set by the Supreme Court in the Foundation case remain fixed? For example, if it is wrong to spank a teenager today, might it become acceptable at another time?
The Court ruled that objective standards should always apply. Further, central to such objective standards is that corporal discipline should always be directed toward correction and/or education.
Trial judges must decide what is reasonable under the circumstances and at the same time recognize that circumstances may change over time. The Court suggested that an approach might be to look to expert evidence, though it did not expressly state that it might come from child psychologists or social workers. Chief Justice McLachlin stated:
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. 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.
Justice Binnie’s Partial Dissent
in the Foundation Case
Justice Binnie agreed with the Court’s result as applied to parents and those standing in for parents. He had this to say about the proper role of the appellate courts in “calibrating” the application of rules to changing societal values:
Providing a defence to a criminal prosecution in the circumstances stated in section 43 is rationally connected to the objective of limiting the intrusion of the Criminal Code into family life.
As to minimal impairment, the wording of section 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 section 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 section 43, which is what the interpretive guidance offered by the chief justice is designed to do, provided the courts stop short of judicial amendment [of the statutory law].
The Media’s Response
The Globe and Mail commented on the Court’s decision in the Foundation case:
In upholding the legality of mild spankings yesterday, the Supreme Court of Canada recognized that the protection of children also requires protection of their families from the State. But that was the status quo — and some judges have in the past made questionable decisions that left children unprotected from abuse. (A Manitoba appeal court judge once allowed a kick in the rear, saying that he had suffered worse as a child.) So the court wisely drew a line between the mild spanking and the abusive one.
It is not easy to define the boundary between reasonable force to correct a child’s behaviour and abusive force that harms a child. The 7-2 judgment will not, alas, provide perfect protection for all children. Many instances of corporal punishment will remain at the borderline of what is legal, and of what most Canadians would consider tolerable. Most people have seen assaultive behaviour — a twist to the wrist or the cartilage of an ear, a slap to the back of the neck, a series of hard blows to a small child’s back — engaged in by other people in public, or perhaps by themselves at home after a sleepless night. It will remain for the lower courts to define the boundary more precisely, using the Supreme Court’s guidelines. [Here follows a summary of the Court’s guidelines.]
No one should read the [Court’s] judgment as a kind of official sanction for hitting children. Rather, the ruling recognizes what Chief Justice Beverley McLachlin called the “blunt hand of the criminal law” should not be brought down on families, except as a last resort, lest it harm the children in doing so.
A couple of generations ago, it was not uncommon for parents to use belts, straps or sticks on their children. A generation ago, it was permissible to strike children hard enough to leave them in pain for a few days; that is no longer permitted. Yesterday’s ruling, by narrowing the definition of reasonable force, marks a small but important step in society’s advance (“Spanking Is Permitted, but Mind the New Rules” 2004).
Another Point of View
Globe and Mail columnist Margaret Wente also commented on the Court’s decision regarding spanking:
Anti-spankers pretend that little children are rational beings, like the rest of us, and that disciplinary measures should be designed to make them “think.” Actually, little children are more like puppies, most of which are innately loving and aim to please, but need to internalize the norms of civilized conduct. Brute force is a last resort, but sometimes a smack with a rolled-up newspaper wouldn’t hurt. In fact, the principles of training dogs and training children are more or less the same, and it strikes me that if parents were required to attend dog-training courses, we’d all be a whole lot better off. There’s nothing worse than being around a dog that’s got its owner cowed, unless it’s being around an eight-year-old who likes to scream, “You’re not the boss of me!”
In a culture that has elevated violence against children to the greatest of all human evils (and redefined violence to include just about everything), the harm that spanking does has been ridiculously exaggerated. [Some of] the happiest and most grounded kids I’ve ever met belong to families that believe in physical discipline. I know equally splendid kids whose parents never laid a finger on them. It’s not the spanks or lack of them that matter. It’s the clear expectations, the consistency, the ability to set boundaries, the time their parents spend with them, and the steady love. The best parents I know are the ones who spend great amounts of time attending — really attending — to their children. They put in the mileage, and there’s no substitute for it (Wente 2004).
CHALLENGE QUESTION
Are Children Equal
Before and Under the Law?
Q: Does section 43 of the Criminal Code offend section 15 of the Charter?
Here is the context for this question:
The Charter is part of the Constitution of Canada, and as such it is the supreme law of the land. No statute can stand if it offends the Charter.
Section 15(1) of the Charter provides for equality rights with these words: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin,
