Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2004-01-30
Neutral citation
2004 SCC 4
Report
[2004] 1 SCR 76
Case number
29113
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 29113
Decision Content
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4
Canadian Foundation for Children, Youth and the Law Appellant
v.
Attorney General in Right of Canada Respondent
and
Focus on the Family (Canada) Association, Canada Family
Action Coalition, Home School Legal Defence Association
of Canada and REAL Women of Canada, together forming the
Coalition for Family Autonomy, Canadian Teachers’ Federation,
Ontario Association of Children’s Aid Societies, Commission des
droits de la personne et des droits de la jeunesse, on its own
behalf and on behalf of Conseil canadien des organismes
provinciaux de défense des droits des enfants et des jeunes,
and Child Welfare League of Canada Interveners
Indexed as: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Neutral citation: 2004 SCC 4.
File No.: 29113.
2003: June 6; 2004: January 30.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Fundamental justice — Vagueness — Corporal punishment — Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil — Whether provision unconstitutionally vague or overbroad — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 43 .
Constitutional law — Charter of Rights — Cruel and unusual punishment — Corporal punishment — Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil — Whether provision infringes right not to be subject to cruel and unusual treatment or punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 43 .
Constitutional law — Charter of Rights — Equality rights — Children — Corporal punishment — Section 43 of Criminal Code justifying use of reasonable force by parents and teachers by way of correction of child or pupil — Whether provision infringes right to equality — Canadian Charter of Rights and Freedoms, s. 15(1) — Criminal Code, R.S.C. 1985, c. C-46, s. 43 .
Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and teachers against children in their care. The appellant sought a declaration that s. 43 violates ss. 7 , 12 and 15(1) of the Canadian Charter of Rights and Freedoms . The trial judge and the Court of Appeal rejected the appellant’s contentions and refused to issue the declaration requested.
Held (Binnie J. dissenting in part; Arbour and Deschamps JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ.: Section 43 of the Criminal Code does not offend s. 7 of the Charter . While s. 43 adversely affects children’s security of the person, it does not offend a principle of fundamental justice. First, s. 43 provides adequate procedural safeguards to protect this interest, since the child’s interests are represented at trial by the Crown. Second, it is not a principle of fundamental justice that laws affecting children must be in their best interests. Thirdly, s. 43, properly construed, is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement. The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction. While the words “reasonable under the circumstances” on their face are broad, implicit limitations add precision. Section 43 does not extend to an application of force that results in harm or the prospect of harm. Determining what is “reasonable under the circumstances” in the case of child discipline is assisted by Canada’s international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation. When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction.
The conduct permitted by s. 43 does not involve “cruel and unusual” treatment or punishment by the state and therefore does not offend s. 12 of the Charter . Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency.
Section 43 does not discriminate contrary to s. 15(1) of the Charter . A reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by s. 15(1) . While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. Without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.
Per Binnie J. (dissenting in part): By denying children the protection of the criminal law against the infliction of physical force that would be criminal assault if used against an adult, s. 43 of the Criminal Code infringes children’s equality rights guaranteed by s. 15(1) of the Charter . To deny protection against physical force to children at the hands of their parents and teachers is not only disrespectful of a child’s dignity but turns the child, for the purpose of the Criminal Code , into a second class citizen. Such marginalization is destructive of dignity from any perspective, including that of a child. Protection of physical integrity against the use of unlawful force is a fundamental value that is applicable to all.
The majority in this case largely dismisses the s. 15(1) challenge because of the alleged correspondence between the actual needs and circumstances of children and the diminished protection they enjoy under s. 43 . In the majority view, the objective of substantive equality (as distinguished from formal equality) calls for the differential treatment of children. Here, however, the “correspondence” factor is used as a sort of Trojan horse to bring into s. 15(1) matters that are more properly regarded as “reasonable limits . . . demonstrably justified in a free and democratic society” (s. 1). Section 43 protects parents and teachers, not children. The justification for their immunity should be dealt with under s. 1.
The use of force against a child, which in the absence of s. 43 would result in a criminal conviction, cannot be said to “correspond” to a child’s “needs, capacities and circumstances” from the vantage point of a reasonable person acting on behalf of a child who seriously considers and values the child’s views and developmental needs. Furthermore, the use of the “correspondence” factor to deny equality relief to children in this case is premised on the view that the state has good reason for treating children differently because of the role and importance of family life in our society. However, to proceed in this way just incorporates the “legitimate objective” element from the s. 1 Oakes test into s. 15, while incidentally switching the onus to the rights claimant to show the legislative objective is not legitimate, and relieving the government of the onus of demonstrating proportionality, including minimal impairment. This denies children the protection of their right to equal treatment.
The infringement of children’s equality rights is saved by s. 1 of the Charter in relation to parents and persons standing in the place of parents. The objective of s. 43 of limiting the intrusion of the Criminal Code into family life is pressing and substantial and providing a defence to a criminal prosecution in the circumstances stated in s. 43 is rationally connected to that objective. As to minimal impairment, the wording of s. 43 not only permits calibration of the immunity to different circumstances and children of different ages, but it allows for adjustment over time. The proportionality requirements are met by Parliament’s limitation of the s. 43 defence to circumstances where: (i) the force is for corrective purposes, and (ii) the measure of force is shown to be reasonable in the circumstances. What is reasonable in relation to achievement of the legitimate legislative objective will not, by definition, be disproportionate to such achievement. Moreover, the salutary effects of s. 43 exceed its potential deleterious effects when one considers that the assault provisions of the Criminal Code are just a part, and perhaps a less important part, of the overall protections afforded to children by child welfare legislation. To deny children the ability to have their parents successfully prosecuted for reasonable corrective force under the Criminal Code does not leave them without effective recourse. It just helps to keep the family out of the criminal courts. Section 43 in relation to parents is justified on this basis.
The extension of s. 43 protection to teachers has not been justified under the s. 1 test. Parents and teachers play very different roles in a child’s life and there is no reason why they should be treated on the same legal plane for the purposes of the Criminal Code . The logic for keeping criminal sanctions out of the schools is much less compelling than for keeping them out of the home. While order in the schools is a legitimate objective, giving non-family members an immunity for the criminal assault of children “by way of correction” is not a reasonable or proportionate legislative response to that problem. Section 43 does not minimally impair the child’s equality right, and is not a proportionate response to the problem of order in the schools.
Per Arbour J. (dissenting): Section 43 of the Criminal Code can only be restrictively interpreted if the law, as it stands, offends the Constitution and must therefore be curtailed. Absent such constitutional restraints, it is neither the historic nor the proper role of courts to enlarge criminal responsibility by limiting defences enacted by Parliament. The reading down of a statutory defence amounts to an abandonment by the courts of their proper role in the criminal process. Nothing in the words of s. 43 , properly construed, suggests that Parliament intended that some conduct be excluded at the outset from the scope of its protection. This is the law as we must take it in order to assess its constitutionality. To essentially rewrite it before validating its constitutionality is to hide the constitutional imperative.
Section 43 of the Criminal Code infringes the rights of children under s. 7 of the Charter . The phrase “reasonable under the circumstances” in s. 43 violates children’s security of the person interest and the deprivation is not in accordance with the relevant principle of fundamental justice, in that it is unconstitutionally vague. A vague law violates the principles of fundamental justice because it does not provide “fair warning” to individuals as to the legality of their actions and because it increases the amount of discretion given to law enforcement officials in their application of the law, which may lead to arbitrary enforcement. There is no need to speculate about whether s. 43 is capable, in theory, of circumscribing an acceptable level of debate about the scope of its application. Canadian courts have been unable to articulate a legal framework for s. 43 despite attempts to establish guidelines and have been at a loss to appreciate the “reasonableness” referred to by Parliament. “Reasonableness” with respect to s. 43 is linked to public policy issues and one’s own sense of parental authority and always entails an element of subjectivity. Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often engage cultural and religious beliefs as well as political and ethical ones. While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard and the lack of clarity is particularly problematic here because the rights of children are engaged. The restrictions put forth by the majority with respect to the scope of the defence in s. 43 have not emerged from the existing case law. These restrictions are far from self-evident and would not have been anticipated by many parents, teachers or enforcement officials. Attempts at judicial interpretation which would structure the discretion in s. 43 have failed to provide coherent or cogent guidelines that would meet the standard of notice and specificity generally required in the criminal law.
Since s. 43 is unconstitutionally vague, it cannot pass the “prescribed by law” requirement in s. 1 of the Charter or the minimal impairment stage of the Oakes test and accordingly cannot be saved under that section. Striking down the provision is the most appropriate remedy, as Parliament is best equipped to reconsider this vague and controversial provision. Striking down s. 43 will not expose parents and persons standing in the place of parents to the blunt instrument of the criminal law for every minor instance of technical assault. The common law defences of necessity and de minimis adequately protect parents and teachers from excusable and/or trivial conduct. The defence of necessity rests upon a realistic assessment of human weaknesses and recognizes that there are emergency situations where the law does not hold people accountable if the ordinary human instincts overwhelmingly impel disobedience in the pursuit of self-preservation or the preservation of others. Because the s. 43 defence only protects parents who apply force for corrective purposes, the common law may have to be resorted to in any event in situations where parents forcibly restrain children incapable of learning, to ensure the child’s safety, for example. With respect to the common law defence of de minimis, an appropriate expansion in the use of that defence would assist in ensuring that trivial, technical violations of the assault provisions of the Criminal Code do not attract criminal sanctions.
Per Deschamps J. (dissenting): The ordinary and contextual meaning of s. 43 cannot bear the restricted interpretation proposed by the majority. Section 43 applies to and justifies an extensive range of conduct, including serious uses of force against children. There was agreement with Arbour J. that the body of case law applying s. 43 is evidence of its broad parameters and wide scope. Where, as here, the text of the provision does not support a severely restricted scope of conduct that would avoid constitutional disfavour, the Court cannot read the section down to create a constitutionally valid provision. It is the duty of the Court to determine the intent of the legislator by looking at the text, context and purpose of the provision.
Section 43 infringes the equality guarantees of children under s. 15(1) of the Charter . On its face, as well as in its result, s. 43 creates a distinction between children and others which is based on the enumerated ground of age. Moreover, the distinction or differential treatment under s. 43 constitutes discrimination. The government’s explicit choice not to criminalize some assaults against children violates their dignity. First, there is clearly a significant interest at stake because the withdrawal of the protection of the criminal law for incursions on one’s physical integrity would lead the reasonable claimant to believe that her or his dignity is being harmed. Second, children as a group face pre-existing disadvantage in our society and have been recognized as a vulnerable group time and again by legislatures and courts. Third, the proposed ameliorative purposes or effects factor does not apply and has only a neutral impact on the analysis. Lastly, s. 43 perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided. Far from corresponding to the actual needs and circumstances of children, s. 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.
The infringement of s. 15(1) is not justified as a reasonable limit under s. 1 of the Charter . The legislative objective behind s. 43 of recognizing that parents and teachers require reasonable latitude in carrying out the responsibility imposed by law to provide for their children, to nurture them, and to educate them is pressing and substantial. As well, there does appear to be a rational connection between the objective and limiting the application of the criminal law in the parent-child or teacher-pupil relationship. However, it is clear that less intrusive means were available that would have been more appropriately tailored to the objective. Section 43 could have been defined in such a way as to be limited only to very minor applications of force rather than being broad enough to capture more serious assaults on a child’s body. It could also have been better tailored in terms of those to whom it applies, those whom it protects, and the scope of conduct it justifies. A consideration of the proportionality between the salutary and deleterious effects of the application of s. 43 also supports the conclusion that the proportionality part of the Oakes test has not been met. The deleterious effects impact upon such a core right of children as a vulnerable group that the salutary effects must be extremely compelling to be proportional. The discrimination represented by s. 43 produces the most drastic effect in sending the message that children, as a group, are less worthy of protection of their bodies than anyone else.
The striking down of s. 43 is the only appropriate remedy in this case and s. 43 should be severed from the rest of the Criminal Code . It does not measure up to Charter standards and, thus, must cede to the supremacy of the Constitution to the extent of any inconsistency.
Cases Cited
By McLachlin C.J.
Referred to: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Grayned v. City of Rockford, 408 U.S. 104 (1972); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173; R. v. K. (M.) (1992), 74 C.C.C. (3d) 108; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Eur. Court H. R., A. v. United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI; R. v. Dupperon (1984), 16 C.C.C. (3d) 453; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Smith, [1987] 1 S.C.R. 1045; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84.
By Binnie J. (dissenting in part)
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173; R. v. Cuerrier, [1998] 2 S.C.R. 371; Streng v. Township of Winchester (1986), 31 D.L.R. (4th) 734; Jones v. Ontario (Attorney General) (1988), 65 O.R. (2d) 737; Piercey v. General Bakeries Ltd. (1986), 31 D.L.R. (4th) 373; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84; Egan v. Canada, [1995] 2 S.C.R. 513; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Miron v. Trudel, [1995] 2 S.C.R. 418; R. v. Oakes, [1986] 1 S.C.R. 103; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Jobidon, [1991] 2 S.C.R. 714; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
By Arbour J. (dissenting)
R. v. Pickard, [1995] B.C.J. No. 2861 (QL); R. v. G.C.C. (2001), 206 Nfld. & P.E.I.R. 231; R. v. Fritz (1987), 55 Sask. R. 302; R. v. Bell, [2001] O.J. No. 1820 (QL); R. v. N.S., [1999] O.J. No. 320 (QL); R. v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24; Ogg‑Moss v. The Queen, [1984] 2 S.C.R. 173; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Campbell (1977), 38 C.C.C. (2d) 6; R. v. Dupperon (1984), 16 C.C.C. (3d) 453; R. v. Wetmore (1996), 172 N.B.R. (2d) 224; R. v. Graham (1995), 160 N.B.R. (2d) 306; R. v. Plourde (1993), 140 N.B.R. (2d) 273; R. v. Caouette, [2002] Q.J. No. 1055 (QL); R. v. Skidmore, Ont. C.J., No. 8414/99, June 27, 2000; R. v. Gallant (1993), 110 Nfld. & P.E.I.R. 174; R. v. Fonder, [1993] Q.J. No. 238 (QL); R. v. James, [1998] O.J. No. 1438 (QL); R. v. Wood (1995), 176 A.R. 223; R. v. Vivian, [1992] B.C.J. No. 2190 (QL); R. v. Murphy (1996), 108 C.C.C. (3d) 414; R. v. K. (M.) (1992), 74 C.C.C. (3d) 108; R. v. Goforth (1991), 98 Sask. R. 26; R. v. Wheeler, [1990] Y.J. No. 191 (QL); R. v. V.L., [1995] O.J. No. 3346 (QL); R. v. Holmes, [2001] Q.J. No. 7640 (QL); R. v. Harriott (1992), 128 N.B.R. (2d) 155; R. v. Atkinson, [1994] 9 W.W.R. 485; R. v. L.A.K. (1992), 104 Nfld. & P.E.I.R. 118; R. v. Robinson, [1986] Y.J. No. 99 (QL); R. v. V.H., [2001] N.J. No. 307 (QL); R. v. O.J., [1996] O.J. No. 647 (QL); R. v. Dunfield (1990), 103 N.B.R. (2d) 172; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. White, [1999] 2 S.C.R. 417; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. LeBeau (1988), 41 C.C.C. (3d) 163; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Morales, [1992] 3 S.C.R. 711; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Oakes, [1986] 1 S.C.R. 103; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Manning (1994), 31 C.R. (4th) 54; R. v. Morris (1981), 61 C.C.C. (2d) 163; R. v. Kormos (1998), 14 C.R. (5th) 312; The “Reward” (1818), 2 Dods. 265, 165 E.R. 1482; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; R. v. Overvold (1972), 9 C.C.C. (2d) 517; R. v. S. (1974), 17 C.C.C. (2d) 181; R. v. McBurney (1974), 15 C.C.C. (2d) 361, aff’d (1975), 24 C.C.C. (2d) 44; R. v. Li (1984), 16 C.C.C. (3d) 382; R. v. Lepage (1989), 74 C.R. (3d) 368; R. v. Matsuba (1993), 137 A.R. 34; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Hinchey, [1996] 3 S.C.R. 1128.
By Deschamps J. (dissenting)
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Lucas, [1998] 1 S.C.R. 439; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; R. v. Cuerrier, [1998] 2 S.C.R. 371; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173; R. v. Oakes, [1986] 1 S.C.R. 103; Schachter v. Canada, [1992] 2 S.C.R. 679; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Swain, [1991] 1 S.C.R. 933; M. v. H., [1999] 2 S.C.R. 3.
Statutes and Regulations Cited
Age of Majority and Accountability Act, R.S.O. 1990, c. A.7, s. 1.
Canada Shipping Act, 2001, S.C. 2001, c. 26, s. 294 (not yet in force).
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 , 15(1) .
Child and Family Services Act, R.S.O. 1990, c. C.11, s. 1(a).
Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 19(a).
Constitution Act, 1982, s. 52 .
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221.
Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S. 1982 No. 31, Arts. 5(b), 16(1)(d).
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Arts. 3(1), 5, 19(1), 37(a), 43(1).
Crimes Act 1961 (N.Z.), 1961, No. 43, s. 59.
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 [rep. & sub. 1985, c. 27 (1st Supp.), s. 75 ].
Criminal Code, S.C. 1953-54, c. 51, ss. 43, 44.
Criminal Code, 1892, S.C. 1892, c. 29, ss. 44, 45, 55.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 16(8) , (10) , 17(5) , (9) .
Education Act, S.N.B. 1997, c. E-1.12, s. 23.
Education Act, S.N.W.T. 1995, c. 28, s. 34(3).
Education Act, S.Y. 1989-90, c. 25, s. 36.
Education Act 1989 (N.Z.), 1989, No. 80, s. 139A.
Education (No. 2) Act 1986 (U.K.), 1986, c. 61, s. 47.
Family Relations Act, R.S.B.C. 1996, c. 128, s. 24(1).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25 , 28 , 60 , 67 , 68 , 69 .
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, preamble, Arts. 7, 24.
School Act, R.S.B.C. 1996, c. 412, s. 76(3).
School Act, R.S.P.E.I. 1988, c. S-2.1, s. 73.
Schools Act, 1997, S.N.L. 1997, c. S-12.2, s. 42.
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 25(8) , 27(1) , 30(3) , (4) .
Authors Cited
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APPEAL from a judgment of the Ontario Court of Appeal (2002), 57 O.R. (3d) 511, 207 D.L.R. (4th) 632, 161 C.C.C. (3d) 178, 154 O.A.C. 144, 48 C.R. (5th) 218, 23 R.F.L. (5th) 101, 90 C.R.R. (2d) 223, [2002] O.J. No. 61 (QL), affirming a judgment of the Superior Court of Justice (2000), 49 O.R. (3d) 662, 188 D.L.R. (4th) 718, 146 C.C.C. (3d) 362, 36 C.R. (5th) 334, 76 C.R.R. (2d) 251, [2000] O.J. No. 2535 (QL). Appeal dismissed, Binnie J. dissenting in part and Arbour and Deschamps JJ. dissenting.
Paul B. Schabas, Cheryl Milne and Nicholas Adamson, for the appellant.
Roslyn J. Levine, Q.C., and Gina M. Scarcella, for the respondent.
Allan O’Brien and Steven J. Welchner, for the intervener the Canadian Teachers’ Federation.
J. Gregory Richards, Ritu R. Bhasin and Marvin M. Bernstein, for the intervener the Ontario Association of Children’s Aid Societies.
David M. Brown, Manizeh Fancy and Dallas Miller, Q.C., for the intervener the Coalition for Family Autonomy.
Hélène Tessier and Athanassia Bitzakidis, for the intervener the Commission des droits de la personne et des droits de la jeunesse.
Michael E. Barrack and Christopher A. Wayland, for the intervener the Child Welfare League of Canada.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. was delivered by
1 The Chief Justice — The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction. The assault provision of the Criminal Code, R.S.C. 1985, c. C-46, s. 265 , prohibits intentional, non-consensual application of force to another. Section 43 of the Criminal Code excludes from this crime reasonable physical correction of children by their parents and teachers. It provides:
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 Canadian Foundation for Children, Youth and the Law (the “Foundation”) seeks a declaration that this exemption from criminal sanction: (1) violates s. 7 of the Canadian Charter of Rights and Freedoms because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague; (2) violates s. 12 of the Charter because it constitutes cruel and unusual punishment or treatment; and (3) violates s. 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults.
2 The trial judge and the Court of Appeal rejected the Foundation’s contentions and refused to issue the declaration requested. Like them, I conclude that the exemption from criminal sanction for corrective force that is “reasonable under the circumstances” does not offend the Charter . I say this, having carefully considered the contrary view of my colleague, Arbour J., that the defence of reasonable correction offered by s. 43 is so vague that it must be struck down as unconstitutional, leaving parents who apply corrective force to children to the mercy of the defences of necessity and “de minimis”. I am satisfied that the substantial social consensus on what is reasonable correction, supported by comprehensive and consistent expert evidence on what is reasonable presented in this appeal, gives clear content to s. 43 . I am also satisfied, with due respect to contrary views, that exempting parents and teachers from criminal sanction for reasonable correction does not violate children’s equality rights. In the end, I am satisfied that this section provides a workable, constitutional standard that protects both children and parents.
I. Does Section 43 of the Criminal Code Offend Section 7 of the Charter ?
3 Section 7 of the Charter is breached by state action depriving someone of life, liberty, or security of the person contrary to a principle of fundamental justice. The burden is on the applicant to prove both the deprivation and the breach of fundamental justice. In this case the Crown concedes that s. 43 adversely affects children’s security of the person, fulfilling the first requirement.
4 This leaves the question of whether s. 43 offends a principle of fundamental justice. The Foundation argues that three such principles have been breached: (1) the principle that the child must be afforded independent procedural rights; (2) the principle that legislation affecting children must be in their best interests; and (3) the principle that criminal legislation must not be vague or overbroad. I will consider each in turn.
A. Independent Procedural Rights for Children
5 It is a principle of fundamental justice that accused persons must be accorded adequate procedural safeguards in the criminal process. By analogy, the Foundation argues that it is a principle of fundamental justice that innocent children who are alleged to have been subjected to force exempted from criminal sanction by s. 43 of the Criminal Code have a similar right to due process in the representation of their interests at trial. Section 43 fails to accord such process, it is argued, and therefore breaches s. 7 of the Charter . The implication is that for s. 43 to be constitutional, it would be necessary to provide for separate representation of the child’s interests.
6 Thus far, jurisprudence has not recognized procedural rights for the alleged victims of an offence. However, I need not consider that issue. Even on the assumption that alleged child victims are constitutionally entitled to procedural safeguards, the Foundation’s argument fails because s. 43 provides adequate procedural safeguards to protect this interest. The child’s interests are represented at trial by the Crown. 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. There is no reason to suppose that, as in other offences involving children as victims or witnesses, the Crown will not discharge that duty properly. Nor is there any reason to conclude on the arguments before us that providing separate representation for the child is either necessary or useful. I conclude that no failure of procedural safeguards has been established.
B. The Best Interests of the Child
7 The Foundation argues that it is a principle of fundamental justice that laws affecting children must be in their best interests, and that s. 43 ’s exemption of reasonable corrective force from criminal sanction is not in the best interests of the child. Therefore, it argues, s. 43 violates s. 7 of the Charter . I disagree. While “the best interests of the child” is a recognized legal principle, this legal principle is not a principle of fundamental justice.
8 Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice”: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws.
9 The “best interests of the child” is a legal principle, thus meeting the first requirement. A legal principle contrasts with what Lamer J. (as he then was) referred to as “the realm of general public policy” (Re B.C. Motor Vehicle Act, supra, at p. 503), and Sopinka J. referred to as “broad” and “vague generalizations about what our society considers to be ethical or moral” (Rodriguez, supra, at p. 591), the use of which would transform s. 7 into a vehicle for policy adjudication. The “best interests of the child” is an established legal principle in international and domestic law. Canada is a party to international conventions that treat “the best interests of the child” as a legal principle: see the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 3(1), and the Convention on the Elimination of All Forms of D