http://www.lexum.umontreal.ca/csc-scc/en/com/2004/html/04-01-09.2.htmlOTTAWA, 09/01/04. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING APPEAL WILL BE DELIVERED AT 9:45 A.M. ON FRIDAY, JANUARY 30, 2004.
The Appellant is a not-for-profit organization which advocates on behalf of children and children's rights. It applied ... for a declaration that s. 43 of the Criminal Code ... is unconstitutional and of no force and effect.
That section provides that the use of force by teachers and parents by way of correction toward a child may be justified if it does not exceed what is reasonable under the circumstances. The section provides an exception to what would otherwise constitute criminal assault for the use of force against another. The Appellant also sought a declaration striking down any common law parental right to use corporal punishment.
The application was not based upon any factual circumstance but was heard with special permission of the court because it raised a serious legal question and there was no other reasonable or effective way for the issue to be raised. No witnesses testified, however volumes of affidavit evidence by experts and cross-examination transcripts were filed.
The Appellant argued, inter alia, that s. 43 sanctions assault against society's most vulnerable members even though the weight of evidence is that physical punishment does not benefit children and may be harmful. It teaches children that physical aggression is an appropriate response to frustration. The Appellant contends that the use of the word "justified" in s. 43 sends a message that the law regards corporal punishment as rightful behaviour and undermines efforts to educate against the use of punitive force.
The Respondent argued that while there have been cases in which judges have used s. 43 to acquit people of causing serious harm to children, those cases reflected values of an earlier time, or were wrongly decided. The Respondent submitted that s. 43 excuses parents and teachers from only a narrow range of mild to moderate corrective force, which normative or customary forms of physical punishment are acknowledged by most experts not to be child abuse.
The Superior Court of Justice dismissed the application. On March 26, 2001, the Appellant's motion to have its costs paid was dismissed. The Court of Appeal for Ontario dismissed the appeal.
The application for a declaration of unconstitutionality is based on this provision in the Canadian Charter of Rights and Freedoms (Part I of the 1982 Constitution):
http://www.efc.ca/pages/law/charter/charter.text.htmlLIFE, LIBERTY AND SECURITY OF PERSON.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The Charter also guarantees equality before and under the law:
EQUALITY BEFORE AND UNDER LAW AND EQUAL PROTECTION AND BENEFIT OF LAW
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
It also provides that governments may limit the exercise of rights in certain circumstances:
RIGHTS AND FREEDOMS IN CANADA.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
That is, if the government can demonstrate that it is justified, in a free and democratic society, to treat children differently from adults and violate their right to security of the person by allowing parents and teachers to strike or otherwise physically interfere with them, the Criminal Code exception for "correction of children" would not be unconstitutional:
http://www.canlii.org/ca/sta/c-46/sec43.htmlProtection of Persons in Authority
Correction of child by force
43. 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.
The Supreme Court of Canada applies a set of pretty stringent rules in determining whether interference with a Charter right is "demonstrably justified in a free and democratic society", the onus being on the government, once a violation is established, to prove its justification. The rules go approximately like this:
http://www.lexum.umontreal.ca/csc-scc/en/pub/1986/vol1/html/1986scr1_0103.htmlTwo central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society.
First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components.
To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective.
In addition, the means should impair the right in question as little as possible.
Lastly, there must be a proportionality between the effects of the limiting measure and the objective -- the more severe the deleterious effects of a measure, the more important the objective must be.
These rules are not completely dissimilar from the rules of constitutional scrutiny that are applied in the US, btw.
Obviously, this is an issue on which people tend to have opinions, and strong ones.
I'm wondering whether anyone would like to consider the issue before the Court's opinion is released. I'll start us off. ;)
I think that the exception in the Criminal Code is unconstitutional.
I'm not concerned about people being hauled into court for smacking a three-year-old's hand if the exception is struck down. There are two things that would make this unlikely.
First, the maxim
de minimis non curat lex: the law does not concern itself with trivialities. I would not likely be hauled into court if I smacked the hand of a family member, or even smacked him/her across the face. Parents would be no more likely to be for smacking the hand of a kid.
Second, the defence of necessity: if it is necessary to use force against a child to prevent the child from hurting him/herself or someone else, e.g. from pulling a pan of boiling water off the stove (and wanting to do so in future), a parent would be excused for using necessary force.
The real issue is the use of force as
punishment, not as a preventive or protective measure. We do not permit the use of force for that purpose on adults -- let alone without due process. There simply is no
justification for the state permitting the arbitrary use of force against children as punishment.
.
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