for a guilty mind and for reasonably clear laws.
9
The “best interests of the child” is a legal principle, thus meeting the
first requirement. A legal principle contrasts with what Lamer J. (as he then
was) referred to as “the realm of general public policy” (Re B.C. Motor
Vehicle Act, supra, at p. 503), and Sopinka J. referred to as
“broad” and “vague generalizations about what our society considers to be
ethical or moral” (Rodriguez, supra, at p. 591), the use of which
would transform s. 7 into a vehicle for policy adjudication. The “best
interests of the child” is an established legal principle in international and
domestic law. Canada is a party to international conventions that treat “the
best interests of the child” as a legal principle: see the Convention on the
Rights of the Child, Can. T.S. 1992 No. 3, Art. 3(1), and the Convention
on the Elimination of All Forms of Discrimination against Women, Can. T.S.
1982 No. 31, Arts. 5(b) and 16(1)(d). Many Canadian statutes explicitly name
the “best interests of the child” as a legal consideration: see, for example,
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25 , 28 , 60 ,
67 , 68 and 69 ; Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 25(8) ,
27(1) , 30(3) and (4) ; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss.
16(8) , (10) , 17(5) and (9) . Family law statutes are saturated with references
to the “best interests of the child” as a legal principle of paramount
importance: though not an exhaustive list, examples include: Family
Relations Act, R.S.B.C. 1996, c. 128, s. 24(1); Child and Family
Services Act, R.S.O. 1990, c. C.11, s. 1(a); Children’s Law Reform Act,
R.S.O. 1990, c. C.12, s. 19(a). Clearly, the “best interests of the child” has
achieved the status of a legal principle; the first requirement is met.
10
However, the “best interests of the child” fails to meet the second
criterion for a principle of fundamental justice: consensus that the principle
is vital or fundamental to our societal notion of justice. The “best interests
of the child” is widely supported in legislation and social policy, and is an
important factor for consideration in many contexts. It is not, however, a
foundational requirement for the dispensation of justice. Article 3(1) of the Convention
on the Rights of the Child describes it as “a primary consideration”
rather than “the primary consideration” (emphasis added). Drawing on
this wording, L’Heureux-Dubé J. noted in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 75:
[T]he decision-maker should consider children’s best interests as an
important factor, give them substantial weight, and be alert, alive and
sensitive to them. That is not to say that children’s best interests must
always outweigh other considerations, or that there will not be other reasons
for denying an H & C claim even when children’s interests are given this
consideration.
It
follows that the legal principle of the “best interests of the child” may be
subordinated to other concerns in appropriate contexts. For example, a person
convicted of a crime may be sentenced to prison even where it may not be in his
or her child’s best interests. Society does not always deem it essential that
the “best interests of the child” trump all other concerns in the
administration of justice. The “best interests of the child”, while an
important legal principle and a factor for consideration in many contexts, is
not vital or fundamental to our societal notion of justice, and hence is not a
principle of fundamental justice.
11
The third requirement is that the alleged principle of fundamental
justice be “capable of being identified with some precision” (Rodriguez,
supra, at p. 591) and provide a justiciable standard. Here, too, the “best
interests of the child” falls short. It functions as a factor considered along
with others. Its application is inevitably highly contextual and subject to
dispute; reasonable people may well disagree about the result that its
application will yield, particularly in areas of the law where it is one
consideration among many, such as the criminal justice system. It does not
function as a principle of fundamental justice setting out our minimum
requirements for the dispensation of justice.
12
To conclude, “the best interests of the child” is a legal principle that
carries great power in many contexts. However, it is not a principle of
fundamental justice.
C. Vagueness and Overbreadth
(1) Vagueness
13
The Foundation argues that s. 43 is unconstitutional because first, it
does not give sufficient notice as to what conduct is prohibited; and second,
it fails to constrain discretion in enforcement. The concept of what is
“reasonable under the circumstances” is simply too vague, it is argued, to pass
muster as a criminal provision.
14
Applying the legal requirements for precision in a criminal statute to
s. 43 , I conclude that s. 43 , properly construed, is not unduly vague.
(a) The Standard for “Vagueness”
15
A law is unconstitutionally vague if it “does not provide an adequate
basis for legal debate” and “analysis”; “does not sufficiently delineate any
area of risk”; or “is not intelligible”. The law must offer a “grasp to the
judiciary”: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R.
606, at pp. 639-40. Certainty is not required.
As
Gonthier J. pointed out in Nova Scotia Pharmaceutical, supra, at
pp. 638-39,
conduct is guided by approximation. The process of approximation
sometimes results in quite a narrow set of options, sometimes in a broader one.
Legal dispositions therefore delineate a risk zone, and cannot hope to
do more, unless they are directed at individual instances. [Emphasis added.]
16
A law must set an intelligible standard both for the citizens it governs
and the officials who must enforce it. The two are interconnected. A vague law
prevents the citizen from realizing when he or she is entering an area of risk
for criminal sanction. It similarly makes it difficult for law enforcement
officers and judges to determine whether a crime has been committed. This
invokes the further concern of putting too much discretion in the hands of law
enforcement officials, and violates the precept that individuals should be
governed by the rule of law, not the rule of persons. The doctrine of
vagueness is directed generally at the evil of leaving “basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and discriminatory application”:
Grayned v. City of Rockford, 408 U.S. 104 (1972), at p. 109.
17
Ad hoc discretionary decision making must be distinguished from
appropriate judicial interpretation. Judicial decisions may properly add
precision to a statute. Legislators can never foresee all the situations that
may arise, and if they did, could not practically set them all out. It is thus
in the nature of our legal system that areas of uncertainty exist and that
judges clarify and augment the law on a case-by-case basis.
18
It follows that s. 43 of the Criminal Code will satisfy the
constitutional requirement for precision if it delineates a risk zone for
criminal sanction. This achieves the essential task of providing general
guidance for citizens and law enforcement officers.
(b) Does Section 43 Delineate a Risk Zone for
Criminal Sanction?
19
The purpose of s. 43 is to delineate a sphere of non-criminal conduct
within the larger realm of common assault. It must, as we have seen, do this
in a way that permits people to know when they are entering a zone of risk of
criminal sanction and that avoids ad hoc discretionary decision making
by law enforcement officials. People must be able to assess when conduct
approaches the boundaries of the sphere that s. 43 provides.
20
To ascertain whether s. 43 meets these requirements, we must consider
its words and court decisions interpreting those words. The words of the
statute must be considered in context, in their grammatical and ordinary sense,
and with a view to the legislative scheme’s purpose and the intention of
Parliament: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at
para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2
S.C.R. 559, 2002 SCC 42, at para. 26. Since s. 43 withdraws the protection of
the criminal law in certain circumstances, it should be strictly construed: see
Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173, at p. 183.
21
Section 43 delineates who may access its sphere with considerable
precision. The terms “schoolteacher” and “parent” are clear. The phrase
“person standing in the place of a parent” has been held by the courts to
indicate an individual who has assumed “all the obligations of parenthood”:
Ogg-Moss, supra, at p. 190 (emphasis in original). These terms
present no difficulty.
22
Section 43 identifies less precisely what conduct falls within
its sphere. It defines this conduct in two ways. The first is by the
requirement that the force be “by way of correction”. The second is by the
requirement that the force be “reasonable under the circumstances”. The
question is whether, taken together and construed in accordance with governing
principles, these phrases provide sufficient precision to delineate the zone of
risk and avoid discretionary law enforcement.
23
I turn first to the requirement that the force be “by way of
correction”. These words, considered in conjunction with the cases, yield two
limitations on the content of the protected sphere of conduct.
24
First, the person applying the force must have intended it to be for
educative or corrective purposes: Ogg-Moss, supra, at p. 193.
Accordingly, s. 43 cannot exculpate outbursts of violence against a child
motivated by anger or animated by frustration. It admits into its sphere of
immunity only sober, reasoned uses of force that address the actual behaviour
of the child and are designed to restrain, control or express some symbolic
disapproval of his or her behaviour. The purpose of the force must always be
the education or discipline of the child: Ogg-Moss, supra, at p.
193.
25
Second, the child must be capable of benefiting from the correction.
This requires the capacity to learn and the possibility of successful correction.
Force against children under two cannot be corrective, since on the evidence
they are incapable of understanding why they are hit (trial decision (2000), 49
O.R. (3d) 662, at para. 17). A child may also be incapable of learning from
the application of force because of disability or some other contextual
factor. In these cases, force will not be “corrective” and will not fall
within the sphere of immunity provided by s. 43.
26
The second requirement of s. 43 is that the force be “reasonable under
the circumstances”. The Foundation argues that this term fails to sufficiently
delineate the area of risk and constitutes an invitation to discretionary ad
hoc law enforcement. It argues that police officers, prosecutors and judges
too often assess the reasonableness of corrective force by reference to their
personal experiences and beliefs, rendering enforcement of s. 43 arbitrary and
subjective. In support, it points to the decision of the Manitoba Court of
Appeal in R. v. K. (M.) (1992), 74 C.C.C. (3d) 108, in which, at p. 109,
O’Sullivan J.A. stated that “[t]he discipline administered to the boy in
question in these proceedings [a kick to the rear] was mild indeed compared to
the discipline I received in my home”.
27
Against this argument, the law has long used reasonableness to delineate
areas of risk, without incurring the dangers of vagueness. The law of
negligence, which has blossomed in recent decades to govern private actions in
nearly all spheres of human activity, is founded upon the presumption that
individuals are capable of governing their conduct in accordance with the
standard of what is “reasonable”. But reasonableness as a guide to conduct is
not confined to the law of negligence. The criminal law also relies on it.
The Criminal Code expects that police officers will know what
constitutes “reasonable grounds” for believing that an offence has been
committed, such that an arrest can be made (s. 495 ); that an individual will
know what constitutes “reasonable steps” to obtain consent to sexual contact
(s. 273.2 (b)); and that surgeons, in order to be exempted from criminal
liability, will judge whether performing an operation is “reasonable” in “all
the circumstances of the case” (s. 45 ). These are merely a few examples; the
criminal law is thick with the notion of “reasonableness”.
28
The reality is that the term “reasonable” gives varying degrees of
guidance, depending upon the statutory and factual context. It does not
insulate a law against a charge of vagueness. Nor, however, does it
automatically mean that a law is void for vagueness. In each case, the question
is whether the term, considered in light of principles of statutory
interpretation and decided cases, delineates an area of risk and avoids the
danger of arbitrary ad hoc law enforcement.
29
Is s. 43’s reliance on reasonableness, considered in this way,
unconstitutionally vague? Does it indicate what conduct risks criminal
sanction and provide a principled basis for enforcement? While the words on
their face are broad, a number of implicit limitations add precision.
30
The first limitation arises from the behaviour for which s. 43 provides
an exemption, simple non-consensual application of force. Section 43 does not
exempt from criminal sanction conduct that causes harm or raises a reasonable
prospect of harm. It can be invoked only in cases of non-consensual
application of force that results neither in harm nor in the prospect of bodily
harm. This limits its operation to the mildest forms of assault. People must
know that if their conduct raises an apprehension of bodily harm they cannot
rely on s. 43. Similarly, police officers and judges must know that the
defence cannot be raised in such circumstances.
31
Within this limited area of application, further precision on what is
reasonable under the circumstances may be derived from international treaty
obligations. Statutes should be construed to comply with Canada’s international
obligations: Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137.
Canada’s international commitments confirm that physical correction that either
harms or degrades a child is unreasonable.
32
Canada is a party to the United Nations Convention on the Rights of
the Child. Article 5 of the Convention requires state parties to
respect the responsibilities, rights and duties of parents or . . .
other persons legally responsible for the child, to provide, in a manner
consistent with the evolving capacities of the child, appropriate direction and
guidance in the exercise by the child of the rights recognized in the present
Convention.
Article
19(1) requires the state party to
protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse, while in the care of parent(s), legal guardian(s) or
any other person who has the care of the child. [Emphasis added.]
Finally,
Article 37(a) requires state parties to ensure that “[n]o child shall
be subjected to torture or other cruel, inhuman or degrading treatment or
punishment” (emphasis added). This language is also found in the International
Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, to which
Canada is a party. Article 7 of the Covenant states that “[n]o one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment.” The preamble to the International Covenant on Civil and
Political Rights makes it clear that its provisions apply to “all members
of the human family”. From these international obligations, it follows that
what is “reasonable under the circumstances” will seek to avoid harm to the
child and will never include cruel, inhuman or degrading treatment.
33
Neither the Convention on the Rights of the Child nor the International
Covenant on Civil and Political Rights explicitly require state parties to
ban all corporal punishment of children. In the process of monitoring
compliance with the International Covenant on Civil and Political Rights,
however, the Human Rights Committee of the United Nations has expressed the
view that corporal punishment of children in schools engages Article 7 ’s
prohibition of degrading treatment or punishment: see for example, Report of
the Human Rights Committee, vol. I, UN GAOR, Fiftieth Session, Supp. No. 40
(A/50/40) (1995), at paras. 426 and 434; Report of the Human Rights
Committee, vol. I, UN GAOR, Fifty-fourth Session, Supp. No. 40 (A/54/40)
(1999), at para. 358; Report of the Human Rights Committee, vol. I, UN
GAOR, Fifty-fifth Session, Supp. No. 40 (A/55/40) (2000), at paras. 306 and
429. The Committee has not expressed a similar opinion regarding parental use
of mild corporal punishment.
34
Section 43’s ambit is further defined by the direction to consider the
circumstances under which corrective force is used. National and international
precedents have set out factors to be considered. Article 3 of the European
Convention on Human Rights, 213 U.N.T.S. 221, forbids inhuman and degrading
treatment. The European Court of Human Rights, in determining whether parental
treatment of a child was severe enough to fall within the scope of Article 3,
held that assessment must take account of “all the circumstances of the case,
such as the nature and context of the treatment, its duration, its physical and
mental effects and, in some instances, the sex, age and state of health of the
victim”: Eur. Court H.R., A. v. United Kingdom, judgment of 23
September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699.
These factors properly focus on the prospective effect of the corrective force
upon the child, as required by s. 43.
35
By contrast, it is improper to retrospectively focus on the gravity of a
child’s wrongdoing, which invites a punitive rather than corrective focus.
“[T]he nature of the offence calling for correction”, an additional factor
suggested in R. v. Dupperon (1984), 16 C.C.C. (3d) 453 (Sask. C.A.), at
p. 460, is thus not a relevant contextual consideration. The focus under s. 43
is on the correction of the child, not on the gravity of the precipitating
event. Obviously, force employed in the absence of any behaviour requiring
correction by definition cannot be corrective.
36
Determining what is “reasonable under the circumstances” in the case of
child discipline is also assisted by social consensus and expert evidence on
what constitutes reasonable corrective discipline. The criminal law often uses
the concept of reasonableness to accommodate evolving mores and avoid
successive “fine-tuning” amendments. It is implicit in this technique that
current social consensus on what is reasonable may be considered. It is wrong
for caregivers or judges to apply their own subjective notions of what is
reasonable; s. 43 demands an objective appraisal based on current learning and
consensus. Substantial consensus, particularly when supported by expert
evidence, can provide guidance and reduce the danger of arbitrary, subjective
decision making.
37
Based on the evidence currently before the Court, there are significant
areas of agreement among the experts on both sides of the issue (trial
decision, at para. 17). Corporal punishment of children under two years is
harmful to them, and has no corrective value given the cognitive limitations of
children under two years of age. Corporal punishment of teenagers is harmful,
because it can induce aggressive or antisocial behaviour. Corporal punishment
using objects, such as rulers or belts, is physically and emotionally harmful.
Corporal punishment which involves slaps or blows to the head is harmful.
These types of punishment, we may conclude, will not be reasonable.
38
Contemporary social consensus is that, while teachers may sometimes use
corrective force to remove children from classrooms or secure compliance with
instructions, the use of corporal punishment by teachers is not acceptable.
Many school boards forbid the use of corporal punishment, and some provinces
and territories have legislatively prohibited its use by teachers: see, e.g., Schools
Act, 1997, S.N.L. 1997, c. S-12.2, s. 42; School Act, R.S.B.C.
1996, c. 412, s. 76(3); Education Act, S.N.B. 1997, c. E-1.12, s. 23; School
Act, R.S.P.E.I. 1988, c. S-2.1, s. 73; Education Act, S.N.W.T. 1995,
c. 28, s. 34(3); Education Act, S.Y. 1989-90, c. 25, s. 36. This
consensus is consistent with Canada’s international obligations, given the
findings of the Human Rights Committee of the United Nations noted above.
Section 43 will protect a teacher who uses reasonable, corrective force to
restrain or remove a child in appropriate circumstances. Substantial societal
consensus, supported by expert evidence and Canada’s treaty obligations,
indicates that corporal punishment by teachers is unreasonable.
39
Finally, judicial interpretation may assist in defining “reasonable
under the circumstances” under s. 43. It must be conceded at the outset that
judicial decisions on s. 43 in the past have sometimes been unclear and
inconsistent, sending a muddled message as to what is and is not permitted. In
many cases discussed by Arbour J., judges failed to acknowledge the evolutive
nature of the standard of reasonableness, and gave undue authority to outdated
conceptions of reasonable correction. On occasion, judges erroneously applied
their own subjective views on what constitutes reasonable discipline — views
as varied as different judges’ backgrounds. In addition, charges of assaultive
discipline were seldom viewed as sufficiently serious to merit in-depth
research and expert evidence or the appeals which might have permitted a
unified national standard to emerge. However, “[t]he fact that a particular
legislative term is open to varying interpretations by the courts is not
fatal”: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.),
[1990] 1 S.C.R. 1123, at p. 1157. This case, and those that build on it, may
permit a more uniform approach to “reasonable under the circumstances” than has
prevailed in the past. Again, the issue is not whether s. 43 has provided
enough guidance in the past, but whether it expresses a standard that can be
given a core meaning in tune with contemporary consensus.
40
When these considerations are taken together, a solid core of meaning
emerges for “reasonable under the circumstances”, sufficient to establish a
zone in which discipline risks criminal sanction. Generally, s. 43 exempts from
criminal sanction only minor corrective force of a transitory and trifling
nature. On the basis of current expert consensus, it does not apply to corporal
punishment of children under two or teenagers. Degrading, inhuman or harmful
conduct is not protected. Discipline by the use of objects or blows or slaps
to the head is unreasonable. Teachers may reasonably apply force to remove a
child from a classroom or secure compliance with instructions, but not merely
as corporal punishment. Coupled with the requirement that the conduct be
corrective, which rules out conduct stemming from the caregiver’s frustration,
loss of temper or abusive personality, a consistent picture emerges of the area
covered by s. 43. It is wrong for law enforcement officers or judges to apply
their own subjective views of what is “reasonable under the circumstances”; the
test is objective. The question must be considered in context and in light of
all the circumstances of the case. The gravity of the precipitating event is
not relevant.
41
The fact that borderline cases may be anticipated is not fatal. As
Gonthier J. stated in Nova Scotia Pharmaceutical, supra, at p.
639, “it is inherent to our legal system that some conduct will fall along the
boundaries of the area of risk; no definite prediction can then be made.
Guidance, not direction, of conduct is a more realistic objective”.
42
Section 43 achieves this objective. It sets real boundaries and
delineates a risk zone for criminal sanction. The prudent parent or teacher
will refrain from conduct that approaches those boundaries, while law
enforcement officers and judges will proceed with them in mind. It does not
violate the principle of fundamental justice that laws must not be vague or
arbitrary.
43
My colleague, Arbour J., by contrast, takes the view that s. 43 is
unconstitutionally vague, a point of view also expressed by Deschamps J.
Arbour J. argues first that the foregoing analysis amounts to an impermissible
reading down of s. 43. This contention is answered by the evidence in this
case, which established a solid core of meaning for s. 43; to construe terms
like “reasonable under the circumstances” by reference to evidence and argument
is a common and accepted function of courts interpreting the criminal law. To
interpret “reasonable” in light of the evidence is not judicial amendment, but
judicial interpretation. It is a common practice, given the number of criminal
offences conditioned by the term “reasonable”. If “it is the function of the
appellate courts to rein in overly elastic interpretations” (Binnie J., at
para. 122), it is equally their function to define the scope of criminal
defences.
44
Arbour J. also argues that unconstitutional vagueness is established by
the fact that courts in the past have applied s. 43 inconsistently. Again, the
inference does not follow. Vagueness is not argued on the basis of whether a
provision has been interpreted consistently in the past, but whether it is
capable of providing guidance for the future. Inconsistent and erroneous
applications are not uncommon in criminal law, where many provisions admit of
difficulty; we do not say that this makes them unconstitutional. Rather, we
rely on appellate courts to clarify the meaning so that future application may
be more consistent. I agree with Arbour J. that Canadians would find the
decisions in many of the past cases on s. 43 to be seriously objectionable.
However, the discomfort of Canadians in the face of such unwarranted acts of violence
toward children merely demonstrates that it is possible to define what
corrective force is reasonable in the circumstances. Finally, Arbour J. argues
that parents who face criminal charges as a result of corrective force will be
able to rely on the defences of necessity and “de minimis”. The defence
of necessity, I agree, is available, but only in situations where corrective
force is not in issue, like saving a child from imminent danger. As for the
defence of de minimis, it is equally or more vague and difficult in
application than the reasonableness defence offered by s. 43.
(2) Overbreadth
45
Section 43 of the Criminal Code refers to corrective force
against children generally. The Foundation argues that this is overbroad
because children under the age of two are not capable of correction and
children over the age of 12 will only be harmed by corrective force. These
classes of children, it is argued, should have been excluded.
46
This concern is addressed by Parliament’s decision to confine the
exemption to reasonable correction, discussed above. Experts consistently
indicate that force applied to a child too young to be capable of learning from
physical correction is not corrective force. Similarly, current expert
consensus indicates that corporal punishment of teenagers creates a serious
risk of psychological harm: employing it would thus be unreasonable. There may
however be instances in which a parent or school teacher reasonably uses
corrective force to restrain or remove an adolescent from a particular
situation, falling short of corporal punishment. Section 43 does not permit
force that cannot correct or is unreasonable. It follows that it is not
overbroad.
II. Does Section 43 of the Criminal Code Offend
Section 12 of the Charter ?
47
Section 12 of the Charter guarantees “the right not to be
subjected to any cruel and unusual treatment or punishment”. The Foundation
argues that s. 43 offends s.12 by authorizing the use of corrective force
against children. In order to engage s. 12 , the Foundation must show both (a)
that s. 43 involves some treatment or punishment by the state (Rodriguez,
supra, at pp. 608-9), and (b) that such treatment is “cruel and
unusual”. These conditions are not met in this case.
48
Section 43 exculpates corrective force by parents or teachers.
Corrective force by parents in the family setting is not treatment by the
state. Teachers, however, may be employed by the state, raising the question
of whether their use of corrective force constitutes “treatment” by the state.
49
It is unnecessary to answer this question since the conduct permitted by
s. 43 does not in any event rise to the level of being “cruel and unusual”, or
“so excessive as to outrage standards of decency”: R. v. Smith, [1987] 1
S.C.R. 1045, at p. 1072; Harvey v. New Brunswick (Attorney General),
[1996] 2 S.C.R. 876, at para. 34. Section 43 permits only corrective force
that is reasonable. Conduct cannot be at once both reasonable and an outrage to
standards of decency. Corrective force that might rise to the level of “cruel
and unusual” remains subject to criminal prosecution.
III. Does Section 43 of the Criminal Code
Offend Section 15 of the Charter ?
50
Section 43 permits conduct toward children that would be criminal in the
case of adult victims. The Foundation argues that this distinction violates s.
15 of the Charter , which provides that “[e]very individual is equal
before and under the law” without discrimination. More particularly, the
Foundation argues that this decriminalization discriminates against children by
sending the message that a child is “less capable, or less worthy of
recognition or value as a human being or as a member of Canadian society”: Law
v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at
para. 51. This, it argues, offends the purpose of s. 15 , to “prevent the
violation of essential human dignity and freedom”: Law, supra,
at para. 51. Equality can be assured, in the Foundation’s submission, only
if the criminal law treats simple assaults on children in the disciplinary
context the same as it treats simple assaults on adults.
51
The difficulty with this argument, as we shall see, is that it equates
equal treatment with identical treatment, a proposition which our jurisprudence
has consistently rejected. In fact, declining to bring the blunt hand of the
criminal law down on minor disciplinary contacts of the nature described in the
previous section reflects the resultant impact this would have on the interests
of the child and on family and school relationships. Parliament’s choice not
to criminalize this conduct does not devalue or discriminate against children,
but responds to the reality of their lives by addressing their need for safety
and security in an age-appropriate manner.
A. The Appropriate Perspective
52
Section 43 makes a distinction on the basis of age, which s. 15(1) lists
as a prohibited ground of discrimination. The only question is whether this
distinction is discriminatory under s. 15(1) of the Charter .
53
Before turning to whether s. 43 is discriminatory, it is necessary to
discuss the matter of perspective. The test is whether a reasonable person
possessing the claimant’s attributes and in the claimant’s circumstances would
conclude that the law marginalizes the claimant or treats her as less worthy on
the basis of irrelevant characteristics: Law, supra. Applied to
a child claimant, this test may well confront us with the fiction of the
reasonable, fully apprised preschool-aged child. The best we can do is to
adopt the perspective of the reasonable person acting on behalf of a child, who
seriously considers and values the child’s views and developmental needs. To
say this, however, is not to minimize the subjective component; a court
assessing an equality claim involving children must do its best to take into
account the subjective viewpoint of the child, which will often include a sense
of relative disempowerment and vulnerability.
B. Is Discrimination Made Out in This Case?
54
Against this backdrop, the question may be put as follows: viewed from
the perspective of the reasonable person identified above, does Parliament’s
choice not to criminalize reasonable use of corrective force against children
offend their human dignity and freedom, by marginalizing them or treating them
as less worthy without regard to their actual circumstances?
55
In Law, supra, Iacobucci J. listed four factors
helpful in answering this question: (1) pre-existing disadvantage; (2)
correspondence between the distinction and the claimant’s characteristics or
circumstances; (3) the existence of ameliorative purposes or effects; and (4)
the nature of the interest affected.
56
The first Law factor, vulnerability and pre-existing
disadvantage, is clearly met in this case. Children are a highly vulnerable
group. Similarly, the fourth factor is met. The nature of the interest
affected — physical integrity — is profound. No one contends that s. 43 is
designed to ameliorate the condition of another more disadvantaged group: the
third factor. This leaves the second factor: whether s. 43 fails to correspond
to the actual needs and circumstances of children.
57
This factor acknowledges that a law that “properly accommodates the
claimant’s needs, capacities, and circumstances” will not generally offend s.
15(1) : Law, supra, at para. 70. “By contrast, a law that imposes
restrictions or denies benefits on account of presumed or unjustly attributed
characteristics is likely to deny essential human worth and to be
discriminatory”: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R.
429, 2002 SCC 84, at para. 37. The question in this case is whether lack of
correspondence, in this sense, exists.
58
Children need to be protected from abusive treatment. They are
vulnerable members of Canadian society and Parliament and the Executive act
admirably when they shield children from psychological and physical harm. In
so acting, the government responds to the critical need of all children for a
safe environment. Yet this is not the only need of children. Children also
depend on parents and teachers for guidance and discipline, to protect them
from harm and to promote their healthy development within society. A stable
and secure family and school setting is essential to this growth process.
59
Section 43 is Parliament’s attempt to accommodate both of these needs.
It provides parents and teachers with the ability to carry out the reasonable
education of the child without the threat of sanction by the criminal law. The
criminal law will decisively condemn and punish force that harms children, is
part of a pattern of abuse, or is simply the angry or frustrated imposition of
violence against children; in this way, by decriminalizing only minimal force
of transient or trivial impact, s. 43 is sensitive to children’s need for a
safe environment. But s. 43 also ensures the criminal law will not be used
where the force is part of a genuine effort to educate the child, poses no
reasonable risk of harm that is more than transitory and trifling, and is
reasonable under the circumstances. Introducing the criminal law into
children’s families and educational environments in such circumstances would
harm children more than help them. So Parliament has decided not to do so,
preferring the approach of educating parents against physical discipline.
60
This decision, far from ignoring the reality of children’s lives, is
grounded in their lived experience. The criminal law is the most powerful tool
at Parliament’s disposal. Yet it is a blunt instrument whose power can also be
destructive of family and educational relationships. As the Ouimet Report
explained:
To designate certain conduct as criminal in an
attempt to control anti-social behaviour should be a last step. Criminal law
traditionally, and perhaps inherently, has involved the imposition of a
sanction. This sanction, whether in the form of arrest, summons, trial,
conviction, punishment or publicity is, in the view of the Committee, to be
employed only as an unavoidable necessity. Men and women may have their
lives, public and private, destroyed; families may be broken up; the state
may be put to considerable expense: all these consequences are to be taken
into account when determining whether a particular kind of conduct is so
obnoxious to social values that it is to be included in the catalogue of
crimes. If there is any other course open to society when threatened, then
that course is to be preferred. The deliberate infliction of punishment or any
other state interference with human freedom is to be justified only where
manifest evil would result from failure to interfere. [Emphasis added.]
(Canadian Committee on Corrections, Toward Unity: Criminal Justice
and Corrections (1969), at pp. 12-13)
Concluding
that s. 43 should not be repealed, the Law Reform Commission of Canada pointed
out that repeal “could have unfortunate consequences, consequences worse than
those ensuing from retention of the section”, and which would “expose the
family to the incursion of state law enforcement for every trivial slap or
spanking”. “[I]s this”, it asked, “the sort of society in which we would want
to live?” (Law Reform Commission of Canada, Working Paper 38, Assault
(1984), at p. 44)
61
The trial judge in this case found that experts on both sides were
agreed that only abusive physical conduct should be criminalized and that
extending the criminal law to all disciplinary force “would have a negative
impact upon families and hinder parental and teacher efforts to nurture
children” (trial judge, at para. 17).
62
The reality is that without s. 43, Canada’s broad assault law would
criminalize force falling far short of what we think of as corporal punishment,
like placing an unwilling child in a chair for a five-minute “time-out”. The
decision not to criminalize such conduct is not grounded in devaluation of the
child, but in a concern that to do so risks ruining lives and breaking up
families — a burden that in large part would be borne by children and outweigh
any benefit derived from applying the criminal process.
63
The Foundation argues that these harms could be effectively avoided by
the exercise of prosecutorial discretion. However, as the Foundation asserts
in its argument on vagueness, our goal should be the rule of law, not the rule
of individual discretion. Moreover, if it is contrary to s. 15(1) for
legislation to deny children the benefit of the criminal law on the basis of
their age and consequent circumstances, it is equally discriminatory for a
state agent (e.g., a police officer or prosecutor) to choose not to charge or
prosecute on the same basis.
64
The Foundation argues that this is not the original purpose of the law
and does not reflect its actual effects. In the Foundation’s view, s. 43 was
intended, and continues, to promote the view that the use of corrective force
against children is not simply permitted for the purposes of the criminal law,
but laudable because it is “good for children”. In making this argument, the
Foundation relies upon s. 43’s statement that parents and teachers are
“justified” in the use of reasonable corrective force. Considering
“justification” in Ogg-Moss, supra, Dickson J. (as he then was)
stated that s. 43 exculpates force in the correction of the child “because it
considers such an action not a wrongful, but a rightful, one” (p.193
(emphasis in original)). The Foundation submits that as a “justification”, s.
43 necessarily identifies praise-worthy conduct.
65
In my view, this position is overstated. We cannot conclude that
Parliament intended to endorse using force against children from a single word,
without also considering the history and context of the provision. In our
first Criminal Code , enacted in 1892 (S.C. 1892, c. 29), Parliament used
“lawful” instead of “justified” in the analogous provision:
55. It is lawful for every parent, or
person in the place of a parent, schoolmaster or master, to use force by way of
correction towards any child, pupil or apprentice under his care, provided that
such force is reasonable under the circumstances.
It
did so even though the term “justified” appeared in other defences such as the
use of force to prevent the commission of a major offence (s. 44) and
self-defence (s. 45) — defences that we classically associate with moral
approval. So at this time, it is clear that Parliament was not asserting the
exempted force was moral or good. It was not until the 1953-54 re-enactment of
the Criminal Code (S.C. 1953-54, c. 51 ) that Parliament replaced “it is
lawful” with “justified”. We do not know why it did so. We do know that the
change was not discussed in Parliament, and that there is no indication that
Parliament suddenly felt that the reasonable force in the correction of
children now demanded the state’s explicit moral approval. Finally, we know
that the government has adopted a program designed to educate parents and
caregivers on the potentially negative effects of using corporal punishment
against children. Viewing s. 43 in light of its history and the larger
legislative and policy context, it is difficult to conclude that Parliament
intended by using the word “justify” to send the message that using force
against children is “right” or “good”. The essence of s. 43 is not
Parliament’s endorsement of the use of force against children; it is the
exemption from criminal sanction for their parents and teachers in the course
of reasonable correction.
66
My colleague, Binnie J., suggests that the negative impact of
criminalizing minor corrective force is irrelevant to the s. 15 equality
analysis and should only be considered at the stage of justifying a breach of
s. 15 under s. 1 of the Charter (paras. 74 and 85). More particularly,
he argues, at para. 100, that “[s]ection 43 protects parents and teachers,
not children” (emphasis added), and therefore inquiry into the impugned
laws precludes correspondence to children’s needs, capacities and circumstances
in the s. 15 analysis. With respect, I cannot agree. The claimants here are
children. The Law analysis requires that the Court consider whether the
limited exemption from criminal sanction for parents and teachers corresponds
to the needs of children. This is a necessary step in determining whether the
distinction demeans children and treats them as less worthy. We should not
artificially truncate the s. 15 equality analysis because similar
considerations may be relevant to justification in the event a breach of s. 15
is established.
67
Some argue that, even if the overall effect of s. 43 is salutary, for
some children the effects of s. 43 will turn out to be more detrimental than
beneficial. To this, two responses lie. First, where reasonable corrective
force slips into harmful, degrading or abusive conduct, the criminal law
remains ready to respond. Secondly, as Iacobucci J. stated in Law, supra,
compliance with s. 15(1) of the Charter does not require “that legislation
must always correspond perfectly with social reality” (para. 105). Rather,
[n]o matter what measures the government adopts, there will always be
some individuals for whom a different set of measures might have been
preferable. The fact that some people may fall through a program’s cracks does
not show that the law fails to consider the overall needs and circumstances of
the group of individuals affected . . .
(Gosselin, supra, at para. 55)
68
I am satisfied that a reasonable person acting on behalf of a child,
apprised of the harms of criminalization that s. 43 avoids, the presence of
other governmental initiatives to reduce the use of corporal punishment, and
the fact that abusive and harmful conduct is still prohibited by the criminal
law, would not conclude that the child’s dignity has been offended in the
manner contemplated by s. 15(1) . Children often feel a sense of disempowerment
and vulnerability; this reality must be considered when assessing the impact of
s. 43 on a child’s sense of dignity. Yet, as emphasized, the force permitted
is limited and must be set against the reality of a child’s mother or father
being charged and pulled into the criminal justice system, with its attendant rupture
of the family setting, or a teacher being detained pending bail, with the
inevitable harm to the child’s crucial educative setting. Section 43 is not
arbitrarily demeaning. It does not discriminate. Rather, it is firmly
grounded in the actual needs and circumstances of children. I conclude that s.
43 does not offend s. 15(1) of the Charter .
IV. Conclusion
69
I would dismiss the appeal. The Canadian Foundation for Children, Youth
and the Law has, on behalf of children, brought an important issue of
constitutional and criminal law that was not otherwise capable of coming before
the Court. This justifies deviating from the normal costs rule and supports an
order that both parties bear their own costs throughout.
70
I would answer the constitutional questions as follows:
1. Does s. 43 of the Criminal Code,
R.S.C. 1985, c. C‑46 , infringe the rights of children under s. 7 of the Canadian
Charter of Rights and Freedoms ?
Answer: No.
71
Binnie J. (dissenting in
part) — A child is guaranteed “equal protection and equal benefit of the law”
by s. 15(1) of the Canadian Charter of Rights and Freedoms .
Section 43 of the Criminal Code, R.S.C. 1985, c. C-46 , denies
children the protection of the criminal law against the infliction of physical
“force” that would be a criminal assault if used against an adult. The sole
reason for children being placed in this inferior position is that they are
children.
72
Notwithstanding these facts, my colleague, the Chief Justice, is of the
view that the equality rights of the child are not infringed by s. 43 because
“a reasonable person acting on behalf of a child . . . would not conclude that
the child’s dignity has been offended in the manner contemplated by
s. 15(1) ” (para. 68). With all due respect to the majority of my
colleagues, there can be few things that more effectively designate children as
second-class citizens than stripping them of the ordinary protection of the
assault provisions of the Criminal Code . Such stripping of protection
is destructive of dignity from any perspective, including that of a child.
Protection of physical integrity against the use of unlawful force is a
fundamental value that is applicable to all. The “dignity” requirement, which
gathered full force in this Court’s judgment in Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497, provides a useful and
important insight into the purpose of s. 15(1) , but it should not become
an unpredictable side-wind powerful enough to single-handedly blow away the
protection that the Criminal Code would otherwise provide.
73
I therefore agree with my colleague Deschamps J., albeit for
somewhat different reasons, that there has been a prima facie
infringement of children’s equality rights guaranteed by s. 15(1) . I
would dismiss the challenges brought by the appellant under s. 7 and s.
12 . “Reasonableness” is not a standard that is unconstitutionally vague
(s. 7 ), nor would s. 43 condone corrective force that is “cruel and
unusual” (s. 12 ).
74
My respectful disagreement with the majority opinion is not only with
the narrowed scope of s. 15(1) protection, but with the technique by which
this narrowing is accomplished, namely by moving into s. 15(1) a range of
considerations that, in my view, ought properly to be left to government
justification under s. 1 . The Chief Justice states, for example, that
there are good reasons for “declining to bring the blunt hand of the criminal
law down on minor disciplinary contacts of the nature described in the previous
section [with] the resultant impact this would have on the interests of the
child and on family and school relationships” (para. 51), and that
families should be protected from “the incursion of state law enforcement for
every trivial slap or spanking” (para. 60). These are important matters
but they are not matters that relate to equality. They relate to a
justification to deny equality. These are arguments that say that in light of
broader social considerations related to the values of privacy in family life,
and despite the infringement of the child’s equality rights, a degree of
parental immunity is nevertheless a reasonable limit demonstrably justified in
a free and democratic society.
75
As will be seen, I would uphold s. 43 in relation to parents or those
who stand in the place of parents, and in that respect dismiss the appeal.
While the equality rights of the children (i.e., persons under 18 years old) are
prima facie infringed by s. 43 , I conclude that in balancing the
needs of the claimants against the legitimate needs of our collective social
existence, the infringement is a reasonable limit that has been justified under
s. 1 .
76
On the other hand, the s. 1 justification for extending parent-like
protection to teachers is not convincing. In my view, the references to
“schoolteacher” and “pupil” should be struck out of s. 43 and declared to
be null and void.
77
I propose to organize my reasons for these conclusions under the
following headings:
1. The proper interpretation of s. 43 of
the Criminal Code ;
2. The scope of s. 15(1) of the Charter ;
3. The meaning of discrimination and the
“correspondence” factor;
4. Resurgence of the “relevance” factor;
5. The violation of human dignity;
6. The s. 1 justification
(a) in relation to parents or persons standing in the
place of parents;
(b) in relation to teachers.
1. The Proper Interpretation of Section 43
of the Criminal Code
78
Section 43 reads as follows:
Every schoolteacher, parent or person standing in
the place of a parent is justified in using force by way of correction toward a
pupil or child, as the case may be, who is under his care, if the force does
not exceed what is reasonable under the circumstances.
79
In Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173, the Court held
that the section applied in the case of force applied to “a child” which was
held to mean “a person chronologically younger than the age of majority”
(p. 186) which, in Ontario, pursuant to the Age of Majority and Accountability
Act, R.S.O. 1990, c. A.7, s. 1, is 18 years.
80
As will be discussed, the assault provisions of the Criminal Code
are extremely broad. In addition to the obvious purpose of maintaining public
order, the prohibition of assault and battery has been considered since the
time of Blackstone to protect the “sacred” right of everyone to physical
inviolability:
. . . the law cannot draw the line between different degrees of
violence, and therefore totally prohibits the first and lowest stage of it;
every man’s person being sacred, and no other having a right to meddle with it,
in any the slightest manner.
(W. Blackstone, Commentaries on the Laws of England,
Book III, 1768, at p. 120)
More
recently, it was stated in this Court:
Clearly, the purpose of the assault scheme is much broader than just
the protection of persons from serious physical harm. The assault scheme is
aimed more generally at protecting people’s physical integrity.
(R. v. Cuerrier, [1998] 2 S.C.R. 371, L’Heureux-Dubé J.
concurring, at para. 11)
81
The majority read significant limitations into the scope of s. 43
protection, concluding that it provides no defence or justification where force
is used (i) against children under two, or (ii) against children of any age
suffering a disability, or (iii) that “causes harm or raises a reasonable
prospect of harm” to children of two years or older, or (iv) that is degrading
to children two years or older, or (v) that constitutes corporal punishment of
teenagers, or (vi) that includes the use of objects such as a belt on any child
of whatever age, or (vii) which involves slaps or blows to the head. Such an
interpretive exercise, gearing itself off the references in s. 43 to
“correction” and “reasonable under the circumstances”, introduces a series of
classifications and sub-classifications which are helpful to the protection of
children, but do not relieve a court from the statutory direction to consider
what is reasonable in all the circumstances. The accused, too, is
entitled to receive the full protection that the s. 43 defence, fairly
interpreted, allows. Moreover, my colleagues’ differentiation between the type
of protection given to teachers from that given to parents, and the confinement
of protection of teachers to matters affecting order in the schools as opposed
to more general “correction”, could be seen as going beyond a definition of
“the scope of criminal defences” (reasons of the Chief Justice, at
para. 43) and pushing the boundary between judicial interpretation and
judicial amendment.
82
Nevertheless, as my disagreement with the majority relates to the
interpretation of s. 15(1) of the Charter , rather than statutory
interpretation, these reasons will focus on s. 15(1) and its relationship
to s. 1. The interpretation of s. 43 offered by the Chief Justice
still leaves considerable scope for “corporal punishment” of children between 2
and 12, including “sober, reasoned uses of force” (para. 24) and
“corrective force to restrain or remove an adolescent [i.e., 12 to 18 years
old] from a particular situation, falling short of corporal punishment”
(para. 46). Section 43 , thus interpreted, still withholds from children
protection of their physical integrity in circumstances where the amount of force
used would be criminal if used against an adult.
2. The Scope of Section 15(1) of the Charter
83
The legislative history of s. 15 is of some interest here. As
originally proposed, what is now s. 15(1) was more tightly circumscribed. The
original draft provided:
Non-discrimination Rights
Everyone has the right to equality before the law
and to the equal protection of the law without discrimination because of race,
national or ethnic origin, colour, religion, age or sex.
(The Canadian Constitution 1980: Proposed Resolution respecting the
Constitution of Canada (1980), at p. 20)
84
As a result of the deliberations of the Special Joint Committee of the
Senate and of the House of Commons on the Constitution, s. 15(1) as
recommended and ultimately adopted had blossomed into a full equality rights
clause:
Equality Rights
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 and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
The
addition of the words “and, in particular” was seemingly designed to bifurcate
the section, thereby liberating the first branch (the broad equality right)
from the confines of the second branch (the traditional grounds of prohibited
discrimination). Thus there were some early judicial efforts to measure
legislative classifications against the principles of equal protection and
equal benefit of the law even where the ground of distinction did not
relate to an enumerated or analogous ground: see, e.g., Streng v. Township
of Winchester (1986), 31 D.L.R. (4th) 734 (Ont. H.C.); Jones v. Ontario
(Attorney General) (1988), 65 O.R. (2d) 737 (H.C.); and Piercey v.
General Bakeries Ltd. (1986), 31 D.L.R. (4th) 373 (Nfld. S.C. (T.D.)).
This Court, in Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143, concluded that a narrower view of s. 15(1) would best fulfill
its purpose. McIntyre J. identified differential treatment on the basis
of the listed or analogous personal characteristics as an essential condition
precedent to s. 15(1) relief. However wise that interpretation, based as
much as anything on the judiciary’s reluctance to accept an invitation to
second-guess Parliament on every legislative classification, irrespective of
the ground giving rise to the distinction, Andrews nevertheless had the
effect of narrowing the potential constituency of s. 15(1) claimants.
Complainants who argued generally about unequal treatment were held not to be
covered. A claimant had to identify a particular basis for the unequal
treatment and show that the basis thus identified resided in a personal
characteristic, either listed in s. 15(1) or analogous to those that were
listed.
85
We should be careful in this case not to additionally circumscribe
s. 15(1) protection by burdening those who still remain within its
coverage with making proof of matters (sometimes proof of a negative) that
ought to be dealt with by governments by way of justification under s. 1 .
3. The Meaning of
Discrimination and the “Correspondence” Factor
86
In Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, at para. 110, a majority
of the Court summarized the approach to s. 15(1) claims as follows:
It is now clearly established that the [equality] analysis proceeds in
three stages with close regard to context. At the first stage the claimant
must show that the law, program or activity imposes differential treatment
between the claimant and others with whom the claimant may fairly claim
equality. The second stage requires the claimant to demonstrate that this
differentiation is based on one or more of the enumerated or analogous
grounds. The third stage requires the claimant to establish that the
differentiation amounts to a form of discrimination that has the effect of
demeaning the claimant’s human dignity. The “dignity” aspect of the test is
designed to weed out trivial or other complaints that do not engage the purpose
of the equality provision.
See
also Law, supra, at para. 39, and Gosselin v. Quebec
(Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, at para. 17.
87
The Crown concedes that a formal distinction is made in s. 43 on
the basis of age, viz., an enumerated ground. However, as the cases have held,
distinctions made on enumerated or analogous grounds do not necessarily amount
to discrimination. The debate, therefore, shifts to whether the distinction
made in s. 43 amounts, in law, to discrimination.
88
The nature of the children’s interest, physical integrity, clearly
warrants constitutional protection.
89
There is no doubt, in my view, that s. 43 is caught by the
definition of discrimination given by McIntyre J. in Andrews, supra,
at pp. 174-75:
I would say then that discrimination may be described as a distinction,
whether intentional or not but based on grounds relating to personal characteristics
of the individual or group, which has the effect of imposing burdens,
obligations, or disadvantages on such individual or group not imposed upon
others, or which withholds or limits access to opportunities, benefits, and
advantages available to other members of society. Distinctions based on
personal characteristics attributed to an individual solely on the basis of
association with a group will rarely escape the charge of discrimination, while
those based on an individual’s merits and capacities will rarely be so classed.
Applying
this definition to s. 43 , it cannot be disputed that s. 43 intentionally
withholds from children the benefit available to everyone else (i.e., adults)
of the protection of the assault provisions of the Criminal Code in the
circumstances therein contemplated, and that the only reason for this
withholding is that they are children. Protection of the Criminal Code
is an advantage. Applying the Andrews test as originally laid down,
therefore, I believe the claimant has established a prima facie breach
of s. 15(1) .
90
In Law, this Court, speaking through Iacobucci J., expressly
endorsed the Andrews test (paras. 22 and 26), but also went on to
synthesize the subsequent case law into a series of propositions designed to
add structure to the s. 15(1) analysis. This included the identification
of four contextual factors as markers for distinctions that amount to
discrimination, “although”, as Iacobucci J. pointed out, “there are
undoubtedly others, and not all four factors will necessarily be relevant in
every case” (para. 62). The purpose of the contextual factors is to focus
attention on the impact of the impugned law — how “severe and localized the . .
. consequences [are] on the affected group” (see Gosselin, supra,
at para. 63, citing Egan v. Canada, [1995] 2 S.C.R. 513, at
para. 63).
91
The Chief Justice agrees that three of these four contextual factors
point to discrimination in this case, including (i) the pre-existing
disadvantage, vulnerability, stereotyping or prejudice directed at children,
(ii) the nature and scope of the children’s interests affected, namely their
physical integrity, and (iii) the fact that s. 43 does not have an
ameliorative purpose or effect for a more disadvantaged group. In my colleague’s
view, these markers of discrimination are outweighed by the importance of the
fourth “contextual factor”, i.e., the alleged correspondence between the
actual needs and circumstances of children and the diminished protection they
enjoy under s. 43 . In her view, the objective of substantive equality (as
distinguished from formal equality) justifies the differential treatment of
children.
92
I agree with my colleague that the first three “contextual factors”
support a finding of discrimination. I also agree with Iacobucci J. in Law
that not every factor is relevant in every case. Not every “contextual factor”
will point in the same direction, and judgment is required to weigh up the
importance of different elements of the context in a particular case.
93
The factor of “correspondence” presents special difficulty because of
its potential overlap with s. 1 . It was described by Iacobucci J. in
Law, at para. 70, as follows:
. . . it will be easier to establish discrimination to the extent that
impugned legislation fails to take into account a claimant’s actual situation,
and more difficult to establish discrimination to the extent that legislation properly
accommodates the claimant’s needs, capacities, and circumstances.
[Emphasis added.]
To
some extent, the “correspondence” factor was also anticipated in Andrews
by McIntyre J. when he said, at p. 169:
[T]he accommodation of differences . . . is the essence of true
equality. . . .
94
The “correspondence” factor was also considered in Eaton v. Brant
County Board of Education, [1997] 1 S.C.R. 241, where a disabled child was
placed, against her parents’ wishes, in a special education class. The Court
declined to find that special classes for persons with special disabilities
amounted to discrimination. There was a reasonable match between the
differential treatment (special classes) and the ground of alleged
discrimination (disability), even though special classes undermined achievement
of the objective of inclusion. This was outweighed in the circumstances by the
fact the special classes were in purpose and effect ameliorative of the young
girl’s condition.
95
The “correspondence” between grounds and the claimant group’s
characteristics or circumstances was also a factor supporting the Court’s
decision in Gosselin, supra, that use of a training component in
a welfare scheme for recipients under 30 was not discriminatory. The majority
held that, “[p]erfect correspondence between a benefit program and the actual
needs and circumstances of the claimant group is not required” to comply with
the Charter (para. 55). The “polycentric” balancing inherent in
formulation of social benefit schemes appears to have played some role in Gosselin
as it did in the earlier case of Granovsky v. Canada (Minister of Employment
and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28. More recently, in Nova
Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003
SCC 54, the Court struck down the separate legislative treatment of injured workers
suffering from chronic pain who were denied the regular benefits provided to
other disabled workers, but instead were provided a four-week Functional
Restoration Program, beyond which no further benefits were available.
Gonthier J., writing for the Court, held at para. 91 that “in my
view, the gravamen of the appellants’ s. 15 claim is the lack of
correspondence between the differential treatment imposed by the [Workers’
Compensation Act] and the true needs and circumstances of chronic pain
sufferers” (referring to Law, supra, at paras. 64-65).
96
In these cases, it seems to me, the “correspondence” factor was
appropriately used to determine if the legislative distinction reflected equal
consideration of people even though, at the end of the day, equal
consideration resulted in unequal treatment.
4. Resurgence of the “Relevance” Factor
97
Care must be taken, however, to ensure that the “correspondence” factor
is kept to its original purpose as a marker for discrimination and not allowed
to become a sort of Trojan horse to bring into s. 15(1) matters that are
more properly regarded as “reasonable limits . . . demonstrably justified in a
free and democratic society” (s. 1 ).
98
In particular, there is a danger that the “correspondence” factor will
revive the “relevance” debate of the 1990s in which it was contended by some
members of the Court that a s. 15(1) rights claimant could be defeated if
it were shown that the ground of complaint was “relevant” to achievement of a
legitimate legislative objective. This position was advanced by
Gonthier J., dissenting, in Miron v. Trudel, [1995] 2 S.C.R. 418,
where he suggested, at para. 15:
This third step thus comprises two aspects:
determining the personal characteristic shared by a group and then assessing
its relevancy having regard to the functional values underlying the
legislation. [Emphasis added.]
The
issue in that case was whether common law spouses should be treated the same as
married spouses for insurance purposes. In effect, as the onus of proof of an
infringement of s. 15(1) lies on the claimants, they were put in the position
of having to show that marriage was irrelevant to achievement of the
legislative objective. In Gonthier J.’s view, that objective was to
promote the benefits of marriage, and achievement of this objective was
“relevant” to its denial of the rights of unmarried couples, and s. 15(1)
was not therefore infringed. McLachlin J. (as she then was) in her
majority reasons, gave the “relevance” point short shrift (at para. 137):
Relevance as the ultimate indicator of
non-discrimination suffers from the disadvantage that it may validate
distinctions which violate the purpose of s. 15(1). A second problem is
that it may lead to enquiries better pursued under s. 1 .
99
In my view, the same answer should be given to the argument here that,
because children have certain vulnerabilities that “correspond” to (or are
relevant to) s. 43 ’s denial of ordinary Criminal Code protection,
then no discrimination is made out.
100
While the child needs the family, the protection of s. 43 is given
not to the child but to the parent or teacher who is using “reasonable” force
for “correction”. Section 43 protects parents and teachers, not children. A
child “needs” no less protection under the Criminal Code than an adult
does. That is why, in my view, the social justification for the immunity of
parents and teachers should be dealt with under s. 1.
101
The majority view denies equality relief to persons under 18 years old
in this case because of the role and importance of family life in our society.
However, to proceed in this way, it seems to me, just incorporates the
“legitimate objective” element from the s. 1 Oakes test into
s. 15 , while incidentally switching the onus to the rights claimant to
show the legislative objective is not legitimate, and relieving the
government of the onus of demonstrating proportionality, including minimal
impairment (R. v. Oakes, [1986] 1 S.C.R. 103). One of the stated
objectives of Andrews was to keep s. 15(1) and s. 1
analytically distinct. Use of the “correspondence” factor in the wrong
circumstances risks breaching that divide.
102
I do not accept that the use of force against a child (that in the
absence of s. 43 would result in a criminal conviction) can be said to
“correspond” to a child’s “needs, capacities and circumstances” from the
vantage point identified by the Chief Justice, namely, that of a “reasonable
person acting on behalf of a child, who seriously considers and values the
child’s views and developmental needs” (para. 53 (emphasis added)). I
have difficulty with the proposition that a child “needs” correction through conduct
that, but for s. 43 , amounts to a criminal assault that exceeds the de
minimis threshold. (If the use of force falls below the de minimis
standard, then, as Arbour J. points out, there is an alternative defence
available to the accused and no need to resort to s. 43 .)
103
As to tailoring the distinction to fit a child’s “capacities and
circumstances”, the words “pupil or child” embrace the whole range of human
development from birth to 18 years of age. It is difficult to generalize about
the “capacities and circumstances” of such a disparate group of people. A
2-year-old and a 12-year-old (let alone a 17-year-old) do not share the same
needs, have enormously different capacities and deal with the world in very
different circumstances. The fact the Chief Justice finds it necessary to
undertake an interpretive exercise that reads into s. 43 multiple
sub-classifications of children (according to age) and assaultive behaviour
(according to type) shows that a “one size fits all” approach to the “needs,
capacities and circumstances” of children does not fit reality. Such an
extensive “reading in” exercise, if appropriate, should take place only after
an infringement of s. 15(1) is acknowledged, and the Court turns to the
issue of the s. 1 justification and the appropriate remedy.
104
In short, I disagree with the view of the majority that s. 43 is
“firmly grounded in the actual needs and circumstances of children”
(para. 68). I believe the error in this approach is evident, with
respect, from the following excerpts from the judgment of the Chief Justice, at
paras. 58-60:
Children . . . depend on parents and teachers for
guidance and discipline, to protect them from harm and to promote their healthy
development within society. A stable and secure family and school setting is
essential to this growth process.
. . . Introducing the criminal law into children’s
families and educational environments in such circumstances would harm children
more than help them. . . .
. . . The criminal law . . . is a blunt instrument whose
power can also be destructive of family and educational
relationships. . . .
105
Accelerating these societal considerations into the s. 15(1)
analysis, instead of requiring the government to establish such matters as
“reasonable limits” under s. 1 , inappropriately denies children the
protection of their right to equal treatment.
5. The Violation of Human Dignity
106
The Court has repeatedly stated that
the purpose of s. 15(1) is to prevent the violation of essential
human dignity and freedom through the imposition of disadvantage, stereotyping,
or political or social prejudice, and to promote a society in which all persons
enjoy equal recognition at law as human beings or as members of Canadian
society, equally capable and equally deserving of concern, respect and
consideration.
(Law, supra, at para. 51, and Gosselin, supra,
at para. 20)
The
concept of “human dignity” is somewhat elusive, but nevertheless expresses an
essential part of the purpose of s. 15(1). It seeks to avoid the
mechanical application of the s. 15 analysis to distinctions that do not,
appropriately viewed, raise a compelling human rights dimension. This is
illustrated, as mentioned earlier, by the Canada Pension Plan cases. The state
is required to value each of its citizens equally, but equal consideration
of the personal characteristics and strengths of each individual may, in the
circumstances of government benefit programs, dictate differential treatment.
This is hardly the case here. Few things are more demeaning and disrespectful
of fundamental values than to withdraw the full protection of the Criminal
Code against deliberate, forcible, unwanted violation of an individual’s
physical integrity.
107
I agree entirely with the conclusion of the author of a report entitled
“Corporal Punishment as a Means of Correcting Children” (November 1998) by the
Quebec Commission des droits de la personne et des droits de la jeunesse (at
p. 8):
Corporal punishment violates the child’s dignity, partly due to the
humiliation he or she is likely to feel, but mainly due to the lack of respect
inherent in the act.
108
Reference should also be made to the analysis of Peter Newell, a witness
for the appellants and the author of Children Are People Too: The Case
Against Physical Punishment (1989), who wrote, at pp. 2 and 4:
Childhood, too, is an institution. Society, even
in those areas like education which are supposedly for the benefit of children,
remains unsympathetic to them. All too often children are treated as objects,
with no provision made for hearing their views or recognising them as fellow
human beings. Children — seen but not heard — face the double jeopardy of
discrimination on grounds of age, and discrimination on all the other grounds
as well. Giving legal sanction to hitting children confirms and reflects their
low status.
.
. .
The basic argument is that children are people, and hitting people is
wrong.
109
Everyone in society is entitled to respect for their person, and to
protection against physical force. To deny this protection to children at the
hands of their parents, parent-substitutes and teachers is not only
disrespectful of a child’s dignity but turns the child, for the purpose of the Criminal
Code , into a “second-class citizen” (Ogg-Moss, at p. 187). As
Iacobucci J. noted in Law, at para. 53:
Human dignity is harmed when individuals and groups are marginalized,
ignored, or devalued, and is enhanced when laws recognize the full place of all
individuals and groups within Canadian society.
110
It should not be suggested that because, as Peter Newell notes, a child
may not enjoy much dignity anyway in the home or classroom, he or she can be
whacked with impunity “by way of correction”.
111
I therefore agree with my colleague, Deschamps J., that s. 43
discriminates against children and infringes their equality rights. The onus
falls on the government to justify it.
6. The Section 1 Justification
112
Parents and teachers play very different roles in a child’s life and
there is no reason why they should be treated on the same legal plane for the
purposes of the criminal assault provisions of the Criminal Code .
(a) In Relation to Parents or Persons Standing
in the Place of Parents
113
While s. 43 infringes a child’s s. 15 equality rights by
making a distinction that discriminates on the basis of age, it is nonetheless
evident that 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 domestic disputes of the type envisaged in s. 43 .
The definition of assault in s. 265 is extremely broad. Parliament could
reasonably conclude that the intervention of the police or criminal courts in a
child’s home in respect of “reasonable” correction would inhibit rather than
encourage the resolution of problems within families. Such an outcome could be
judged unacceptable, not because the child’s equality rights are without
importance, but because the intervention of the criminal law in the home in the
limited circumstances set out in s. 43 comes at too high a cost.
114
It is scarcely necessary to cite authority for the importance of the
family in Canadian law. In Winnipeg Child and Family Services v. K.L.W.,
[2000] 2 S.C.R. 519, 2000 SCC 48, at para. 72, L’Heureux-Dubé J. noted
that parents must be accorded a relatively large measure of freedom from state
interference to raise their children as they see fit. In New Brunswick
(Minister of Health and Community Services) v. G. (J.), [1999] 3
S.C.R. 46, at para. 76, Lamer C.J. pointed out that parents are
presumed to act in their child’s best interests: “Since the best interests of
the child are presumed to lie with the parent, the child’s psychological
integrity and well-being may be seriously affected by the interference with the
parent-child relationship.”
115
These affirmations of the importance of family relationships need to be
considered in light of the sweeping definition of assault in s. 265 of the
Criminal Code which makes it an offence for a person, without the
consent of another person, to apply “force intentionally to that other person,
directly or indirectly”, or even to threaten to do so if he or she has a
“present ability to effect his purpose”. The s. 1 justification for the
“spanking defence” is very much a function of the immense breadth of the
definition of criminal assault. One need only pause to reflect on the type of
threats routinely issued by Canadian parents to their children in the heat of
family altercations. Adolescent or pre-adolescent behaviour occasionally
results in physical touching by the parent, unwanted by the child, or the
threat thereof, and where reasonable and for the purpose of correction, this
type of “assault” could justifiably be seen by Parliament as outside the
appropriate sphere of criminal prosecution.
116
Section 265 is very broad on its face and it has been interpreted
broadly, because, as pointed out in Blackstone, supra, at p. 120,
it has always been considered unworkable to draw a principled distinction
between “degrees of violence”. Professor Ashworth adds:
Is it right that the criminal law should extend to mere touchings,
however trivial? The traditional justification is that there is no other
sensible dividing line, and that this at least declares the law’s regard for
the physical integrity of citizens.
(A. Ashworth, Principles of Criminal Law (4th ed. 2003), at
p. 319)
117
This near-zero tolerance (i.e., subject to the de minimis
principle) for physical intervention continues to be the law, although in R.
v. Jobidon, [1991] 2 S.C.R. 714, Gonthier J. suggested that, in the
family context, the law of assault should have a more nuanced application.
Otherwise, he said, at pp. 743-44:
. . . a father would assault his daughter if he attempted to place a
scarf around her neck to protect her from the cold but she did not consent to
that touching, thinking the scarf ugly or undesirable. . . .
That absurd consequence could not have been intended by Parliament.
118
We are not asked in this case to establish the threshold for a criminal
“assault” in the family context, or whether the unwanted touching in
Gonthier J.’s example could be said to be “by way of correction”. Section
43 presupposes the existence of conduct that does amount to a criminal
assault. Section 265 would clearly be triggered by much of the non-violent
physical contact that is not out of place growing up in a robust family
environment. The appellant points to some other jurisdictions like Sweden,
which do without a parental defence provision equivalent to s. 43; but Sweden,
at least, has a very different criminal law regime applicable to physical
assaults.
119
Section 1 requires a government to show that the objective of the
legislation is pressing and substantial. Government must also establish that
the means chosen to attain the end are reasonable; this requires showing that:
(i) the rights violation is rationally connected to the aim of the legislation,
(ii) the impugned provision minimally impairs the Charter guarantee, and
(iii) there is proportionality between the effect of the measure and its
objective so that the attainment of the legislative goal is not outweighed by
the abridgement of the right (Egan, supra, at para. 182; Oakes,
supra). In addition, the deleterious effects of the measure must not
outweigh its benefits: Dagenais v. Canadian Broadcasting Corp., [1994]
3 S.C.R. 835, at p. 878.
120
I agree with Goudge J.A. ((2002), 57 O.R. (3d) 511, at para. 59)
that the objective of the legislation is pressing and substantial insofar as it
permits parents or persons standing in the place of parents
to apply strictly limited corrective force to children without criminal
sanctions so that they can carry out their important responsibilities to train
and nurture children without the harm that such sanctions would bring to them,
to their tasks and to the families concerned.
However,
I do not agree with Goudge J.A. that this justification extends to
teachers as well.
121
Providing a defence to a criminal prosecution in the circumstances
stated in s. 43 is rationally connected to the objective of limiting the
intrusion of the Criminal Code into family life.
122
As to minimal impairment, the wording of s. 43 not only permits
calibration of the immunity to different circumstances and children of
different ages, but it allows for adjustment over time. In this respect, the
Crown’s expert, Nicholas Bala, stated:
In the past, the use of belts, straps, rulers, sticks
and other similar objects to deliver a punishment was commonly accepted, both
by society and the courts, as reasonable in the chastisement of children.
Today, most courts hold that, in most circumstances, the use of these objects
is excessive. As well, previously, courts have considered punishment causing
temporary pain lasting a few days, but without permanent injury, to be
reasonable. Today’s courts scrutinize the level of pain, bruises, red marks
and other signs of temporary harm carefully. In most cases, when they find
that a child has suffered some injury, the teacher, parent or person taking the
place of a parent is convicted of assault.
In
the past, as Arbour J. demonstrates in her reasons, the elasticity of
s. 43 has led to acquittals in some quite shocking circumstances.
However, in my view, it is the function of the appellate courts to rein in
overly elastic interpretations that undermine the limited purpose of
s. 43, which is what the interpretive guidance offered by the Chief Justice
is designed to do, provided the courts stop short of judicial amendment.
123
Once the legislative objective is found to be pressing and substantial,
I think the proportionality requirements are met by Parliament’s limitation of
the s. 43 defence to circumstances where: (i) the force is for corrective
purposes, and (ii) the measure of force is shown to be reasonable under the
circumstances. What is reasonable in relation to achievement of the legitimate
legislative objective will not, by definition, be disproportionate to such
achievement. Moreover, the salutary effects of s. 43 exceed its potential
deleterious effects when one considers that the assault provisions of the Criminal
Code are just a part, and perhaps a less important part, of the overall
protections afforded to children by child welfare legislation. I note, for
example, the testimony of Allan Simpson, a Sergeant with the Toronto Police
Service, that:
Whether in any particular circumstance a charge is
laid or not, the Children’s Aid Society is normally contacted, when they
have not been the first to investigate the circumstances. The primary
consideration is always the safety and well-being of the child. [Emphasis in
original.]
124
To deny children the ability to have their parents, or persons standing
in their parents’ place, to be successfully prosecuted for reasonable
corrective force under the Criminal Code does not leave them without
effective recourse. It just helps to keep the family out of the criminal
courts. In my view, s. 43 in relation to parents and persons standing in
their place is justified on this basis.
(b) The Application of Section 1 in Relation
to Teachers
125
The extension of s. 43 protection to teachers has not been
justified under the s. 1 test. It is argued that the legislative
objective in the case of teachers echoes the policy reasons applicable to
parents, but the logic for keeping criminal sanctions out of the schools is
much less compelling than for keeping them out of the home. Compared with a
family, a teacher’s commitment to a particular child is typically of a
different order and for a more limited period of time. While at one time
teachers were regarded as parent-type figures, s. 43 itself draws a
distinction between a “person standing in the place of a parent” and a
teacher. Less harm may flow from discipline inflicted by a parent who
typically shares a loving relationship with the child. The pupil-teacher
relationship is closer to the master-apprentice relationship for which
s. 43 protection was abolished by Parliament in 1955 (see S.C. 1953-54,
c. 51, s. 43).
126
The evidence is that most teachers do not favour the use of force in
schools for “correction”. Their point is that there is a need to maintain
order in schools, and keeping order may involve unwanted touching, such as
“sitting” down an obstreperous child, or marching belligerents off to the
principal’s office.
127
The question is whether the undoubted need to keep order in schools
justifies the s. 43 exemption of teachers from the assault provisions of
the Criminal Code . The Law Reform Commission of Canada recommended the
repeal of the s. 43 defence for school teachers, stating that the ultimate
sanction should be the removal of a child from school, not corporal punishment:
Law Reform Commission of Canada, Working Paper 38, Assault (1984), at
p. 44. A number of countries have abolished or modified similar
legislative immunities for teachers: see, e.g., s. 47 of the British Education
(No. 2) Act 1986 (U.K.), 1986, c. 61; s. 59 of the New
Zealand Crimes Act 1961 (N.Z.), 1961, No. 43; and s. 139A of
the New Zealand Education Act 1989 (N.Z.), 1989, No. 80.
128
While I accept that order in the schools is a legitimate objective, I do
not think that giving non-family members an immunity for the criminal assault
of children “by way of correction” is a reasonable or proportionate legislative
response to that problem. The attempt to save the constitutionality of
s. 43 by rewriting it to distinguish between parents and teachers and carving
out school order from the more general subject matter of “correction” is, in my
view, a job for Parliament. In short, s. 43 does not minimally impair the
child’s equality right, and is not a proportionate response to the problem of
order in the schools.
7. Disposition
129
I would therefore uphold the validity of s. 43 in relation to
parents and persons standing in the place of a parent, but declare it
unconstitutional insofar as it extends to teachers. To that extent, the appeal
should be allowed.
130
I would answer the constitutional questions as follows:
1. Does s. 43 of the Criminal Code,
R.S.C. 1985, c. C-46 , infringe the rights of children under s. 7 of
the Canadian Charter of Rights and Freedoms ?
Answer: No.
2. If so, is the infringement a reasonable
limit prescribed by law as can be demonstrably justified in a free and
democratic society within the meaning of s. 1 of the Canadian Charter
of Rights and Freedoms ?
Answer: It is unnecessary to decide this question.
3. Does s. 43 of the Criminal Code,
R.S.C. 1985, c. C-46 , infringe the rights of children under s. 12 of
the Canadian Charter of Rights and Freedoms ?
Answer: No.
4. If so, is the infringement a reasonable
limit prescribed by law as can be demonstrably justified in a free and
democratic society within the meaning of s. 1 of the Canadian Charter
of Rights and Freedoms ?
Answer: It is unnecessary to decide this question.
131
This appeal raises the constitutional validity of s. 43 of the Criminal
Code, R.S.C. 1985, c. C‑46 , which justifies the reasonable use of
force by way of correction by parents and teachers against children in their
care. Although I come to a conclusion which may not be very different from
that reached by the Chief Justice, I do so for very different reasons. The
Chief Justice significantly curtails the scope of the defence of s. 43 of the Code,
partly on the basis that s. 43 should be strictly construed since it withdraws
the protection of the criminal law in certain circumstances. According to her
analysis, s. 43 can only be raised as a defence to a charge of simple (common)
assault; it applies only to corrective force, used against children older than
two but not against teenagers; it cannot involve the use of objects, and should
not consist of blows to the head; and it should not relate to the “gravity” of
the conduct attracting correction.
132
With respect, in my opinion, such a restrictive interpretation of a
statutory defence is inconsistent with the role of courts vis-à-vis
criminal defences, both statutory and common law defences. Furthermore, this
restrictive interpretation can only be arrived at if dictated by constitutional
imperatives. Canadian courts have not thus far understood the concept of
reasonable force to mean the “minor corrective force” advocated by the Chief
Justice. In my view, the defence contained in s. 43 of the Code,
interpreted and applied inconsistently by the courts in Canada, violates the
constitutional rights of children to safety and security and must be struck
down. Absent action by Parliament, other existing common law defences, such as
the defence of necessity and the “de minimis” defence, will suffice to
ensure that parents and teachers are not branded as criminals for their trivial
use of force to restrain children when appropriate.
133
Section 43 of the Code justifies the use of force by parents and
teachers by way of correction. The force that is justified is force that is
“reasonable under the circumstances”. The section does not say that forcible
correction is a defence only to common assault. Nor has it been understood to
be so restrictive: see R. v. Pickard, [1995] B.C.J. No. 2861 (QL)
(Prov. Ct.); R. v. G.C.C. (2001), 206 Nfld. & P.E.I.R. 231 (Nfld.
S.C. (T.D.)); R. v. Fritz (1987), 55 Sask. R. 302 (Q.B.); R. v. Bell,
[2001] O.J. No. 1820 (QL) (S.C.J.); and R. v. N.S., [1999] O.J. No. 320
(QL) (Gen. Div.), where s. 43 was successfully raised as a defence
against charges of assault with a weapon and/or assault causing bodily harm.
134
In the Code, the justifiable use of force may be advanced as a
defence against a wide range of offences that have at their origin the
application of force. These offences range from common assault, to assault
causing bodily harm and eventually to manslaughter. Where, for example, a
civilian performs a lawful arrest, the force used may be justified (see R.
v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38, at para. 34) even though
it causes “hurt or injury . . . that is more than merely transient or trifling
in nature” (s. 2 of the Code), thereby exonerating the accused from what
would otherwise be an assault causing bodily harm.
135
In the case at bar, the critical inquiry turns on the meaning of the
phrases “force by way of correction” and “reasonable under the circumstances”
(s. 43 of the Code). To say, as the Chief Justice does, that this
defence cannot be used to justify any criminal charge beyond simple assault,
that the section cannot justify the use of corrective force against a child
under 2 or against a teenager, and that force is never reasonable if an object
is used, is a laudable effort to take the law where it ought to be. However,
s. 43 can only be so interpreted if the law, as it stands, offends the
Constitution and must therefore be curtailed. Absent such constitutional
constraints, it is neither the historic nor the proper role of courts to
enlarge criminal responsibility by limiting defences enacted by Parliament. In
fact, the role of the courts is precisely the opposite.
136
Setting aside any constitutional considerations for the moment, courts
are expressly prohibited by s. 9 of the Code from creating new common
law offences. All criminal offences must be enacted by statute. On the other
hand, the courts have been and continue to be the guardians of common law
defences. This reflects the role of courts as enforcers of fundamental
principles of criminal responsibility including, in particular, the fundamental
concept of fault which can only be reduced or displaced by statute.
137
Our recent decision in R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC
24, exemplifies this classical and sound approach. Ogg‑Moss v. The
Queen, [1984] 2 S.C.R. 173, can be considered an exception because it
curtailed a statutory defence, yet, as I will attempt to demonstrate below, it
still failed to achieve a constitutionally acceptable result.
138
In this case, we have been asked to either curtail or abolish altogether
a defence created by Parliament. If we are to do this, as I believe we must,
it should be for higher constitutional imperatives. Absent a finding of a
constitutional violation by Parliament, the reading down of a statutory defence
as is done by the Chief Justice amounts to, in my respectful opinion, an
abandonment by the courts of their proper role in the criminal process.
139
Courts, including this Court, have until now properly focussed on what
constitutes force that is “reasonable under the circumstances”. No pre-emptive
barriers have been erected. Nothing in the words of the statute, properly
construed, suggests that Parliament intended that some conduct be excluded at the
outset from the scope of s. 43’s protection. This is the law as we must take
it in order to assess its constitutionality. To essentially rewrite it before
validating its constitutionality is to hide the constitutional imperative.
140
The role of the courts when applying defences must be contrasted with
the role of courts when they are called upon to examine the constitutional
validity of criminal offences. In such cases, it is entirely
appropriate for the courts to interpret the provisions that proscribe conduct
in a manner that least restricts “the liberty of the subject”, consistent with
the wording of the statute and the intent of Parliament. This is what was done
in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, for example. But such
a technique cannot be employed to restrict the scope of statutory defences
without the courts compromising the core of their interplay with Parliament in
the orderly development and application of the criminal law.
141
In the end, I will conclude, not unlike the Chief Justice, that the use
of corrective force by parents and teachers against children under their care
is only permitted when the force is minimal and insignificant. I so conclude
not because this is what the Code currently provides but because it is
what the Constitution requires.
II. Analysis
142
Before turning to the constitutional challenge brought before us by the
Canadian Foundation for Children, Youth and the Law (the “Foundation”), we must
expose the current state of the law in Canada on the use of force against
children by way of correction. Section 43 of the Code, under the
heading “Protection of Persons in Authority”, provides that:
Every schoolteacher, parent or person standing in
the place of a parent is justified in using force by way of correction toward a
pupil or child, as the case may be, who is under his care, if the force does
not exceed what is reasonable under the circumstances.
143
Section 43 is situated among many other sections of the Code which
justify the use of force in a variety of circumstances: s. 27 justifies the
use of reasonable force to prevent the commission of an offence; s. 30
justifies the reasonable use of force to prevent a breach of the peace; s. 32
justifies the use of reasonable force to suppress a riot; s. 34 justifies the
use of force in self-defence against an unprovoked assault; s. 35 justifies the
use of force in self-defence in the case of aggression; s. 37 justifies the use
of force in defence of oneself to prevent assault; s. 39 justifies the use of
force in defence of personal property with a claim of right; s. 40 justifies
the use of force in preventing any person from forcibly breaking into a
dwelling-house; and s. 41 justifies the use of force in preventing any person
from trespassing on a dwelling-house or real property.
144
As I indicated earlier, s. 43 may be relied on in defence of any charge
which stems from the use of force. Section 265(1) of the Code defines
assault in the following terms:
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force
intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply
force to another person, if he has, or causes that other person to believe upon
reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation
thereof, he accosts or impedes another person or begs.
The
application of the assault provision reads:
(2) This section applies to all forms of assault,
including sexual assault, sexual assault with a weapon, threats to a third party
or causing bodily harm and aggravated sexual assault.
145
This definition becomes the foundation for the prohibition of a range of
offences that have as their central feature the non‑consensual use of
force, with aggravating circumstances or consequences. For example, assault
with a weapon or assault causing bodily harm (which includes psychological harm
— per Cory J. in R. v. McCraw, [1991] 3 S.C.R. 72, at p. 81) is
defined under s. 267 of the Code as:
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation
thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years or an offence punishable on summary conviction and
liable to imprisonment for a term not exceeding eighteen months.
Section
2 of the Code defines bodily harm as: “any hurt or injury to a person
that interferes with the health or comfort of the person and that is more than
merely transient or trifling in nature”. Eventually, the application of non‑consensual
force can lead to homicide: murder, if accompanied by an intention to kill, or
manslaughter if death is caused by an unlawful act such as an assault.
146
In many instances Parliament has explicitly foreclosed the application
of certain defences to certain charges. This is so, for example, with respect
to the defence of provocation in s. 232 of the Code. Provocation is
only available as a defence to murder and not to any other offence (R. v.
Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.). By contrast, Parliament has
not explicitly limited the defence under s. 43 to certain offences. Therefore
the use of corrective force against children by parents and teachers is
justified, even though it may cause bodily harm, as defined in s. 2 of the Code,
if it is reasonable under the circumstances.
147
It was noted in Pickard, supra, at para. 16, that “it is
at least theoretically possible to cause bodily harm with reasonable force”.
Indeed s. 43 has been raised successfully in defence of more than mere common
assault (see para. 133).
148
Parliament has not dictated a priori that uses of force will
never be reasonable in any circumstances. The statutory framework is one that
leaves the appreciation of reasonableness to the courts to develop on a case‑by‑case
basis as the myriad of live circumstances are brought before the courts or are
screened out by prosecutorial discretion. This is not a novel approach either
in the law generally or within the criminal law context where reasonableness
often plays a crucial part in the determination of criminal responsibility. Appellate
courts review findings of reasonableness, or the lack thereof, while remaining
generally attuned to the reality that reasonableness is intensely
fact-specific. This is reflected in the broad expression “reasonable under the
circumstances” which has precluded, until today, the demarcation, at the
outset, of some sets of circumstances as unreasonable in all cases (e.g., “use
of objects or blows or slaps to the head” as described by the Chief Justice, at
para. 40).
149
In light of the framework established by Parliament for the s. 43
defence, we must now examine its application by the courts to date.
150
Two cases have been heralded as the most important in establishing
parameters for the interpretation of s. 43. This Court in Ogg‑Moss,
supra, at p. 183, has stated that s. 43 must be strictly construed
because it has the effect of depriving individuals or groups of equal
protection under the criminal law, specifically the right to be free from
unconsented invasions of physical security or dignity. In Ogg‑Moss,
supra, the Court provided additional guidance with regard to one of the
two key definitional aspects of s. 43, the requirement that force be used “by
way of correction”. In Dickson J.’s view (as he then was), force administered
“by way of correction” requires that the person applying the force intends it
for corrective purposes and that the child at whom the force is directed is
capable of learning.
151
The scope of the second key aspect of the provision, “reasonable under
the circumstances”, is much more difficult to determine. Indeed, the
Saskatchewan Court of Appeal’s attempt at interpreting this phrase in R. v.
Dupperon (1984), 16 C.C.C. (3d) 453, is perhaps the most frequently cited
case on the parameters of reasonableness under s. 43. In Dupperon, at
p. 460, the Court of Appeal set out some factors to guide the determination of
whether force exceeds what is reasonable under the circumstances. The factors,
which are to be considered from both an objective and subjective standpoint, are:
– the nature of the offence calling for correction;
– the age and character of the child;
– the likely effect of the punishment on this
particular child;
– the degree of gravity of the punishment;
– the circumstances under which the punishment was
inflicted; and
– the injuries, if any, suffered.
The
Court of Appeal added that if the child suffered injuries which may endanger
life, limbs or health or if the child was disfigured, that alone would be sufficient
to find that the punishment was unreasonable.
(1) Applications of the Section 43 Test
Post-Dupperon
152
The following provides some recent examples of cases decided after the
judicial interpretation in Ogg-Moss, supra, and Dupperon, supra,
in which more severe physical discipline, including discipline involving blows
to the face and discipline with an implement, has been found to be reasonable.
(a) Acquittals of Teachers Using Force
153
In R. v. Wetmore (1996), 172 N.B.R. (2d) 224 (Q.B. (T.D.)), a
high school teacher, who did not believe in suspension as a sanction, applied
his training in karate to discipline four students in his grade 10 class. He
demonstrated his karate skills on the students, striking them about the
shoulders and hitting one student’s face and the hands of another student which
were covering the student’s face. The judge noted that there were no injuries,
that the force used was “minimal” and that the obnoxious behaviour of the students
was effectively controlled (para. 13). It was reasonable for the teacher to
use physical force to instill fear in the high school students to gain their
respect. The judge noted that “[w]hile the punishment rendered might be
unorthodox, it was not unreasonable” (para. 22).
154
In R. v. Graham (1995), 160 N.B.R. (2d) 306 (Q.B. (T.D.)), a
school principal lifted an 8 or 9-year-old girl out of her desk and struck her
buttocks. A red mark remained on her buttocks for 24 hours. The child was
being inattentive and disruptive in class. She was not doing her work and was
bothering other children. The judge followed older cases in which it was held
that a slight wound was not determinative given that corporal punishment must
be severe enough to take effect lest it encourages “indifference”,
“independence and defiance” (para. 11).
155
In R. v. Plourde (1993), 140 N.B.R. (2d) 273 (Prov. Ct.), a grade
8 teacher faced with undisciplined behaviour in the classroom picked up one of
the students to remove him from the classroom and banged his back on the
chalkboard, causing a red mark on his back and red marks on his forearm. When
the teacher returned, he confronted another student who began to stand up. The
teacher slapped him on the head while grabbing him by the shoulders to make him
sit down. A girl called the teacher crazy. The teacher grabbed her arm and
pulled her to the intercom where he called the principal. The judge said that
this teacher, facing “insolent behaviour”, must ensure respect for authority
(para. 8). It had not been shown that the force was unreasonable under the
circumstances.
156
For other instances of acquittals of teachers see: R. v. Caouette,
[2002] Q.J. No. 1055 (QL) (C.Q.), where a teacher grabbed a 12-year-old student
by the throat with both hands, then gave him a “cuff” in the stomach with an
open hand; R. v. Skidmore, Ont. C.J., No. 8414/99, June 27, 2000, per
Nosanchuk J., where a teacher grabbed a 13-year-old boy by the arm and throat
and pushed him up against a wall; R. v. Gallant (1993), 110 Nfld. &
P.E.I.R. 174 (P.E.I. Prov. Ct.), where a teacher struck an 11-year-old boy in
the face with an open hand; and R. v. Fonder, [1993] Q.J. No. 238
(QL) (C.A.), where a teacher hit a 14-year-old on the head with a book.
(b) Acquittals Involving Use of Force to the
Face or Head
157
In R. v. James, [1998] O.J. No. 1438 (QL) (Prov. Div.), a father
hit his 11-year-old son in the face with an open hand during an argument in
which the child swore. The father testified that his purpose in smacking his
son was to “stamp out” the son’s foul language and “attitude” right there and
then. When the child went to school that afternoon, a teacher noticed finger
marks on the boy’s cheek.
158
In R. v. Wood (1995), 176 A.R. 223 (Prov. Ct.), a father slapped
his 4-year-old child on the face when he refused to stop yelling during the
course of his lunch. The boy was suffering from an ear infection at the time
and attended at a hospital that same day for treatment. The first thing that the
attending physician noticed upon examination of the child were marks on the
side of his face opposite to that side which involved the draining ear. “[A]n
actual imprint of a hand was visible on the child’s face” (para. 5). Citing
several examples, the judge noted that “the administration of a slap to the
head of a child is not per se excessive force constituting an assault” (para.
14).
159
In R. v. Vivian, [1992] B.C.J. No. 2190 (QL) (S.C.), a stepfather
grabbed his stepdaughter by the hair and pushed her head against a cupboard
during a disagreement. Despite the fact that the provincial court judge
described the stepfather as “more angry than he is now prepared to admit”,
Leggatt J. found that the force used was minimal.
160
For other acquittals involving use of force to the face or head see: Fonder,
supra; Plourde, supra; Wetmore, supra; and Gallant,
supra.
161
For other acquittals involving serious infliction of injury on children
see: R. v. Murphy (1996), 108 C.C.C. (3d) 414 (B.C.C.A.), where the
accused used electrical tape to restrain the 3-year-old nephew of his
common-law wife in a chair; R. v. K. (M.) (1992), 74 C.C.C. (3d) 108
(Man. C.A.), where a father kicked his 8-year-old son for having spilled a
packet of sunflower seeds on the floor after being asked not to open the
packet; R. v. Goforth (1991), 98 Sask. R. 26 (Q.B.), where a father
disciplined his 8-year-old son causing marks of bruising and discolouration;
and R. v. Wheeler, [1990] Y.J. No. 191 (QL) (Terr. Ct.), where a foster
mother slapped a 7-year-old on the hand and wrist approximately 12 times
causing bruising.
(c) Acquittals Involving Use of Force Against
Teenagers
162
In G.C.C., supra, a father struck his 14-year-old
daughter with a belt three to four times across the top of the back of her
legs, leaving welts and bruises. He was charged with assault with a weapon per
s. 245.1(1)(a) of the Code. Despite expressing the personal view
that the use of a belt in disciplining is always unreasonable, the judge,
citing several authorities as examples, noted that there are occasions when the
law recognizes such behaviour as not criminal (para. 44). He concluded that
the force used was not unreasonable in the circumstances.
163
In Pickard, supra, a father, seeking to forcibly
remove his 15-year-old son from a room in order to show him “who was boss”
(para. 10), was charged with assault causing bodily harm. The father punched
his son and knocked him down. This resulted in scratches and a bruise on the
son’s forehead and caused him “considerable pain and discomfort” (para. 13) for
several days. The court acquitted the father of assault on the grounds that he
and his son were physically almost evenly matched and “[a]nything less than a
hard blow to [the son’s] body would have failed to evoke a submissive response”
(para. 19).
164
In R. v. V.L., [1995] O.J. No. 3346 (QL) (Prov. Div.), a
stepfather, in response to offensive comments from his stepson, struck the
13-year-old boy in the mouth with an open hand causing a swollen lip. While
noting that a “parent delivering a blow to the head area of a child is
definitely entering dangerous waters” (para. 24), the court found that in the
circumstances the force was reasonable as the boy’s behaviour warranted
corrective action on the part of the parent. The court also noted that the
“fact that an injury results from the punishment of a child does not in and of
itself prove that the force was excessive” (para. 23).
165
For other acquittals involving the use of force on teenagers see: Fritz,
supra, where an aunt and uncle of two teenaged girls (13 and 14) were
charged with assault with a weapon. The uncle told his nieces to strip to
their bra and panties and strapped them with a plastic belt across the buttocks
and thighs; R. v. Holmes, [2001] Q.J. No. 7640 (QL) (Sup. Ct.), where a
teacher lifted a 13-year-old boy from the floor using a wrestling hold to the
back of the head and under the chin; and R. v. Harriott (1992), 128
N.B.R. (2d) 155 (Prov. Ct.), where a teacher grabbed and shook a 14-year-old by
the head and pushed him into his seat. See also Wetmore, supra; Plourde,
supra; Fonder, supra; and Skidmore, supra.
(d) Acquittals Involving Use of Force Against
Children Under 2
166
In R. v. Atkinson, [1994] 9 W.W.R. 485 (Man. Prov. Ct.), two of
the children were 2 years old and a third child was almost 3½ years of age when
the foster-mother/aunt hit the children with a belt on their diapered bottoms,
sometimes leaving red marks. In the absence of evidence describing the type of
belt used (i.e., what it was made of, its length, or width, or whether it had a
buckle), the judge felt unable to assess whether the use of the belt was
unreasonable and excessive in the circumstances (para. 22). One child was also
struck in the chest with an open hand. The judge noted, at para. 23, that
[w]hile clearly a child’s chest should never be struck as a
disciplining measure, there is no evidence in this case from which it could be
concluded that the force used during this particular incident was excessive.
(e) Acquittals Involving the Use of
Implements
167
In Bell, supra, a father was charged with assault with a
weapon for striking his 11-year-old son with a belt two or three times for
stealing candy and lying about it. At least one blow struck the child on his
right thigh which left a bruise that matched the shape of the buckle. The
judge noted, at para. 30:
When appropriate deference is shown to the parent’s
value system and to their decision that they see the transgression as serious,
then the infliction of some pain and a bruise that is merely transient or
trifling in nature . . . cannot as a matter of law, constitute unreasonable
force.
168
In R. v. L.A.K. (1992), 104 Nfld. & P.E.I.R. 118 (Nfld. Prov.
Ct.), the use of a belt by a father in correcting his 11-year-old daughter
which resulted in some bruising was held to fall within the parameters of the
s. 43 defence. Though the discipline “must have had a significant impact on
[the daughter]” (para. 37), evidenced by the fact that she reported the
incident to a social worker, the judge went on to find somewhat contradictorily
that the injury “was of transient and perhaps trifling consequence for her”
(para. 39). Interestingly, despite dismissing the charges against the father,
the judge also noted, at para. 33:
I am satisfied that if L.K. and his wife and their children, rethought
the whole matter of discipline they could probably come to the conclusion that
the use of force could be abandoned and other effective sanctions could be
devised by them as disciplinary measures.
169
In R. v. Robinson, [1986] Y.J. No. 99 (QL) (Terr. Ct.), a father
strapped his 12-year-old daughter about four or five times with a leather belt
that was doubled over twice. She sustained bruises, which doctors predicted
would disappear within seven to ten days. The court described the punishment
as “an administration of short‑term pain in the hope that it will have a
corrective effect on the child” (para. 7). Finding that the accused’s conduct
was justified, the court dismissed the charges against him.
170
For another instance of an acquittal where a child was struck with a
belt, see: R. v. V.H., [2001] N.J. No. 307 (QL) (Prov. Ct.), at paras.
87-91, where a grandfather struck his granddaughter on her behind with a belt.
For instances of acquittals involving the striking of children with other
implements, see: N.S., supra, where a father was charged with
assault with a weapon causing bodily harm for punishing his two children with a
horse harness leaving welts; R. v. O.J., [1996] O.J. No. 647 (QL) (Prov.
Div.), where a mother hit her 6-year-old on the buttocks with a plastic ruler,
causing bruises and red marks; and R. v. Dunfield (1990), 103 N.B.R.
(2d) 172 (Q.B. (T.D.)), where a foster mother hit a 9-year-old on the arm with
a ruler causing bruising and breaking the ruler. See also Fritz, supra.
171
It is this body of law that the appellant attacks as unconstitutional.
Absent a constitutional challenge, the law would likely continue to evolve and
would no doubt reflect changing attitudes in society regarding the merits and
acceptability of the corporal punishment of children. As a society, we have in
the past tolerated or even encouraged the use of corporal punishment against
women, apprentices, employees, passengers on ships and prisoners. Each of
these practices eventually fell into disrepute without any constitutional
intervention.
172
By the time of the codification of Canadian criminal law in 1892, the
right to use corporal punishment on wives and servants was no longer legally
justified (see S. D. Greene, “The Unconstitutionality of Section 43 of the
Criminal Code : Children’s Right to be Protected from Physical Assault, Part 1”
(1999), 41 Crim. L.Q. 288, at pp. 292-93). The physical discipline of
apprentices by masters was codified in The Criminal Code, 1892, S.C.
1892, c. 29, s. 55, and omitted in the 1955 version of the Code
(S.C. 1953-54, c. 51 ; Martin’s Criminal Code (1955), at p. 118; see also
D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p.
503). Whipping as a form of criminal punishment also survived the 1892
codification of criminal law, for such offences as rape and gross indecency.
The penalty was later abolished in 1973 (see A. McGillivray, “‘He’ll learn it
on his body’: Disciplining childhood in Canadian law” (1997), 5 Int’l J.
Child. Rts. 193, at p. 199). Similarly, s. 44 added in the 1955 version of
the Code which justified the use of force in maintaining discipline by a
master or officer of a ship will be repealed when the 2001 amendments to the Canada
Shipping Act come into force (S.C. 2001, c. 26, s. 294 ). As Cory J. (in
dissent) noted in Kindler v. Canada (Minister of Justice), [1991] 2
S.C.R. 779, at p. 818:
What is acceptable as punishment to a society will
vary with the nature of that society, its degree of stability and its level of
maturity. The punishments of lashing with the cat‑o‑nine tails and
keel‑hauling were accepted forms of punishment in the 19th century in the
British navy. Both of those punishments could, and not infrequently, did
result in death to the recipient. By the end of the 19th century, however, it
was unthinkable that such penalties would be inflicted. A more sensitive
society had made such penalties abhorrent.
173
That s. 43 is rooted in an era where deploying “reasonable” violence was
an accepted technique in the maintenance of hierarchies in the family and in
society is of little doubt. Children remain the only group of citizens who are
deprived of the protection of the criminal law in relation to the use of force
(A. McGillivray, “R. v. K. (M.): Legitimating Brutality” (1993),
16 C.R. (4th) 125, at pp. 129-30). Whether such policy ought to be acceptable
today with respect to children is the subject of ongoing debate in society
about the appropriateness and effectiveness of the use of corporal punishment
by way of correction. We have not been asked to take a side in that debate.
However, the issue is also the subject of the constitutional challenge brought
before us by the Foundation. This legal challenge is what we must address.
174
The Foundation argues that the use of force permitted under s. 43,
which exonerates a person who would otherwise be guilty of a crime, violates
the constitutional rights of children and must be declared of no force or
effect. I now turn to the appellant’s constitutional argument under s. 7 of
the Charter .
(2) Section 7
175
Where an infringement of s. 7 is alleged, the analysis has three main
stages: (1) determining whether there exists a real or imminent deprivation of
life, liberty, security of the person, or a combination of these interests; (2)
identifying and defining the relevant principle(s) of fundamental justice; and
(3) determining whether the deprivation has occurred in accordance with the
relevant principle(s) (R. v. White, [1999] 2 S.C.R. 417, at para. 38).
176
The parties agree that the first stage has been met, specifically that
s. 43 engages the “security of the person” interest of children. The criminal
law is the mechanism by which the state protects the liberty and security of
its citizens. Where the application of the criminal law is withdrawn from a
portion of the population, the state has removed the protective force of the
law from this group. The absence of this protective force, and the correlative
sanction by the state of what would otherwise be an assault, suffices, in my
view, to amount to a deprivation of children’s security of the person
interest. In Ogg‑Moss, supra, at p. 187, the Court noted
(although not in the context of the Charter ) that s. 43 resulted in an
“attenuation of [a child’s] right to dignity and physical security”. I will
therefore proceed on the basis that s. 43 deprives children of their security
of the person interest. The question then becomes whether this deprivation of
children’s security of the person is in accordance with the principles of
fundamental justice.
177
The appellant argues that s. 43 violates the principle of vagueness. I
agree. A vague law violates the principles of fundamental justice as it
offends two values that are fundamental to the legal system. First, vague laws
do not provide “fair warning” to individuals as to the legality of their
actions, making it more difficult to comply with the law. Second, vague laws
increase the amount of discretion given to law enforcement officials in their
application of the law, which may lead to arbitrary enforcement (Reference
re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R.
1123 (“Prostitution Reference”), at p. 1152; see also P. W. Hogg, Constitutional
Law of Canada (4th ed. (loose-leaf)), at pp. 44-48 to 44-50).
178
The test for finding unconstitutional vagueness was first articulated by
Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R.
606, at pp. 639‑40:
A vague provision does not provide an adequate
basis for legal debate, that is for reaching a conclusion as to its meaning
by reasoned analysis applying legal criteria. It does not sufficiently
delineate any area of risk, and thus can provide neither fair notice to the
citizen nor a limitation of enforcement discretion. Such a provision is not
intelligible, to use the terminology of previous decisions of this Court, and
therefore it fails to give sufficient indications that could fuel a legal
debate. It offers no grasp to the judiciary. [Emphasis added.]
This
test is well known, often cited, and is generally perceived as setting the bar
high before a finding of vagueness can be asserted.
179
The doctrine of vagueness does not “require that a law be absolutely
certain; no law can meet that standard” (Prostitution Reference, supra,
at p. 1156). However, while discretion is inevitable, a law will be too vague
if “the legislature has given a plenary discretion to do whatever seems best in
a wide set of circumstances” (Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927, per Dickson C.J., Lamer and Wilson JJ., at p. 983,
albeit within s. 1 ).
180
In the Prostitution Reference, supra, at p. 1157, Lamer J.
(as he then was) expressly relied on the dictum of the Court of Appeal for
Ontario in R. v. LeBeau (1988), 41 C.C.C. (3d) 163, at p. 173, that
the void for vagueness doctrine is not to be applied to the bare words
of the statutory provision but, rather, to the provision as interpreted and
applied in judicial decisions. [Emphasis added.]
According
to Lamer J. the question was
whether the impugned sections of the Criminal Code can be or
have been given sensible meanings by the courts. In other words is the statute
so pervasively vague that it permits a “standardless sweep” allowing law
enforcement officials to pursue their personal predilections?
181
In my view, the case law speaks for itself with respect to whether s. 43
delineates the appropriate boundaries of legal debate. It is wholly
unpersuasive for this Court to declare today what the law is de novo and
to assert that this now frames the legal debate: i.e., anything outside the
framework was simply wrongly decided! This approach robs the test in Nova
Scotia Pharmaceutical, supra, of any usefulness. There is no need
to speculate about whether s. 43 is capable, in theory, of circumscribing an acceptable
level of debate about the scope of its application. It demonstrably has not
succeeded in doing so. Canadian courts have been unable to articulate a legal
framework for s. 43 despite attempts to establish guidelines. It is important
to note that all of the troubling results in the cases listed above were
decided after judicial guidance in Ogg‑Moss, supra, and Dupperon,
supra, had been delivered.
182
Judges themselves have often referred to the lack of consensus in this
area of the law, with Weagant Prov. J. in James, supra, at para.
8, for instance, noting:
Exactly what is needed to establish, or what legal
test demonstrates that the force exceeds what is reasonable, is a matter of
some variance across this nation. For some trial courts, the act speaks for
itself, especially if there is bodily harm or an injury which may endanger
life, limbs or health (R. v. Dupperon (1985), 16 C.C.C. (3d) 453 (Sask.
C.A.)). Other courts pay lip service to the necessity of having a view to
community standards, although just how that is established through evidence
remains unclear (R. v. Halcrow (1993), 80 C.C.C. (3d) 320 ([B.C.]
C.A.): the Appeal Court noted that the defendant had called no evidence
suggesting the treatment of the foster children was in accordance with
community standards, a burden our Court of Appeal has decided falls upon the
Crown). Other trial courts have rejected the notion that a judge can take
notice of community standards (R. v. Myers, [1995] P.E.I.J. No. 180,
P.E.I. Prov. Ct., November 27, 1995, per Thompson, P.C.J.). Yet another
trial court says it is the trier of fact’s responsibility to reflect community
standards, as a jury would (R. v. R.S.D., [1995] O.J. No. 3341, Ontario
Prov. Ct., October 30, 1995, per Megginson, P.J.O.). And still another
court was of the view that section 43 does not deal with the concept of a
community standard of tolerance at all (R. v. Peterson, [1995] O.J. No.
1366, Ontario Prov. Ct., April 26, 1995, per Menzies, P.J.O.).
That
judges have been at a loss to appreciate the “reasonableness” referred to by
Parliament is not surprising and yet is not endemic to the notion of
reasonableness.
183
“Reasonableness” with respect to s. 43 is linked to public policy issues
and one’s own sense of parental authority. “Reasonableness” will always entail
an element of subjectivity. As McCombs J. recognized in the case at bar,
“[b]ecause the notion of reasonableness varies with the beholder, it is perhaps
not surprising that some of the judicial decisions applying s. 43 to excuse
otherwise criminal assault appear to some to be inconsistent and unreasonable”
((2000), 49 O.R. (3d) 662, at para. 4). It is clear, however, that the concept
of reasonableness, so widely used in the law generally, and in the criminal law
in particular, is not in and of itself unconstitutionally vague.
“Reasonableness” functions as an intelligible standard in many other criminal
law contexts. This Court has been clear that constitutional analysis must
always be contextual (Law v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497, at para. 6). Accordingly, whether a given phrase is
unconstitutionally vague must also vary with context.
184
Other instances of the words “reasonable under the circumstances” may
not be overly vague because they occur in contexts in which the factors for
assessing reasonableness are clear and commensurable. Some general agreement
as to the standard against which to measure the “reasonableness” of conduct
will assist in providing sufficient clarity to a standard of “reasonableness”.
For example, reasonable force in self-defence can be measured for
proportionality against the assault for which one is defending oneself.
Similarly, it is possible to frame a legal debate about the proper boundaries
of the use of reasonable force in performing an arrest (see Asante-Mensah,
supra, per Binnie J., at paras. 51-59). This is not so in the
case of corporal punishment of children, where there is no built‑in
commensurability between physical punishment and bad behaviour that can be used
to assess proportionality. Indeed the Chief Justice concludes, at para. 35,
that the gravity of the child’s conduct is not a “relevant contextual
consideration” as it invites a punitive, rather than a corrective focus.
185
Corporal punishment is a controversial social issue. Conceptions of
what is “reasonable” in terms of the discipline of children, whether physical
or otherwise, vary widely, and often engage cultural and religious beliefs as
well as political and ethical ones. Such conceptions are intertwined with how
other controversial issues are understood, including the relationship between
the state and the family and the relationship between the rights of the parent
and the rights of the child. Whether a person considers an instance of child
corporal punishment “reasonable” may depend in large part on his or her own
parenting style and experiences. While it may work well in other contexts, in
this one the term “reasonable force” has proven not to be a workable standard.
Lack of clarity is particularly problematic here because the rights of children
are engaged. This Court has confirmed that children are a particularly
vulnerable group in society (Sharpe, supra, at para. 169, and
Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC
48, at para. 73). Vagueness in defining the terms of a defence which affects
the physical integrity of children may be even more invidious than is vagueness
in defining an offence or a defence in another context, and may therefore call
for a stricter standard.
186
Canada’s international obligations with respect to the rights of the
child must also inform the degree of protection that children are entitled to
under s. 7 of the Charter . As the Chief Justice notes (at para. 32),
Canada is a party to both the United Nations Convention on the Rights of the
Child, Can. T.S. 1992 No. 3, and the International Covenant on Civil and
Political Rights, Can. T.S. 1976 No. 47. The Chief Justice has referred,
at para. 33, to the Report of the Human Rights Committee, vol. I, UN
GAOR, Fiftieth Session, Supp. No. 40 (A/50/40) (1995), with respect to corporal
punishment of children in schools. I would also make reference to the
Concluding Observations of the Committee on the Rights of the Child. Article
43(1) of the Convention on the Rights of the Child establishes a
Committee on the Rights of the Child “[f]or the purpose of examining the
progress made by State Parties in achieving the realization of the obligations
undertaken” in the Convention. The Concluding Observations of the Committee on
the Rights of the Child: United Kingdom of Great Britain and Northern Ireland,
which has a legal provision similar to s. 43 dealing with reasonable
chastisement within the family, state:
The imprecise nature of the expression of reasonable chastisement as
contained in these legal provisions may pave the way for it to be interpreted
in a subjective and arbitrary manner. Thus, the . . . legislative and
other measures relating to the physical integrity of children do not appear to
be compatible with the provisions and principles of the Convention. [Emphasis
added.]
(Committee on the Rights of the Child, Report adopted by the
Committee at its 209th meeting on 27 January 1995, Eighth Session,
CRC/C/38, at para. 218)
The
Committee has identified the vagueness inherent in provisions such as s. 43 in
this and other Concluding Observations.
187
It is notable that the Committee has not recommended clarifying these
laws so much as abolishing them entirely. The Chief Justice notes, at para.
33, that neither the Convention on the Rights of the Child nor the International
Covenant on Civil and Political Rights “require state parties to ban all
corporal punishment of children”. However, the Committee’s Concluding
Observations on Canada’s First Report are illustrative:
[P]enal legislation allowing corporal punishment of children by
parents, in schools and in institutions where children may be placed [, should
be considered for review]. In this regard . . . physical punishment of
children in families [should] be prohibited. In connection with the child’s
right to physical integrity . . . and in the light of the best interests of the
child, . . . the possibility of introducing new legislation and follow‑up
mechanisms to prevent violence within the family [should be considered], and
. . . educational campaigns [should] be launched with a view to changing
attitudes in society on the use of physical punishment in the family and
fostering the acceptance of its legal prohibition. [Emphasis added.]
(Committee on the Rights of the Child, Report adopted by the
Committee at its 233rd meeting on 9 June 1995, Ninth Session, CRC/C/43, at
para. 93)
188
In its most recent Concluding Observations, the Committee expressed
“deep concern” that Canada had taken “no action to remove section 43 of the Criminal
Code ” and recommended the adoption of
legislation to remove the existing authorization of the use of
“reasonable force” in disciplining children and explicitly prohibit all forms
of violence against children, however light, within the family, in schools and
in other institutions where children may be placed.
(Committee on the Rights of the Child, Consideration of Reports
Submitted by State Parties Under Article 44 of the Convention,
Thirty-fourth Session, CRC/C/15/Add. 215 (2003), at paras. 32-33)
189
I doubt that it can be said, on the basis of the existing record, that
the justification of corporal punishment of children when the force used is
“reasonable under the circumstances” gives adequate notice to parents and
teachers as to what is and is not permissible in a criminal context.
Furthermore, it neither adequately guides the decision-making power of law
enforcers nor delineates, in an acceptable fashion, the boundaries of legal
debate. The Chief Justice rearticulates the s. 43 defence as the delineation
of a “risk zone for criminal sanction” (para. 18). I do not disagree with such
a formulation of the vagueness doctrine in this context. Still, on this
record, the “risk zone” for victims and offenders alike has been a moving
target.
190
In the Chief Justice’s reasons, it is useful to note how much work must
go into making the provision constitutionally sound and sufficiently precise:
(1) the word “child” must be construed as including children only over age 2
and younger than teenage years; (2) parts of the body must be excluded; (3)
implements must be prohibited; (4) the nature of the offence calling for
correction is deemed not a relevant contextual consideration; (5) teachers are
prohibited from utilizing corporal punishment; and (6) the use of force that
causes injury that is neither transient nor trifling (assault causing bodily
harm) is prohibited (it seems even if the force is used by way of restraint).
At some point, in an effort to give sufficient precision to provide notice and
constrain discretion in enforcement, mere interpretation ends and an entirely
new provision is drafted. As this Court concluded in R. v. Heywood,
[1994] 3 S.C.R. 761, at p. 803:
The changes which would be required to make s. 179(1)(b) [here,
s. 43 ] constitutional would not constitute reading down or reading in; rather,
they would amount to judicial rewriting of the legislation. [Emphasis
added.]
The
restrictions put forth by the Chief Justice with respect to the scope of the
defence have not emerged from the existing case law. These restrictions are
far from self‑evident and would not have been anticipated by many
parents, teachers or enforcement officials.
191
In my view, we cannot cure vagueness from the top down by declaring that
a proper legal debate has taken place and that anything outside its boundaries
is simply wrong and must be discarded. Too many people have been engaged in
attempting to define the boundaries of that very debate for years in Canadian
courtrooms to simply dismiss their conclusions because they do not conform with
a norm that was never apparent to anyone until now. As demonstrated earlier,
s. 43 has been subject to considerable disparity in application, some courts
justifying conduct that other courts have found wholly unreasonable, despite
valiant efforts by the lower courts to give intelligible content to the
provision. Attempts at judicial interpretation which would structure the
discretion in s. 43 have, in my opinion, failed to provide coherent or cogent
guidelines that would meet the standard of notice and specificity generally
required in the criminal law. Thus, despite the efforts of judges, some of
whom have openly expressed their frustration with what has been described as
“no clear test” and a “legal lottery” in the criminal law (McGillivray, “‘He’ll
learn it on his body’: Disciplining childhood in Canadian law”, supra,
at p. 228; James, supra, per Weagant Prov. J., at paras.
11-12), the ambit of the justification remains about as unclear as when it was
first codified in 1892. As Lamer C.J. stated in R. v. Morales, [1992] 3
S.C.R. 711, at p. 729:
A standardless sweep does not become acceptable simply because it
results from the whims of judges and justices of the peace rather than the
whims of law enforcement officials. Cloaking whims in judicial robes is not
sufficient to satisfy the principles of fundamental justice.
This
would not only raise the already high bar set in Nova Scotia Pharmaceutical,
supra; it would essentially make it unreachable.
192
As a result, I find that the phrase “reasonable under the circumstances”
in s. 43 of the Code violates children’s security of the person interest
and that the deprivation is not in accordance with the relevant principle of
fundamental justice, in that it is unconstitutionally vague.
(3) Section 1
193
In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, at pp.
94-95, Sopinka J. held:
Vagueness can have constitutional significance in
at least two ways in a s. 1 analysis. A law may be so uncertain as to be
incapable of being interpreted so as to constitute any restraint on
governmental power. The uncertainty may arise either from the generality of
the discretion conferred on the donee of the power or from the use of language
that is so obscure as to be incapable of interpretation with any degree of
precision using the ordinary tools. In these circumstances, there is no “limit
prescribed by law” and no s. 1 analysis is necessary as the threshold
requirement for its application is not met. The second way in which vagueness
can play a constitutional role is in the analysis of s. 1 . A law which passes
the threshold test may, nevertheless, by reason of its imprecision, not qualify
as a reasonable limit. Generality and imprecision of language may fail to
confine the invasion of a Charter right within reasonable limits. In
this sense vagueness is an aspect of overbreadth.
The
requirement that a limit be prescribed by law also calls for fair notice to the
citizen and limitations on the discretion of enforcement officials (Nova
Scotia Pharmaceutical, supra). Because I have found that s. 43 is
unconstitutionally vague, it cannot pass the “prescribed by law” or minimal
impairment stage of the R. v. Oakes, [1986] 1 S.C.R. 103, analysis, and
accordingly, cannot be saved under s. 1 .
(4) Remedy
194
I am of the view that striking down s. 43 for vagueness is the most
appropriate remedy in the case at bar. Parliament is best equipped to
reconsider this vague and controversial provision. The legislature should have
a chance to consider the issues in light of the Charter , current social
norms and all of the evidence. While the record of expert testimony in this
litigation is voluminous, the court process is necessarily adversarial and does
not cover all of the interests that one would expect to be heard in a
legislative debate, committee hearings or in the public at large. Yet
parliamentary intervention may prove unnecessary.
195
It is useful to put the potential effect of striking down s. 43 of the Code
into context. Some are concerned that striking down s. 43 will expose parents
and persons standing in the place of parents to the blunt instrument of the
criminal law for every minor instance of technical assault. Indeed the
respondent and the Chief Justice raise (at paras. 59-61) the spectre of
criminal culpability on parents for trivial and insignificant uses of force if
s. 43 is repealed. While it is true that Canada’s broad assault laws could be
resorted to in order to incriminate parents and/or teachers for using force
that falls short of corporal punishment, I am of the view that the common law
defences of necessity and de minimis adequately protect parents and
teachers from excusable and/or trivial conduct.
(5) The Defence of Necessity
196
The common law defence of necessity operates by virtue of s. 8(3) of the
Code (see also Morgentaler v. The Queen, [1976] 1 S.C.R. 616).
The defence “rests upon a realistic assessment of human weaknesses and
recognizes that there are emergency situations where the law does not hold
people accountable if the ordinary human instincts overwhelmingly impel
disobedience in the pursuit of either self-preservation or the preservation of
others” (Mewett & Manning on Criminal Law (3rd ed. 1994), at p.
531). In 1984, the common law defence of necessity was clearly recognized by
this Court in Perka v. The Queen, [1984] 2 S.C.R. 232.
197
In R. v. Manning (1994), 31 C.R. (4th) 54 (B.C. Prov. Ct.), at
para. 23, the court rearticulated the elements of the defence of necessity as
set out in Perka, supra. It stated that the defence of necessity
is an excuse rather than a justification and that the moral involuntariness of
the wrongful action is a criterion. The involuntariness of the action should
be measured against society’s expectation of appropriate and normal resistance to
pressure. That the accused has been involved in criminal or immoral activity
or has been negligent does not disentitle him or her to the defence. Actions
or circumstances that indicate that the offence was not truly involuntary will
disentitle the accused from relying on the defence. Similarly, the existence
of a reasonable legal alternative will also disentitle the accused. The
defence will only apply in circumstances of imminent risk, where the action was
taken to avoid direct and immediate peril. Necessity will not excuse the
infliction of a greater harm, so as to allow the accused to avert a lesser
evil. Finally, where the accused places before the court sufficient evidence
to raise the issue, the onus is on the Crown to meet it beyond a reasonable
doubt.
198
I see no reason why, if the above requirements are met, the defence of
necessity would not be available to parents and teachers should they intervene
to protect children from themselves or others. Other authors have also proposed
the use of necessity for parents and teachers should the s. 43 defence be
abolished (see McGillivray, “‘He’ll learn it on his body’: Disciplining
childhood in Canadian law”, supra, at p. 240, and Stuart, supra,
at p. 506). In R. v. Morris (1981), 61 C.C.C. (2d) 163 (Alta. Q.B.),
the defence of necessity succeeded in absolving a husband on a charge of common
assault of his wife. The husband had restrained his inebriated wife when she
tried to jump out of the truck and grab the steering wheel. The husband
honestly and reasonably believed that the intervention was necessary. The
judge noted, at p. 166, that:
To have allowed his wife to get out of the truck to
walk on a dark road in an intoxicated condition would have shown wanton or
reckless disregard for her life or safety and could have constituted criminal
negligence on his part.
199
Because the s. 43 defence only protects parents who apply force for
corrective purposes (see Ogg-Moss, supra, at p. 193), the common
law may have to be resorted to in any event in situations where parents
forcibly restrain children incapable of learning. Indeed, even if one
understands the law as per the Chief Justice (at paras. 24-25), s. 43 may be of
no assistance to parents who apply some degree of force for the purpose of
restraint. It is not inconceivable to think of situations where force might be
applied to young children for reasons other than education or correction. For
example, a 2-year-old child who struggles to cross the street at a red light
will have to be forcibly held back and secured against his or her will. In my
view, the force being applied to the child is not for the purpose of correction
per se, but to ensure the child’s safety. Similarly, if a parent were
to forcibly restrain a child in order to ensure that the child complied with a
doctor’s instructions to receive a needle, s. 43 would be of no assistance to
excuse the use of restraint, but the parent would, in my view, have the common
law defence of necessity available to him or her should a charge of assault be
pursued. The common law defence of necessity has always been available to
parents in appropriate circumstances and would continue to be available if the
s. 43 defence were struck down.
(6) The Defence of De Minimis
200
The Chief Justice is rightly unwilling to rely exclusively on
prosecutorial discretion to weed out cases undeserving of prosecution and
punishment. The good judgment of prosecutors in eliminating trivial cases is
necessary but not sufficient to the workings of the criminal law. There must
be legal protection against convictions for conduct undeserving of punishment.
And indeed there is. The judicial system is not plagued by a multitude of
insignificant prosecutions for conduct that merely meets the technical
requirements of “a crime” (e.g., theft of a penny) because prosecutorial
discretion is effective and because the common law defence of de minimis non
curat lex (the law does not care for small or trifling matters) is available
to judges.
201
The application of some force upon another does not always suggest an
assault in the criminal sense. “Quite the contrary, there are many examples of
incidental touching that cannot be considered criminal conduct” (R. v.
Kormos (1998), 14 C.R. (5th) 312 (Ont. Ct. (Prov. Div.)), at para. 34).
202
The common law concept of de minimis non curat lex was expressed
in the English decision of The “Reward” (1818), 2 Dods. 265, 165 E.R.
1482, at p. 1484, in the following manner:
The Court is not bound to a strictness at once harsh and pedantic in
the application of statutes. The law permits the qualification implied in the
ancient maxim De minimis non curat lex. — Where there are
irregularities of very slight consequence, it does not intend that the
infliction of penalties should be inflexibly severe. If the deviation were a
mere trifle, which, if continued in practice, would weigh little or nothing on
the public interest, it might properly be overlooked.
203
Admittedly, the case law on the application of the defence is limited.
It may be that the defence of de minimis has not been used widely by
courts because police and prosecutors screen all criminal charges such that
only the deserving cases find their way to court. Nonetheless de minimis
exists as a common law defence preserved by s. 8(3) of the Code and
falls within the courts’ discretion (J. Hétu, “Droit judiciaire: De minimis
non curat praetor: une maxime qui a toute son importance!” (1990), 50 R. du
B. 1065, at pp. 1065-76) to apply and develop as it sees fit. In effect,
the defence is that there was only a “technical” commission of the actus
reus and that “the conduct fell within the words of an offence description
but was too trivial to fall within the range of wrongs which the description
was designed to cover” (E. Colvin, Principles of Criminal Law (2nd ed.
1991), at p. 100). The defence of de minimis does not mean that the act
is justified; it remains unlawful, but on account of its triviality it goes
unpunished (S. A. Strauss, “Book Review of South African Criminal Law and
Procedure by E. M. Burchell, J. S. Wylie and P. M. A. Hunt” (1970),
87 So. Afr. L.J. 471, at p. 483).
204
Generally, the justifications for a de minimis excuse are that:
(1) it reserves the application of the criminal law to serious misconduct; (2)
it protects an accused from the stigma of a criminal conviction and from the
imposition of severe penalties for relatively trivial conduct; and (3) it saves
courts from being swamped by an enormous number of trivial cases (K. R.
Hamilton, “De Minimis Non Curat Lex” (December 1991), discussion paper
mentioned in the Canadian Bar Association, Criminal Recodification Task Force
Report, Principles of Criminal Liability: Proposals for a New General Part
of the Criminal Code of Canada (1992), at p. 189). In part, the theory is
based on a notion that the evil to be prevented by the offence section has not
actually occurred. This is consistent with the dual fundamental principle of
criminal justice that there is no culpability for harmless and blameless
conduct (see my opinion in R. v. Malmo‑Levine, [2003] 3 S.C.R.
571, 2003 SCC 74, at paras. 234-35 and 244).
205
In Canadian jurisprudence, the defence of de minimis has been
raised in drug cases that involve a tiny quantity of the drug (R. v.
Overvold (1972), 9 C.C.C. (2d) 517 (N.W.T. Mag. Ct.), at pp. 519-21; R.
v. S. (1974), 17 C.C.C. (2d) 181 (Man. Prov. Ct.), at p. 186; and R. v.
McBurney (1974), 15 C.C.C. (2d) 361 (B.C.S.C.), aff’d (1975), 24 C.C.C.
(2d) 44 (B.C.C.A.)), in theft cases where the value of the stolen property is
very low (R. v. Li (1984), 16 C.C.C. (3d) 382 (Ont. H.C.), at p. 384),
or in assault cases where there is extremely minor or no injury (R. v.
Lepage (1989), 74 C.R. (3d) 368 (Sask. Q.B.); R. v. Matsuba (1993),
137 A.R. 34 (Prov. Ct.); and in obiter in Kormos, supra);
see also: Department of Justice of Canada, Reforming the General Part of
the Criminal Code: A Consultation Paper (1994), “Trivial violations”, at
pp. 24-25). Though the case law is somewhat unsatisfactory, the defence has
succeeded on several occasions (see Stuart, supra, at pp. 594-99) and
this Court has expressly left the existence of the defence open (see R. v.
Cuerrier, [1998] 2 S.C.R. 371, at para. 21, and R. v. Hinchey,
[1996] 3 S.C.R. 1128, at para. 69). In discussing the actus reus of the
offence of “fraud on the government” under s. 121(1)(c) of the Code,
L'Heureux‑Dubé J. in Hinchey, supra, wrote the following,
at para. 69:
In my view, this interpretation removes the
possibility that the section will trap trivial and unintended violations.
Nevertheless, assuming that situations could still arise which do not warrant a
criminal sanction, there might be another method to avoid entering a
conviction: the principle of de minimis non curat lex, that “the law
does not concern itself with trifles”. This type of solution to cases where an
accused has “technically” violated a Code section has been proposed by
the Canadian Bar Association, in Principles of Criminal Liability:
Proposals for a New General Part of the Criminal Code of Canada . . . and
others: see Professor Stuart, Canadian Criminal Law: A Treatise
(3rd ed. 1995) at pp. 542‑46. I am aware, however, that this
principle’s potential application as a defence to criminal culpability has not
yet been decided by this Court, and would appear to be the subject of some
debate in the courts below. Since a resolution of this issue is not strictly
necessary to decide this case, I would prefer to leave this issue for another
day. [Emphasis added.]
206
A statutory formulation of the defence was proposed in the American Law
Institute’s Model Penal Code (1985), s. 2.12 under “De Minimis Infractions”
(in Stuart, supra, at p. 598). The C.B.A. Task Force Report reviewed
the uncertain state of the law and recommended codification of a power to stay
for trivial violations (see Stuart, supra, at p. 598). A codification of
the defence may cure judicial reluctance to rely on de minimis; however,
the common law defence of de minimis, as preserved under s. 8(3)
of the Code, is sufficient to prevent parents and others from
being exposed to harsh criminal sanctions for trivial infractions.
207
I am of the view that an appropriate expansion in the use of the de
minimis defence — not unlike the development of the doctrine of abuse of
process — would assist in ensuring that mere technical violations of the
assault provisions of the Code that ought not to attract criminal
sanctions are stayed. In this way, judicial resources are not wasted, and
unwanted intrusions of the criminal law in the family context, which may be
harmful to children, are avoided. Therefore, if s. 43 were to be struck down,
and absent Parliament’s re‑enactment of a provision compatible with the
constitutional rights of children, parents would be no more at risk of being
dragged into court for a “pat on the bum” than they currently are for “tasting”
a single grape in the supermarket.
208
I conclude that s. 43 of the Criminal Code infringes the rights
of children under s. 7 of the Charter . The infringement cannot be
demonstrably justified in a free and democratic society within the meaning of
s. 1 of the Charter . Parents and persons standing in the place of
parents will not be exposed to the criminal law unnecessarily as the common law
defences of necessity and de minimis will protect them from excusable
and/or trivial conduct.
209
In light of my conclusion on the doctrine of vagueness, it is
unnecessary for me to consider the other constitutional challenges advanced by
the appellant.
III. Disposition
210
For these reasons, I would allow the appeal.
211
I would answer the constitutional questions as follows:
1. Does s. 43 of the Criminal Code,
R.S.C. 1985, c. C-46 , infringe the rights of children under s. 7 of the Canadian
Charter of Rights and Freedoms ?
The following are the reasons delivered by
212
Deschamps J. (dissenting)
— This appeal raises the question of whether s. 43 of the Criminal Code,
R.S.C. 1985, c. C-46 , is constitutionally sound, in particular, with regard to
ss. 7 , 12 , and 15 of the Canadian Charter of Rights and Freedoms .
Section 43 creates a defence of justification for parents, school teachers and
persons standing in the place of a parent, when they use force by way of
correction towards a child under their care, if the force does not exceed what
is reasonable under the circumstances.
213
In my opinion, the ordinary and contextual meaning of s. 43 cannot bear
the restricted interpretation proposed by the majority. Section 43 applies to
and justifies an extensive range of conduct, including serious uses of force
against children. I agree with Arbour J. that the body of case law applying s.
43 is evidence of its broad parameters and wide scope. I also agree with her
analysis of the appellant’s argument on s. 7 of the Charter , but I
prefer to deal with the problem under s. 15 of the Charter . I find that
the inferior protection s. 43 affords to children results in a violation of
their constitutional equality right, which is not saved under s. 1 of the Charter .
I. Interpretation of Section 43
214
It is well established in this Court’s jurisprudence that
statutes should be interpreted contextually, according to their grammatical and
ordinary sense, harmoniously with the scheme of the Act, the object of the Act
and the intention of Parliament (see Bell ExpressVu Limited Partnership v.
Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, and cases cited
there). The aim of statutory interpretation
is to determine and apply the intention of Parliament at the time of the
enactment, as evidenced by the language that was chosen, and as examined in
context.
215
There does exist a general principle that if a legislative provision is
capable of both a constitutional and an unconstitutional interpretation, then
the former should be preferred (see Slaight Communications Inc. v. Davidson,
[1989] 1 S.C.R. 1038, at p. 1078; R. v. Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, [1998] 1 S.C.R. 439, at
para. 66). However, the application of this interpretative aid is premised on
there existing two equally plausible interpretations on the language
of the statute (see Bell ExpressVu, supra, at para. 62).
Where, as here, the text of the provision does not support a severely
restricted scope of conduct that would avoid constitutional disfavour, the
Court cannot read the section down to create a constitutionally
valid provision. Such an approach would divest the Charter of its power
to test the validity of statutes, deprive the legislatures of their ability to
enact reasonable limits, and intermingle the purpose of statutory
interpretation with the exercise of judicial review (see Bell ExpressVu,
supra, at paras. 62-66).
216
In this case, the language of s. 43 does not bear a narrow
interpretation which encompasses only those minor uses of force that “restrain,
control or express some symbolic disapproval” (McLachlin C.J., at para. 24). The words of the provision relate to any use of force toward
a pupil or child by a teacher or parent that is “by way of correction” and is
“reasonable under the circumstances”. To read into the text implicit
exclusions based on the age of the child, the part of the body hit, the type of
assault committed, and whether an implement is used, would turn the exercise of
statutory interpretation into one of legislative drafting. It is the duty of
the Court to determine the intent of the legislator by looking at the text,
context and purpose of the provision. The Court would be substituting its own
views and opinions rather than interpreting those of the legislator if it were
to severely circumscribe a statutory provision and drastically limit its
intended application. This is not its role.
217
While I rely for the most part on the detailed reasons of Arbour J. on
the interpretation of s. 43 , I would emphasize that the ordinary meaning of s.
43 does not support the restrictive interpretation proposed by the Chief
Justice. As one example, the Chief Justice reads into s. 43 completely
different standards for teachers as opposed to parents: “Teachers may
reasonably apply force to remove a child from a classroom or secure compliance
with instructions, but not merely as corporal punishment” (para. 40). However,
this distinction is not available on the text of the provision, which plainly
places teachers on par with parents. In the same vein, the prohibition on the
use of objects or blows to the head is also not supported, considering that s.
43 simply applies to “uses of force”. Bearing in mind that the non-consensual
use of force underpins all forms of assault (s. 265(2)), this presumptively
includes assault with a weapon. Nothing in s. 43 indicates that Parliament
intended that the application of force with an object would be irrebuttably
excluded. The same is true of creating blanket exclusions for the use of force
on children under two, on teenagers, and on the head as opposed to other body
parts. As noted by both the Chief Justice (at para. 28) and Arbour J. (at
para.148), the assessment of reasonableness is a factually heavy and
contextually specific inquiry. The choice of this standard indicates that
Parliament did not intend that blanket exclusions be read into s. 43 to
preemptively delineate the boundaries of its application. That choosing this
standard may leave s. 43 vulnerable to constitutional challenge is to be addressed
under the constitutional questions, and should not colour the statutory
interpretation exercise ex ante.
218
On that note, I will now proceed to explain why, in my view, s. 43 does
not pass constitutional muster under s. 15 of the Charter .
II. Infringement of Section 15
219
Section 15 is meant to catch government action that has a discriminatory
purpose or effect on the basis of an enumerated or analogous ground and impairs
a person’s dignity. At the heart of s. 15 is the promotion of a society in
which all are secure in the knowledge that they are recognized at law as equal
human beings, equally capable and equally deserving.
220
The test for determining a s. 15(1) infringement is three-pronged (see Law
v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.
497, at para. 39):
First, does the impugned law (a) draw a formal distinction between the
claimant and others on the basis of one or more personal characteristics, or
(b) fail to take into account the claimant’s already disadvantaged position
within Canadian society resulting in substantively differential treatment
between the claimant and others on the basis of one or more personal
characteristics? If so, there is differential treatment for the purpose of s. 15(1) .
Second, was the claimant subject to differential treatment on the basis of one
or more of the enumerated and analogous grounds? And third, does the
differential treatment discriminate in a substantive sense, bringing into play
the purpose of s. 15(1) of the Charter in remedying such ills as
prejudice, stereotyping, and historical disadvantage? [Emphasis omitted.]
A. Distinction in Purpose or Differential
Treatment in Effect
221
Clearly, s. 43 on its face, as well as in its result, creates a
distinction between children and others. Section 265 prohibits the
non-consensual application of force to anyone and uses the weight of the
criminal justice system to protect invasions of one’s fundamental right to
bodily integrity (see R. v. Cuerrier, [1998] 2 S.C.R. 371, at
paras. 11-12). Section 43 then withdraws this protection from a
designated group of people in society: children. Parliament decided to
criminalize certain conduct which is seen as sufficiently morally blameworthy
as to merit the disfavour of the criminal law. It then specifically chose to
lift protection for one group while leaving protection intact for all others.
B. Based on an Enumerated Ground
222
Equally clearly, the distinction is based on an enumerated ground: age.
The respondent’s argument that s. 43 is not primarily an age-based distinction
but rather one based on the “relationship” between parent and child or school
teacher and pupil is overly formalistic. Although s. 43 applies only in
circumstances where the accused has a particular relationship with the child,
this does not alter the fact that children, as a group, are given inferior
protection against criminal assault.
C. Whether the Distinction or Differential
Treatment under Section 43 is Discrimination
223
Law, supra, identified four factors for determining
whether the dignity of the group in question is being impaired, thus indicating
an infringement of the s. 15 equality guarantee. Not all four factors are
necessarily relevant in every case, but the entire context must be considered
in determining whether, from the perspective of a reasonable person in the
place of the claimant, an infringement of her or his human dignity can be
found. In this case, it should be remembered that we should not focus on
whether corporal punishment infringes a child’s dignity or whether the
legislative purpose has properly weighed competing interests, but rather,
whether the distinction at issue — the government’s explicit choice not to
criminalize some assaults against children — violates their dignity.
(1) Nature of the Interest at Stake
224
Clearly, there is a significant interest at stake in the case at bar.
The withdrawal of the protection of the criminal law for incursions on one’s
physical integrity would lead the reasonable claimant to believe that her or
his dignity is being harmed. Section 43 sends the message that a child’s
physical security is less worthy of protection, even though it is seen as a
fundamental right for all others.
(2) Pre-Existing Disadvantage, Vulnerability,
Stereotyping or Prejudice Experienced by the Individual or Group
225
Children as a group face pre-existing disadvantage in our society. They
have been recognized as a vulnerable group time and again by legislatures and
courts. Historically, their vulnerability was entrenched by the traditional
legal treatment of children as the property or chattel of their parents or
guardians. Fortunately, this attitude has changed in modern times with a
recognition that children, as individuals, have rights, including the right to
have their security and safety protected by their parents, families and society
at large. This recognition is illustrated by several decisions of this Court
(see, e.g., B. (R.) v. Children’s Aid Society of Metropolitan Toronto,
[1995] 1 S.C.R. 315; Winnipeg Child and Family Services v. K.L.W.,
[2000] 2 S.C.R. 519, 2000 SCC 48; R. v. Sharpe, [2001] 1 S.C.R. 45,
2001 SCC 2), by government policy and laws (for example, specific criminal law
protections, family law reforms, and child protection services), and by
international legal authorities (see the Convention on the Rights of the
Child, Can. T.S. 1992 No. 3, and the International
Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, Art.
24).
226
However, by permitting incursions on children’s bodies by their parents
or teachers, s. 43 appears to be a throwback to old notions of children as
property. Section 43 reinforces and compounds children’s vulnerability and
disadvantage by withdrawing the protection of the criminal law. Moreover,
because the accused is the very person most often charged with the control and
trusteeship of the child, being deprived of the legal protection to which
everyone else is presumptively entitled exacerbates the already vulnerable
position of children. The entitlement to protection is derived by virtue of
our status as persons and the status of children as persons deserves equal
recognition.
(3) Proposed Ameliorative Purposes or Effects
227
This contextual factor was described in Law, supra, at
para. 72, as follows:
An ameliorative purpose or effect which accords with the purpose of s.
15(1) of the Charter will likely not violate the human dignity of more
advantaged individuals where the exclusion of these more advantaged individuals
largely corresponds to the greater need or the different circumstances
experienced by the disadvantaged group being targeted by the legislation.
In
other words, this contextual factor is aimed mainly at recognizing the
importance and value of affirmative government measures to ameliorate the
position of already disadvantaged groups. This particular factor is a negative
one: the presence of an ameliorative purpose or effect for a more disadvantaged
group will mitigate against a finding of dignity infringement, but the lack of
an ameliorative purpose or effect has a merely neutral effect on the dignity
analysis.
228
In this case, the only other groups that could be said to be affirmatively
benefiting from s. 43 are parents and teachers charged with assaulting a child
and entitled to raise a s. 43 defence. It is difficult to see, however, how
they, as a group, could be seen as more disadvantaged than children, as a
group. Therefore, this factor does not apply and has only a neutral impact on
the analysis. Arguments that s. 43 ameliorates the position of children facing
family violence by avoiding conflict between the family and the criminal
justice system is best considered under s. 1 as it deals with justifications
for the section vis-à-vis the claimant group itself rather than a more
disadvantaged group.
(4) Correspondence to Actual Needs,
Capacities or Circumstances of the Claimant
229
The respondent argues that s. 43 is based on the inherent capacities and
circumstances of childhood and thus cannot be discriminatory or harmful to
human dignity. It argues that s. 43 is an age-appropriate response to the
unique circumstances of children’s psychological development and limitations
and their basic need to live with their parents and to be subject to the
responsibility mandated to parents to make decisions for a child’s education
and well-being.
230
This may be true for a more circumscribed defence limited to very minor
or mild uses of force, such as restraining a child from running into the road
or securing her or him into a car seat. However, as discussed, s. 43 as it
currently stands permits a broader range of assaults to be justified by its
terms. There is a general consensus among experts that the only benefit of
mild to moderate uses of force, such as spanking, is short-term compliance.
Anything more serious is not only not conducive to furthering the education of
children, but also potentially harmful to their development and health (trial
judge (2000), 49 O.R. (3d) 662, at para. 17). It cannot be seriously argued
that children need corporal punishment to grow and learn. Indeed, their
capacities and circumstances would generally point in the opposite direction —
that they can learn through reason and example while feeling secure in their
physical safety and bodily integrity.
231
By condoning assaults on children by their parents or teachers, s. 43
perpetuates the notion of children as property rather than human beings and sends
the message that their bodily integrity and physical security are to be
sacrificed to the will of their parents, however misguided. In the words of
Dickson J. (as he then was) in Ogg-Moss v. The Queen, [1984] 2 S.C.R.
173, at p. 187, s. 43 creates a category of “second-class citizens” that must
suffer a “consequent attenuation of [their] right to dignity and physical
security”. Far from corresponding to the actual needs and circumstances of
children, s. 43 compounds the pre-existing disadvantage of children as a
vulnerable and often-powerless group whose access to legal redress is already
restricted.
232
All of the above points to a finding of discriminatory treatment in
purpose and effect. By justifying what would otherwise amount to criminal
assault, s. 43 encourages a view of children as less worthy of protection and
respect for their bodily integrity based on outdated notions of their inferior
personhood. I will now proceed to discuss why this infringement of s. 15 is
not justified as a reasonable limit under s. 1 of the Charter .
III. Section 1
233
The analysis under s. 1 determines whether the means chosen to fulfill a
legislative objective constitutes a reasonable limit on a Charter right
in a free and democratic society. Pursuant to the well-established Oakes test,
this analysis consists of two broad inquiries: the first inquires into whether
the objective is sufficiently pressing and substantial, and the second examines
the proportionality between the objective sought and the means chosen (R. v.
Oakes, [1986] 1 S.C.R. 103, at pp. 138-39).
A.
Pressing and Substantial Objective
234
The trial judge determined that the legislative objective behind s. 43
was as follows (at para. 47):
Having regard to the history of the legislation, I
conclude that Parliament’s purpose in maintaining s. 43 is to recognize that
parents and teachers require reasonable latitude in carrying out the
responsibility imposed by law to provide for their children, to nurture them,
and to educate them. That responsibility, Parliament has decided, cannot be
carried out unless parents and teachers have a protected sphere of authority
within which to fulfill their responsibilities.
Considering
the important place of the family unit, both legally and socially, I accept
that this is a pressing and substantial objective. The child developmental
process is unique and the state should not intrude unnecessarily into the
parental or supervisory role. It is understandable for Parliament to lend
parents and caregivers a measure of flexibility in the private exercise of
child-rearing.
235
The respondent also asserted that a central aspect of this objective is
to protect children and families from the intrusion of the criminal law and the
damaging effect of criminal sanctions in respect of conduct that the evidence
demonstrates is not harmful. This line of argument seeks to impermissibly
shift the nature of the legislative purpose from one of parental rights
to one of child protection. This is not merely a shift in
the emphasis of the legislative objective but a significant reclassification of
it. At the time s. 43 was passed, the objective of affording parents and
teachers reasonable latitude was based in traditional notions of children as
property, capable of learning through physical violence, which was left to
parents and teachers to mete out at their discretion. The heading in the Code
under which s. 43 is placed — “Protection of Persons in Authority” — confirms
that this justification was aimed at protecting parents and teachers from
prosecution and not to protect children from the intrusion of the criminal
law. This alternate objective put forth by the respondent attempts to portray
a child-centred approach to s. 43, which was clearly never the original intent
of the legislator. That being said, it may be that considerations such as the
negative effect of the criminal justice system and the existence of
alternatives for protecting children from abuse and harm will constitute part
of the context in examining whether the means chosen are proportional to the
objective.
B. Proportionality
(1) Rational Connection Between the Means
Chosen and the Objective Sought
236
There does appear to be a rational connection between the objective of
giving parents and teachers reasonable latitude in caring for children and
limiting the application of the criminal law in the parent-child or
teacher-pupil relationship. It is logical that providing parents and teachers
with a sphere of immunity from criminal sanction will increase the domain of
their authority in dealing with their children or students.
(2) Minimal Impairment
237
It is well established that Parliament need not always choose the
absolutely least intrusive means to attain its objectives but must come within
a range of means which impair Charter rights as little as is reasonably
possible. On the one hand, a greater degree of deference may be afforded in
this assessment when, as here, there are a number of competing interests,
including the equality of the child, the privacy of the family unit, and the
potential liberty consequences for an accused. On the other hand, a serious
infringement to such a basic right as physical integrity against a vulnerable
group such as children cannot be easily justified. When faced with these
circumstances, the court should not be overly deferential in its approach.
238
Here it is clear that less intrusive means were available that would
have been more appropriately tailored to the legislative objective. Section 43
could have been defined in such a way as to be limited only to very minor
applications of force rather than being broad enough to capture more serious
assaults on a child’s body. Indeed, it could have been better tailored in
terms of those to whom it applies (all children, including infants), those whom
it protects (e.g., teachers are given the same latitude as parents), and the
scope of conduct it justifies (i.e., spanking and other assaults that can
entail pain or harm to the child).
239
The respondent argues s. 43 is merely indirect in its effect and is akin
to an underinclusive application of the criminal law of assault. However, I
would make the following comments in response. First, we are not dealing with
a legislative omission here, but rather an explicit age-based distinction
withdrawing the protection of a Code provision. Section 43 is the only
justification in the Code whose purpose and effect is to create a distinction
on an enumerated ground. Second, because of the fundamental nature of physical
integrity and bodily autonomy for all persons, including children, any
derogation, especially when based on an enumerated or analogous ground, should
be regarded with suspicion.
240
It was also argued that this Court should acknowledge that provincial
child protection legislation and federal education initiatives are in place to
protect children from abuse in a way which is less disruptive to the family unit
than the criminal law. This may have been a more important consideration at
this stage if we were dealing with circumstances that were less clear. If the
Court had been called upon to engage in a delicate balancing exercise between
competing options and values open to the government, then the existence of less
intrusive, parallel alternatives may have had a significant impact on the
assessment of the constitutional validity of s. 43. However, the Charter infringement
in this case is discriminatory at a very direct and basic level. It clearly
impairs the equal rights of children to bodily integrity and security in a much
more intrusive way than necessary to achieve a valid legislative objective. The
provincial and policy mechanisms available do not change this effect.
(3) Proportionality Between the Salutary and
Deleterious Effects
241
Although not strictly necessary
to proceed to this part of the Oakes test, I will briefly consider the
salutary and deleterious effects of the application of s. 43. This assessment
also supports my conclusion. The deleterious effects impact upon such a core
right of children as a vulnerable group that the salutary effects must be
extremely compelling to be proportional. Although there is a benefit to parents,
children, teachers and families to escape the unnecessary intrusion of the
criminal law into the private realm of child-rearing, when there is harm to a
child this is precisely the point where the disapprobation of the criminal law
becomes necessary. It may not be necessary in a given set of circumstances for
the full weight of the criminal justice system to be brought down on an accused
who would otherwise be protected under s. 43, and that can be determined by child protection agencies, the police
and the prosecutor, taking into account the best interests of the child.
However, it is the discrimination represented by s. 43 that produces the most
drastic effect; it sends the message that children, as a group, are less worthy
of protection of their bodies than anyone else.
IV. Remedy
242
The striking down of s. 43 is the only appropriate remedy in this case.
In other words, s. 43 should be severed from the rest of the Code. It
does not measure up to Charter standards and, thus, must cede to the
supremacy of the Constitution to the extent of any inconsistency (Constitution
Act, 1982, s. 52 ). In choosing a remedy, the Court must be guided not only
by the purposes of the Charter but by the purposes of the legislation
and considerations of the proper institutional division of labour between the
courts and legislatures (see Schachter v. Canada, [1992] 2 S.C.R.
679; see also R. J. Sharpe, K. E. Swinton and K. Roach, The Charter of
Rights and Freedoms (2nd ed. 2002), c. 17).
243
Although reading down s. 43, such that its scope would be similar to the
“interpretation” proposed by the majority, would bring that provision in line
with constitutional requirements, it is not the place of this Court to craft a
new provision to replace the one intended to be created by Parliament. As
noted, a restricted scope to s. 43 could have been one less intrusive means for
minimally impairing the equality rights of children under this scheme.
However, this is not to say that this was the only means open to Parliament nor
that it would necessarily be free from all constitutional scrutiny if chosen.
The balance to be struck between the number of competing interests at play
requires a contextual approach be taken to the assessment of constitutional
validity and the measurement of the “extent of the inconsistency”. It is not
the Court’s role to deem where this balance must be struck. In this case, s.
43 as it stands clearly violates the Charter and must fall. Parliament
can then choose how it wishes to respond to this result.
244
In some cases it is possible for the Court to delay the immediate
effect of a declaration of invalidity. Generally, the Court should be wary of
allowing or appearing to condone a continued state of affairs that violates Charter
rights. Therefore, I would suggest temporary suspensions of invalidity
should generally be confined to only those circumstances where it is required
by the potential impact and consequences of an immediate declaration of invalidity.
For instance, if the immediate nullification of the law could lead to chaos or
serious threat to public safety, then there may be good justification for
suspending the declaration (see Reference re Manitoba Language Rights,
[1985] 1 S.C.R. 721; R. v. Swain, [1991] 1 S.C.R. 933).
Similarly, it may be appropriate to temporarily
suspend a declaration of invalidity where it would be less intrusive on the
separation of powers to allow the legislature a stated period of time to
reconsider its policy and budgetary choices in light of constitutional
parameters (see, e.g., M. v. H., [1999] 2 S.C.R. 3). In this
case, the circumstances are not compelling enough to permit continued
violations of the equality rights of children. There would be no immediate
harm to the public nor budgetary consequences to the government to declare s.
43 of no force and effect.
V. Disposition
245
For these reasons, I would allow the appeal. Because I find that s. 43
violates the equality guarantees of children under s. 15(1) of the Charter ,
and it is not saved as a reasonable limit under s. 1 , it is unnecessary for
me to consider the other constitutional questions posed. The most appropriate
and least intrusive remedy in this case is to strike down s. 43 .
246
I would answer the constitutional questions as follows:
1. Does s. 43 of the Criminal Code, R.S.C. 1985, c.
C-46 , infringe the rights of children under s. 7 of the Canadian Charter of
Rights and Freedoms ?
Answer: Because of the answers to questions 5 and 6, it is unnecessary
to decide this question.
2. If so, is the infringement a reasonable limit prescribed by law as
can be demonstrably justified in a free and democratic society within the
meaning of s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: Because of the answers to questions 5 and 6, it is unnecessary
to decide this question.
3. Does s. 43 of the Criminal Code, R.S.C. 1985, c.
C-46 , infringe the rights of children under s. 12 of the Canadian Charter of
Rights and Freedoms ?
Answer: Because of the answers to questions 5 and 6, it is unnecessary
to decide this question.
4. If so, is the infringement a reasonable limit prescribed by law as
can be demonstrably justified in a free and democratic society within the
meaning of s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: Because of the answers to questions 5 and 6, it is unnecessary
to decide this question.
5. Does s. 43 of the Criminal Code, R.S.C. 1985, c.
C-46 , infringe the rights of children under s. 15(1) of the Canadian Charter
of Rights and Freedoms ?
Answer: Yes.
6. If so, is the infringement a reasonable limit prescribed by law as
can be demonstrably justified in a free and democratic society within the
meaning of s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: No.
APPENDIX
Criminal Code, R.S.C. 1985, c. C-46
43. Every schoolteacher, parent or person
standing in the place of a parent is justified in using force by way of
correction toward a pupil or child, as the case may be, who is under his care,
if the force does not exceed what is reasonable under the circumstances.
265. (1) A person commits an assault when
(a)
without the consent of another person, he applies force intentionally to that
other person, directly or indirectly;
(b) he attempts or threatens, by an act
or a gesture, to apply force to another person, if he has, or causes that other
person to believe on reasonable grounds that he has, present ability to effect
his purpose; or
(c)
while openly wearing or carrying a weapon or an imitation thereof, he accosts
or impedes another person or begs.
Canadian
Charter of Rights and Freedoms
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
12. Everyone has the right not to be
subjected to any cruel and unusual treatment or punishment.
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 and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
Appeal dismissed, Binnie J. dissenting
in part and Arbour and
Deschamps JJ. dissenting.
Solicitors for the appellant: Blake,
Cassels & Graydon, Toronto; Canadian Foundation for Children, Youth and the
Law, Toronto.
Solicitor for the respondent: Attorney
General of Canada, Toronto.
Solicitors for the intervener the
Canadian Teachers’ Federation: Nelligan O’Brien Payne, Ottawa.
Solicitor for the intervener the
Ontario Association of Children’s Aid Societies: WeirFoulds, Toronto; Ontario
Association of Children’s Aid Societies, Toronto.
Solicitors for the intervener the
Coalition for Family Autonomy: Stikeman Elliott, Toronto.
Solicitor for the intervener Commission
des droits de la personne et des droits de la jeunesse: Commission des droits
de la personne et des droits de la jeunesse, Montreal.
Solicitors for the intervener the Child
Welfare League of Canada: McCarthy Tétrault, Toronto.