Date: January 2004

Canada's Supreme Court limits but fails to remove parents' "reasonable force" defence

By six to three, Canada's Supreme Court judges have strictly limited the legality of parental corporal punishment and ruled out school corporal punishment. But they rejected an application by the Canadian Foundation for Youth, Children and the Law that section 43 of Canada's criminal code should be struck down as unconstitutional. The judgment was issued on January 30 2004.

The majority judgment ruled that section 43 only justifies "minor corrective force of a transitory and trifling nature." It ruled out "on the basis of current expert consensus", corporal punishment of children under two or over 12; degrading, inhuman or harmful conduct; discipline using objects such as rulers or belts, and blows or slaps to the head. And the judgment states that teachers cannot use corporal punishment, although they may use reasonable force to remove a child from a classroom or secure compliance with instructions: "Substantial societal consensus, supported by expert evidence and Canada's treaty obligations, indicates that corporal punishment by teachers is unreasonable."

Section 43 of the Code, under the heading "Protection of Persons in Authority" provides that: "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."

School corporal punishment has been prohibited in Canada in state schools only in British Columbia, Quebec, Nova Scotia, New Brunswick, Yukon, Newfoundland, Prince Edward Island, Northwest Territories and Nunavut. The judgment implies that corporal punishment is now unlawful in all private and public schools throughout Canada.

Two of the dissenting judges, Justices Louise Arbour and Marie Deschamps, stated that section 43 violated the equality provision in the Charter and should be struck down altogether. Louise Arbour stated: "Striking down the provision is the most appropriate remedy, as Parliament is best equipped to reconsider this vague and controversial provision. Striking down section 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."

Justice Arbour stated: "What is acceptable as punishment to a society will vary with the nature of that society, its degree of stability and its level of maturity. The punishments of lashing with the cat-o-nine tails and keel-hauling were accepted forms of punishment in the 19th century in the British navy. Both of those punishments could, and not infrequently, did result in death to the recipient. By the end of the 19th century, however, it was unthinkable that such penalties would be inflicted. A more sensitive society had made such penalties abhorrent.

"That s. 43 is rooted in an era where deploying 'reasonable' violence was an accepted technique in the maintenance of hierarchies in the family and in society is of little doubt. Children remain the only group of citizens who are deprived of the protection of the criminal law in relation to the use of force."

A third judge, Justice Binnie, stated: "With all due respect to the majority of my colleagues, there can be few things that more effectively designate children as second-class citizens than stripping them of the ordinary protection of the assault provisions of the Criminal Code. Such stripping of protection 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."

But he went on to argue that section 43 should be upheld in relation to parents and those who stand in the place of parents, but not teachers.

Justice Marie Deschamps argued that "by permitting incursions on children's bodies by their parents or teachers, section 43 appears to be a throwback to old notions of children as property. Section 43 reinforces and compounds children's vulnerability and disadvantage by withdrawing the protection of the criminal law. Moreover, because the accused is the very person most often charged with the control and trusteeship of the child, being deprived of the legal protection to which everyone else is presumptively entitled exacerbates the already vulnerable position of children. The entitlement to protection is derived by virtue of our status as persons and the status of children as persons deserves equal recognition."

Full text of the judgment is at: www.lexum.umontreal.ca/csc-scc/en/pub/2004/vol1/html/2004scr1_0076.html

Corinne Robertshaw, founder/Coordinator of the "Repeal 43" Committee commented on the judgment: "We began our campaign to convince politicians to repeal section 43 ten years ago. The Supreme Court's mixed message means we will continue our campaign until this harmful and discriminatory relic of the 19th century is ended." See www.repeal43.org

Details of the lower courts' (Ontario Superior Court and Ontario Court of Appeal) judgments rejecting the application can also be read here.

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