Grover, Sonja --- "A Commentary on Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)" [2004] MurdochUeJlLaw 14; (2004) 11(2) Murdoch University Electronic Journal of Law

Every schoolteacher, 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 (Carswell, 1998, s. 43 of the Canadian Criminal Code).

It is argued that the SCC majority in Canadian Foundation placed undue reliance upon perceived Canadian public opinion leading the Court to fail to uphold children's Canadian Charter (1982) right to equal benefit of the law. The SCC's approach in Canadian Foundation is shown to have, in effect, redefined a constitutional issue as a mere policy matter. This in turn allowed the Court to defer to social consensus and alleged governmental discretionary power in retaining the s. 43 defense as part of the Canadian Criminal Code (Carswell, 1998).

Reliance on perceived social consensus thus ultimately heavily influenced the Court's conclusion that s. 43 is allegedly justified in a free and democratic society (the latter being the section 1 test for a valid governmental infringement on a Canadian Charter right or freedom). The majority of the SCC in Canadian Foundation, it is held, inappropriately equates the will of the people (that is, the perceived majority view of the adult Canadian population) in regards corporal punishment of a child with what is allegedly both constitutional and in the child's best interests. This, on the assumption that the consensus adult perspective has automatic legitimacy and is unquestionably in the child's best interest.

The points at which Canadian public opinion is relied upon by the SCC in Canadian Foundation in holding s. 43 constitutional are highlighted in each section that follows. Note that it is beyond the scope of these case comments to consider whether the Court is correct or not in its understanding of the Canadian consensus public view on any aspect of the s. 43 issue. Rather, the focus here is on the Court's decision to ground its judgment so heavily upon consensus domestic public views which may not in all respects be consistent with international human rights principles.

The argument is laid out in this case commentary for the following propositions:

a) Although the s. 43 defense may be generally accepted by the Canadian public, it cannot be constitutionally supported on such a basis;

b) Section 43 is not constitutional in that it permits, with certain constraints, the use of corporal punishment (aside from other categories of force) (i.e. the Court has affirmed as constitutional parental use of mild corporal punishment (Canadian Foundation paragraph 33. Note that the text of s. 43 does not restrict corporal punishment to only a "mild" level).

c) Corporal punishment is never a necessity while reasonable force of other types in effecting compliance may be a necessity in preventing harm to the child or others;

d) What constitutes reasonable force in regards corporal punishment cannot be determined as there is a punitive element and the level of force deemed appropriate to accomplish the desired punitive effect or some hypothetical preventive result is entirely dependent on the subjective assessment of the perpetrator. Thus, "reasonable force" in the context of corporal punishment is an unconstitutionally vague standard;

e) Given the affront to human dignity, no level of force used in corporal punishment can be considered "reasonable." (Note that the Committee on the Rights of the Child which monitors the implementation of the Convention on the Rights of the Child (1989) holds corporal punishment even at a mild level to be a violation of human dignity (a point to be discussed in detail later);

f) The affront to another's human dignity resulting from the application of corporal punishment can never be regarded as a trifling or transitory matter for it establishes the other as falling short of full personhood (contrast with the Court in Canadian Foundation suggesting that one of the measures of whether reasonable force was applied to the child is whether it (for instance, corporal punishment) consists of "only minor corrective force of a transitory and trifling nature", (Canadian Foundation paragraph 40);

g) Section 43 of the Canadian Criminal Code (1998) is inconsistent with the Convention on the Rights of the Child (1989) ratified by Canada as demonstrated through the text of the Convention itself and statements by the UN monitoring body for the CRC as will be discussed in a later section.

Status of the Child's s. 7 Security of the Person Rights in a s. 43 Case

Does the Crown Protect the Interests of the Child in a s. 43 case?

The SCC in Canadian Foundation held that the child in a s. 43 case has his or her interests properly protected by the Crown. The Court had been asked by the appellants to consider what procedural safeguards are afforded the child as would normally be provided to someone subjected to force exempted from criminal sanction. In this regard, the Court held that the child was provided all necessary procedural safeguards given that in its view:

The Crown's decision to prosecute and its conduct of the prosecution will necessarily reflect society's concern for the physical and mental security of the child (Canadian Foundation at paragraph, 6).

It is the case, however, that the child in a s. 43 case is not simply a victim of the perpetrator but of s. 43 itself. That is, the s. 43 defense authorizes the use of corporal punishment as well as other applications of force against a child as a rightful and normal part of parenting or disciplining of a child by a parental delegate or schoolteacher (though not necessarily the technique of first choice for all such authorities and within certain constraints). The Crown thus in upholding the validity of s. 43 as a defense when the elements are met cannot and does not adequately represent the child's interests in regards their security of the person rights.

The consequence of having s. 43 as part of the Canadian Criminal Code (1998) is that the child is always, in principle, at potential risk of corporal punishment should the parent or parental delegate consider there is a need for "correction". The Crown in prosecuting a s. 43 case does nothing to alleviate this potential threat to the child's security of the person. This despite the fact that the Court in Canadian Foundation concedes, as does Parliament, that there is little, if any, salutary effect attributable to corporal punishment (Canadian Foundation, paragraph 65: reference to Parliament's efforts to "educate parents and caregivers on the potentially negative effects of using corporal punishment against children").

Does s. 43 serve to promote or endorse corporal punishment of the child?

Evolution in the text of Section 43

It should be noted that the SCC in Canadian Foundation held that s. 43 does not in fact endorse or suggest the rightfulness of the use of force against a child. The Court took this position despite the fact that the text of s. 43 refers to the authorized perpetrator as being "justified" in applying force to the child under the requisite specified conditions (a "correction" and "reasonable force" context).

The Court bases its position in this respect on the fact that in the first Canadian Criminal Code of 1892 the text of section 43 originally contained the word "lawful" in place of "justified" in granting authority to certain designates under particular circumstances to use force against a child:

We cannot conclude that Parliament intended to endorse using force against children from a single word, without considering the history and extent of the provision. In our first Criminal Code, enacted in 1892, Parliament used "lawful" instead of "justified" in the analogous provision.
55: It is lawful for every parent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances (Canadian Foundation, paragraph 65: Section 55 of the Canadian Criminal Code of 1892).

The SCC in Canadian Foundation does not offer any explanation for the wording change from "lawful" to "justified" in the 1953-54 re-enactment of the Canadian Criminal Code defense to corporal punishment of a child (or more broadly the use of "reasonable force" for "corrective" purposes by those designated as authorized under the Criminal Code).

The Court in Canadian Foundation stated the following in regards the wording change from "lawful" to "justified" in s. 43:

It was not until the 1953-54 re-enactment of the Criminal Code that Parliament replaced "it is lawful" with "justified". We do not know why it did so. We do know that the change was not discussed in Parliament, and that there is no indication that Parliament suddenly felt that the reasonable force in the correction of children now demanded the state's explicit moral approval. (Canadian Foundation, Paragraph, 65)

The change in the wording from "lawful" to "justified" in the 1953-54 reenactment of the Canadian Criminal Code defense to corporal punishment of the child does indeed suggest that Parliament for the first time felt that "reasonable force in the correction of children now demanded the state's explicit moral approval." Consider that in the 19th century corporal punishment of a child had been regarded as part of the natural order of things. Indeed, prosecutions for corporal punishment of a child under the first Canadian Criminal Code were exceedingly rare (Repeal s. 43 Committee, Established, 1994). Note also that in the 1800s wives, children, apprentices and servants were considered to be in the charge of the male master of the house or business and as such he was liable for the conduct of his charges including any offenses they might commit. Thus, all in this class were potentially subject to corporal punishment by the male in charge for any perceived transgression (Repeal s. 43 Committee, supra).

The word "lawful" in s. 55 in the 1892 Canadian Criminal Code reflects the aforementioned facts relating to the social order of the time. The wording bespeaks an `a priori blanket justification for the use of corporal punishment against the child as a disciplinary tool with the only constraints being on who carried out the physical punishment and its severity. Hence, while the use of force to prevent the commission of a major offense (s. 44) and in self-defense (s. 45) in the original Canadian Criminal Code of 1892 contained the word "justified" no such wording occurred with respect to the s. 55 defense of the use of force against a child.

The word "lawful" rather than "justified" in s. 55 of the 1892 code further suggests that the authorized perpetrator need not have considered alternate non-violent means as long as the force used was "reasonable" in the circumstance and "corrective" in intent. In contrast, s. 44 and s. 45 in the original code required that there be an underlying necessity for the use of physical force (assault). In other words, the latter sections required a "justification" for resorting to violence in the particular circumstance rather than employing non-violent means.

Does the word "justified" in the s. 43 defense connote situational "necessity"?

The word "justified" in the modern day s. 43 defense does not serve to connote justification in relation to situational necessity. Rather, the alleged justification in s. 43 to corporal punishment of a child derives from some presumed moral authority of the parent or parental delegate to punish physically. The necessity derives from implicit historical notions of the nature of children and certain societal and religious traditions regarding the upbringing of children rather than the exigencies of the situation. Thus, the word "justification" in today's s. 43 defense as opposed "lawful" in the analogous s. 55 of the 1892 Canadian Criminal Code does nothing to narrow the scope of permissible assault of the child from that permitted under the first code. It is therefore not surprising that Parliament felt no need to debate this wording change in s. 43 which in essence was but cosmetic in the context of that section creating no substantive difference in interpretation of the defense.

The use of the word "justified" in s. 43, however, does create the illusion of a provision which takes proper account of the child as person even though it permits the use of corporal punishment. The text of the s. 43 defense does not, it is to be emphasized, contain the word "necessity" or "necessary." This is in contrast, for example, to the coupling of "justification" with "necessity" in the text pertaining to the Canadian Criminal Code "self-defense" and "prevention of an assault" exemptions to criminal liability for assault.

Contrasting s. 43 with the necessity defenses under the Canadian Criminal Code

Consider then the precise wording of the latter necessity defenses where justification for the use of force is based on: a) the necessity deriving from the threat in the immediate situation and b) the social acceptability in a free and democratic society of achieving by force the concrete objective in the situation (as opposed to a vague, allegedly morally supportable, punitive objective in s. 43 in respect of the application of corporal punishment):

Self-defense

(34)(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Preventing Assault

(37)(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. (Carswell, 1998, excerpts from the Canadian Criminal Code necessity defenses).

Consider that the Crown may defeat the above necessity defenses by proving, among other things, that there was no necessity (for the use of violence). The Crown cannot, in contrast to the situation with necessity defenses, defeat the s. 43 defense by showing that means other than corporal punishment of the child were realistically available to effect the alleged corrective purpose. Thus, the s. 43 defense cannot be subsumed under the necessity defense as it has separable distinct elements:

• The text of s. 43 does not convey a prohibition against the use of physical force namely, corporal punishment. Rather, corporal punishment is considered to be the prerogative of the parent, schoolteacher or parental delegate in gaining the child's compliance or administering punishment in the circumstance even if violent means were not a necessity;
• In contrast, the necessity defense depends on physical force being used in a manner and degree as a matter of necessity (no alternatives realistically available) to secure compliance in a situation of relatively immediate compelling urgency.
• The use of such force under a necessity defense does not encompass corporal "punishment" but rather coercive force i.e. to effect compliance with respect to a relatively specific immediate objective (i.e. disarming an attacker);
• The majority of the SCC in Canadian Foundation seems to have recognized such a distinction between corporal punishment (punitive in intent and with the objective of creating some level of suffering) from force applied with a non-punitive intent: "force to ..secure compliance with instructions" versus force used "merely as corporal punishment" (Canadian Foundation, paragraph 40, see point 27 below)
• Hence, the defendant in a s. 43 case, if one of the designated authorities mentioned in the section, and acting with an alleged corrective purpose, is presumed to have acted lawfully and justifiably unless and until he or she loses that authority by virtue of using an inappropriate degree of force ("which exceeds what is reasonable") rather than for the use of a form of force namely; corporal punishment or lack of necessity in using violent means.

Recall that it was in 1948 that the Universal Declaration of Human Rights was enacted. The Declaration recognizes the human dignity of all persons. Such a view was inconsistent with the notion of classes of lesser persons presumed inherently at risk of straying from the righteous path save for the appropriate application of corporal punishment by those allegedly superior moral beings charged with their care. Nevertheless, s. 43 is grounded on the latter view in respect of children. The change of wording from "lawful" to "justified" in s. 43 in the re-enactment of the 1953-54 Canadian Criminal Code was designed to address this inconsistency. Yet, as we have seen, the change in wording in s. 43 gives but the illusion of legislation which properly accords the child his or her essential human dignity.

Challenging the View of Corporal Punishment as Part of the Natural Order of Things

The historical evidence reveals that inequalities in the law with regard to security of the person of children, wives, servants, students and apprentices were not only countenanced in 19th century Canadian society but codified in the Canadian Criminal Code of 1892. Such inequality in law was viewed as the logical outcome of certain natural facts.

The majority opinion as reflected in the following statement in Canadian Foundation seems to hearken back to the 19th century view of the corporal punishment of children as a part of the natural order of things:

Section 43 is not arbitrarily demeaning. It does not discriminate. Rather, it is firmly grounded in the actual needs and circumstances of children (Canadian Foundation, paragraph, 68)

Section 43 in providing a license for particular designated authorities to use corporal punishment against a child within certain constraints is being held then by the Court to be: "firmly grounded in the actual needs and circumstances of children." (Canadian Foundation, paragraph, 68, emphasis added). This presumes that corporal punishment of a child (which is subsumed under s. 43) is not demeaning or an affront to the child's dignity in that the latter would not logically serve "the actual needs and circumstances of children."

Is Corporal Punishment Degrading and an Affront to Human Dignity?

The Court itself at other points in the Canadian Foundation judgment has challenged its own reasoning in regards its implicit presumption that corporal punishment is not an affront to human dignity.

At paragraph 68, the Court in Canadian Foundation held directly and indirectly that corporal punishment is demeaning and inconsistent with democratic values. It is for that reason that the Court sets out that the use of corporal punishment by teachers is "unreasonable" by definition and thus beyond the scope of the s. 43 defense:

Contemporary social consensus is that...the use of corporal punishment by teachers is unacceptable...This consensus is consistent with Canada's international obligations, given the findings of the Human Rights Committee of the United Nations [see paragraph 33 of the Canadian Foundation judgment making reference to the UN Human Rights Committee's finding that corporal punishment of children in schools constitutes degrading treatment by the State] ...Substantial social consensus, supported by expert evidence and Canada's treaty obligations, indicates that corporal punishment by teachers is unreasonable (Canadian Foundation, paragraph 38, section in square brackets added for clarity)

Any degree of force used by teachers is held by the Court in Canadian Foundation thus to be unreasonable when it infringes a child's security of the person for the purpose of "punishment" (i.e. corporal punishment whether or not euphemistically referred to as "correction"). To reiterate the Court's position in this regard:

Teachers may reasonably apply force to remove a child from the classroom or to secure compliance with instructions, but not merely as corporal punishment (Canadian Foundation, paragraph 40).

Note that the Court holds that the use of corporal punishment by teachers is unreasonable regardless the level of force used. Further, the Court in reaching this conclusion makes specific reference to Canadian public opinion and the findings of the United Nations Human Rights Committee. The latter found that corporal punishment of children in schools by teachers or other school authorities engages article 7 of the International Covenant on Civil and Political Rights (ICCPR, 1966) which prohibits degrading treatment or punishment (Findings of the UN Human Rights Committee discussed in Canadian Foundation paragraph 33).

The general prohibition against corporal punishment in international human rights law

Note that Article 7 of the ICCPR (1966) does not specify that the prohibition against degrading treatment or punishment is restricted to that treatment or punishment delivered by the State. Article 7 reads: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ..." Note that degrading treatment or punishment is in Article 7 of the ICCPR put in the same category as "cruel" treatment or punishment.

Corporal punishment is acknowledged by the Court in Canadian Foundation to fall under the scope of s. 43. At paragraph 37 in the decision the Court makes specific reference to the situations under which corporal punishment is not protected under s. 43. Paragraph 37 of the Canadian Foundation decision reveals that the Court does hold corporal punishment of children over two but under thirteen "reasonable" when administered within various constraints that are outlined in the decision.

The Court in Canadian Foundation declares that corporal punishment of a child is "unacceptable (see paragraph 38), "degrading" (see discussion of international human rights law at paragraph 33) and "unreasonable (paragraph 38) when administered by an agent of the state. Note further that the Court concedes in Canadian Foundation that "degrading, inhuman or harmful conduct is not protected" under s. 43 (paragraph 40). Yet, corporal punishment is not considered by the Court as degrading when delivered in accord with certain restrictions by the parent or delegate of the parent other than a teacher.

Note that the text of s. 43 does not contain any restriction precluding a teacher from administering corporal punishment in the school setting if certain conditions are met. There is no evidence to suggest that it was ever Parliament's intent in s. 43 to preclude teachers from utilizing the s. 43 defense for corporal punishment of a child in the school setting (Canadian Foundation paragraph 33). The Court in Canadian Foundation, however, make this assumption by declaring corporal punishment of a child by teachers beyond the scope of the s. 43 defense.

Contradictions in the Canadian Foundation decision regarding the alleged legitimacy of corporal punishment of children

It is here argued that since corporal punishment is considered by the Court in Canadian Foundation as "degrading" when administered by a teacher, it must also be so regarded when applied by a parent or parental delegate other than a teacher given that the same act is involved. Further, since teachers are acting in loco parentis in their attempts to manage the child's behavior at school their jurisdiction in administering corporal punishment for this purpose derives from a parens patriae jurisdiction. To argue that teachers are precluded from the use of corporal punishment against a child in the school setting necessitates that the source of their delegated authority also be so precluded. That source is, of course, the parent or legal guardian.

The Court in Canadian Foundation, however, concluded that corporal punishment of a child is not degrading when administered by a parent or parental delegate other than a school authority. In doing so, the Court relies on the circular argument that: a) corporal punishment of the child in the aforementioned instance is not degrading since only "reasonable" conduct (including corporal punishment) is shielded by s. 43 and b) only reasonable conduct is shielded by s. 43 since corporal punishment and the other behaviors protected under s. 43 are not degrading. This circular argument was framed by the Court as follows:

...the conduct permitted by s. 43 does not...rise to the level of being "cruel and unusual' or so excessive as to outrage standards of decency...Conduct cannot be at once reasonable and an outrage to standards of decency." (Canadian Foundation paragraph 49).

The Court offers no noncircular argument for why corporal punishment should not be regarded as degrading regardless of who administers it. The issue cannot be reduced to one of degree of force used since an act may be degrading but create no more than trivial long -term harm to the victim. Further, an act may degrade another's humanity according to international human rights standards even where the victim does not fully appreciate this for any number of reasons (i.e. such as due to the fact that the treatment is commonplace and accepted in the community).

Given the aforementioned inconsistency on whether corporal punishment is or is not degrading or a legitimate use of force one can contest the opinion of the majority in Canadian Foundation that there is "clear content to s. 43", at least in this regard (Canadian Foundation, paragraph 2).

State Authorization for the Infliction of Pain and Suffering

It is argued here that corporal punishment of a child is inherently unreasonable in that it represents a use of force for the express purpose of inflicting pain and suffering as a means of punishment thus offending human dignity.

The Court in Canadian Foundation maintains at paragraph 33 that the Convention on the Rights of the Child (1989) does not "explicitly require state parties to ban all corporal punishment of children." With respect, this view can be contested.

Article 19 of the CRC (1989) clearly holds that the child must be protected by the state from "all forms of physical or mental violence. ..while in the care of parent(s), legal guardian(s) or any other person." Corporal punishment is a form of physical and mental violence protected under s. 43 with conditions. As a result, the State has not met its obligation to afford the child such protection as is required under Article 19 of the CRC.

The Committee on the Rights of the Child which monitors implementation of the CRC (1989) is concerned as a matter of great urgency in eliminating all forms of physical and mental violence against children including corporal punishment in all contexts including the family. Further, the Committee is concerned with identifying those State mechanisms which maintain such violence against children in order that these causes and practices may be eliminated.

In this regard, see the letter dated October 19, 2001 (excerpted here) from the Chairperson of the Committee on the Rights of the Child to the UN Secretary General regarding a study to be undertaken on "all forms" of violence against children in varied contexts including familial as a first step to prevention and remedy:

The Committee recommends that States parties review all relevant legislation to ensure that all forms of violence against children, however light, are prohibited, including the use of torture, or cruel, inhuman or degrading treatment (such as flogging, corporal punishment or other violent measures) for punishment or disciplining within the child justice system, or in any other context. The Committee recommends that such legislation incorporate appropriate sanctions for violations and the provision of rehabilitation for victims... (Statement of the Committee on the Rights of the Child, September, 2000, General discussion days on violence against children).

The Committee on the Rights of the Child has also emphasized in several of its responses to periodic reports provided by various governments on their progress in complying with the CRC that corporal punishment in the family is no more consistent with the requirements of the CRC than is corporal punishment by teachers in the school setting.

For example, note the following excerpt from the Committee on the Rights of the Child's response to the Czech Republic's second report on their implementation of the CRC provisions:

The Committee is concerned that there is no legislation explicitly prohibiting corporal punishment, and is concerned that it is practised in the family, in schools and in other public institutions including alternative care contexts (31 January 2003, Unedited Version CRC/C/15/Add.201, paragraphs 40 and 41 (f;g), emphasis added)

The UN Committee on the Rights of the Child has specifically and repeatedly called for the repeal of such legislation that protects the use of violence against children including physical discipline in any setting (Global Initiative to End All Corporal Punishment of Children, 2001).

The Court in Canadian Foundation held that parents in administering corporal punishment to the child were not acting on behalf of the State and declined to answer the question in regards to teachers administering such punishment (Canadian Foundation paragraphs 48-49). This author has argued elsewhere (Grover, 2003), in contrast, that both are in fact acting as delegates of the State in administering corporal punishment to the child since this form of punishment is authorized under s. 43. Neither parents nor teachers are thus exempt from the charge of subjecting the child to degrading treatment at some level depending on the severity of the corporal punishment as well as other factors.

Discrimination Issues and the s. 43 Authorization of Corporal Punishment

The Court in Canadian Foundation rejects the necessity defense as sufficient to protect parents and delegated authorities from criminalization for the reasonable use of force against a child ("The defense of necessity ...is available but only in situations where corrective force is not in issue, Canadian Foundation paragraph 44). The "necessity" defenses are applicable where the goal is to prevent harm to the child or others.

If the application of force for "correction" in s. 43 cannot be covered under the "necessity" defense then such force is not intended to ensure compliance in the best interests of the child and/or others. Rather, the force protected under s. 43 is then force applied to demonstrate the power of the adult over the child and/or to achieve punitive ends (i.e. through corporal punishment). Such a use of force is then premised on a s. 15 Charter violation sanctioned by the State via s. 43 which denies children equal protection of the criminal law without meeting the s. 1 Charter burden (as being necessary in a free and democratic state).

The necessity defenses do not in fact provide protection for the use of corporal punishment since the use of violent (physical) discipline cannot be justified in terms of the exigencies of the immediate situation. Rather, corporal punishment is allegedly justified, according to proponents, on the erroneous presumptions that: a) children as children by definition do not have full entitlement to equal security of the person and b) corporal punishment has a salutary effect on children. In contrast, corporal punishment of adults is prohibited in Canadian law whether administered by a parent or another thus creating a s. 15 Charter distinction.

Such distinctions between adult and child in regards the right to be protected from corporal punishment are discriminatory and as such violate s. 15 of the Canadian Charter (1982) in respect of equality rights. There is also discrimination in the distinction made by the Court in Canadian Foundation between those child age groups for which corporal punishment is regarded as inhumane versus those child age groups for which such physical punishment is considered reasonable and acceptable (see Grover (2003) for a discussion on this latter point).

The Court in Canadian Foundation holds that s. 43 is in the best interests of the child (Canadian Foundation paragraph 59)[2], while at the same time contending that best interests is not a principle of fundamental justice. Fundamental justice was denied children in Canadian Foundation in that their substantive right to security of the person was rejected Rather, the Court deemed corporal punishment of a child permissible and in the child's best interests despite the fact that it states in another context that: "The deliberate infliction of punishment or any other state interference with human freedom is to be justified only where manifest evil would result from failure to interfere" (Canadian Foundation, paragraph 60).

Clearly, there is no evidence to suggest that corporal punishment of the child as an alleged disciplining method is justified on such a stringent test as outlined above. Note that the Court in Canadian Foundation attempts to characterize s. 43 as authorizing something other than the state sanctioned use of corporal punishment against the child. It does so by interpreting s. 43 to preclude teachers from using corporal punishment though there exists no basis for this which can be derived from Parliament's inferred intentions. It appears the Court implicitly holds that teachers are delegates of the State in their behavioral management of children at school.

While the Court declined to indicate explicitly whether or not teachers are agents of the state, one may infer that they are so regarded by international bodies such as the UN Human Rights Committee and the UN Committee on the Rights of the Child (see paragraph 33 of Canadian Foundation). In any case, the UN has made it clear that the State in maintaining legislation that authorizes the use of violence against children in any context, including familial, is in contravention of its international obligations.

Conclusion

Reasonableness Must be Assessed with Reference to Fundamental Human Rights

The appropriate frame of reference in determining reasonableness with regard to infringement of security of the person is one of international and domestic human rights law which embodies democratic values. Fundamental human rights issues ought not be decided based on domestic public consensus. Yet, through "legitimation semantics" (see Schmidt, 1998, p. 3) domestic societal norms and majority public views came to serve as an alleged indicator of constitutionality in this s. 43 Canadian Charter case and of purported compliance with international human rights obligations.

For example, the SCC in Canadian Foundation held that corporal punishment of children in the school setting by teachers is an affront to the child's human dignity. This view is consistent with the consensus of the Canadian public (see Repeal s. 43 Committee, 2000)[3]. The Court, in contrast, held that the same physical punishment when administered by parents or parental delegates other than teachers is not degrading reflecting, according to the Court, the majority Canadian public view. It is not inconceivable that the Court's distinction in this regard were importantly influenced by public views given its numerous references to social consensus in the judgment.

The risk of relying heavily on social consensus in deciding fundamental human rights issues is reflected in the fact that the SCC in Canadian Foundation with reference to the public majority view held that best interests of the child is not a principle of fundamental justice:

..."the best interests of the child" fails to meet the second criterion for a principle of fundamental justice: consensus that the principle is vital or fundamental to our societal notion of justice.... 'best interests of the child' is not...a foundational requirement for the dispensation of justice (Canadian Foundation paragraph 10 emphasis added)

With respect, what is or is not a principle of fundamental justice is to be decided with reference to democratic values and not opinion polls. It is here argued that "best interests of the child" is a principle of fundamental justice to the extent that the interpretation of best interests in any particular fact situation overlaps with a respect for the child's substantive rights under the Canadian Charter of Rights and Freedoms and international human rights law (i.e. under the Convention on the Rights of the Child, 1989). "Best interests of the child" does then set out "minimum requirements for the dispensation of justice" where it equates to acting to protect the child's substantive rights (contrast with Canadian Foundation paragraph 11)

It is no argument to suggest that "best interests" of the child is not a principle of fundamental justice since "society does not always deem it essential that "the best interests of the child' trump all other concerns in the administration of justice." (Canadian Foundation paragraph 10). For example, it may be in the best interests of a particular ill child on dialysis to have first choice of the next suitable kidney available for transplant but in society's interest to have a list of recipients prioritized in terms of both medical urgency and organ compatibility so as to maximize the survival rate overall. Such a situation involves the balancing of competing interests and of the substantive rights of the various parties.

Such a balancing does not, however, eliminate the fact that as a matter of fundamental justice the State must enact policies and legislation which: a) respect the substantive rights of each person and b) afford each person the opportunity to maximize their best interests to the extent feasible when balanced against the needs of other individuals and the collective in a free and democratic society.

To argue otherwise is to suggest that the presumption that all persons are endowed with basic human rights which must be respected is not a principle of fundamental justice. The latter is not possible since the notion that all persons possess human dignity which must not be infringed unless for the compelling necessity of maintaining a free and democratic society (as in the example above) is one of the "shared assumptions upon which our system of justice is grounded" (compare Canadian Foundation paragraph 8).

State Obligations in Regards protecting the Human Rights of All Its Members

Perhaps most distressing in the entire majority opinion in Canadian Foundation is paragraph 67 which reads in part:

Some argue that, even if the overall effect of s. 43 is salutary, for some children the effects of s. 43 will turn out to be more detrimental than beneficial...The fact that some people may fall through ... cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected (Canadian Foundation at paragraph 67, compare also Gosselin per Justice Iacobucci at paragraph 55 and 105).

It is surely noteworthy that it appears to be a significant number of persons who are members of the most vulnerable in our society such as the homeless (Gosselin) and children (Canadian Foundation) who most often suffer serious adverse consequences due to laws being challenged under s. 15 of the Canadian Charter (1989). The rates of physical abuse of children in the context of corporal punishment, for instance, attest to this fact (Trocme et al., 2003). It is they and not members of the more advantaged groups or the social elite who seem to allegedly "fall through the cracks." Thus, one may contest the notion (stated in Canadian Foundation at paragraph 67) that such a failure of legislation to adequately protect the Charter interests of these individuals does not necessarily render the legislation an unconstitutional violation of s. 15 equality rights.

One might respond to the above Court opinion also that in fact the Canadian Charter (1982) has "no cracks" through which some members of Canadian society must be expected to inevitably fall so as to be denied their constitutional and democratic rights. It is thus incumbent on the Court to require government to ensure that legislation better respect and protect the fundamental rights and freedoms of all (in this case all children in Canada). The Court in Canadian Foundation did not fully meet this challenge relying instead in large part on the perceived social consensus in favor of retaining s. 43 of the Canadian Criminal Code (Carswell, 1998). Many children in Canada will, as a result, continue to be at significant risk of harm in particular due to the administration of corporal punishment by those upon whom they are most dependent[4].

References

Global Initiative to End All Corporal Punishment of Children. (Established 2001) [Online]. Available: http://www.endcorporalpunishment.org (Read: February 15, 2004)

Grover, S.C. (2003) .Negating the child's inclusive right to security of the person: A Charter analysis of the s. 43 Canadian Criminal Code defense to corporal punishment of a minor, Murdoch University Electronic Journal of Law, Vol. 10 (4)) [Online]: Available http://www.murdoch.edu.au/elaw/issues/v10n4/grover104.html (Read: February 15, 2004).

Repeal s. 43 Committee (Established 1994). History of s. 43. [Online]. Available: http://www.repeal43.org (Read: February 15, 2004).

Schmidt, V.H. (1998). The politics of justice and the paradox of justification, Social Justice Research, Vol.11 (1), 3-19.

Trocome, N., McLaurin,B., Fallon, B., Daciuk and Billingsley, D., Tourigny, M., Mayer, M., Wright, J., Barter, K., Buford, G., Hornick, J., Sullivan, R. and McKenzie, B. (2001). Canadian incidence study of reported child abuse: Final report. (as well as selected findings report). Available online:http://www.hc-sc.gc.ca/ (Read: January 21, 2003).

Cases

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)) [2004] SCC 4

Gosselin v Quebec (Attorney General) [2002] S.C.J. No. 85; 2002 SCC 84.

Canadian Legislation

Act respecting the Constitution Act, 1982, R.S.Q., c. L-4.2, s. 1 (Canadian Charter of Rights and Freedoms). {online}. Available: http://www.pch.gc.ca/ddp-hrd (February 15, 2004)

Criminal Code, 1892, S.C. 1892, c. 29, ss. 44, 45, 55.

Criminal Code, S.C. 1953-54, c. 51, ss. 43, 44.

Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [am. 1994, c. 44, s. 2(2)], 8(3), 9, 27, 30, 32, 34, 35, 37, 39, 40, 41, 43, 44 [rep. 2001, c. 26, s. 294 (not yet in force)], 45, 232, 265, 267 [repl. 1994, c. 44. s. 17], 273.2(b) [ad. 1992, c. 38, s. 1], 495 [sub. & rep. 1985, c. 27 (1st Supp.), s. 75].

International Law

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. [Online]. Available: http://www.umn.edu (February 15, 2004).

United Nations Convention on the Rights of the Child (1989). Adopted by the U.N. General Assembly, November 20, 1989 and entering into force September 2, 1990. Available: http://www.unhchr.ch/html/menu3/b/k2crc.htm

Universal Declaration of Human Rights (1948). Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. [Online]. Available: http://www.un.org/Overview/rights.html (February 15, 2004).

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Notes

[1] This paper is a follow-up to an earlier case comment by this author : "Negating the child's inclusive right to security of the person: A Charter analysis of the s. 43 Canadian Criminal Code defense to corporal punishment of a minor" published in Murdoch E-Law Journal and which analyzed the lower level court decisions in Canadian Foundation.

[2] The argument has been made elsewhere (Grover, 2003) that s. 43 in authorizing corporal punishment of the child in fact places the child at potential significant risk of : a) physical and psychological harm and b) family breakup due to parents over time escalating the level of violence used against the child in physical discipline thus ultimately exceeding the force shielded by s. 43.

[3] The August 2003 Decima Research survey for Toronto Public Health found that 69% of a national sample of adult Canadians agree that the section 43 defence for corporal punishment of pupils by schoolteachers should be ended. This percentage increased to 75% among women surveyed and 76% among adults age 18 - 34 (Repeal s. 43 Committee, Established 1994).

[4] The Court in Canadian Foundation in setting out restrictions on the use of what is "reasonable force" under s. 43 such as the prohibition against using instruments, or using force on the child's head area, or using force on children under two or against teens has attempted to make children somewhat safer and perhaps has done so in some cases. Nevertheless, it is unlikely that in a society which under s. 43 tolerates as lawful the use of corporal punishment against children that many parents or teachers or parental delegates will be educated to the specific guidelines set out by the Supreme Court of Canada in Canadian Foundation It is unlikely these authorities in charge of children will monitor whether their imminent use of such force on the person of the child is on the checklist of prohibited acts given the nature of the force and/or the characteristics of the child.