A violation of section 15 of the Charter can be excused if it meets the terms of section 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Foundation argued that section 43 decriminalizes the offence of assault against children. As such, a message is sent that a child is less worthy of recognition or value as a human being, or as a member of Canadian society.
Chief Justice McLachlin, for the Court, rejected the argument. There is a difference between the Charter requirement of equal treatment and identical treatment. That Parliament chose section 43 reflects its desire to protect the need of children for safety and security “in an age-appropriate manner.” She wrote:
The difficulty with this argument [that of the Foundation], 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 … 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….
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.
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, section 43 is sensitive to children’s need for a safe environment. But section 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.
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.…
I am satisfied that a reasonable person acting on behalf of a child, apprised of the harms of criminalization that section 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 section 15(1).
Children often feel a sense of disempowerment and vulnerability; this reality must be considered when assessing the impact of section 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 section 43 does not offend section 15(1) of the Charter.
On the point denying the application of section 15 of the Charter, Chief Justice McLachlin spoke for a majority of six. Justices Binnie and Deschamps dissented; they would have allowed children the protection of section 15. Justice Binnie would have permitted the conclusion reached by the Court majority, but only after the Crown demonstrated justification for the restraint. Justice Deschamps would have afforded children protection and she would have rejected the government’s claim of justification. Justice Arbour saw no need to deal with section 15. Her reason: section 43 offended section 7 of the Charter. We will briefly set out the reasoning of Justices Binnie and Deschamps.
Justice Binnie’s Partial Dissent on Section 43
Quoting the majority opinion, Justice Binnie said: “It may be that introducing the criminal law into children’s families and educational environments [in the context of section 43] would harm children more than help them.” But, he stated, this is a reason that goes toward justifying the action of government within the meaning of section 15 of the Charter. It does not speak to whether children are protected within the meaning of section 15.
Justice Binnie then addressed himself to whether corrective force by parents might be justified. He concluded, “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, section 43 in relation to parents and persons standing in their place is justified on this basis.”
However, Justice Binnie could not find the same justification as applied to teachers. He wrote:
The question is whether the undoubted need to keep order in schools justifies the section 43 exemption of teachers from the assault provisions of the Criminal Code.
The Law Reform Commission of Canada recommended the repeal of the section 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., section 47 of the British Education (No. 2) Act 1986 (U.K.), 1986, c. 61; section 59 of the New Zealand Crimes Act 1961 (N.Z.), 1961/43; and s. 139A of the New Zealand Education Act 1989 (N.Z.), 1989/80.
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 section 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, 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.
The Dissent of Justice Deschamps
Justice Deschamps said that section 43 should be interpreted according to the intent of the Parliament at the time of the law’s enactment. As such, the constraints that the majority imposed on section 43 go too far. The Court majority, Justice Deschamps said, has inserted its views as to what the law should be rather than the clear intent of the Parliament. In this regard, she cited and approved the reasoning of Justice Arbour, which is set out (below) in “The Opinion of Justice Arbour.”
Justice Deschamps then
