Section 43 of the Criminal Code of Canada states:
Every school teacher, 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 in the circumstances.
Section 43 creates a defence for parents, parent substitutes and teachers who are charged with physically assaulting a child in their care. It assumes that using force to “correct” a child’s behaviour can be “reasonable”.
The Canadian Foundation for Children, Youth and the Law was funded by the Court Challenges Program to challenge section 43 of the Criminal Code based upon the constitutional argument that it infringes a child’s equality rights under section 15 of the Canadian Charter of Rights and Freedoms. Ailsa Watkinson initially applied to the program to fund the litigation and worked in consultation with Canadian Foundation for Children, Youth and the Law throughout the litigation.
Cheryl Milne, staff lawyer with the clinic at that time, and Paul Schabas of Blake, Cassels & Graydon were legal counsel on the case. Paul Schabas provided his services on a pro bono basis.
In 1998, the Canadian Foundation for Children, Youth and the Law commenced an application in the Ontario Court (General Division), now the Ontario Superior Court, as a public interest litigant for a declaration that section 43 of the Criminal Code is unconstitutional. The primary basis for the challenge was the legal argument that the defence infringes the child’s right to equal benefit and protection of the law under section 15 of the Charter, and the child’s right to security of the person under section 7 of the Charter. Reliance was also placed upon Canada’s obligations under the U.N. Convention on the Rights of the Child.
The expert witnesses who filed affidavits in support of the application included:
- Dr. Murray Straus, a sociologist with the University of New Hampshire and a leading researcher on corporal punishment;
- Dr. Joan Durrant, a psychologist at the University of Manitoba;
- Dr. Jim Garbarino, a leading expert on child abuse and youth violence at Cornell University;
- Dr. George Holden, a psychologist at the University of Texas and an expert on child development;
- Peter Newell, a leading international advocate on the issue of corporal punishment and the U.N. Convention on the Rights of the Child;
- Prof. A. Wayne MacKay, a law professor at Dalhousie Law School and an education and constitutional law expert;
- Prof. Edward Morgan, an international law expert at the University of Toronto Law School; and
- Prof. Tammy Landau, a criminology professor at Ryerson Polytechnic University, who conducted research on police response to incidents involving the corporal punishment of children in some Canadian communities.
A coalition of groups filed an application to intervene in the matter in support of our application at the Ontario Superior Court. This group included:
- Ontario Association of Children’s Aid Societies, Defence for Children International
- Child Welfare League of Canada the National Youth in Care Network
- Society for Children and Youth B.C.
- Canadian Council of Provincial Child Advocates
- Repeal 43 Committee
- Canadian Nurses Association and the Canadian Association of Social Workers.
Intervener status was granted only to the Ontario Association of Children’s Aid Societies. They were represented throughout, on a pro bono basis, by Greg Richards of the law firm Weir Foulds LLP.
The Attorney General in Right of Canada as represented by the Department of Justice opposed the application. The Canadian Teachers’ Federation was granted intervener status as a party to file evidence with respect to the effect of section 43 on teachers. They opposed the repeal of section 43 although their stated policy position is that teachers should not use corporal punishment on students. A coalition of groups calling itself the Coalition for Family Autonomy, which included Focus on the Family, REAL Women of Canada, Canadian Family Action Coalition, and the Home School Legal Defence Association of Canada, also were granted intervener status to argue in favour of the section.
In July 2000, Justice McCombs ruled that section 43 was constitutional and dismissed the application. An appeal was heard by the Ontario Court of Appeal in September 2001. On January 15, 2002, that Court dismissed the appeal and again upheld the constitutionality of the section stating that the objective of the section is “to permit parents and teachers to apply strictly limited corrective force to children without criminal sanctions so that they can carry out their important responsibilities to train and nurture children without the harm that such sanctions would bring to them, to their tasks, and to the families concerned” [emphasis added].
The Foundation was granted leave to appeal to the Supreme Court of Canada. The interveners at the courts below continued to participate with the addition of the Child Welfare League of Canada, represented by Michael Barrick and Christopher Whalen of McCarthy Tetrault LLP, and the Commission des droits to de la personne and des droits de la jeunesse, on its own behalf and on behalf of the Canadian Counsel of Provincial Child Advocates.
The Appeal was heard on June 6, 2004, and the Supreme Court delivered its decision on January 30, 2005. A majority of the Court declared the section to be constitutional but narrowed its interpretation to include only the use of force that was of a trifling nature. Specifically, the majority of the held that the following actions would not be reasonable under the section:
- Force that causes harm or might cause bodily harm;
- Force used because the person is angry, frustrated, have lost their temper or because they have an “abusive personality”;
- Use of force on a child under 2 years old or a on a teenager;
- Use of an object to hit a child;
- Hitting a child on the head;
- Doing anything degrading, inhumane or harmful;
- Use of force on children who have disabilities which make it hard for them to learn;
- Use of corporal punishment by a teacher.
The Court was divided in its decision with a minority stating that the section did infringe the Charter. Justice Binnie would have held that the section infringed section 15 of the Charter but was justified under section 1 with respect to parents but not teachers. Justice Arbour found that the section infringes children’s rights under section 7 of the Charter, while Justice Deschamps found that it violated section 15. Both Justices Arbour and Deschamps were of the opinion that the infringements were not justified under section 1.