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.Finally, Art. 37(a) requires [those nations agreeing to the Convention] to ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” … This language is also found in the International Covenant on Civil and Political Rights … to which Canada is a party. Article 7 of the Covenant states that “no 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.3 Yet, the Court noted and emphasized that 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.
4 A somewhat subtle approach has been taken in the interpretation of international treaties as applied to the corporal punishment of children by parents and teachers. Here the treaties have been read against section 7 of the Charter. In the process of monitoring compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee of the United Nations has said that physical punishment of children in schools involves section 7’s prohibition of degrading treatment or punishment. The committee, Chief Justice McLachlin noted, has not expressed a similar opinion regarding parental use of mild corporal punishment.
5 Further, objective consideration of what is “reasonable under the circumstances” in the case of child discipline, the chief justice said, comes from expert evidence that gives rise to “social consensus.” Such an approach involves finding the meaning of “reasonable under the circumstances” without any subjective interpretation by judges or police. The chief justice wrote:
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. Section 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.
Conclusions Reached: Reasonable Under the Circumstances
The Court reached conclusions — based on interpretation and past decisions, as well as international treaties and “social consensus” — that were quite specific as to “reasonable under the circumstances” as set out in section 43. The chief justice stated these conclusions and they constitute the rules that now apply in the interpretation of section 43:
Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue.…
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.
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…. 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.
A Word about Precedent
The chief justice acknowledged a critique by Justice Arbour (see “The Opinion of Justice Arbour” that follows). There have been a number of varied, even conflicting, decisions coming from trial and appellate Canadian courts as to the meaning of “reasonable under the circumstances” under section 43. Still, the chief justice said that the new guidelines should help to establish some more specific and objective principles that should lead to uniformity. (Justice Arbour did not dispute the conclusions reached by the majority. Rather, she insisted that those conclusions should have been developed under section 7 of the Charter and, more appropriately, through Parliamentary enactment of a new law.) The chief justice stated:
It must be conceded at the outset that judicial decisions on section 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 [evolving] 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, the fact that a particular legislative term is open to varying interpretations by the courts is not fatal.… 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 section 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.…
Precedent itself is not always crystal clear, the chief justice seemed to say. But, at least “precedent” should set a guiding principle as to how the law should be construed.
Trumping the Best Interests
of the Child Principle
The law has overridden the principle of the best interests of the child. In the Foundation case, Chief Justice McLachlin, speaking for the Court, stated that the best interests of the child may be an important legal principle, but it can be overridden by other societal needs. The chief justice wrote:
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.
YOU BE THE JUDGE
A Matter of Correction?
The Facts
Under
