long been recognized as a vulnerable group in need of protection. She wrote:
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 Supreme Court of Canada Reports 315; Winnipeg Child and Family Services v. K.L.W., (2000) 2 Supreme Court of Canada Reports 519); … by government policy and laws (for example, specific criminal law protections, family law reforms, and child protection services), and by international legal authorities.…
However, by permitting incursions on children’s bodies by their parents or teachers, section 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.…
[Section] 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.… 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.
By condoning assaults on children by their parents or teachers, section 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.… Section 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, section 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.
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.
The Opinion of Justice Arbour
Justice Arbour came to a conclusion, in her words, “not very different from that reached by the chief justice.” The majority reached their conclusions as to the limitations of corrective force in section 43 because they reflected what the statute, itself, requires. Justice Arbour reached her conclusions as to these limitations because they reflect what the Charter, as part of the supreme law of the land, requires. For that reason, because section 43 offends the Charter, Justice Arbour would have set aside the statute. To do so, she said, does not leave either parents or teachers defenceless in appropriate cases. She pointed to two common law defences, which are described below in “You Be the Judge: A Case of Necessity?” and “Still Another Common Law Defence: De Minimis?”
Further, and this is central to Justice Arbour’s argument, it should be Parliament that brings its laws into conformity with the Charter. It is not the Court’s role to reshape the law to meet the requirements of the Charter.
Section 43 of the Criminal Code
Section 43 has long been part of the criminal law. As such, Justice Arbour said, it stood for values allowing “reasonable” force on children. She stated:
That section 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.…
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.
Section 7 of the Charter
To Justice Arbour, it is section 7 of the Charter that must be examined to determine the constitutionality of section 43. Section 7 provides: “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.”
The first part of the test under section 7 is whether section 43 affects the “security of the person” when the person is a child. Justice Arbour said there is no doubt on this point. The criminal law is an important means by which the State protects the liberty and security of its citizens. The operation of section 43 withdraws that security, which applies to parents and teachers, from children.
This brought Justice Arbour to the second part of the analysis of section 7: Has the security of children been denied by section 43 in accordance with the principles of fundamental justice? In this regard, she accepted the argument of the Foundation that “reasonable under the circumstances” is a standard too vague to allow for clear guidelines; judges could do as they pleased. And, in the view of Justice Arbour, that is precisely what many courts have done. There were no objective case guides (precedents).
It may be, Justice Arbour said, that “reasonableness” in other contexts does permit objective standards. For example, there is something to measure the standard of reasonableness against if the question relates to self-defence. In the face of a defined threat, what was necessary to defend oneself? But, the same may not be said of “reasonableness” applied to the physical discipline of children. Justice Arbour wrote:
This is not so in the case of corporal punishment of children, where there is no built-in [relationship] between physical punishment and bad behaviour that can be used to assess proportionality. Indeed, the chief justice concludes … that the gravity of the child’s conduct is not a “relevant contextual consideration” as it invites a punitive, rather than a corrective focus.
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 [involve] 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….
Justice
