for his daughter.
But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows from the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.
So, there is no necessary correspondence between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant.
References and Further Reading
Fitzpatrick, Meagan. 2012. “Supreme Court Should Have Four Women Says Retiring Justice,” CBC.ca, August 15.
Makin, Kirk. 2011. “Justice Ian Binnie’s Exit Interview.” Globe and Mail, September 23.
_____. 2012. “Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Globe and Mail, December 12.
Chapter 1
Physical Punishment
of Youth — A Crime?
Over the decades, the law has shielded young offenders from the full force of the criminal justice system. As reflected in statutes and court decisions, the law has long assumed that young people lack the maturity of adults and consequently are not to be held fully responsible for their actions. We can ask, at what age is a young person deemed in need of special protection and at what age does that protection end? Public policy states that, if at all possible, parents are to raise their children. The State intervenes only to support parents or those filling the role of parents, such as grandparents or other legal guardians.
We will begin our examination of young offenders’ case studies with the subject of spanking. Criminal law is associated with punishment. Spanking is a form of corporal punishment. If we substitute the word spanking with hitting or striking, then we begin to see how it might be considered in setting public policy for young offenders. It can be used to define a “risk zone” — a danger zone in the sense that it may well bring the court to examine the lawfulness of what has been challenged.
In years gone by, it was usual for frustrated parents whose children seemed out of control to call upon the constable on the beat for assistance — to help their children conform with basic social behaviour. Modern life is more complex, but teachers and school principals still have wide discretion in shaping and enforcing rules for student conduct, including student and locker searches. Their power, however, is now subject to challenge. They may be questioned in court to prove that they acted reasonably. Students find that they have responsibilities and rights. For even as students, they are recognized as persons within the meaning of the Charter.
With most crimes, the first point of contact is the police. They investigate the incident and determine (perhaps in consultation with the Crown) whether charges will be laid. How do the police make decisions when the alleged wrongdoers are youths? How are youths to be questioned? Does the criminal process become more rigorous when the crime becomes more violent? Does the violent youthful offender lose the right to be treated as a youth in need of protection? This book will address such issues.
The range of penalties for adults violating the criminal law includes probation (often with conditions), prison, and possibly fines. All of these penalties are administered, directly or indirectly, by the State. In centuries past, the lash was part of criminal sentencing. In modern Canada, such corporal punishment is no longer used. Since individuals cannot legally assault others, the State cannot assault those who have violated its laws. Still, the State has allowed parents, teachers, or legal guardians to use force “by way of correction.” How does this square with the Charter of Rights and Freedoms, part of the Constitution of Canada that, among other rights, affords all persons life, liberty, and security of the person? Among the questions raised in this chapter are:
Does the criminal law of assault protect children as well as adults?
Who may spank a child?
What limits are there to physical force by adults against children?
The Criminal Code of Canada allows parents and teachers to use “reasonable force” to correct a child or pupil. This is an exception to the general criminal law, which prohibits anyone from striking another person without consent. The exception in section 43 of the Criminal Code provides: “Every school teacher, 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 Foundation Case
It was the constitutionality of this provision that was challenged by the Canadian Foundation for Children, Youth and the Law (the Foundation) on several grounds, all of which centred on the Charter. In light of the following points, the Foundation asked for a declaration that the defence to assault be set aside:
The Foundation claimed that the exception violates section 7 of the Charter, which guarantees individuals against state action that infringes on life, liberty, or security of the person contrary to the principles of fundamental justice. This is done, for example, by a law that is too vague for there to be objective rules. (See the portion of the law quoted above.)
Allowing the exception, said the Foundation, in effect gives state approval to cruel and unusual punishment in violation of section 12 of the Charter.
Children are treated differently from adults. They are not given the same protections under the law, and this is a denial of their right to equal protection within the meaning of section 15(1) of the Charter.
The trial judge and the appellate court rejected the arguments of the Foundation. The matter came before the Supreme Court of Canada on June 6, 2003, and it was decided on January 30, 2004, in Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada (the Foundation case). The Court permitted a number of public and private organizations, such as the Child Welfare League of Canada and the Ontario Association of Children’s Aid Societies, to intervene in the case.
In a 6-3 vote (actually 7-2, considering the partial dissent of Justice Binnie, which approved the conclusion reached by the majority but not its reasoning), in the opinion given by Chief Justice Beverley McLachlin, the Court allowed the exception to the Criminal Code. But it listed a number of limitations on the use of the Criminal Code defence. The Court addressed such concerns as:
Should force be denied against children of certain ages?
Should the child’s conduct be a measure of the kind of force that may be imposed?
Should teachers and parents have an equal right to use force?
Three individual dissents to the majority opinion were given by Justices Louise Arbour, Marie Deschamps, and Binnie (the latter, as noted above, dissenting in part).
The Majority Decision on Vagueness
The primary issue considered by the Court majority in the Foundation case was whether section 43 was “vague or overbroad.” Specifically, the Foundation argued that section 43 permitted violation of children’s liberty and security by allowing parents and teachers the right
