Canadian Foundation for Children, Youth and the Law v. Canada

[2004] 1 S.C.R. 76; I.L.D.C. 177 (CA 2004); 2004 S.C.C. 4
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This case involved a challenge to the constitutionality of s. 43 of the Criminal Code, which excluded reasonable physical correction of children by parents and teachers from the definition of assault under the Criminal Code, R.S.C. 1985, c. C-46, s.265. The Canadian Foundation for Children, Youth and the Law (the Foundation) sought a declaration to strike down s. 43.

The Foundation claimed that the exemption violated s. 7 (life, liberty, security of person to be protected in accordance with fundamental justice), s. 12 (prohibition on cruel and unusual punishment) and s. 15(1) (right to equality) of the Charter of Rights and Freedoms. They argued that the exemption violated s. 7 because it did not provide children with procedural protections, did not further the best interests of the child, and was overbroad and vague. They also argued that the exemption constituted cruel and unusual punishment and treatment contrary to article 12. Finally, they argued that the s. 15(1) violation claimed the denial of legal protection to children against assaults from adults.

 Section 43 of the Criminal Code reads:

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 held that the exemption of reasonable corrective force did not offend s. 7, s. 12 or s. 15(1) of the Charter. It upheld s. 43 of the Criminal Code and dismissed the appeal.

With regard to s. 7, the Court held that while s. 43 of the Code adversely affected children’s security of person, it did not do so in a way that was contrary to a principle of fundamental justice, and thus did not violate s. 7. The Court rejected the argument that s. 43 violated children's independent procedural rights, because the Crown adequately represented such interests at trial. It also held that s. 43 did not need to comply with the “best interests of the child” principle, because the “best interests of the child” principle was not a principle of fundamental justice. Although it was an established legal principle derived from Canada’s international obligations (see ¶9), it was not vital or fundamental to societal notions of justice given that it could be “subordinated to other concerns in appropriate contexts” ¶10, nor could it be identified with sufficient precision given its contextual and varying application. Finally, the phrasing and wording of s. 43 was not overly vague or broad. The majority stated that s. 43 clearly identified the persons it was intended for (parents and teachers), the activity it regulated (correction for educative or disciplinary purposes from which the child could benefit) and the restrictions placed on the individuals carrying out the activity (the force was limited to what was “reasonable under the circumstances”).

With regard to s. 12, the Court held that the Foundation had not shown a s. 12 violation, because the activity arising from s. 43 was not severe enough to be considered cruel and unusual or “so excessive as to defy standards of decency”. Since the corrective force allowed under s. 43 was required to be “reasonable”, it could not at at the same time defy standards of decency. The Court also noted that s. 12 provided for the protection against cruel and unusual punishment by the state, and that s. 43 of the Code was directed to parents (who were private parties) and teachers (who could be either private parties or employed by the state). While teachers employed by the state might attract the operation of s. 12, the Court did not consider it necessary to examine this question in light of the fact that the conduct allowed by s. 43 was not cruel and unusual.

The Court also held that there was no s. 15(1) violation, as s. 43 did not discriminate on the basis of age. It ruled that s. 43  did not “offend [childrens’] human dignity and freedom, by marginalizing them or treating them as less worthy.” ¶54. The Court examined the four cumulative elements of discrimination from Law, finding that three of them had unquestionably been established: children were a vulnerable group, the interest in their physical integrity was substantial, and the discrimination was not intended to ameliorate the position of a more disadvantaged group. However, the Court considered that the Foundation had failed to establish the second criteria, that the law failed to take into correspond with the actual needs and circumstances of children,. The Court held that s. 43 was intended to balance children’s need for protection from abuse with their need for guidance and discipline. Section 43 aimed to ensure that minor use of force for educative purposes was not criminalized, as such a law would have a negative impact on the role of families and schools in nurturing children and helping them develop.

Binnie J partially dissented. While finding with the majority that s. 43 of the Code did not violate s. 7 and s. 12 of the Charter, his Honour found that it infringed s. 15(1), and that this infringement could be justified with respect to parents, but not teachers under s. 1 of the Charter (whether the infringement is a reasonable limit that can be justified in a democratic society).

Arbour J. dissented, finding that s. 43 of the Criminal Code violated s. 7 of the Charter due to vagueness and could not be saved by s. 1. As a result, her Honour considered that it was not necessary to answer questions regarding s. 12 and s. 15(1).

“The ‘best interests of the child’ is widely supported in legislation and social policy, and is an important factor for consideration in many contexts. It is not, however, a foundational requirement for the dispensation of justice.” ¶10

“Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency. Corrective force that might rise to the level of ‘cruel and unusual’ remains subject to criminal prosecution.” ¶49

“In fact, declining to bring the blunt hand of the criminal law down on minor disciplinary contacts of the nature described in the previous section reflects the resultant impact this would have on the interests of the child and on family and school relationships. Parliament’s choice not to criminalize this conduct does not devalue or discriminate against children, but responds to the reality of their lives by addressing their need for safety and security in an age-appropriate manner.” ¶51

“The essence of s. 43 is not Parliament’s endorsement of the use of force against children; it is the exemption from criminal sanction for their parents and teachers in the course of reasonable correction.” ¶65

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