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
| Author: |
Sonja Grover PhD, C Psych
Associate Professor, Faculty of Education, Lakehead University
|
| Issue: |
Volume 10, Number 4 (December 2003)
|
Contents:
Editors’ Note: This case analysis, though blind refereed, was placed in
the Current Developments section of the journal with the
agreement of the author
since the paper deals with a very narrow issue in relation to s.43 of the
Canadian Criminal Code (the defense
of corporal punishment of a child). That
issue is whether the existence of the defense results in the denial of a
constitutional
guarantee of security of the person for Canadian children.
- This paper provides an analysis of the constitutionality of s. 43 of the
Canadian criminal code concerning corporal punishment
of the child. Section 43
states:
Correction of a child by force. 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)
- To understand the fundamentally unconstitutional nature of s. 43 it is
necessary to appreciate that Section 43 does not, despite
first appearances,
function as do other defenses. For example, in the case of a self-defense
answer to an assault charge, the
defendant agrees with the Crown that an
assault took place and that normally such an action is a crime. With this
agreement
is the implicit understanding that all persons are generally
entitled to security of the person as guaranteed under s. 7 of the
Canadian
Charter (1982). The defendant, however, relies on establishing that in the
situation at hand there was a need to act
in self-defense. The defendant
maintains that the assault is excusable given this exceptional circumstance
and thus that he
or she bears no criminal responsibility. If the defendant
wins the case and is cleared there is no weakening of the notion that
each
individual has a general right to be free from physical assault by others.
This is so since the defendant has proven the
existence of an exceptional
situation -one requiring self-defense-which excuses the assault. Thus the s. 7
Charter general
right of every person in Canada to security of the person
remains intact and robust.
- In the s. 43 case, in contrast to the typical assault case, the defendant
argues that there was no assault against the minor. This
is the defendant's
position even where there is an acknowledgment by the defendant of the
application of force against the
minor without the minor's consent. The
defense is based on the argument that the application of unwanted force
against the
child was justified not that it was "excusable." Note that
justification for the use of reasonable force against a child under
certain
conditions is a concept specifically referred to in the actual text of section
43. Justice Watson in R v Levesque explained
the importance of the distinction
between behavior which is justified versus excused in the criminal law thus:
..s. 43 asserts an outright justification for the correction and
not merely an excuse. The correction is not just tolerable;
it is justified.
The difference between the two concepts is not, in my view, merely a matter
for legal academics to debate:
see Perka where Dickson C.J.C. wrote:
Packer, The Limits of the Criminal Sanction (1968), expresses the
distinction thus at p.113:
'..conduct that we choose not to treat as criminal is "justifiable" if
our reason for treating it as noncriminal is predominantly
that it is
conduct that we applaud, or at least do not actively seek to discourage:
conduct is "excusable" if we deplore
it but for some extrinsic reason
conclude that it is not politic to punish it'.
The language chosen by Parliament in s. 43 persuades me that
Parliament intended the so-called defence of `correction' to be a
justification, not
just an excuse. This is not a semantic difference
but is a difference of profound social policy implications (R. v. Levesque
2001 ABQB 822 at paragraphs 91-92; emphasis added).
- The defendant in a s. 43 case thus argues that: a) interference with the
security of the person of the child is a generally protected
and socially
sanctioned behavior by a parent, teacher or delegate under s 43 and b) as a
consequence, the defendant's behavior
does not qualify as assault in the first
instance but is rather a different act namely application of reasonable
"corrective
force." Section 43 thus has two effects. First, it sets out that
as a rule the application of force against a child by a parent
or delegate or
school teacher for what the adult considers a corrective purpose is not
normally considered an assault but rather
a different sort of "justified" act.
Secondly, s. 43 stipulates that the use of unreasonable force will result in
the adult
exceeding their jurisdiction and committing the crime of assault.
Thus s. 43 establishes that the child's right to security of
the person is
underinclusive in respect of the child's interaction with those charged with
his or her care and the application
of force deemed by the perpetrator to be
corrective. That underinclusive protection involves only the limited right not
to
be subjected to unreasonable force. It is then the Crown's burden to show
that the use of force in the instant case violates the
limited right of
protection which the child holds. That is, to prove that the circumstances of
the case violate the general
rule permitting the use of force on children thus
making the act unlawful. Only if the Crown can establish the exception to the
rule, namely unreasonable force, does the adult's act become an assault
against the child.
- Thus, given the nature of the burdens of proof and their allocation in a
s. 43 case, the proposition that normally adults involved
in the care of a
child can infringe the child's security of the person under most circumstances
remains the general rule. Only
in exceptional cases of extreme force by the
teacher, parent or those acting in the parent's stead is the child's security
of the person right triggered at all. This situation violates the fundamental
rationale underlying section one of the Charter
regarding legitimate
limitations on Charter rights and freedoms:
Limits on constitutionally guaranteed rights are clearly
exceptions to the general guarantee. The presumption is that Charter
rights
are guaranteed unless the party invoking s. 1 can bring itself within the
exceptional criteria justifying their
being limited..... (R. v. Oakes,
[1986] 1 S.C.R. 103)
- Section 43 operates in contravention to the principle underling s. 1 of
the Charter so as to make the limit on the child's right
to security of the
person the general rule rather than the exception. Thus each time a s. 43
argument succeeds, the child's
general s. 7 Charter right to security of the
person is further degraded. It is in fact only apparent that a child has any
right at all to security of the person when the s. 43 defense fails. It is at
that point that the child's security of the person
right emerges, but then
only in the restricted form relating to protection from excessive force.
Hence, while adults are generally
ensured security of the person save for
exceptional circumstances; the child is generally not ensured security of the
person
save for the exceptional case (that involving extreme force).
- One might argue that the child does in fact at least have a general right
to security of the person in regards to all persons who
are not parents,
teachers or parental delegates as per s. 43. In practice, however, s. 43
largely eliminates in the public
mind the child's general right to security of
the person even with persons other than a teacher, parent or parental
delegate.
This is the case for two reasons: a) anyone may be delegated by the
parent to be a parent substitute and s. 43 authorizes delegates
to assault the
child if the intent is correction and the force reasonable and b) when the
child is assaulted by an adult there
is a presumption that the adult was so
authorized under s. 43 unless proven otherwise by the Crown. These latter
factors tend
to reinforce the notion that the child has no inclusive right to
security of the person regardless who applies the force to the
child.
- No legislation which negates a general guarantee to a Charter right and
creates but an underinclusive right such as does s. 43
can meet the s. 1 test
for a legitimate infringement. Let us nonetheless continue with further
analysis of the child's right
to inclusive security of the person protection
under s. 7 and the failure of s. 43 to meet the s. 1 test in yet other
respects.
- The child's inclusive Charter right to security of the person involves the
right to be free from infringements by anyone for any
purpose which cannot be
justified in the particular case under s. 1 of the Canadian Charter. As has
been noted, s. 43 actually
undermines the right to a general guarantee to
security of the person for the child. Setting aside that issue for the moment,
the next section examines whether s. 43 meets any of the requirements of the
s. 1 Charter test for a justifiable restriction
of a right or freedom.
- In R. v. Oakes, [1986] 1 S.C.R. 103 the Supreme Court of Canada set out
the elements of s. 1. The first element was that the limit on the
constitutional guarantee
must serve an objective "sufficiently important to
warrant overriding a constitutionally protected right or freedom." There is
little debate that the application of the proper child educative practices by
the schoolteacher, parent or their delegates
is an important and pressing
concern and potentially requires the infringement of certain Charter rights.
For example, there
is no debate that the infringement on the child's liberty
rights through compulsory schooling up to a particular age is a necessity.
The
constitutionality issue respecting s. 43 of the Canadian criminal code thus
has to do with the criteria in the Oakes test
relating to whether the means
used to achieve the objective are "reasonable and justifiable in a free and
democratic society".
In order to be found reasonable and justifiable the means
used to achieve the objective according to the Oakes test must: a) impair
rights as little as possible; b) be fair, non-arbitrary and rationally
connected to the objective; and finally c) reflect a
proportionality between
the means and the objective such that the extent of any negative effects of
the measure are warranted
and acceptable when balanced against the importance
of the objective ( R. v. Oakes, [1986] 1 S.C.R. 103 , see also Egan v Canada
[1995] 2 S.C.R. 513 )
- As previously discussed, s. 43 undermines the general Charter guarantee
respecting the child's security of the person establishing
instead but an
underinclusive or limited right to protection from the use of excessive force.
The parent also, as explained
above, may delegate to any number of people his
or her authority to assault the child leaving the child largely unshielded in
a way that adults are not. The operation of s. 43 thus fails the test of
impairing rights as little as possible. The denial
to the child of a general
guarantee to security of the person subject only to certain exceptions is an
affront to the child's
human dignity and contradicts the logic of the section
one test (the latter being a test for justifiable restrictions in limited
circumstances on an accepted general right). Section 43 in this way serves to
erode the key Charter goal of "protecting the
most vulnerable members of
society" in regards to children (B (R) v Children's Aid of Metropolitan
Toronto [1995] 1 S.C.R. 315).
- The proper test for the constitutionality; that is the proportionality of
s 43 includes first and foremost its impact on the human
dignity of children
as a class and of the particular child involved. Section 43 fails the s. 1
test of impairing rights minimally
since in undermining the presumption of a
child's general guarantee to security of the person, it diminishes the child's
worth
as a person. Corporal punishment of a child transforms the parties'
world view in terms of the importance of power differentials
in defining who
has rights and affects the child's spiritual resources. The extent and nature
of the negative impact of corporal
punishment long-term in terms of the
child's development is highly dependent on the nature and frequency of the
violations
and the cultural context (i.e. meanings ascribed to the
experience). The Ontario Court of Appeal in Canadian Foundation for Children,
Youth and the Law v Attorney General of Canada² found that there was
"associational evidence linking corporal punishment to
poor outcomes for
children." However, the latter Court held a causal link could not be
established given confounding factors
such as poverty and the like (Canadian
Foundation for Children, Youth and the Law v Attorney General of Canada [2002]
Ont ACJ
Docket No. C34749 , paragraph 63).
- The Court's finding of the absence of a proven causal link between
corporal punishment and long term harm can with respect be disputed
with
numerous studies that control for social class and demonstrate such a link
(i.e. Denman, 2000; Hastings, 2000; Stormshak,
2000). Nonetheless, there is no
doubt that many individuals are able to overcome the experience even of
exposure to extreme
violence by caretakers. Even should there be an absence of
adverse long-term developmental outcome, this would not be a sufficient
basis
for State sanctioned use of corporal punishment against a child given: a) the
affront to human dignity and b) the negating
of the child's general Charter
right to security of the person. We turn next to examine the failure of s. 43
to impair rights
minimally as evidenced by the increased risk of significant
non-accidental physical injury associated with the retention of s.
43.
- Such limitations as do exist in s 43 regarding who is authorized to use
"corrective force" and the level of acceptable force have
done little to
ensure minimal impairment of children's rights. There is in fact inadequate
protection in Canada from non-accidental
injury to children due to the
application of unreasonable force applied in the context of "discipline". The
empirical evidence
on this point comes from Health Canada's (2001) national
study titled the "Canadian Incidence Study on Reported Child Abuse and
Neglect" (CIS); the largest study internationally of its kind to date
(Principal investigator: Trocme, 2001). The study revealed
that most incidents
of substantiated child physical abuse in Canada occur in the context of
parents and parent substitutes
administering corporal punishment for
disciplining purposes. As noted by the authors of the study in commenting on
their findings:
"Child physical abuse is usually connected to physical
punishment or is confused with child discipline" (Trocme, 2001, p. 12).
The
finding was that 69% of the substantiated cases of child physical abuse
identified in the CIS occurred in the context of
disciplining using corporal
punishment or a "corrective force" context. (Physical abuse as defined in the
CIS refers to instances
where the application of deliberate physical force
resulted in non-accidental injury to the child). Recall that Section 43 is
designed in part to "justify" the notion in Canadian society that physical
punishment of a child is legitimate when used for
"corrective" purposes. Yet,
it is precisely in that context in Canada that most of the physical abuse of
children takes place
notwithstanding any admonition in s. 43 regarding the
need to use only reasonable force.
- It is also noteworthy that 35 % of substantiated child physical abuse
cases as reported in the CIS study (Trocme, 2001) involved
a caregiver with
their own history of child abuse. Further, across all categories of abuse, 93%
of the perpetrators according
to the CIS findings were family members. This
suggests that child abuse is, to a significant degree, an inter-generational
familial matter having to do with learned patterns and attitudes. Children in
Canada according to the CIS findings are at greatest
risk of physical abuse in
the family context when corporal punishment is being applied as a disciplining
technique. Section
43, however, works against initiatives directed toward
educating persons with a child abuse history not to repeat the cycle of
violence with their own children. Corporal punishment rather is endorsed under
s 43 (given the reference to justifiable corrective
force) with the parent or
parent substitute left to decide for themselves what is reasonable force in
the situation. Section
43 thus mitigates against prevention efforts.
- On the one hand, we have in Canada child protection laws directed to the
prevention of harm to children. On the other, there is
s. 43 which condones
corporal punishment as a disciplinary technique even though child physical
abuse in the majority of cases
is associated with corporal punishment.
Contradictory messages thus often result from proceedings under child
protection legislation
versus those pertaining to the criminal code (s. 43).
There is often a conflict in outcome between the two contexts regarding
the
determination as to whether or not the child's right to security of the person
has in fact been infringed through the use
of corporal punishment. Consider
for instance Justice Pugsley's comments which follow pertaining to the Nova
Scotia Children
and Family Services Act (Nova Scotia's child protection
statute):
The "reasonable force" exception in s. 43 does not appear in the
Act. A parent may not be criminally responsible for using force
against a
child, yet the child nevertheless may be in need of protective services
under s. 22 [of the Nova Scotia Children
and Family Services Act, S.N.S.
1990] (Nova Scotia (Minister of Community Services) v. B.M. [1998] N.S.J.
No. 186, paragraph, 75, portion in square brackets added).
- This is not to suggest that parents ought to be subjected to
criminalization for the use of trivial force against their child.
There are
other ways of handling such situations such as civil sanctions as will be
discussed in a later section. However,
the inclusion of s. 43 in the Canadian
criminal code with its justified reasonable force clause serves to contribute
to the
perpetuation of physical child abuse. We can look to Swedish data to
gain insight into whether s. 43 is itself a likely contributing
factor to the
relatively high rates of child abuse in Canada compared to the Scandinavian
countries. In Sweden there has been
a ban on corporal punishment and
humiliating or significantly intimidating treatment of children since 1984
under the Swedish
Parenthood and Guardianship Code (code cited in Hindberg ,
2001). Since the ban there has been a significant decrease in all forms
of a
child abuse in a country with rates already very low. The rate of referral to
the Hospital in Sweden that receives all
abuse cases dropped to one -sixth in
1989 to what it was in 1970 (Haeuser, 1988). It should be noted further that
Sweden has
had one of the lowest child criminal death rates in the world (.009
per 1000) since the mid- 1970's which statistic includes criminal
death due to
all causes including physical abuse where there was no intention to cause
death. At the same time, fewer children
have had to be taken into protective
care by the Swedish government with a decrease of 26 % since 1982 (Durrant,
1999). The
ban on corporal punishment in Sweden thus has been associated with
various indicators of a decrease in child physical abuse.
- The Swedish national data on child assault also reveals that the largest
decrease in child assault suspects was found in the 20-29
year old demographic
group who were raised after the ban on corporal punishment was established
(Durrant, 1999). Thus, the
imposition of the ban appears to have helped to
change attitudes in that population at highest risk of abusing their or
another's
child. While reports of child abuse have increased as in other
countries perhaps due to greater sensitivity to the issue; actual
substantiated cases and the incidence of serious cases in Sweden have
significantly decreased since the ban (Durrant, 1996,
1999).
- The Swedish data support the notion that abolition of s. 43 of the
Canadian criminal code is likely to be helpful as one component
of an overall
strategy directed to reducing the incidence of child physical abuse in Canada.
In contrast, retention of s. 43
represents the State's failure to communicate
consistently to society the message that corporal punishment is a risky affair
and an unacceptable disciplining technique. The effect as seen is that
non-accidental physical injury to children in Canada
continues to climb most
often at the hands of family members in the so-called disciplinary context. It
is useful in this regard
to recall the words of Justice Lambert of the Supreme
Court of Canada who admonished us that:
No child should continue in a state of abuse, neglect, harm or
threat of harm while administrators, lawyers and judges argue
.... (Winnipeg
Child and Family Services v. K.L.W. [2000] 2 S.C.R. 519 at paragraph 106).
- The protracted debate in Canada over s 43, however, continues despite: a)
the CIS evidence that physical abuse of children in Canada
is most often
associated with corporal punishment in a disciplining context; b)
international comparative evidence suggesting
s 43 type legislation is a
contributor to a higher incidence of child physical abuse and to more serious
incidents of physical
abuse and c) the fact that s. 43 does not fully accord
to the child his or her human dignity nor Charter right to a general guarantee
of security of the person. Let us continue now with the analysis of whether s.
43 can meet any of the further elements of the
s.1 test.
- The Ontario Court of Appeal in the landmark s. 43 case recently heard by
the Supreme Court of Canada* suggested that s. 43
is rationally connected to the objective underlying the section. The objective
in regards s 43 is that
of shielding parents and their delegates as well as
school teachers in the proper discharge of their duties in raising and/or
educating children in their charge. In the words of the court s 43 functions:
To permit parents and teachers to apply strictly limited
corrective force to children without criminal sanctions so that they
can
carry out their important responsibilities to train and nurture children
without the harm that such sanctions would
bring to them, to their tasks and
to the families concerned. (Canadian Foundation for Children, Youth and Law
v The Attorney
General of Canada [2002] Ont ACJ Docket No. C34749, paragraph
59).
- The empirical evidence, however, challenges the notion of a non-arbitrary
and rational connection between allowing teachers, or
parents and their
delegates to use corporal punishment on a child and the objective of the
proper training and nurturance of
the child. As the Canada Health CIS data
(Trocme, 2001) as well as other social science data indicate corporal
punishment escalates
the risk for physical abuse and is thus not particularly
conducive to appropriate training and nurturance of a child (see also
Denman,
2000; Hastings, 2000; Stormshak, 2000). Further, parents who use corporal
punishment more consistently tend to be those
who feel that their parenting
has little effect, who feel ineffectual as parents and are at risk of
escalating their punishment
(Pinderhughes, 2000). These parents also tend to
feel that the child is uncontrollable by any other means save corporal
punishment.
Thus corporal punishment is a counterproductive strategy
associated with child physical abuse.
- The Ontario Courts in the Canadian Foundation case furthermore found that
the experts, based on the evidence, agree that corporal
punishment of very
young children under two is non-educative and humiliating while for the teen
it may provoke alienation and
hostility (Canadian Foundation for Children,
Youth and the Law v Canada (Attorney General) [2000] Ont. ACJ Docket No.
C34749
at paragraph 8). It is not at all clear then why it should be
presupposed as occurred in the Ontario Courts that corporal punishment
of the
3-12 year old is any less of an affront to human dignity or any more
productive. The age distinction here constitutes
a violation of s. 15 Charter
equality rights that has no rational basis. There is in fact no empirical
evidence to demonstrate
that corporal punishment will produce more than simply
short-term compliance in the 3-12 year old group when it does no more in
any
other age group. It is highly dubious that the use of force with a child of
any age is in itself educational in that the
mode of delivery is also the
message and the message is lacking in any useful information (i.e. corporal
punishment does not
teach the individual on the receiving end how to
self-regulate). However, implicit information is conveyed about the child's
powerlessness in the face of adult force and the caregiver as a potential
threat to one's personal safety and a source of physical
and even mental pain
in some instances.
- Section 43 is, furthermore, not rationally connected to the objective of
preventing the criminalization of parents for the use
of trivial or
non-abusive force. As discussed, in countries such as Sweden that have long
banned corporal punishment and have
no "reasonable force" justification in
their criminal code, there has been no such criminalization. Rather, the
evidence appears
to be that criminalization of parents is more likely with the
retention of s. 43. This since such legislation is associated with
a higher
risk for serious physical abuse against children within the family which in
turn is likely to be associated with an
increase in criminal prosecutions of
parents or their delegates. It should be noted also that there already exists
in the Canadian
legal system mechanisms to screen out criminal cases not in
the public interest. In addition, it is possible to introduce a range
of
options as to possible outcome in less serious cases of the application of
force against a child. These might include, for
example, prosecution waivers
where the defendant acknowledges in writing the offence, fines and where
indicated, some educative
course regarding alternate disciplining techniques.
Also as in Sweden, the use of force against a child in the prevention of harm
to the child or others may specifically be deemed permissible. It appears that
s 43 is in the final analysis a dangerous solution
looking for a problem.
- Section 43 is also arbitrary in that it depends in essence on a
"justifiable and reasonable force" defense to the charge of assault.
The
difficulty is that there is no standard for what constitutes justifiable and
reasonable force in any particular situation.
The same act of corporal
punishment may or may not be considered reasonable and justifiable depending
on subjective and variable
judgments about the child's temperament, the likely
impact of the corporal punishment on that particular child, the extent of
the
physical injury, the assessed seriousness of the child's offence and the level
of physical injury resulting from corporal
punishment tolerable in a
particular community. (i.e. R. v Levesque ABQB 822 at paragraph 100,
Children's Aid Society of the
Regional Municipality of Waterloo v S.D. [1995]
O.J. No. 1636 at paragraph 16). Since the Crown carries the burden in a
criminal
case, the defendant need not meet any burden of proving that the
force was in fact justified and reasonable in the circumstance.
Section 43
cases thus inevitably involve the defendant in a "blame the victim"
rationalization for the corporal punishment
and the extent of force used.
Except where the child suffers grave physical injury, the possibility remains
open that the amount
of force used will be considered reasonable in any
specific s. 43 case by any particular Court.
- The boundaries of the child's right to security of the person in respect
of protection from the application of excessive force
in corporal punishment
are thus redefined in every case. Where those boundaries are placed will
depend on what the particular
Court assesses as relevant. The factors
considered, as mentioned, often include such extraneous things as the
temperament of
the child and not just the particulars of the assault itself.
If the defendant can establish the intent of "correction," there
will already
be a bias toward finding the level of force "reasonable" since the notion of
corrective force implies necessity.
Thus the force will generally be
considered reasonable except where there is serious injury to the child.
- In Canada, under s. 43 corporal punishment in the case of children aged 3
to 12 as applied by a parent or other authorized person
with corrective intent
is automatically considered to be in the child's best interests unless proven
otherwise. There is, however,
as we have seen no empirical support for the
notion that corporal punishment is in the child's best interest. Thus the
child
is caught in an "Alice in Wonderland" world where the intentional
infliction of physical harm in such circumstances is held to
be of benefit to
the child in some vague educative fashion. Such a notion is premised on the
assumption in the first instance
that parents act in the best interests of
their child even when administering corporal punishment and that the child
normally
has no legitimate competing interest. (Assault cases involving adult
victims would surely have more favorable outcomes for the
defense was the
perpetrator routinely held as acting in the best interests of the victim for
"corrective" purpose unless proven
otherwise.) Section 43 thus inappropriately
places the parental liberty interest above the child's security of the person
interest
until and unless the Crown succeeds on its case. This prioritization
is contrary to that in the child protection case (Winnipeg
Child and Family
Services v K.L.W. [2000] 2 S.C.R. 519 at paragraph 94).
- Child protection laws are simply not effective enough in preventing abuse
when countered by s. 43 which in practice works against
deterrence of the use
of abusive physical punishment. One is led to concur with the European Court
of Human Rights that: "Children
and other vulnerable individuals, in
particular are entitled to State protection, in the form of effective
deterrence..." (A
v. United Kingdom, European Court of Human Rights [1998]
100/1997/84/109 at paragraph 22). Canada to date has not sufficiently
provided
that effective deterrence to physical child abuse in part since the State
retains the s. 43 provision which justifies
the use of corporal punishment.
The State thus continues to retain s. 43 condoning corporal punishment
despite: a) its association
with an increased risk of child physical abuse; b)
the absence of evidence for the corrective value of physical punishment of
children as acknowledged in the recent Canadian Foundation case (Canadian
Foundation for Children, Youth and the Law v The
Attorney General of Canada
[2002] Ont ACJ Docket No. C34749 at paragraph 9) and c) evidence that
abolition of the section need
not be associated with criminalization of
parents or teachers for the use of non-abusive force against a child.
- Section 43 not infrequently provides a justification for teachers, parents
and parental delegates when they use nontrivial force
against a child in their
charge which would be considered abusive in the protection context. It is not
consistent with the
State's goal of protecting the sanctity of the family,
however, to sacrifice the well-being of its youngest members. Such does
nothing to preserve the integrity of family life as normally conceived. The
child further is not just a member of a family
but of a larger community that
also has an interest in the young person's well-being. It must be recognized
then that: "..Violence
is never a private matter" (Statement from the Swedish
Ministry responsible for child welfare; cited in Hindberg, 2001). The
benevolent intent of the State in retention of s. 43 is not sufficient to
overcome the negative impact upon individual children,
children as a class,
the integrity of the family and the society as a whole. Focusing on the
State's intent rather than the
impact of legislation opens the door to
permitting fundamental human rights violations based on good intent. Jeffrey
Wilson
put the matter eloquently as follows:
..the very fundamental equality rights so laboriously delineated
in subsection 15(1) could be denied to a powerless constituency
as long as
the intent of a patriarchal legislature is benevolent" (Wilson, J., Cited in
Bayefsky, A. and Ebert, M. 1985,
p. 300)
- The State via s. 43 has stipulated that corporal punishment of a child
under the conditions specified in that section is "corrective";
that is in the
best interests of the child (i.e. a necessary educational or child rearing
tool). In this way, a profound infringement
of rights is inappropriately
regarded as in the child's best interest. This despite the fact that the
Courts and the social
science experts all agree that corporal punishment is
not an effective educational device and can produce harm at least under
certain scenarios (see for instance Canadian Foundation for Children Youth and
the Law v Canada (Attorney General ) [2000]
Ont ACJ Docket No. C34749). We
turn now to a discussion of the s. 12 Charter issue in relation whether s. 43
is rationally
connected to the State's objective.
- Corporal punishment even where it does not result in physical injury meets
the definition of cruel and unusual punishment if one
considers that:
..cruelty [is] not confined on its meaning to conduct that
creates a danger to life, limb or health but includes any course of
conduct
...that is grossly insulting and intolerable (Alberta Domestic
Relations Act, RSA 2000, Chapter D-12, s.6(12): emphasis added).
- A view of corporal punishment as part of a context involving cruel
treatment due to its gross insult to human dignity is consistent
with the
position of the Israeli Supreme Court in the case that marked the end of
corporal punishment in that country:
- Corporal punishment of children, or humiliation and derogation from
their dignity as a method of education by their parents, is entirely
impermissible (Plonit v A.G. Israeli Supreme Court Criminal Appeal
4596/98, 54(1) P.D. 145; emphasis added).
- There can be little disagreement that corporal punishment is grossly
insulting to any person and it is for that reason that the
courts in the
Canadian Foundation case, for instance, admonished against the use of corporal
punishment with teens (Canadian
Foundation for Children Youth and the Law v
Canada (Attorney General ) [2000] Ont. ACJ Docket No. C34749, paragraph 8). It
is respectfully submitted that physical punishment is no less of an affront to
the human dignity of a child of any other age.
It is to be emphasized that the
parent or teacher administering corporal punishment does so wittingly or
unwittingly under
the auspices of the State- provided justification in s. 43
and accordingly acts as a delegate of the State. Note that schools
are agents
of the State and hence it is not surprising that school teachers in particular
were included in the s. 43 defense.
- The State has an interest in ensuring that children mature into law
abiding citizens who conform to social norms that are considered
to be within
the spectrum of what can be tolerated by the larger Canadian society. The
State has unwisely decided that providing
a defense for corporal punishment of
the child as per s. 43 will assist in its meeting the aforementioned
objective. Hence,
the charge of cruel and unusual punishment on this
interpretation is applicable to corporal punishment of a child by a parent,
parental delegate or teacher. The behavior is State sanctioned and fulfils a
State objective and is thus not simply a reflection
of private behavior
between individuals in a family or school setting. Consequently, it is
proposed that the State bears some
of the responsibility for the rates of
child abuse in Canadian society given its approval under s. 43 of corporal
punishment
as a form of justified discipline despite the risks.
- The aforementioned position regarding the State's contribution to corporal
punishment of the child and its consequences is contrary
to that put forward
by the Ontario Appeal Court in the Canadian Foundation case supra. The latter
court did not acknowledge
that s. 43 "justifies" rather than merely "excuses"
corrective corporal punishment of a child using reasonable force ( Goudge,
J.A.:"The section does not approve or encourage such punishment" Canadian
Foundation for Children, Youth and the Law v Canada
(Attorney General) [2000]
Ont. ACJ Docket No. C34749, paragraph 49). With respect, it is for this reason
that the Appeal Court
in the Canadian Foundation case erred in minimizing the
role of the State when a parent, parental delegate or teacher applies
corporal
punishment against a child: "By enacting the section, the State cannot be said
to either inflict the physical punishment
or be responsible for its infliction
(Canadian Foundation for Children Youth and the Law v Canada (Attorney General
) [2000]
Ont ACJ Docket No. C34749 at paragraph 54).
- In the next section, we consider the final element in the section one test
for proportionality as applied to s. 43 of the Canadian
criminal code. That
element it is to be recalled concerns whether the deleterious effects of s. 43
are outweighed by any benefit
to be derived from attaining the objective
sought and whether or not the measure used is the least restrictive available.
- In the preceding we have considered the negative consequences of s. 43
which include the following:
- the condoning of corporal punishment through the reference to
"justified" use of "corrective force" in the text of s. 43 despite
corporal
punishment being a context with an increased risk of substantial physical
injury to the child. In this regard,
consider that in a s. 43 case thus the
State is prosecuting a case partly of its own making;
- reinforcement of notions (i.e. the justified use of "corrective force"
against a child) that support the perpetuation of family
violence and thus
undermine the integrity of the family;
- creating inconsistency in the law such that the same act is considered a
justifiable infringement on the child's security of
the person right under
the criminal code but an unlawful infringement constituting child abuse in
the protection context.
This then sends a very confused message to the
community regarding what constitutes "reasonable force" and what is the
value of corporal punishment as a disciplinary technique with children;
- unconstitutional denial of the child's general right to security of the
person and substitution of a limited underinclusive right
to protection from
the use of excessive force.
- In addition, we have seen that corporal punishment does not adequately
meet its goal of correction, and creates a risk for escalating
violence given
its lack of efficacy in modifying behavior longer term. It is also
well-established that there are more effective
disciplining strategies
available. Furthermore, the issue of the criminalization of parents for the
use of trivial force has
been shown to be something of a 'red herring' given:
a) the international evidence of no increase in criminal prosecutions of
parents for the use of non-abusive force against the child following a ban on
corporal punishment of the child; and b) the
existence of a range of possible
options regarding consequences for violation of the ban on the use of corporal
punishment
of a child some of which involve no criminal prosecution.
- It would seem that section 43 persists in the Canadian criminal code not
due to any benefit to the child or society, but due to
archaic notions about
the alleged incorrigible nature of the child combined with a gross
underestimate of the young child and
middle school child's capacity for basic
reasoning (note that 3-12 is the age range identified by the Ontario Appeal
Court
in the Canadian Foundation case supra as that to which the child
subjected to corporal punishment ought to belong). Section 43
thus fails the
section one test since it does not achieve State objectives and creates
substantial societal harms by undermining
core Charter values. These values
relate to respect for the human dignity of all. In the concluding section is
considered further
in what way s. 43 is inimical to a free and democratic
society.
- Justice Dickson in R v Oakes points out that:
The underlying values and principles of a free and democratic
society are the genesis of the rights and freedoms guaranteed by
the Charter
and the ultimate standard against which the limit on a right or freedom must
be shown, despite its effects,
to be reasonable and demonstrably justified
... ( (R v Oakes [1986] 1 S.C.R. 103 at paragraph 64).
- Corporal punishment of a child is not consistent with the values
underlying a free and democratic society since such a society
seeks to protect
the fundamental human rights of the vulnerable not to legislate them away.
Section 43 in negating the child's
general guarantee of security of the person
immeasurably weakens the democratic principles underpinning the Charter.
Corporal
punishment is, furthermore, a bar to the child's democratic
participation in society. A prerequisite for such participation is
that the
child be regarded as an individual in his or her own right, with distinct
interests and an independent and equal claim
to human dignity. L'Heureux-Dube
in Young v Young alluded to the child's independent right to security of the
person when she
held that:
- The power of the custodial parent is not a "right" with independent value
granted by courts for the benefit of the parent. Rather,
the child has the
right to a parent who will look after his or her best interests and the
custodial parent a duty to ensure, protect and promote the child's
best
interests (Young v Young [1993] 4 S.C.R. 3, case summary; emphasis added).
- The liberty interest of the parent, or parental delegate as regards the
child is thus but the vehicle through which the child's
independent interests
as a member of a free and democratic society are expressed given the child's
immature developmental status.
Section 43, however, regards the parental
liberty interest as overriding the child's inclusive right to security of the
person
thus negating the child's status as a person with an independent claim
to the general guarantees under s.7 of the Charter.
- Section 43 represents the State's creation of a legal foundation for the
denial of the child's equal right to an inclusive Charter
guarantee to
security of the person. Section 43 operates in effect as would an Act of
Parliament which invoked the notwithstanding
clause under s. 33 (1) of the
Charter in regard to the infringement of the child's inclusive right to
security of the person.
It would, however, not be politic to highlight through
the invocation of the notwithstanding clause that children in Canada are
not
to be accorded the same respect for their bodily and psychological integrity
under the Canadian Charter of Rights and Freedoms
(1982) as are other persons
in the society. Yet, this is precisely the situation given that section 43
still has full force
and effect despite its failure to meet the section 1
test.
*Since the writing of this paper, the Supreme Court of Canada released its decision with the majority ruling that the s. 43 defense
is constitutional and among other things that: "it is not a principle of fundamental justice that laws affecting children must be
in their best interests" (case summary) . Indeed the majority view was that: "'bests interest of the child' fails to meet the ...criterion
for a principle of fundamental justice: consensus that the principle is vital or fundamental to our societal notion of justice" (at
paragraph 10). Thus the struggle will continue for the realization of children's rights in this most fundamental area of security
of the person and more generally, until children's rights and best interests are considered integral to Canadian society's notion
of justice.
The litigants in Canadian Foundation for Children, Youth and the Law v
Canada (Attorney General) recently heard by the Supreme
Court of Canada with
judgment reserved are as follows:
The Applicant: Canadian Foundation for Children, Youth and the Law also
known as "Justice for Children and Youth" is a non-profit
legal aid clinic
providing legal representation to poor and disadvantaged children in Toronto
and surrounding area.
The Respondent: The Attorney General in Right of Canada (AG) took the
position that s. 43 is a necessary part of the Canadian Criminal
Code in that
it protects parents and others duly authorized to apply "corrective" and
"reasonable" force to a child from being
improperly criminalized. The AG of
Canada also held that the existing provincial child protection laws in Canada
are adequate
to protect Canadian children from physical abuse.
- The Canadian Teachers' Federation (CTF) - The CTF is a conglomerate of 14
provincial and territorial teachers organizations across
Canada representing
240, 000 teachers in Canada nationwide. The CTF argued for retention of the
s.43 defense even though the
group does not support the use of corporal
punishment. The CTF argued that the decision before the court was to decide if
teachers
and parents may use reasonable force other than corporal punishment
for corrective purpose with children.
- The Coalition for Family Autonomy - This coalition is comprised of the
Canada Family Action Coalition (CFAC), REAL Women of Canada,
the Home School
Legal Defense Association of Canada and the Focus on the Family group. This
coalition argued for retention
of s. 43. The Coalition for Family Autonomy
maintained that abolishing s. 43 would result in an infringement of parental
liberty
rights regarding child rearing and also that current child protection
laws in Canada are adequate to address any concerns.
- The Ontario Association of Children's Aids Societies (OACAS)- The OACAS
represents 51 children's aid societies in Ontario, Canada
and is funded
through membership fees and government grants.. This group addresses welfare
issues in terms of policy development,
research and liaises with government as
well as directly serving the public in various ways. The OACAS intervened in
the Canadian
Foundation case to plead for elimination of the s. 43 defense The
OACAS argued that current child protection laws in Canada are
reactive and not
sufficient to protect children from harm. Rather the repeal of s. 43, the
OACAS argued, is also a necessity
if Canadian children's security of the
person is to be better protected.
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A v The United Kingdom [1998] European Court of Human Rights 100/1997/884/109
B (R) v Children's Aid of Metropolitan Toronto [1995] 1 S.C.R. 315
Canadian Foundation for Children, Youth and the Law v Canada (Attorney
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Legislation
Alberta Domestic Relations Act RSA 2000 Section 1 Chapter D-14
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International
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Swedish Parenthood and Guardianship Code (1979). See Global Initiative to End
Corporal Punishment of All Children at
http://endcorporalpunishment.org/pages/progress/prohib_states.html
for a discussion of various family law codes including the Austrian Family
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of children (Retrieved May
1, 2003 from the world wide web).
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