The Canadian Association for the Practical Study of Law in Education (“CAPSLE”) is a national organization that provides a forum for the discussion of legal issues involving education, with a particular focus on the practical aspects of law in education. Information on CAPSLE can be found on the organization’s website: www.capsle.com
Wendy Harris, a partner in Harris & Company, is the current President of CAPSLE. The following case commentary by Ms. Harris addresses the Supreme Court of Canada’s seminal decision on the constitutionality of Section 43 of the Criminal Code of Canada, commonly referred to in the media as the “spanking” case. The commentary will be published in “CAPSLE Comments” a newsletter published quarterly by the organization.
Many of the cases which wind their way up to the Supreme Court of Canada are of interest only to the litigants and the legal community. There are, however, a few cases which attract the attention of just about everyone. The constitutional challenge brought to the Court by the Canadian Foundation for the Children, Youth and the Law is one such case.
In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), the Foundation challenged the constitutionality of Section 43 of the Criminal Code of Canada, which permits schoolteachers, parents and persons standing in the place of parents to use corrective force against children (e.g. spanking) without facing criminal sanction. The Foundation claimed that Section 43:
- violates section 7 of the 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;
- violates section 12 of the Charter because it allows cruel and unusual punishment; and
- violates section 15(1) of the Charter because it denies children equal protection against assaults that is accorded to adults.
Depending on one’s point of view the case presented fundamentally important, but different, issues of concern to our society including:
- the rights of children to be protected from physical harm;
- the appropriateness of physical force as a disciplinary measure;
- the legitimacy of teachers administering corporal punishment and corrective force on students;
- the justification for differentiating between the legal protections afforded children and adults; and
- the extent to which the government and judiciary should regulate parental child rearing practices.
The Chief Justice, writing for the majority of the Court, was clearly sensitive to the significant implications of the decision for children, for families and for teachers. She sought to reconcile competing positions by upholding Section 43 while at the same time providing an interpretation of the provision which effectively places substantial limitations on its application. Accordingly, although some commentators have applauded the Court’s decision as “non-interventionist” and “upholding parental autonomy”, the Court has, in fact, narrowed the permissible use of “reasonable force” against children under Section 43.
The Court held that Section 43 only exempts from criminal sanction “minor corrective force of a transitory or trifling nature”. The Court said that Section 43 guarantees immunity for “reasonable discipline” not child abuse. Relying on expert opinion the Court declared that Section 43 does not apply to corporal punishment of children under two, teenagers or other children who are incapable of learning from the application of force because of disability or some other contextual factor. Discipline by the use of objects or blows or slaps to the head is unreasonable. Similarly, degrading, inhuman or harmful conduct is not protected. The use of force is to be corrective and not to satisfy the desire of an adult to strike out in anger.
With respect to the application of Section 43 to teachers, the Court held that teachers who use corporal punishment on students will not be protected under Section 43. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.
Perhaps the most important caveat on the decision of the Court, as the Chief Justice explains, is that what constitutes “reasonable force” is shaped by community expectations and social standards. By maintaining the “reasonableness” standard as the measure for the acceptable use of force, the Court leaves room for further judicial interpretation. The limits on what is “reasonable” will continue to evolve over time. One generation ago, strapping children at school and spanking children at home were generally considered perfectly acceptable forms of discipline. As more and more children are raised and educated without corporal punishment, the less likely spanking and other uses of corrective force on children will be acceptable to future generations.
While the majority upheld Section 43 by effectively reading down the provision, Justice Arbour and Justice Deschamps dissented. The strong dissent of Justice Arbour is particularly significant in light of her recent appointment as the United Nations Human Rights Commissioner. She found that Section 43 was unconstitutionally vague. She concluded that the interpretation of “reasonableness” in Section 43 was too subjective and influenced by one’s own experiences and background. She cited a number of judgments in which startling uses of physical force were afforded protection under Section 43. She concluded that the “reasonable force standard has proven not to be workable” and this lack of clarity is problematic as the rights of children were engaged. Justice Arbour held that the section cannot be justified under section 1 of the Charter. Parents and teachers have the common law defenses of necessity and de minimis to protect them from excusable or trivial conduct.
In separate reasons, Justice Deschamps agreed with Justice Arbour that the broad scope of Section 43 cannot properly be saved by reading down the provision. Justice Deschamps found that the provision discriminated against children on the basis of their age under Section 15(1) of the Charter. She also found that the infringement of their constitutional rights cannot be justified under Section 1 of the Charter and that the striking down of Section 43 is the only appropriate remedy.
Thus, while the majority judgment attempts to establish workable guidelines for the interpretation of Section 43, the strong dissents of Justices Arbour and Deschamps, research on the effects of physical punishment on children, and the Government’s own published position that “it is never OK to spank children” signal the need for Parliamentary review of Section 43.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General),  S.C.J. No. 6, January 30, 2004.